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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> Secretary of State for Work and Pensions v AM (IS) [2010] UKUT 428 (AAC) (29 November 2010) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2010/428.html Cite as: [2010] UKUT 428 (AAC) |
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DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to dismiss the appeal by the Secretary of State.
The decision of the Leicester First-tier Tribunal dated 28 May 2009 under file
reference 038/08/03060 does not involve any material error on a point of
law. The First-tier Tribunal's decision dated 28 May 2009 therefore
stands.
This decision is given under section 11 of the Tribunals, Courts and
Enforcement Act 2007.
REASONS FOR DECISION
The Upper Tribunal's decision in summary
1. The Secretary of State's appeal to the Upper
Tribunal is dismissed. The decision of the Leicester First-tier Tribunal
dated 28 May 2009 under file reference 038/08/03060 does not involve any
material error on a point of law. The First-tier Tribunal's decision
therefore stands.
2. The practical effect of this decision, subject to any further appeal
by the Secretary of State, is that the sum of £39,067.91 previously found to
have been overpaid by way of income support to the claimant is not recoverable
from her.
A short history of this appeal
3. This appeal has taken many twists and turns. This decision deals only with the more important ones. In 2006 the Secretary of State decided that the claimant was not entitled to income support as she had been living together as husband and wife with Mr S since 1999. The claimant appealed. She lost her appeal at the tribunal ("Tribunal 1"), which decided that she and Mr S had been living together as husband and wife at all material times. The claimant’s subsequent application for permission to appeal to the then Social Security Commissioner (now the Upper Tribunal) was dismissed.
4. In 2007 the Secretary of State decided that as a result a total of
£39,067.91 had been overpaid in income support, and that nearly all of this
(£38,384.36) was recoverable from the claimant on the basis that she had failed
to disclose that since 1999 she had been living together as husband and wife
with Mr S. The claimant again appealed. This time she won her
appeal at the First-tier Tribunal ("Tribunal 2"). The Tribunal
Judge ruled in his Decision Notice that:
"I find that [the claimant] has not lived as husband and wife with [Mr S]
at any time. They have enjoyed a close relationship of longstanding more
akin to that between a brother and a sister than anything else. There
have been unusual aspects to their relationship and they have each performed
compromising acts on behalf of the other but I cannot find, on balance, that
they have lived together in the manner submitted by the Secretary of State. It
follows from my decision that benefit has not been overpaid to [the claimant]
The question of recoverability does not arise."
5. The Secretary of State appeals, with my permission, against the decision of Tribunal 2. I now dismiss the Secretary of State's appeal. The legal submissions on this appeal to the Upper Tribunal have centred on three issues. The first is a rather technical issue about the status of the Secretary of State's original decision in 2006. The second is whether Tribunal 2 was in any way bound by the findings of Tribunal 1. The third is the adequacy of the reasons provided by Tribunal 2 for coming to a different conclusion on the facts to Tribunal 1.
6. The claimant, who does not have a representative in these proceedings, has understandably not addressed the legal technicalities of the case. Her argument, in short, is that the Department for Work and Pensions (DWP) never properly investigated the case and that she was never living with Mr S. She writes that she was taken to the Crown Court in 2009, which asked “the DWP to provide their evidence but they refused and I was not guilty... [Mr S] has never been seen entering or leaving my property even though my house was watched over a 7 month period.”
7. The claimant also asks for an oral hearing as “I would like to have my say and put my points across as I feel that it is unfair this has to be dragged on for 4 years”. In the circumstances, however, I am refusing that request as I can decide the case in her favour and more quickly without an oral hearing. Before dealing with the three issues identified in paragraph 5 above, the background to the present appeal needs to be explained more fully.
The background to, and the decision of, Tribunal 1
8. The claimant, who is now aged 33, had been in receipt of income
support as a lone parent since April 1995. In September 2006 she was
interviewed by a DWP investigator about the nature of her relationship with Mr
S, a man now aged 30 who she had known since the age of 9. The
information obtained by the investigating officer was then passed to a DWP
decision maker. On 12 October 2006 a decision maker reviewed the evidence
and filed a review of the evidence obtained, headed "Supporting Document:
Decision". Having considered the evidence, the author of that
document concluded "I have therefore decided that she has been living as
husband and wife with [Mr G] since 10/10/1999 when she moved to this
address".
9. Also on 12 October 2006 the same officer wrote to the
claimant. The key passage in the letter read as follows:
“Dear [claimant's name]
About your income support
I am writing to tell you that we have decided you and [Mr S] are living
together as husband and wife or civil partners. We have made this
decision using the information you gave us on 14/9/2006.
When two people live together as husband and wife or civil partners we work out
their Income Support as if they were married or in a civil partnership.
This means that from 10/10/1999 we cannot pay you Income Support because your
partner is in full time work."
