[2008] NISSCSC C8_07_08(IS) (03 January 2008)

Decision Nos: C8/07-08(IS) & C9/07-08(IS)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

		SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

	INCOME SUPPORT

	Applications by the Department for leave to appeal
	and appeal to a Social Security Commissioner
	on a question of law from Tribunal decisions
	dated 29 May 2007

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Leave to appeal is granted in these two related cases. There is an arguable point of law identified by the Department. It is argued that the tribunal failed in its inquisitorial function and therefore did not conduct a fair hearing as required by Article 6 of the Human Rights Act. I do not consider that it is necessary to conduct an oral hearing. The arguments have been set out in detail in the Department’s submission dated 25 September 2007. The claimant’s representative is no longer acting on her behalf. For the reasons outlined below, I have concluded that the tribunal did not err in law. It complied with its duty to act in an inquisitorial or enabling manner. It gave adequate reasons for its decision. The decision of the tribunal is therefore upheld.

Facts of the Case

2.	The Department by a decision dated  21 December 2004 revised the award of income support (IS) to the claimant and decided that she was not entitled to benefit from 5 November 2001 until 21 December 2004 as she was living with a partner as husband and wife and her partner was in full-time employment.   She appealed to the tribunal on 5 January 2005 and her appeal was upheld.      

3.	The claimant is a divorced female aged 50 who has been in receipt of IS credits since 1991 and disability living allowance middle rate care and high rate mobility component. 

4.	She completed a review form on 31 August 2001 and declared that she lived only with her daughter at that time.

5.	On 9 May 2002, the Child Support Agency (CSA) advised the Department that the claimant had written a note which was presented to the Agency by an absent parent indicating that the absent parent had been her lodger since August 2000 and that he paid £80 per week for his accommodation and board. The note was handwritten and signed by the claimant, but was undated.  

6.	The official from the CSA also commented that the claimant and the lodger were engaged and that, as the claimant was in receipt of IS including the severe disability premium, she should be living alone. 

7.	The claimant was interviewed and made a short statement on 28 May 2002. She acknowledged her relationship with the man identified by the CSA, stating that it had lasted for seven months. However, she also stated that her family had objected to his becoming a lodger and he therefore never took up the tenancy. She stated that he was in full-time employment. She added that, although he did not live at her address, he used her address for some purposes as he was concerned that his post might go astray at the address he rented.  

8.	There followed a Departmental investigation and a statement under caution was taken from the claimant on 18 November 2004. In addition to observations made by officials, a number of documents were obtained from a credit reporting agency together with self employed tax vouchers, car registration details and information from the electoral register.  

9.	Subsequently the decision-maker decided that the claimant and her alleged partner were living together as a couple from 5 November 2001 and a revision decision was issued on 21 December 2004 reviewing and withdrawing benefit entitlement from that date.  

10.	 The claimant has acknowledged that her alleged partner has stayed in her home from time to time but she has consistently stated that he does not live with her. She has not explained in any detail the documentary evidence produced.   

11.	The addendum to the submission explains the decision-making process. 

12.	The appeal was heard on 27 May 2007. The delay was partly caused by the fact that the Department was considering a prosecution which ultimately did not proceed. Both parties were represented. The appellant was present and there was also an investigating officer in attendance. The appeal was allowed on the grounds that the evidence presented by the Department was circumstantial for the most part. It was explained to the tribunal that the appellant had a drinking problem, as had the alleged partner. He stayed in her home on occasions as he did not wish to drive under the influence of alcohol.  It was acknowledged that the alleged partner used the appellant’s address on a number of occasions for his own purposes. The tribunal concluded that the essential features of a stable couple relationship were not proved. 

13.	The leave application is based on the following arguments:

that the tribunal refused, or neglected, to take onto account certain matters it ought to have taken into account; 

that the tribunal failed to ask material questions in pursuance of its duty to act inquisitorially;  

that the tribunal made inadequate findings of fact;

that the reasons for the decision were inadequate such as to amount to an error of law. 

Reasons for my decision

Findings of Fact

14.	I note that at paragraph 5 of the application for leave, it is argued simply that the alleged partner was living at the appellant’s address. That of course is not the issue in the case. The issue is whether the appellant is living with a partner as an unmarried couple. The operative law is Section 123(1)(c) of the Contribution and Benefits Act (Northern Ireland) 1992.  

