THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s File No:	CI 1524/00

SOCIAL SECURITY ACTS 1992-1998
APPEAL FROM DECISION OF APPEAL TRIBUNAL 
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER:	P L Howell QC

24 May 2001

PLH                                                                               Commissioner's File: CI 1524/00

SOCIAL SECURITY ACTS 1992-1998
	
APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  		Reduced Earnings Allowance
Appeal Tribunal:  	Sutton
Tribunal Case Ref:  	U/45/176/99/03351
Tribunal date:		18 January 2000	

[ORAL HEARING]

1.	This appeal by the Secretary of State is dismissed, as in my judgment there was no material error of law in the decision of the Sutton appeal tribunal held on 18 January 2000.  In that decision the tribunal found as a fact that there had been no material change in the nature of the claimant’s employment on 19 October 1998 as had been alleged in a decision of 24 March 1999 purporting to terminate his reduced earnings allowance, with the consequence that he remained entitled to the allowance for the period 21 January 1998 to 18 January 2000 inclusive under an earlier award made in December 1997, and he did not have to repay the sum of £963.24 claimed to be recoverable from him for the period 21 October 1998 to 30 March 1999.  
2.	I held an oral hearing of the Secretary of State’s appeal against the tribunal’s  decision.  Jeremy Chang of the solicitor’s office, Department of Social Security, appeared for the Secretary of State and the claimant appeared and presented his case in person with the assistance of his wife.  
3.	The claimant is a man now aged 51, who suffered an industrial accident on 16 October 1987 which prevented him from continuing with his then work as a plant maintenance fitter.  He was accepted as entitled to reduced earnings allowance for the loss of earning power caused to him by this accident, and has received successive awards of the allowance over the years, based on periodic calculations of the difference between what he could have been assumed to have been able to continue earning in his old job had the accident not occurred, and the level of earnings he could expect to obtain in other suitable employment.  He has had various changes of employment but according to the evidence accepted by the tribunal has been fortunate in establishing himself since 1994 in a new career in the engineering sales side of the Alfa Laval Group of Companies.  The correspondence shows that there was an earlier misunderstanding, on the part of some at least of the staff in the Benefits Agency, about when his employment with that group began; but there is now no dispute that this was in 1994 and not in 1998.  
4.	Again according to the claimant’s evidence which was accepted by the tribunal the nature of his job throughout was that of a sales engineer, which involves a detailed technical knowledge of the products and ability to handle them as well as merely selling them; no doubt making good use of his previous practical experience as a skilled fitter.  Of course as time went on, and products and sales arrangements changed, the day to day duties of his job would vary; but again it was accepted by the tribunal that the essential nature of his new employment remained the same.  
5.	What happened towards the end of 1998 was that there was a reorganisation of the sales arrangements within the Alfa Laval Group resulting in a reallocation of areas, as a result of which the claimant or his particular section had to deal with a broader geographical area and additional products and he had to spend more time working away from home.  As part of the general reorganisation there was an increase in remuneration for him and others to compensate them for the inconvenience:  from 19 October 1998 his salary became £22,000 per annum, as shown by the employer’s statement of terms and conditions which was in evidence before the tribunal (page 19H).  That document also shows that the claimant’s job title then remained “Sales Engineer” and confirms that he had been in continuous employment with the same company from 3 May 1994.  
6.	It is common ground that on the method of calculation consistently used by the department for the reduced earnings allowance comparison (see page 19), the weekly equivalent of his £22,000 salary (£423.07) still left him substantially below the calculated weekly equivalent for his regular occupation as a plant maintenance fitter at the time of his accident, so that the adjustment to his salary while continuing as a sales engineer would have had no material effect on his continuing entitlement to reduced earnings allowance; which I was told had been at the maximum weekly rate at all times.  
7.	The claimant did not send in any notification to the department about the adjustment in October 1998, but did of his own volition send them an express notification on 2 February the following year (page 5) by which time he had received the first instalment of a further salary increase, to £22,600 p.a. from 1 January 1999.  From that date his job title had also been changed to “Sales Executive”; though his evidence was that this was merely a change of style and not one of the substance of what he was employed to do, which even then remained the same as it had been before.  