10. The claimant's subsequent letter of appeal read in part as follows: "I disagree with your decision to stop my income support reclaim. I do not have a partner living with me." The grounds of appeal were confirmed by her then solicitors, who wrote: "We confirm the reason for our Client's appeal is that she contests the sole reason to stop payments of her income support namely that she and [Mr S] are living together as husband and wife or civil partners".
11. The DWP submission to Tribunal 1 included the following assertion in
the Summary of Facts: "On 12th October 2006, the Decision Maker decided
that [the claimant and Mr S] are living together as husband and wife and have
been since 10th October 1999. [The claimant] has appealed that decision,
because she states that she does not have a partner living with her."
12. Tribunal 1 heard the claimant's appeal on 20 September 2007.
The claimant (but not Mr S) attended with her father, and a presenting officer
was also at the hearing. The tribunal's decision was summarised as follows:
“The appeal is disallowed. The decision of the Secretary of State issued
on the 12/10/2006 is confirmed. [The claimant] has been found to be living
together with [Mr S] from 10 October 1999 as husband and wife.”
13. The tribunal judge issued a very detailed Statement of Reasons running in total to seven pages. She found that the claimant was “an inconsistent witness, her explanation of events is inherently improbable and therefore unreliable”. The tribunal’s decision is summed up in the following passage:
“The nature of the couple’s relationship is one of financial and practical interdependence and collusion. [Mr S] uses [the claimant’s] address for all formal purposes, and furthermore [the claimant] refuses to give an address for [Mr S] although she insists he lives independently of her and she knows his address...This relationship extends beyond friendship; the parties have on more than one occasion misled important legal and administrative organisations and supported each other in this... I therefore conclude on the balance of probabilities that the parties are living together as husband and wife within the same household at [claimant’s address] and have done so since 10.10.1999.”
14. The claimant applied for permission to appeal against the decision of Tribunal 1. Mrs Commissioner Jupp (as she then was) refused permission to appeal on 10 March 2008, ruling that the tribunal had made appropriate findings of fact and had provided a “clear and detailed explanation of why the tribunal made its decision” (in the application under reference CIS/573/2008). Having reviewed the file more recently, I respectfully agree.
The background to, and the decision of, Tribunal 2
15. Meanwhile, the DWP had been taking other steps. On 22 November 2007,
two months after Tribunal 1 had heard the appeal on the “living together”
issue, a different DWP decision maker made an overpayment decision. It was
decided that the claimant had failed to disclose that Mr S was a member of her
household, and the result was an overpayment of income support for a period
from 2003 to 2006. The total overpayment was found to be £39,067.91, of which
the bulk (£38,384.36) was found to be recoverable. The claimant appealed,
stating that she was a lone parent throughout the period in question and
pointing out that she still had an ongoing further appeal in relation to the
decision of Tribunal 1.
16. The overpayment decision was reconsidered a year later on 18 November 2008 by a different decision maker. That officer noted that permission to appeal had been refused as regards Tribunal 1 and left the overpayment decision unchanged. She added: “It is not clear why the overpayment was not calculated from 10/10/99 but I assume this is because the benefit records do not go back that far.”
17. The claimant’s appeal against the overpayment decision came before Tribunal 2 on 28 May 2009. On this occasion the alleged partner, Mr S, attended, as well as the claimant, her father and a DWP presenting officer. The Record of Proceedings makes it plain that Tribunal 2 actually had before it three appeals. The first, and most important, was the claimant’s appeal against the decision of 22 November 2007 that there was a substantial recoverable overpayment. The second was the claimant’s appeal against a subsequent decision dated 27 February 2008 that there was no entitlement to income support on a new claim from 6 November 2007. The third was against a decision dated 1 May 2008 that there had been a recoverable overpayment of £451.80 for the period from 6 November 2007 to 28 January 2008. It was accepted that the latter two appeals had to succeed as there had been no prior revision or supersession decision in respect of those awards.
18. The District Tribunal Judge who heard the appeal issued a detailed
Decision Notice on the day. It read in part as follows:
“This is an exceptionally difficult decision to make but I make it after considering the evidence available to me and the law that applies. I am mindful that a different Tribunal made a decision on an earlier occasion that is inconsistent with my decision but this is a case where different Tribunals might reasonably reach different conclusions.
I had the benefit of hearing [the claimant] and her witness [Mr S]. They both
gave their evidence under oath and I am confident that they understood the
seriousness of that. Their story was unusual and there were aspects of it that
perhaps stretched credulity but my task is not to cast judgment upon their
moral character; it is to apply the law provided principally at section 71 of
the Social Security Administration Act 1992 to the facts that I find. I am not
bound by the facts found by the previous Tribunal, even where the decision of
that Tribunal was upheld by a Judge of the Upper Tribunal (as she now is) who
refused leave to appeal against it. The decision of the previous Tribunal was
registered under U/42/038/00073. I read the statement of reasons of the Judge
with due care. The decision of the Upper Tribunal was registered under
CIS/573/2008.
