United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2007/E01055.html
Cite as: [2007] UKVAT(Excise) E01055, [2007] UKVAT(Excise) E1055

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Balbir Singh Sagoo v Revenue & Customs [2007] UKVAT(Excise) E01055 (20 July 2007)

E01055

EXCISE DUTY — seizure of alcohol and goods — did tribunal have jurisdiction to consider legality of seizure — on the facts yes — was the refusal of restoration of vehicle and goods reasonable — no — hardship considered — further review directed — appeal allowed

MANCHESTER TRIBUNAL CENTRE

BALBIR SINGH SAGOO Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Lady Mitting

Marjorie Kostick BA FCA CTA

Sitting in public in Birmingham on 5 March 2007 and 5 June 2007

Mrs Rama Sall appeared on behalf of the Appellant

Mr Christopher Watson, counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2007

DECISION

1. The decision under appeal is the review decision dated 17 November 2005 to refuse restoration to the Appellant of excise goods and a Vauxhall Vectra motor car R75 FAW seized from him on 7 August 2005.

Preliminary issue on jurisdiction

2. Mr Sagoo and his son, Mr Prem Sagoo, were stopped at the UK control zone at Coquelles, France on 7 August 2005. They had been travelling in the Vauxhall which was owned and was being driven by the Appellant. On being questioned, the Appellant produced receipts for the following excise goods which were then found in the vehicle:

6.4 kg (128 Pouches) Golden Virginia Tobacco

2000 B&H Gold Cigarettes

120 litres Stella Beer

107.25 litres mixed still wine

33.4 litres Chivas Regal Whisky

Mr Sagoo and his son answered preliminary questions but declined to stay for interview and the goods and the vehicle were seized.

3. By letter dated 9 August 2005, Mr Sagoo challenged the legality of the seizure claiming, in effect, that the goods were for his own use. Mr Sagoo also claimed restoration of the goods and vehicle which was refused by letter dated 5 September 2005. In the course of that letter, the officer wrote that he had not considered the legality or the correctness of the seizure as this was to be the subject of proceedings in the Magistrates Court.
4. On 15 September 2005, a rather fuller letter was written by the Respondents which contained the following:

"What happens now

The Commissioners of Revenue & Customs have treated your letter as a claim against forfeiture of the goods and will shortly institute proceedings at a Magistrates' Court near to where the seizure occurred. This matter will not be re-assessed and the papers have now been passed to our Solicitors. You will in due course receive a summons from the Court telling you when and where you should appear.

The Court will decide whether they consider the goods were correctly seized. I must also inform you that should the Court decide that the things should be condemned as liable to forfeiture, Revenue & Customs normally ask for a contribution towards the costs to be awarded which are likely to be not less than £1,500.

If you decide that you do not wish to proceed with your challenge you must notify Customs of this in writing if you wish to avoid costs. Please do so within 14 days of the date of this letter.

If we do not hear from you civil proceedings will be instigated without further notice. If you withdraw from these proceedings after they have been commenced or do not attend court when notified to do so, you may have the costs awarded against you."

5. Mr Sagoo replied by letter dated 26 September 2005. This was an extremely lengthy letter dealing with all the circumstances of the seizure and his contention with respect to the goods and ended with the statement:

"You have asked if I want to go to court, I do not intend to go to court, I want this matter to be resolved as soon as possible that is the reason to why we have wrote and called in a number of times".

The Respondents replied by letter dated 28 September 2005 thanking Mr Sagoo for his letter of 26 September and stating:

"I can confirm that condemnation proceedings have been withdrawn at your request and our Court Liason Unit have been notified of this. No court hearing will take place."