15.	There was a dispute about whether the alleged partner lived with the appellant. The tribunal found, after due consideration of the evidence, that he did not live with the appellant, but did stay with her occasionally. A submission on her behalf was accepted that as she and her friend had a drinking problem, he stayed overnight at times to avoid driving while under the influence of alcohol. Such a finding is solely a matter for the tribunal and it is not inherently unreasonable in view of the evidence considered by the tribunal.  

16.	It is argued by the Department that the tribunal found the appellant’s evidence factual whilst, it is asserted, the documentary evidence is actual. That comparison is unhelpful. What the tribunal has recorded is that the evidence of the appellant was accepted as proof of the facts contained in it, that is that she did not have a partner living with her as an unmarried couple. She also denied at all times that the alleged partner lived with her at all. 

17.	The documents produced by the Department contain details of the alleged partner’s addresses and one address noted in a number of documents is the same as the appellant’s address. Addresses are used in all sorts of different ways. Some are merely accommodation addresses to which post is directed for convenience. Some are business addresses. Some are given with the intention of keeping confidential where a person in fact resides. Many loan companies insist that borrowers must have resided at an address for a minimum period of time. Thus, evidence of an address must be considered as a whole and it is not conclusive proof of residence. The essential issue in this appeal was to decide how much weight to attach to documents including the appellant’s address in deciding if the appellant lived with a partner as an unmarried couple. The tribunal noted that the stated duration of residence at the claimant’s address varied considerably and that in some, residence was claimed before the appellant met the alleged partner and was aware of her address. Thus the evidence was inconsistent. Furthermore, the tribunal has made a finding that the appellant was not aware that the alleged partner was using her address for the purposes of applying for loans. It was he alone who completed the loan applications. He was not interviewed or called to give evidence. There is evidence from the CSA that he had a former partner and a child. The documents show that he has lived at a number of addresses. It would appear to have been accepted by the tribunal that he did not have a settled lifestyle and that the documents taken as a whole did not establish that he was residing at the address of the appellant for the lengthy period asserted by the decision-maker starting on 5 November 2001. 

18.	It is argued that the tribunal should not accept evidence uncritically and that must be correct. However, there was a lengthy hearing in this appeal and it is clear that the tribunal gave all the evidence careful consideration before reaching its conclusions.  

19.	The decision-maker and the tribunal took a different view of the reliability of the appellant’s evidence. That is entirely a matter for the tribunal and it is part of its primary function to so decide. The Commissioner cannot interfere unless there is an error of law in the manner in which the finding was made. For the reasons explained above, there is no such error of law in this case. 

Function of the Tribunal

20.	It is argued at paragraph 4 of the application for leave to appeal that the tribunal should have asked additional questions in exercise of its inquisitorial function both generally and with regard to the circumstances surrounding the loan applications in particular. I reject this argument as it misstates the role of the tribunal. It is not the function of the tribunal to assist the Department in the presentation of its case. 

21.	The inquisitorial function of the tribunal is so described in contrast to the adversarial system which prevails in the civil courts. It must be seen in the context of social security benefits decision-making. The Department has a statutory duty to make decisions on benefit entitlement and, if requested, to give reasons - Articles 9,10 and 11 of the Social Security (Northern Ireland) Order 1998 and regulation 28 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999. Officials are expert, dealing on a daily basis with all aspects of benefit entitlement. The public is encouraged to claim so that there is high level of take up by those entitled to benefit. The role of decision-makers was considered in detail by the House of Lords in the case of Kerr v Department for Social Development [2004] AER 385. Lord Hope outlines the enquiry as he calls it on pages 390-392. Put simply, officers have a duty to seek relevant information and claimants have a duty to provide it.  

22.	Inevitably, some of those who claim will not be entitled. As decision-making is independent of the Minister, they are encouraged to appeal if they remain dissatisfied. Thus the independent decision-making system, including appeals, both relieves the Minister of direct responsibility for benefit entitlement decisions and gives the claimant an independent judicial remedy. There is therefore an important systemic difference between those who become involved in civil litigation and those who appeal against a Departmental decision on benefit entitlement.       

23.	The function of a tribunal, like the Departmental decision-maker, is to ascertain the correct decision with regard to the matter under appeal. It is not the function of the tribunal to make a decision based on which party has proved its case evidentially, as would be the case in the civil courts. For this reason, the tribunal must address all the legal issues arising in the appeal, even if they are not correctly identified by the Department in the submission, by the appellant or his representative - see Mongan v Department for Social Development 2005[NICA] 16  Kerr LCJ at paragraphs 15 and 16.  In doing so, it must act in an inquisitorial, or as Sir Andrew Leggatt stressed in his report on tribunals in 2001, in an enabling manner. Most appellants find hearings stressful and will be reluctant to pursue their rights if questions are asked in an aggressive or intimidating manner. It is partly for this reason that the rules of evidence do not apply to tribunal hearings, including the concept of cross-examination which is an important aspect of those rules. The hearing should be seen by the appellant as helpful and constructive so as to maintain the principle of accessibility to the appeal system.    