In order to establish whether an overpayment is recoverable it is a condition precedent that there has been a revision or supersession of an awarding decision. There has been. I take no issue with that. What I take issue with is whether there had been the failure to disclose or misrepresentation that is required. That depends in this case upon whether [the claimant] was living as husband and wife for the period from 10th October 1999, although the period during which purportedly overpaid benefit was paid was from 22nd March 2003 to 29th September 2006. I am not bound, as I have said, by the decision of the previous Tribunal...”
19. Tribunal 2’s Decision Notice then concluded with the paragraph cited already at paragraph 4 of this decision above. The Secretary of State requested a Statement of Reasons from Tribunal 2. It is fair to say that Tribunal 2’s Statement of Reasons was neither as long nor as fully reasoned as that of Tribunal 1. It ran to a little over 2 sides of print, of which nearly a page was the text of the Decision Notice incorporated into the Statement of Reasons. The other central passages read as follows:
“The law that applies and the issues before the Tribunal
7. This was not a matter where the law, which I have set out adequately above, was in issue. It was one where I was charged to determine whether [the claimant] had failed to disclose the material fact that [Mr S] and she were living in the same household, as the Secretary of State put it, but more properly described as husband and wife. In so deciding I would have regard, if necessary, to those factors that are generally regarded as indicators. They are set out fully at section 6 of the submission prepared on behalf of the Secretary of State.
The evidence considered by the Tribunal and the assessment of it
8. This was a case that was heavy with evidence, in both documentary and spoken form. I took it all into account and considered in the light of the Secretary of State’s submissions. Those submissions were entirely reasonable in the circumstances. It is unnecessary to say more.
Reasons for the decision of the Tribunal
9. It is not possible to state my reasons for making the decision that I did more plainly than I have. I would add that all the Secretary of State submitted as supporting the decision made was put to [the claimant] and that [Mr S] was invited to comment, which he did willingly.
10. I was content that [the claimant and Mr S] were able to answer all that was suggested. I accepted their answers as explanations and reached the conclusion that I did.
11. When requesting this Statement of Reasons the Secretary of State’s representative has not requested my Record of Proceedings. It is appropriate to forward a copy of it to him nevertheless. I accepted what is recorded. For the purpose of this statement it encapsulates my findings of fact.”
20. The Secretary of State then applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal against the decision of Tribunal 2. Remarkably, that application was considered by the District Tribunal Judge on five separate occasions: first for directions, secondly as a refusal of permission, thirdly as a set aside, fourthly as a refusal again and then finally – owing to an administrative oversight – on a fifth occasion when the District Tribunal Judge purported to grant permission to appeal. It is now not in dispute that this grant of permission was a nullity, as the matter had already been concluded at the level of the First-tier Tribunal. However, I gave the Secretary of State permission to appeal to the Upper Tribunal.
The proceedings before the Upper Tribunal
21. The legal submissions in the proceedings before the Upper Tribunal have revolved around the three issues identified in paragraph 5 above. To recap, these are (1) the status of the Secretary of State's original decision on 12 October 2006; (2) whether Tribunal 2 was in any way bound by the findings of Tribunal 1; and (3) the adequacy of the reasons provided by Tribunal 2 for coming to a different conclusion on the facts to Tribunal 1. If the Secretary of State can win on any of those three points, his appeal to the Upper Tribunal must succeed. For the reasons below, I decide all three points against the Secretary of State.
What was the status of the Secretary of State's decision on 12 October 2006?
The context and the Secretary of State’s submission
22. The context of the Secretary of State's original decision on 12 October 2006 is set out at paragraphs 8 and 9 above. Nearly three years later, on 5 October 2009, and in the course of applying to the First-tier Tribunal for permission to appeal against the decision of Tribunal 2, the Secretary of State’s representative for the first time questioned whether the 12 October 2006 decision was valid and effective. The argument ran as follows:
“The ‘decision’ of 12.10.06 was purely a determination on the issue of Living Together as Husband and Wife (LTAHAW) and, importantly, did not cover the issue of revision and/or supersession. The claimant was notified of this determination and appeal rights were incorrectly included in that notification. Therefore neither the Tribunal of 20.09.07 [Tribunal 1], nor subsequently the Commissioner on 10.03.08, had jurisdiction to consider the appeal or consider any application for leave to appeal.
I consider that the Judge in this case [Tribunal 2] was misdirected by the Secretary of State incorrectly stating at section 5(3) of the [submission to Tribunal 2] that entitlement had been considered and I submit that had he not been misdirected in the present case the Judge should have set aside the overpayment decision on the grounds that the provisions of section 71(5A) of the Social Security Administration Act 1992 and referred the case back to the Secretary of State to proceed as appropriate.”