6. Against this factual background, we heard oral evidence from Mrs Rama Sall, the daughter of the Appellant, and from Mr Sagoo himself. With the consent of Mr Watson, Mrs Sall acted as interpreter for her father. The gist of their oral evidence was to the effect that Mr Sagoo's letter of 26 September 2005 had been written for him by another of his daughters, Mrs Singh. Mrs Singh had discussed the case at length with her father and had then typed out what she believed to be what he wanted to say. She then gave him the letter to sign. Mr Sagoo did not read it as his English was not up to it and merely signed it. Mr Sagoo and his daughter discussed what were to be the contents of the letter in their own language and Mrs Singh then of course translated for the purposes of the letter. Somewhere in this process, Mr Sagoo told us that his daughter either misinterpreted or mistranslated what his wishes in effect were. Mr Sagoo wished to say that he did not want to go to court and would rather the matter were resolved otherwise but if that were not possible then he clearly would go to court. Unfortunately through the misunderstanding between them, Mrs Singh had interpreted this and written that Mr Sagoo did not intend to go to court.
7. Mr Sagoo told us that on receipt of the Respondents' letter informing him of the withdrawal of the condemnation proceedings, his daughter made a call to the Respondents explaining that this was not what had been intended and asking if the proceedings could be reinstated to which she was told that this was not possible. We asked Mr Watson if the Respondents had any record of this telephone call and within the case file a telephone log was found which recorded phone calls from Mr Sagoo himself on 30 September 2005 and from his daughter on 4 October. We were not shown the telephone log but were told that the record accorded with the evidence we had heard.
8. We accept the evidence of Mr Sagoo and we believe and accept that it was never his intention that the condemnation proceedings should be withdrawn. What he had intended to do was convey a reluctance to go to court if the matter could otherwise be resolved but if not, then he certainly wished to proceed. Through a linguistic misunderstanding in either interpretation or translation, his view was incorrectly portrayed in Mrs Singh's letter. That this is the true position is of course backed up and reinforced by the telephone calls of 30 September and 4 October.
9. Mr Watson addressed us on the nature of our jurisdiction and we referred ourselves to the cases of Gascoigne v Commissioners of Customs and Excise (2005) CH215 and to the case of Commissioners of Customs and Excise v David Weller (2006) EWHC 237 (CH). In Weller at paragraph 15, Evans-Lombe J referred to the approach of Lewinson J in Gascoigne and then went on to say in paragraph 16:

"I respectfully agree with Mr Justice Lewison's approach in this case, namely, that, whether or not an importer, having suffered a deemed forfeiture under paragraph 5 of schedule 3, is able to raise the validity of the forfeiture on a review by the Commissioners and on appeal from them to the Tribunal, depends on two questions, first, did the importer have a realistic opportunity to invoke the condemnation procedure and, secondly, if he did, are there nonetheless reasons, disclosed by the facts of the case which should persuade the Commissioners or the tribunal to permit him to reopen the question of the validity of the original seizure on an application for return of the goods."

10. In this case, and given the nature of our findings of fact, we believe that the circumstances are such that, unusually, the Appellant should be allowed to open the question of the validity of the original seizure. In all the circumstances we therefore are allowing Mr Sagoo to raise before the Tribunal the issue of whether or not the goods had been purchased for own use. In so finding, we should make it clear that we offer no criticism of the conduct of the Respondents. They had what appeared to them to be a clear and unequivocal request to withdraw the condemnation proceedings and they obviously cannot be criticised for acting upon it. Having announced our decision on the preliminary issue, Mr Watson asked us to record, which we now do, that the Respondents did not accept that the issue of own use should be re-opened and specifically did not accept that we had jurisdiction to consider private use.

The Main Issues

11. Given our decision on the preliminary issue, the matters now before us are first, whether or not the goods and the vehicle were liable to forfeiture and secondly, was the decision of the Respondents to refuse restoration of both reasonable.

Background to the Seizure

12. A number of previous trips by the Appellant had been recorded. On 12 November 2001 at Dover, tobacco goods and a vehicle were seized from Mr Sagoo who had been travelling with his son Mr Prem Sagoo. Mr Sagoo appealed to the Tribunal and there was a re-review directed. The result of the re-review was that there would be no restoration of the goods but in the light of the Commissioners' revised policy on first time importations of small quantities and also on the grounds of hardship, conditional restoration of the vehicle was offered.
13. Mr Sagoo was also recorded as travelling on 17 January 2004. He was carrying some beer and 45 pouches of tobacco. He was stopped and allowed to proceed. The vehicle was further recorded on 22 May 2004, 3 July 2004, 31 July 2004, 13 November 2004, 18 December 2004 and 22 January 2005. On none of those occasions was it stopped. On 19 February 2005, Mr Sagoo was stopped. He was carrying some beer and 3 kg of tobacco and was allowed to proceed. He was stopped again on 4 April 2005 when he was carrying beer, whisky and 2kg of tobacco and again he was allowed to proceed. His vehicle was also recorded on 18 June 2005 but Mr Sagoo was not stopped on that occasion.