24.	It is necessary from time to time for the tribunal to assist, in particular, an unrepresented, or poorly represented, appellant as the resources available to appellants are very limited and many will have difficulty in understanding the legal issues in the appeal. However, in doing so, the tribunal must not become an advocate for the appellant. To act in this way would be procedurally unfair as the parties to the appeal are entitled to a fair and unbiased hearing. 

25.	In this case, the Department had expended considerable resources in investigating the entitlement of the appellant and dealing with the appeal. It was represented at the hearing and that representative was given an opportunity to present any further evidence she thought necessary. The argument that the tribunal should have assisted the officer to present her case more effectively is erroneous in my view. The inquisitorial or enabling role does not imply any such duty. The Department should provide, or present, all the evidence on which it relies and question witnesses, both its own and for the appellant, if it wishes to do so. Provided the tribunal is satisfied that all the relevant legal issues have been addressed, it can rely on the Department’s case as presented. Taking the submission and the evidence presented as a whole, the tribunal had no duty to pursue further the Department’s evidence in this case. 

26.	The tribunal has a broad judicial discretion as to the detail of the questions it asks, although as already explained at paragraph 23, cross-examination is not appropriate in a tribunal context.  

27.	In cases where entitlement is withdrawn resulting in an overpayment of benefit, and there is a possibility of a linked criminal prosecution, the appeal to the tribunal must nevertheless be conducted in a similar manner to all other appeals as the issues relate to entitlement and civil recovery only. The procedures in the criminal court for the prosecution of benefit fraud are completely different and are not relevant to entitlement appeals.

28.	If there is no presenting officer for the Department at the hearing, the tribunal should avoid appearing to act as an advocate for the Department. Otherwise, the appellant may fear that the tribunal is biased. It is partly for this reason that there should be a presenting officer at all appeal hearings.   

Inadequate reasons for the decision
29.	It is further argued that the tribunal failed to deal adequately in the reasons for the decision with the report from the credit checking agency and the evidence that the alleged partner was registered to vote at the address of the appellant. This evidence was referred to in the submission to the tribunal by the presenting officer and it was therefore considered by the tribunal.  The tribunal is a fact finding body which is required to provide a prompt and fair decision in the appeal. There are three or four appeals heard in each half day session and after the decision is made and promulgated, the parties are entitled to request a record of the main points of evidence considered, the record of proceedings as it is called, and reasons for the decision. The reasons should make it possible for the parties to understand the outcome. They are sometimes referred to as a letter to the loser as it is the losing party who will have most interest in the reasons. It is not necessary, nor is it practicable, for a tribunal to deal specifically with every aspect of the evidence presented at an appeal hearing, particularly where there is a lengthy hearing at which a substantial body of evidence is considered. Neither is a tribunal required to give a decision as though it was an appellate body on a point of law. Rather, a tribunal is required to hear the appeal fairly and make it clear in the reasons, as simply as possible, why the appeal succeeded or failed. If there is an important primary finding, then other matters may not require further elucidation. Tribunals should not be burdened with writing ever more detailed decisions to answer every technical criticism that might be made of the record. The role of the Commissioner is primarily to give guidance on social security law. Recording defects or omissions should not give rise to a rehearing unless there is a substantial reason to believe that the decision of the tribunal was wrong in law, or was based on findings of fact for which there was no evidence, or totally inadequate evidence - Chief Constable of the RUC v Sergeant [2000] NI 261 at 273f.  

30.	In this appeal, the tribunal has recorded that it accepts the appellant’s evidence given in a Departmental interview conducted under caution. She insisted that the alleged partner did not live with her during the period from November 2001 to December 2004 and that she did not have a marital type relationship with him. That effectively disposes of the appeal. The tribunal has also referred to the absence of public acknowledgement, the fact that there are no children of the relationship and that there is no evidence of financial support. The evidence of how the alleged partner came to use the appellant’s address was an issue considered at some length in the hearing and the tribunal has recorded that it concluded that the appellant was not aware of the extent to which the alleged partner was using her address. In my view, the tribunal has effectively explained its decision and to impose a greater burden of detail in the record of the reasons is not in accordance with the standards it is reasonable to expect from such a judicial body. Furthermore, there is no reason to believe that the decision is based on an error of law or that the findings of fact were perverse or unsupported in evidence.       