23. In plain English, the Secretary of State’s representative was admitting that the DWP had made a complete mess of the case procedurally. He was saying that the DWP had only ever decided that the couple were living together as husband and wife and had never made a proper decision on the claimant’s entitlement to benefit. So, in effect, the previous three years had been a waste of time and the DWP was entitled to go back to the beginning and start all over again.
24. Paraphrased in those stark terms, it is a deeply unattractive argument. The claimant has been left in limbo for a long period of time (now four years and counting – she explains in her submissions that she has not been able to claim income support and housing benefit for four years and is in debt). The time and expertise of two tribunals and a Social Security Commissioner considering an application for leave to appeal were all to no avail. Depending on how the criminal charges were framed, it may also be that the time of the Crown Court had been wasted. But is the Secretary of State’s representative right on this point?
The Secretary of State’s supporting arguments
25. In terms of the law, the Secretary of State’s argument is founded on the principles set out by Mr Commissioner Mesher, as he then was, in unreported decision CPC/3891/2004 and reported decision R(IS) 13/05. Those decisions are authority for the proposition that a determination of the “living together” issue is simply a “building block” towards an ultimate and conceptually separate outcome decision on entitlement to benefit. It is only the latter conclusion which is a decision capable of appeal under section 12(1) of the Social Security Act 1998. Accordingly, it follows that a tribunal has no jurisdiction to consider an ‘appeal’ against a “living together” determination alone.
26. In terms of the facts, the Secretary of State’s representative relies on the terms of the “Supporting Document: Decision" on file (see paragraph 8 above), which certainly refers only to the “living together” question (and in some detail). He also relies on the terms of the DWP submission to Tribunal 1, cited at paragraph 11 above, which again refers to the “living together” issue. He adds that a careful search of the DWP local office could find no written record of any outcome decision on entitlement covering the period from 22 March 2003 to 29 September 2006 ever having been made. The computerised archive record simply reveals that the claimant’s award of income support was terminated by supersession with effect from and including 30 September 2006. All this, he says, points to there never having been an outcome decision on entitlement – the writer of the 12 October 2006 letter (see paragraph 9 above) had therefore misunderstood the position and so “despite this letter having been issued no outcome decision was ever made. This is a common occurrence unfortunately and often misleads the F-tT and UT [First-tier Tribunal and Upper Tribunal].”
The Upper Tribunal’s conclusions on this issue
27. Starting with the law, the position in CPC/3891/2004 was that the Secretary of State was seeking to argue that on the facts of that case there had by implication indeed been an outcome decision, properly notified, and so the tribunal had jurisdiction to consider the claimant’s appeal. Mr Commissioner Mesher, drawing on his reasoning in another case, CIS/1720/2004, rejected that submission, ruling that there had never been an outcome decision. He explained (at paragraph 13):
28. It seems plain that the letter to the claimant in CPC/3891/2004 did not in terms state that he was not entitled to benefit; rather it advised that he had been found to be living together and that in the case of a couple either partner could be the claimant. Indeed, the letter apparently invited one or other party to apply for pension credit.
29. In R(IS) 13/05 the Secretary of State had decided in July 2003 that the claimant was living together, but again had not made any decision on entitlement to benefit. Mr Commissioner Mesher held that the later overpayment recoverability decision was of no effect, as the living together determination by itself was simply a “building block”. It therefore could not satisfy the condition in section 71(5A) of the Social Security Administration Act 1992 that there must be a valid revision or supersession decision, changing an existing award, as a basis for a decision that an overpayment is recoverable. As Mr Commissioner Mesher further explained (at paragraph 13):
“It is not really appropriate to talk in terms of a defect
in the decision of
16 July 2003. There was nothing wrong with it as a determination on the
question of living together as husband and wife, as one building block as I put
it at the end of paragraph 13 of CIS/1720/2004, that might, with other
determinations, have built to a decision altering the claimant’s entitlement to
income support. It is simply that, if it is contended that the decision altered
the claimant’s entitlement to income support in the periods in question or was
a revision or supersession within the terms of section 71(5A), it gets nowhere
near having that effect. And no process of the correcting or ignoring of defects
can alter that conclusion. Using the terminology of R(IB) 2/04, if it is
contended that the decision had that effect, it had so little connection to the
legal powers to produce that effect that it was not a decision of that kind at
all. The decision did not purport to alter the claimant's entitlement to income
support at all.”
30. So how do those principles apply on the facts of this case? I am satisfied here that there was a valid outcome decision taken on 12 October 2006. I say that for several reasons. The DWP’s letter to the claimant was clear enough; having relayed the “building block” decision about living together, it continued “This means that from 10/10/1999 we cannot pay you Income Support because your partner is in full time work." It is difficult to read that as anything other than the notification of an outcome decision about her entitlement to benefit for a past period. Certainly the claimant understood it in those terms, and reasonably so, and she promptly challenged it.