The Evidence

14. The intercepting officer on 7 August 2005 was Mr John Barnard, from whom we heard oral evidence. In response to questioning, Mr Sagoo said that he and his son had been to Calais and Belgium. He declared the goods purchased and produced receipts for them. Mr Barnard then asked Mr Sagoo if he had been stopped by Customs and Excise before. In response, Mr Sagoo said "Not really, no" and when asked what that meant, he said "They stop us and check what we have and that's it". Mr Sagoo told Mr Barnard that he had last travelled about eight weeks before when he had purchased the "limit for tobacco" of which he had smoked all but four or five pouches. Mr Prem Sagoo said that he had last travelled eight or nine months previously. Another officer was at this stage examining the vehicle and he found an envelope marked "Wedding evidence" which he passed to Mr Barnard. Mr Sagoo and his son both agreed and signed the record of the questioning. Mr Barnard read out the standard form commerciality statement and asked if Mr Sagoo and his son would stay for further questioning. Mr Sagoo's answer was that that would depend upon whether he was allowed to keep the goods at the end of it. Mr Barnard responded that he could not say that until he had interviewed them further, but the men declined to stay for questioning, Mr Sagoo saying "Can you give us the paperwork for the goods and the car and we will take it to court. We will get it back like we did last time. The whisky is for the wedding. What do you want me to do? Drink the beer, smoke the tobacco?". Mr Sagoo then accused Mr Barnard of stopping him only because he was Asian, a suggestion refuted by Mr Barnard, who pointed out a white couple in the adjoining bay and a coach full of white people which had also been stopped. Mr Sagoo also pointed out that his son was disabled and Mr Prem Sagoo lifted his trouser leg to reveal a brace on his lower right leg. Mr Barnard told the men that he believed the goods had been brought in for commercial purpose and he seized both goods and vehicle. His recorded reasons were (i) declined to stay and answer further questions; (ii) during questioning Mr Sagoo had stated that he had last travelled two months previously importing 60 pouches of tobacco, most of which he had smoked; (iii) previous seizure; (iv) previous interceptions with similar quantities.
15. In his oral evidence, Mr Barnard said that he had observed no obvious sign of difficulty in Mr Prem Sagoo's walking. He noted in his book that he had been able to walk around the examination garage, assisting his father in the removal of personal property from the vehicle.
16. The review decision to refuse restoration against which Mr Sagoo now appeals was carried out by Mr David Cawthraw, from whom we also heard oral evidence. When he carried out his review, Mr Cawthraw had in front of him, inter alia, letters from Mr Sagoo dated 26 September 2005 and 14 November 2005. This correspondence stressed that the alcohol had been purchased for the wedding of Mr Sagoo's niece. Several documents were enclosed to evidence the wedding, including the wedding certificate. It was also stressed in the correspondence that the tobacco and cigarettes were to be shared equally between Mr Sagoo and his son and that the tobacco would be shared around amongst members of the family. An invoice from Mr Sagoo's local cash and carry was also enclosed, evidencing the purchasing of replacement whisky for the wedding. Mr Sagoo also stated that there was a Nissan Micra motor car registered in his name but belonging not to him but to his daughter. He pointed out, however, that this vehicle would not carry his son as his son was of a large frame and was unable to bend his legs sufficiently to get into it. The letter of the 26 September gave further information about the nature of his son's disability. Mr Sagoo wrote "My son has a weakness in both legs, he wears a splint on a daily basis which has to be worn for the rest of his life as he has a drop foot. Which means that he has no control on his foot to walk. Long periods of standing around or walking on his legs results in swelling and then further injury." Mr Sagoo also made the point in this letter that his son's condition had worsened quite considerably as a result of having to stand around for a long time on the day of the seizure. Mr Sagoo wrote that this had caused his son's leg to swell, which had caused the foot to fracture and the knee to dislocate. Mr Sagoo enclosed, by way of documentary evidence, a copy referral letter dated 16 August 2005 from his son's GP to the hospital. This letter stated that "This gentleman has drop foot and wears a splint. He has stated suffered injury to his right toe and foot – has pain". The report back from the hospital, also dated 16 August diagnoses "minor flake prox joint – right great toe. The treatment was analgesia and stated that the patient had been discharged".
17. Mr Cawthraw did not look, in his review, at the legality of the seizure. In his letter he expressly stated:

"As you have not challenged the legality of the seizure, the things are confirmed as held in the UK for a commercial purpose and condemned as forfeit to the Crown by the passage of time under paragraph 5 of Schedule 3 of CEMA."