Burden of Proof

31.	The tribunal recorded in the reasons that the Department had not proved its case. This raises the issue of the burden of proof and to what extent, if at all, it applies to hearings before the appeal tribunal. In Kerr v Department for Social Development this issue was considered by the House of Lords. Lord Hope explains at paragraph 14 page 391d that the claim process is inquisitorial not adversarial. There is no formal burden of proof on either side. The exercise of deciding claims is done on paper and the claimant is asked to provide the information required by the decision-maker. 

32.	In this appeal, benefit was in payment and the issue was not what information was provided by the claimant about entitlement. An investigation was carried out by the Department as the result of information given to it by an official of the CSA.  As already explained, the Department used its statutory powers to obtain a number of private documents relating to loans, the voting register and car registration in respect of the alleged partner and it interviewed the appellant under caution.  

33.	Lord Hope also states at paragraphs 16 and 17 of the above decision:

‘But there are some basic principles which may be used to guide the decision where the information falls short of what is needed for a clear decision to be made one way or the other. ……….If therefore the claimant and the department have both done all that could reasonably have been expected of them, the issue of fact must be decided according to whether it was for the claimant to assert it or for the department to bring the case within an exception.’  

34.	In this appeal, the appellant had established entitlement. However, the Department asserted that her circumstances had changed such that she was no longer entitled as she had a partner in full-time employment from 5 November 2001. Applying the principles outlined by Lord Hope, it was for the Department the to bring the case within the exception that benefit was no longer payable. 

35.	The tribunal was therefore correct to conclude that the evidential burden fell on the Department in this case. 

36.	I have therefore concluded that the tribunal followed the correct procedure in this appeal and that it properly interpreted its inquisitorial or enabling role. It considered the relevant legal rules and made findings of fact which were reasonable taking into account the evidence considered. It applied the correct burden of proof.   

37.	I should add for completeness that I note that the tribunal has found that the Department has not revised all entitlement decisions from 5 November 2001 to 21 December 2004 and therefore there could not be recovery in any case as section 69(5A) of the Social Security Administration Act (Northern Ireland) 1992 has not been complied with. It is undoubtedly the case, as is acknowledged in the submission by the Department, that all decisions on entitlement must be revised where the decision-maker has decided that the circumstances of the appellant have changed, giving rise to a recovery decision under the section. It is the manner in which this may be done which is in issue in this case. In the revision decision dated 30 March 2007, it is stated that the award dated 16 September 2001 is revised as from 5 November 2001 due to a change of circumstances. The officer then adds:

‘I have also revised all subsequent decisions as these were given in ignorance of this material fact.’ 

Is such a general statement enough to comply with Section 69(5A)? In my view it is not. It is important that the decision-maker shows that he has addressed all relevant decisions and the Department’s records should show on what dates they were taken. We live in a computerised age and such information is normally available. It may also be the case that a claimant’s circumstances alter over a long period of claim. There may be periods of illness or unemployment. Family circumstances may alter.  Furthermore, the rules of entitlement also vary from time to time with regard to, for example, capital allowances and earnings limits. It is therefore essential that the relevant facts are ascertained and the correct rules applied at each stage of the claim and the appropriate revision made. In this case, it is likely that the alleged partner was in full-time employment for a long period. However, that evidence was never explored with him and, as explained above, he may have been ill or unemployed for parts of the period under consideration. The fact that he was alleged to be a partner is but one fact in the case. The other relevant facts must be ascertained to support an outcome decision.   

38.	The authority cited in the Department’s submission is CIS/48/2004. In that case, the appellant failed to disclose an occupational pension which was for a known amount throughout the period under consideration. Using the information when it was obtained by the decision-maker, it was possible to make an outcome revision decision for the period and the details were set out in a schedule put in evidence. It was not suggested that there were any other circumstances which may have had a bearing on entitlement. That case is therefore clearly distinguishable from this appeal. 

39.	As I have concluded that the appeal against the tribunal decision in C8/07-08(IS) is dismissed, the appeal in C9/07-08(IS) is also dismissed as there is no overpayment of benefit and therefore the decision of the tribunal is not erroneous in law. 

						(signed):
C MacLynn
Deputy Commissioner

3 January 2008

C80708IS&C90708IS.CM