31. The terms of the DWP submission to Tribunal 1 do not help the Secretary of State, not least as that document then goes on to conclude that “[the claimant] is not entitled to Income Support because the conditions specified by Section 124 of the Contributions and Benefits Act 1992 are not satisfied”. Although expressed in the present tense, that statement followed a discussion of the evidence since 1999.
32. Nor am I persuaded by the fact that neither the clerical records nor the archive printout appears to disclose any decision of 12 October 2006 expressly making an outcome decision on the claimant’s entitlement to benefit. Those records are only as comprehensive as the staff are as efficient at inputting the relevant information. In my judgment the absence of such records cannot undermine the clear language of the letter of 12 October 2006.
33. I also note that in any event there appears to be no statutory requirement that a decision on a benefit claim must be committed to writing in order to qualify as a “decision”, although obviously it is good administrative practice to do so. Certainly there is no such requirement in section 8 of the Social Security Act 1998, which governs decisions by the Secretary of State. Nor is there any such requirement in the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968). The 1987 Regulations do, of course, require that any person with a right of appeal under the 1998 Act or the regulations “shall ... be given written notice of the decision against which the appeal lies” (regulation 28(1)(b)). However, the wording is significant – what the claimant must be sent is “written notice of the decision”, not that the decision itself must be recorded in writing.
34. These comments, of course, are without prejudice to the well-established principle that an official decision which is not properly communicated to the party concerned is, at the very least, for the time being ineffective. In R(I) 14/74 Mr Commissioner Lazarus held that "In my view it is not possible to make an effective decision without communicating it to the person whose rights are dealt with in it. Writing the words of an intended decision on a piece of paper and placing the piece of paper in a file is not a complete decision-making process" (at paragraph 14(a)). In R (Anufrijeva) v Secretary of State for the Home Department and another [2003] UKHL 36, the House of Lords (Lord Bingham of Cornhill dissenting) rejected the argument that a non-communicated decision was nonetheless effective for the purpose of terminating the claimant's income support award, although the majority of their Lordships were not unanimous in explaining the precise scope of that principle (see further GB v CMEC [2009] UKUT 189 (AAC)).
35. Moreover, Judge Powell, sitting as a Deputy Social Security Commissioner in Northern Ireland, has held in decision C10/07-08(IS) that “there are clear and well established lines of authority in both the courts and the decisions of Commissioners that the failure to notify a decision, such as a social security decision made by the Department, to the person or persons concerned, does not necessarily render that decision void, invalid or unenforceable for all purposes. The failure to do so will render the decision inchoate – which in this context means without full effect, of only partial effect or requiring further action to perfect” (at paragraph 22).
36. The precise ambit of the Anufrijeva principle is perhaps uncertain. As Judge Mesher observed in SD v Newcastle City Council [2010] UKUT 306 (AAC) (at paragraph 12):
“I think it best not to speculate about how the Anufrijeva principle might operate in other circumstances. I have no doubt that the central importance given in that case to whether a person is in a position to challenge through legal process a decision that would affect his or her rights is reinforced in the case of a social security decision that purports to take away entitlement for a past period, especially where benefit has been paid for that period.”
37. In the present case, of course, the decision had been communicated; the claimant was left in no doubt that the Secretary of State had decided that she was not entitled to income support for the past period as from October 1999. This affected her rights and she duly appealed.
38. In summary, therefore, in a case such as this the formal position is that the decision maker should (i) review the evidence relating to “living together” and make appropriate findings of fact; (ii) make a “building block” determination about that issue; (iii) review the evidence about income support entitlement and make appropriate findings of fact; (iv) make an outcome decision on that issue; and (v) send a written notice of that appealable outcome decision to the claimant. It may well be that DWP procedures require there to be a written record of each stage of this process.
39. In this context, however, one must be realistic about the way in which DWP local offices operate and the pressures that its staff work under. In the present case we have on file a written record of stages (i) and (ii) of this sequence together with stage (v). The absence of a written record of stages (iii) and (iv) does not mean that those stages (and the supersession process that they represent) did not take place. On the contrary, it may well be that the decision maker in question did not actually commit stages (iii) and (iv) to writing in the form of an office note. However, in my judgment it is highly probable that the decision maker made the entitlement decision, having reviewed the evidence, and then simply took a shortcut. In other words, she took the pragmatic view that there was no need for her to make any further record of the fact that she had made a supersession decision on entitlement. Rather, it was sufficient simply to leave a copy on file of the letter to the claimant, which expressed the outcome decision in plain English. That letter expressly referred to the fact that Mr S was in full-time work (a fact which was irrelevant to stages (i) and (ii) but highly pertinent to stages (iii) and (iv)) as the reason why “we cannot pay you Income Support” (in other words, you have had no entitlement since October 1999).
40. For completeness, before leaving this point I should deal with an issue raised by the District Tribunal Judge in his purported grant of permission to appeal. He accepted (contrary to my conclusion above) that the Secretary of State was probably right to argue now that there had never been a proper outcome decision. He then went on to ask “Has the Commissioner, in CIS/573/2008, perfected the decision that the Secretary of State now submits is fatally flawed in such a way that I could safely proceed to make the decision that I did?”