18. Mr Cawthraw based his review therefore on the assumption that the goods were commercially held and were not for own use. Mr Cawthraw, in his review, pointed out the frequency of the trips made by Mr Sagoo, that he had been stopped on a number of occasions and on one occasion had had a vehicle and goods seized. He took the view that Mr Sagoo had been attempting to mislead Mr Barnard about his previous history in the answers which he gave on interception. He took the view that Mr Sagoo was being untruthful and was attempting to disguise the amounts being brought in. Equally, Mr Cawthraw could not see that the men had a valid reason for not staying for questions. He accepted that the wedding had taken place but, without the benefit of further questioning, was unable to conclude that the goods had been purchased for the wedding. Mr Cawthraw did not accept the goods were all for the wedding and refused restoration of any of them.
19. With regard to the vehicle, Mr Cawthraw reiterated departmental policy that vehicles would be considered for restoration where the traveller could demonstrate that the excise goods were to be supplied at purchase price and not for profit but he concluded that this had not been shown and the vehicle could therefore not be restored under that element of the policy.
20. Mr Cawthraw expressed sympathy for Mr Prem Sagoo's disability but he had established that there were two further vehicles registered to Mr Sagoo Senior, the Nissan Micra G676 LWD and a Rover 420. Mr Cawthraw seemed to accept that the Micra was not big enough to accommodate his son but the Rover would have been and he concluded from this that Mr Sagoo had not shown any exceptional hardship. Mr Cawthraw also added one further point in relation to the Nissan. He had ascertained that this vehicle had been registered in Mr Sagoo's name when the review was being carried out into the 2001 seizure. At that stage, Mr Sagoo had told the review officer that the vehicle had in fact been scrapped and had sent in a receipt for £10 from a scrap merchant. Mr Cawthraw concluded that as the vehicle was still registered in Mr Sagoo's name, it had not been scrapped at all and further that Mr Sagoo had deliberately misled the earlier officer. This supported Mr Cawthraw's view that Mr Sagoo's evidence was not reliable.
21. Mr Sagoo Senior, in his evidence, told us that the alcohol which he had bought was all for his niece's wedding. The cigarettes and tobacco were half for himself and half for his son. His share would be smoked by himself and his two sons in law. Although he made frequent trips abroad, he would purchase only as much tobacco as he needed. He had refused to stay for interview because he had seen no point in it. He was angry with Mr Barnard, whom he thought was not interested in what Mr Sagoo had to say. He did not seem interested in the wedding invitation and was not taking his son's disability seriously either. This had made him angry. He explained what he had meant when he replied "Not really" to Mr Barnard's question as to whether he had been stopped by Customs before. He, in effect, discounted the November 2001 seizure because he had "won the case". The vehicle had been restored to him on terms. He was therefore being truthful when he merely said that he was stopped and allowed to proceed. His trips abroad cost him, in travelling expenses, approximately £150 per trip. Sometimes he was accompanied by his son, although he had not been for some 18 months. Other times he may be accompanied by a friend. Mr Sagoo was questioned at some length by Mr Watson about his motor vehicles. At the time when Mr Cawthraw did his review, the only two vehicles registered to Mr Sagoo were the G registered Micra and the Rover. Mr Sagoo told us that the Micra had been scrapped. He had not himself notified the DVLA but had given the log book to the scrap dealer and had assumed that he would do the rest. This had been replaced by an M registered Micra but his son was unable to use this because it was too small for him to swing his leg in and out of. The Rover had been purchased at auction immediately after the seizure. It had been very cheap and only ran for a week or two before the radiator began to leak. The vehicle was not repairable. He replaced it with a Peugeot, purchased again at auction, on 28 January 2006. This again was not expensive and the engine went on it. A Citroen was purchased in August 2006 but again the engine went on that. Finally, a Renault was purchased in May 2007 which he was keeping. A car was essential for taking his son to and from hospital appointments. All the vehicles he bought were cheap. He himself did not have sufficient money to buy them but borrowed funds from the rest of the family.
22. Mr Prem Sagoo told us of the full extent of his medical condition which is apparently called Exostuses. It is a hereditary condition for which he has already had 14 operations on his legs, back, wrists and right arm. In one of the operations, a nerve was damaged, which has led to a right drop foot. The effect is that Mr Sagoo cannot stand for long as his knees lock and swell. His legs have to be kept straight as to bend them restricts the blood flow and leads to pain. He is unable to work and does not get out much as he can only go out accompanied by someone in case he falls. He relies on friends to come and collect him or on his father. He never travels by bus because of the fear of falling when he climbs on or off. He is still regularly monitored by the hospital as the condition is potentially dangerous as he has some tissue growing over an artery. He also has physiotherapy treatment about once a month. He was educated at a special needs school. He re-iterated what his father had told us, that he would be unable to climb in and out of the Micra. Mr Watson put it to him that the symptoms he described appeared to be inconsistent. Mr Sagoo denied any inconsistency but stressed that the condition was weather sensitive and the pain and the actual symptoms suffered did vary from day to day. He felt unable to rely on friends to take him wherever he wanted as that would have been to take advantage of them. He confirmed that one half of the cigarettes and tobacco were for him. He would not smoke them all but when his friends came round they would be offered around.