8.	Following that notification, the department embarked on a complete review of the claimant’s case, which as the tribunal found involved making a number of mistaken assumptions about the actual facts.  It culminated in the issue of an adjudication officer’s decision dated 24 March 1999 (page 12) purporting to review the claimant’s continuing award of reduced earnings allowance under the decision of December 1997 
“as there has been a relevant change of circumstances since that decision was given.  This was that [the claimant] changed his job to Sales Executive from 19/10/98 at a wage of £434.62 a week..” 
9.	The decision purported to terminate the claimant’s entitlement to reduced earnings allowance from 19 October 1998, and it is common ground that a further decision issued shortly afterwards purported to determine that the sum of £963.24 was recoverable from the claimant for the reduced earnings allowance in fact paid to him from 21 October 1998 until the review decision of March 1999 took effect.  It is also common ground that the substance of both decisions, that is the termination decision on page 12 and the overpayment and recovery decision (which is not itself in the appeal papers and does not appear to have been in evidence before the tribunal as it should have been), was properly in issue before the tribunal on the claimant’s appeal accepted as made on 8 June 1999.  The ground on which the recovery decision was based does however appear from the adjudication officer’s submission to the tribunal on page 1A:  this was the allegation that the claimant 
“failed to disclose the material fact that on 19/10/1998 he changed job to that of a Sales Executive, on 19/10/1998 or as soon as possible afterwards”.  
10.	As was apparent from the documentary evidence before the tribunal and the oral evidence the claimant himself gave and the tribunal accepted about what had actually happened in October 1998, both adjudication officers’ decisions were factually wrong.  The claimant had not changed his job on 19 October 1998.  He remained in his existing employment as a sales engineer and although he was given a new statement of terms with effect from that date as a result of the reorganisation and salary adjustment, the title of his job remained the same, “Sales Engineer”.  He was not a “sales executive” either in style or in substance from 19 October 1998, and his “wage” from that date was not £434.62 a week: that was the weekly equivalent of the annual salary of £22,600 which only began to apply to him from 1 January of the following year.
11.	Enough has perhaps been said to demonstrate that on the documentary evidence provided by the claimant and his own oral evidence to the tribunal which went unchallenged, the department’s case for terminating his benefit and requiring repayment from him by reference to an alleged change of circumstances which had not taken place completely fell apart.  As the tribunal noted, the adjudication officers’ original decisions were based on a fundamental misappreciation of the facts of the case, and what appears to me to have been a fairly superficial reading of the very scant details they got from his original and current employers in March 1999 as to the position at that time.  
12.	The tribunal did, quite rightly in my view, accept in its entirety the claimant’s oral evidence at the hearing which was corroborated by the documentary evidence he produced.  There was and is no reason whatever to think that he was being other than wholly truthful in his account of his current employment before and after 19 October 1998.  The department did not attempt to make out its own case before the tribunal in the light of the actual evidence, or to question what the claimant said in any way, because it had decided not to send anyone along to represent it in front of the tribunal at all.  That was I understand a deliberate decision taken by someone on behalf of the Secretary of State, about the way the department’s case is to be conducted (or rather not conducted) in proceedings before tribunals generally; and not an accident in this individual case.
13.	The tribunal’s conclusion, after detailing the factual misapprehensions by the Benefits Agency disclosed by the evidence, was expressed in the following two short paragraphs:  
“Again, it would appear from the adjudication officer’s decision ... that he was under the impression that [the claimant] had changed his job to sales executive on 19.10.1998.  But, as discussed above, such change of field had occurred long before.  All that happened in 1998 was [the claimant] changed one sales position for another within the Alfa-Laval Group.