41. The short answer to that now hypothetical question is No. A decision is either an outcome decision (and so subject to appeal) or it is not. As Mr Commissioner Mesher held in R(IS) 13/05 (see paragraph 29 above) “no process of the correcting or ignoring of defects can alter that conclusion.” So again it is a binary choice: either Tribunal 1 and Mrs Commissioner Jupp both had jurisdiction or they did not. If Tribunal 1 had no jurisdiction, then Mrs Commissioner Jupp had no magic wand to perfect a fatally flawed decision. However, for the reasons set out above, they both had jurisdiction. The question then is whether the findings of Tribunal 1 in any way were in any way binding on Tribunal 2.
Was Tribunal 2 was in any way bound by the findings of Tribunal 1?
The Secretary of State’s submission
42. The Secretary of State’s representative now argues that Tribunal 2 was in effect bound by the findings of Tribunal 1 on the facts relating to the living together issue. He is so bold as to argue that Tribunal 2 “was not entitled to come to a different view of the facts”.
The Secretary of State’s supporting arguments
43. The Secretary of State’s representative relies on just one authority for this proposition, CIS/4423/2006. In that case the DWP had issued an entitlement decision on 16 February 2006 to the effect that the claimant had been overpaid income support for a past period because his partner’s earnings had not been taken into account. The claimant did not appeal that decision. On 24 February 2006 the Secretary of State made a further outcome decision to the effect that, as a result, there had been an overpayment in excess of £15,000 which was recoverable from the claimant because of his failure to disclose the material fact that his wife had part-time earnings. The claimant unsuccessfully appealed that second decision to a tribunal.
44. Mr Commissioner May QC (as he then was), setting aside the tribunal’s decision but substituting a decision to the same effect, agreed with the Secretary of State’s representative that the tribunal had erred by assuming jurisdiction over the entitlement decision of 16 February 2006 even though no appeal had been lodged against that decision. The Commissioner continued (at paragraph 10):
45. In a further passage relied on by the Secretary of State’s representative in the present case, Mr Commissioner May added that:
The Upper Tribunal’s conclusions on this issue
46. I am not persuaded that CIS/4423/2006 is relevant to the present appeal for two reasons. First, there is, of course, a material distinction between the circumstances in the present case and those in CIS/4423/2006 – in the present case the claimant had appealed both the entitlement decision and the later overpayment recoverability decision, albeit with different results. In CIS/4423/2006 the claimant had only appealed the latter decision.
47. Secondly, and with respect, there is a more fundamental problem with the passages in CIS/4423/2006 on which the Secretary of State relies, or at least with the proposition that he seeks to advance on that basis. Section 17(1) of the Social Security Act 1998 certainly provides that “any decision made in accordance with the foregoing provisions of this Chapter shall be final”. So in the present case the entitlement decision confirmed by Tribunal 1, and in respect of which Mrs Commissioner Jupp later refused permission to appeal, was undoubtedly final.
48. However, section 17(2) of the 1998 Act then provides that:
“(2) If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of—
(a) further such decisions;
(b) decisions made under the Child Support Act; and
(c) decisions made under the Vaccine Damage Payments Act.”
49. Some limited provision has been made under section 17(2) (see for example regulation 10 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991)). However, the general principle remains as before, namely that while decisions are final (see section 17(1)) a person or tribunal making a subsequent decision is entitled to rely on an earlier finding of fact but is not bound to do so.
50. In an ideal world, of course, the same tribunal should perhaps normally hear both the entitlement and the overpayment recoverability decisions at the same time. However, if for whatever reason the issues become separated, it is entirely feasible that the tribunal hearing the appeal against the overpayment recoverability decision may reach a different conclusion on the underlying facts at issue in the entitlement decision to the tribunal which heard that earlier appeal. There is a well-established line of Commissioners’ decisions supporting this analysis: see e.g. CIS/1263/1997, CIS/1330/2002 (at paragraphs 15-19), CDLA/2328/2006 (at paragraph 30) and CA/2650/2006 (at paragraphs 16-19). Indeed, Mr Commissioner May QC, whilst not referring to CIS/4423/2006, has since accepted, albeit “with considerable reluctance”, a submission made on behalf of the Secretary of State in a later case that “while, in relation to the determination of fact in relation to whether the claimant and the named man were living together as man and wife, was final and conclusive for the purposes of entitlement, it was not so in relation to the issue of the disclosure of a material fact for the purposes of the overpayment decision made under section 71(5A) of the Social Security Administration Act 1992” (see CIS/3512/2007 at paragraph 8).