Submissions

23. It was Mr Watson's first submission that the seizure was legal and that Mr Barnard was entirely justified in taking the action which he did. Mr Sagoo had not been entirely open with the officer and in declining to stay and answer questions, Mr Barnard was driven to the only possible conclusion, namely that Mr Sagoo had something to hide and that the goods were in fact being imported for a commercial purpose. On the issue of restoration, Mr Watson submitted that Mr Cawthraw's decision was logical and reasonable and on the question of hardship, Mr Watson pointed to the availability of other cars. He also invited us to treat with some scepticism Mr Prem Sagoo's description of his symptoms. He stressed the absence of any medical evidence and that whilst accepting that there was a disability, that did not inevitably mean that the non-restoration of the vehicle would cause exceptional hardship.
24. Mrs Sall stressed that her father believed he was within his rights not to stay for further questioning. He had already been there for at least a couple of hours and was genuinely angry at Mr Barnard's apparent indifference. She stressed the genuineness of her brother's disability and that the vehicles which her father had purchased after the seizure were mostly scrap at most.

Conclusions

25. The first point we should make is that, to the best of our knowledge, Mr Prem Sagoo, has not appealed to the tribunal. We heard evidence from both Mr Sagoo Senior and from his son that the cigarettes and tobacco were purchased in equal shares. We have no reason to doubt this evidence and we are not therefore concerned with the totality of the tobacco imported, but only with the Appellant's half share. There was no suggestion that Mr Prem Sagoo had any part in the purchase of the alcohol which we take to be attributable to the Appellant in its entirety.

The legality of the seizure

26. Mr Sagoo provided abundant evidence of the marriage of his niece and we have no difficulty in accepting that the marriage took place. We also fully accept Mr Sagoo's evidence that the alcohol which he purchased was for the purposes of the wedding. We were told that there would have been a party the day before for 50 or 60 people and the reception on the day of the wedding, attended by some 500. Additionally, we were shown the invoice from the cash and carry for the replacement whisky. Had the whisky not been for a specific purpose, a replacement purchase would hardly have been made. We are not, however, satisfied that the cigarettes and tobacco were purchased for own use. We do not place quite so much weight on the Appellant's refusal to stay for further questioning, as do Mr Barnard and Mr Cawthraw. Obviously, it would have been preferable if the men had stayed but we accept that Mr Sagoo acted, in anger, when he genuinely thought that Mr Barnard was not paying sufficient attention to the wedding invitation and to Mr Prem Sagoo's medical condition. We do not take the failure to stay for further questioning as an indication of guilt. We are, however, not so accepting of the failure to be open with Mr Barnard about the previous interceptions. To say "Not really" and when pressed "They stop us and check what we have and that's it" is quite clearly an untruth. Certainly that had been the case in the previous three interceptions but, under no circumstances, correctly describe what happened in 2001. The outcome of the 2001 case does not put it into that category, the goods were never restored and the vehicle was only restored conditionally.
27. We believe that in giving his answers, Mr Sagoo was deliberately deflecting Mr Barnard from that seizure in 2001. We understand from the evidence we heard that on each and every occasion, Mr Sagoo purchased as much tobacco as he needed. Each consignment may well have been within the guide levels but this does not of itself automatically mean the purchase was for own use. We know from Mr Sagoo that he shared his tobacco with his son and sons in law and it just does not make economic sense for Mr Sagoo, at a cost of £150 per round trip, to make such frequent trips to purchase small quantities of tobacco for himself and his family. Mr Sagoo put no evidence in of his means but we were told that he had insufficient funds to purchase his vehicles, all of which appeared to have been very cheap, and as he described, little more than scrap. We know from the questions that Mr Barnard asked that Mr Sagoo Senior works in a factory, packing clothes, and it appears unlikely that this provides sufficient funding for such generosity with his purchases. There was no evidence before us to point to the purchases being made for profit and we see no reason to believe that they were but we do not accept that Mr Sagoo at no time received any financial contribution towards the purchases from the friends and family whom he was keeping supplied.
28. In summary, therefore, we find that the alcohol was purchased for the wedding, which would fall within the definition of own use and was not therefore a commercial importation. With regard to the tobacco, we find that the Appellant's purchase was not for own use. We believe that it was in part passed on to family and friends at cost but even though no profit was made out of it, this does amount to a commercial transaction.