In view of this fundamental apparent misapprehension as to [the claimant’s] employment circumstances it is clear to the Tribunal that the decision of the adjudication officer dated 24.3.99 cannot stand, quite apart from the consequential question of the correctness of the adjudication officer’s calculations.  They were criticised in detail by [the claimant]; no decision as to the validity of such criticism is needed so far as the present appeal is concerned.”
14.	Despite Mr Chang’s very well prepared and ably argued submissions to me, there is no doubt in my judgment that the Secretary of State’s appeal against the tribunal’s decision based on that finding is hopeless.  The whole case depends, as Mr Chang agreed, on the one crucial issue of fact as to whether the “relevant change of circumstances” alleged in the adjudication officer’s decision of 24 March 1999 in fact took place or not.  The tribunal held that it did not: that was not only a justifiable conclusion of fact, but the only conclusion any reasonable tribunal could possibly have come to on the unchallenged and entirely credible evidence put before them by the claimant.  No reasonable person could have possibly misunderstood from the clear statement of the tribunal’s conclusions quoted above that the tribunal’s finding on the evidence was that the claimant had not in fact changed the nature of his job on 19 October 1998 as alleged, and consequently that the relevant change of circumstances on that date, which was for the department to prove, had not been established on the facts.  It thus followed inevitably that the case against him based on a “failure” to disclose something that had not in truth happened must itself fail.  
15.	The department’s first ground of appeal (see page 31G) was that “the tribunal have failed to make and record specific findings of fact in relation to the case”, which Mr Chang developed in argument by saying that the tribunal had erred in law in not considering more specifically whether the fact that the claimant had “changed one sales position for another” itself could have amounted to a relevant change of circumstances; or at least in failing to spell out their findings and reasons on that question more fully.  For the reasons given above I reject that submission: the issue before the tribunal was whether the change of circumstances alleged by the department was established as a matter of fact to have taken place or not, and the reasons that led the tribunal to conclude that it had not could hardly have been expressed more clearly.  
16.	The second ground put forward was that in an earlier passage referring to what counted as the claimant’s “regular occupation”, the tribunal had apparently confused themselves as to whether the use of this phrase in the adjudication officer’s written submission related to the claimant’s occupation at the time of the accident or to his current occupation in 1999: but that apparent confusion was in my judgment quite immaterial to the crucial issue of fact on which they actually decided the case, namely that the nature of his current employment in which he had been regularly engaged since 1994 had not changed materially on 19 October 1998.  
17.	For those reasons I dismiss this appeal, the consequences of which are that the purported review of the claimant’s entitlement on 24 March 1999 was ineffective, he remained entitled to the reduced earnings allowance he had been awarded in December 1997 for the period up to 18 January 2000, and he is not liable to repay the amount claimed back from him for the period 21 October 1998 to 30 March 1999.
18.	Before parting with the case I desire to add this.  As noted above, a deliberate decision has apparently been taken on behalf of the Secretary of State that the department will not send anyone to attend before appeal tribunals on social security appeal hearings, to assist the tribunal with oral submissions on the law, make out the department’s case on the facts or to question that of the claimant.  That decision needs to be reconsidered urgently, especially now that many more tribunal cases are being disposed of on paper submissions so that the resources needed for attendance at the hearings that do take place are reduced.   It is not I think a decision that could have been taken by any lawyer, or on legal advice; as it completely overlooks the nature of a tribunal appeal hearing as a piece of litigation, and undermines the status of the tribunal itself by seeking to make it do the department’s work, of questioning the case put forward by the claimant at the hearing and rehearsing any opposing arguments, in the manner of a second-tier departmental adjudicator rather than the independent judicial body the tribunal is.  Repeated expressions of judicial concern about the practice of not turning up to assist tribunals, even in difficult cases, seem so far to have gone completely unheeded and in my view that is altogether unsatisfactory.  Against that background an appeal such as this one, which is really no more than an attempt to reopen the fundamental issue of fact decided by the tribunal on the unchallenged evidence given at the hearing, is a misuse of the talents of the DSS solicitor’s department and can expect no sympathy in this quarter at least.

(Signed)
P L Howell
Commissioner
24 May 2001