51. I do not share Mr Commissioner May QC’s view that it is “absurd that the same issue of fact should be capable of being determined by two separate tribunals in a manner which is contradictory” (CIS/3512/2007 at paragraph 8). One reason is that, as a matter of principle, decisions of one First-tier Tribunal are not binding precedents for another tribunal at the same level, and certainly not as regards issues of fact. Another reason is that although the two tribunals may have to determine the same factual issues, they may not be doing so on the same evidence. For example, in the present case Tribunal 1 did not hear from Mr S, whereas Tribunal 2 did. In addition, the claimant at Tribunal 1 had denied that Mr S lived with her but had refused to give his address on the basis that this would have betrayed a confidence. Tribunal I found her explanation to be implausible; on the other hand, Mr S was at Tribunal 2 and gave evidence on oath about where he was actually living at various times which that tribunal accepted.
52. In conclusion, an entitlement decision necessarily establishes that there has been an overpayment, because it proves that the amount paid during a particular period was more than the claimant was entitled to. But it does not establish that the overpayment is recoverable. That requires a misrepresentation or failure to disclose a material fact. To decide whether that has occurred, the tribunal dealing with the overpayment recoverability decision must first establish what the true facts were. Inevitably this involves consideration of the same matters as were considered in the entitlement decision. However, when making findings of fact, the effect of section 17(2) of the 1992 Act is that the decision maker or tribunal dealing with the overpayment recoverability decision cannot be bound by the findings in relation to those facts made in the course of dealing with the entitlement decision. It follows that the District Tribunal Judge who constituted Tribunal 2 did not err in law on this point. He correctly directed himself that he was not bound by the findings of fact made by Tribunal 1. That leaves the final question, namely whether Tribunal 2’s reasons were adequate.
Were the reasons given by Tribunal 2 adequate?
The Secretary of State’s submission
53. The Secretary of State’s original grounds of appeal were confined to this issue. The Secretary of State argued as follows:
“[Tribunal 1] provided a very comprehensive statement of its reasons for its decision. This was sufficient for the Commissioner to refuse leave to appeal without any further submissions from either the Secretary of State or the claimant.
Although [Tribunal 2] has found, in connection with the overpayment, that the claimant was not living together as husband and wife with [Mr S], which it has the right to do it has not, I submit, provided an equally thorough explanation as to how or why it differs in its conclusions on the ‘living together’ determination from [Tribunal 2] or the Commissioner.”
The Secretary of State’s supporting arguments
54. In a later submission, the Secretary of State’s representative argued that as Tribunal 1 had discharged its duty so thoroughly, “it was incumbent on any subsequent tribunal seeking to overturn the earlier tribunal’s findings to present reasons why that earlier tribunal’s findings are no longer valid.” He argued further that Tribunal 2 had “completely ignored” Tribunal 1’s findings and Tribunal 2’s reasoning was “sadly lacking in argument”.
55. I make two initial observations on the original ground of appeal set out at paragraph 53 above. First, at that stage the Secretary of State had acknowledged that Tribunal 2 was not bound by the findings of Tribunal 2. That position was only changed later in the course of these proceedings. Secondly, in refusing permission to appeal from Tribunal 1, Mrs Commissioner Jupp had not expressed any view on the underlying substantive merits of the question of whether or not the claimant and Mr S were living together. Inevitably, and properly, she confined herself to issues of law, concluding that “the tribunal was entitled to make the decision it did make”. There was, she emphasised, “no arguable case that the tribunal’s decision was wrong in law”.
The Upper Tribunal’s conclusions on this issue
56. The main point, however, is this. Tribunal 2 was not under any obligation to provide “an equally thorough explanation” to that provided by Tribunal 1. As I put it in DC v London Borough of Ealing [2010] UKUT 10 (AAC) at paragraph 62, “Tribunal decisions are not to be graded in the way that an undergraduate essay might be. Rather, in terms of the adequacy of their reasons, there is a simple ‘pass/fail’ binary choice.” So Tribunal 2’s decision might have been more fully expressed; for example, it might have been better to have had a clear and explicit finding of fact that the claimant and Mr S had not been members of the same household at any material time, although that finding was implicit in the terms of the Decision Notice. However, that is not the point. Tribunal 2 was duty bound to produce a decision that was legally effective. In particular, it had to make appropriate findings of fact and give adequate reasons for its decision. The legal test for adequacy of reasons is well established and need not be rehearsed in detail here. Suffice it to say that the purpose of a tribunal’s reasons “remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win” (per Donaldson LJ in UCATT v Brain [1981] IRLR 225).