Restoration

29. The limit of our jurisdiction is to consider the reasonableness of Mr Cawthraw's decision. In so doing, we consider whether there were any facts which he omitted to take into account or anything which he considered which he should not have done; whether he gave excessive weight or insufficient weight to any particular matter or whether he made an error in law. If we find the decision to have been unreasonable, we are then limited to directing that a further review should be carried out, although we would expect any such review to take into account any findings which we as a tribunal make.
30. Because Mr Cawthraw knew that the condemnation proceedings had been withdrawn, he did not consider the legality of the seizure. His starting point, and the basis of his review was that this was a commercial transaction and upon this premise, all else followed. As set out in our previous paragraph, we find that the entirety of the transaction was not commercial but only commercial in part and even that part was not for profit. It follows that Mr Cawthraw's decision, because it was based upon an incorrect premise, was inevitably unreasonable. We also feel that we cannot allow to pass, Mr Cawthraw's comment in his review letter on the G registered Micra. Mr Cawthraw believed that because the vehicle remained registered with the DVLA, it had not been scrapped and Mr Sagoo was lying, not only to Mr Cawthraw but had deliberately misled the officer in 2001. The inference Mr Cawthraw drew was that Mr Sagoo had, by deception, secured the return of the seized vehicle. This led him to further question Mr Sagoo's honesty and reliability. We were told that scrap merchants did not always inform the DVLA of vehicles which they were scrapping and we accept that the vehicle was scrapped before 2001 and that in this aspect of his evidence, Mr Sagoo was being honest both to the original review officer and to Mr Cawthraw. In fact, we understand from Mr Watson that the Commissioners themselves also accept now that the vehicle had been scrapped.

Hardship

31. The Appellant and his son did not help themselves in relation to this aspect of the case. The only medical evidence which Mr Cawthraw had before him were the referral letter of 16 August and the result of the referral from the hospital. Neither of these documents gave any indication of the underlying medical condition, and indeed made light of the apparent aggravation of the condition on the day of the seizure. Beyond this, all Mr Cawthraw had were the uncorroborated comments of Mr Sagoo in his letter of 26 September 2005. It is therefore, probably not surprising that he did not realise the full extent of the disability. Indeed, in his review letter, he does not appear to give much heed to the actual medical condition at all, his only comment being to express sympathy with it and then to discuss the available alternative vehicles.
32. Before the tribunal, we heard at length from Mr Prem Sagoo, a description of the extent of his medical condition but again, no corroborative evidence. This was even more surprising given that on the 5 March, we, the tribunal, made a formal direction that medical evidence should be obtained. By way of explanation, we were told that Mr Prem Sagoo did not even seek medical evidence until the end of April or the beginning of May, by which time it was apparently too late for it to be obtained for the tribunal. It is, however, abundantly clear that Mr Prem Sagoo's description is of a condition very much more severe than that envisaged by Mr Cawthraw. It appears to us therefore that if borne out by medical evidence, the disability is substantially more serious and would constitute a far greater disability. His view on hardship must therefore be equally suspect, although we are not blaming Mr Cawthraw for this as the evidence was just not in front of him.
33. In line with our jurisdiction, therefore, we find that Mr Cawthraw's decision to refuse restoration was flawed and must therefore be considered unreasonable and we direct that a further review should be carried out by an officer with no previous knowledge of the case. We direct that the review officer should take into account our findings on the legality of the seizure and should also take a fresh look at the issue of hardship. We believe that the interests of justice would best be served if Mr Prem Sagoo was given one more opportunity to put in corroborative medical evidence. We therefore direct that the review should not be carried out until four weeks have elapsed from the release of this decision and in that time, we suggest that Mr Prem Sagoo does obtain corroborative medical evidence and supplies it to the Respondents. This report should be either from his GP or from a consultant but it must set out full details of the medical condition and its extent and why he is so dependent upon own transport rather than public transport, if indeed that is the case. We direct that the review should be carried out within 42 days of the receipt of such medical evidence or, if none is forthcoming, within 42 days of the expiration of the 28 day period.
34. The appeal is therefore allowed. The Respondents made no application for costs and no order is made.

LADY MITTING

CHAIRMAN
Release Date: 20 July 2007

MAN/05/8057