57. Looked at in that light, the decision of Tribunal 2 clearly told the parties in broad terms why they won or lost. The District Tribunal Judge admitted it was a borderline decision. He certainly did not “completely ignore” Tribunal 1’s findings; he took them into account but took a different view of the claimant’s credibility. In that context it is important to remember that the burden of proof was on the Secretary of State to make out his case. Moreover, reading the Record of Proceedings, the Decision Notice and the Statement of Reasons together, as one must, it is plain why Tribunal 2 reached a different decision to Tribunal 1. Tribunal 2 accepted the account as provided by the claimant and Mr S as to the nature of their relationship and their respective living arrangements, whereas Tribunal 1 (which had only heard from the claimant) had not. Tribunal 2 also had before it Mr S's interview under caution, which had been conducted after the first tribunal hearing. The District Tribunal Judge expressly incorporated as his findings of fact the evidence provided by the claimant and Mr S. Although their account at times “stretched credulity”, the second tribunal was satisfied that they were both telling the truth. To that extent the District Tribunal Judge may well have been right in stating “It is not possible to state my reasons for making the decision that I did more plainly than I have.”
58. For example, one of the unusual aspects of the claimant’s case which “stretched credulity” concerned the circumstances surrounding the registrations (and re-registrations) of the births of the older two of her four children (the younger two had no father registered). The older two children were both originally registered by the claimant alone. In May 1999, however, the claimant and Mr S re-registered the details of both children identifying Mr S as the father of both children. The DWP, unsurprisingly, relied on this as a factor showing that they were living together as husband and wife.
59. The claimant’s case, on the other hand, was that she had been having problems with an abusive former partner called Michael and that Mr S had agreed to be named as the children’s father as a means of protecting both her and the children. Indeed, Tribunal 1 found as a fact that Mr S was not the father of either of the older children, observing that he would have been 13 or 14 at the time of the oldest child’s birth. However, Tribunal 1 certainly regarded this episode as fatally undermining the claimant’s reliability as a witness as to the truth. The tribunal judge on that occasion found that “She has admitted to lying to the Registrar of Births she says in an attempt to protect her children form a violent relationship when common sense would dictate that other remedies including police involvement would have afforded far greater protection.”
60. The claimant repeated her account of this episode to Tribunal 2. She was reported as saying “she [had] deceived the authorities about the birth to protect self from [the true] father. He could not trace where the children were. He did not know where she was either... Same father for all children, she does not know where he is now... Her son puts down his father at school as Mr S because he wanted it to be known that he had a father as he was being bullied”. In incorporating that evidence, Tribunal 2 expressly accepted what was recorded as encapsulating its findings of fact. That was an approach that was open to it in all the circumstances.
61. Some might argue that the scepticism shown by Tribunal 1 as to the claimant’s account of this matter failed to recognise the realities of living in an abusive relationship and coping with domestic violence and displayed an unduly sanguine view of the effectiveness of police intervention. However, that was an approach that was open to Tribunal 1 on the evidence before it. Equally, Tribunal 2 was perfectly entitled to take a different approach to that evidence and to attach both credence to it and not to regard the claimant’s admitted deception of the Registrar of Births as undermining her evidence as a whole. It is, of course, well established that a person’s evidence must be considered in its entirety, and the fact that he or she has lied on occasion does not necessarily mean all their testimony is unreliable (see EPI Environmental Technologies Inc v Symphony Plastic Technologies plc [2005] 1 WLR 3456).
62. The bottom line, therefore, is that Tribunal 2 believed the claimant (and Mr S) whereas Tribunal 1 did not. This is a classic jury question for the tribunal of fact (the First-tier Tribunal). It is axiomatic that it is not for the Upper Tribunal to interfere with the findings of fact made by Tribunal 1 or by Tribunal 2. Indeed, in a case involving allegations of domestic violence in the context of a child support claim, the Court of Appeal has cautioned a Social Security Commissioner (now an Upper Tribunal Judge) from attempting “to reanalyse evidence (which he had not heard) from a perspective that he preferred” (Secretary of State for Work & Pensions v Roach [2006] EWCA Civ 1746, at paragraph 37).
“52. In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted. As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately ‘the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it’.”
64. The issue in CIS/4022/2007 concerned the adequacy of the tribunal’s reasons for a negative credibility finding. In Basildon District Council v AM [2009] UKUT 113 (AAC) I suggested (at paragraph 18) that the legal principles were the same in respect of a positive credibility finding. Whether or not that is right in theory, in practice it may be that the application of those same principles may often result in a requirement for less extensive reasons where the credibility finding is positive. Bearing in mind that “the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it”, could the District Tribunal Judge in Tribunal 2 really say much more than that he believed the account provided by the claimant and Mr S – the essence of which was that although they were friends of longstanding they were not, and had not been, living together in the same household at the same address – and on that basis he had to allow the appeal? In my judgment his fact-finding and reasoning, while perhaps not optimal, was certainly adequate.
Conclusion
65. For the reasons explained above, the decision of the tribunal does not involve a material error of law. The Upper Tribunal therefore dismisses the Secretary of State’s appeal against the decision of the First-tier Tribunal dated 28 May 2009 (Tribunals, Courts and Enforcement Act 2007, section 11).
Signed on the original Nicholas
Wikeley
on 29 November 2010 Judge of the Upper Tribunal
