DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No:	CIS/2292/2000

1.	My decision is that the decision of the tribunal is erroneous in point of law.  I set aside the decision of the tribunal and, since it is not expedient for me to make the findings which are necessary to decide what decision the tribunal should have given, I refer the case for rehearing before a differently constituted tribunal.

2.	This is an appeal from the decision of the tribunal given on 21 February 2000, dismissing the claimant’s appeal against the decision of the adjudication officer issued on 24 September 1998 that the claimant was liable to repay income support amounting to £1,368.69 paid during the period 1 December 1997 to 6 August 1998 because she had failed to disclose that she was living with a partner who was in full-time remunerative employment.  

3.	The claimant was in receipt of income support on the basis of a claim made on 1 December 1997, in which she stated that she was separated from her husband.  The claimant also stated in a case check statement made on 29 January 1998 that she and her husband had separated six months previously, but on 16 April 1998 the Benefits Agency received information from the claimant’s husband’s employer that he was living at the claimant’s address.  On 19 August 1998 a fraud investigation was carried out, as a result of which the claimant wrote stating that she did not wish to claim income support from 20 June 1998.  However, on the basis of the information obtained during the fraud investigation, which included a raid on the claimant’s house, it was decided that the claimant and her partner had been living together as husband and wife from 1 December 1997 and that, accordingly, she was not entitled to income support from that date.

4.	On the basis of the review decision, a further decision was made on 24 September 1998 that the sum of £1,368.69 paid in income support from 1 December 1997 to 6 August 1998 was recoverable from the claimant under section 71 of the Social Security Administration Act 1992, because the claimant had failed to disclose on 1 December 1997, or as soon as possible afterwards, that she was living with a partner in full-time remunerative employment.  In her letter appealing against that decision, dated 21 October 1998, the claimant accepted that she was liable to repay part of that amount, but stated that her partner had only returned to the matrimonial home on a full-time basis on about 20 June 1998.  

5.	At the date of the appeal hearing the claimant was in prison, and the record of proceedings shows that her representative applied for an adjournment for that reason.  The representative is recorded as stating that he could not get instructions, did not know when the claimant would be released, and that the claimant had been refused permission to attend the appeal hearing.  The record of proceedings also indicates that the adjournment request was refused, although no reasons for the refusal are given either in the record of proceedings or in the statement of reasons.  However, the statement of reasons does record that the claimant’s representative had not spoken to the claimant for over a year.

6.	The documents seized in the raid in August 1998 included the claimant’s diary.  On the basis of diary entries suggesting a continuing relationship between the claimant and her partner, the discovery of the claimant’s partner’s possessions in the master bedroom of the claimant’s house, and information supplied by the claimant’s daughter and her boyfriend, the tribunal found that the claimant and her partner had been living together as husband and wife throughout the period in respect of which the review and recoverability decisions had been made.  The tribunal therefore dismissed the appeal, although they based their recoverability decision on misrepresentation, rather than on failure to disclose a material fact.

7.	The claimant appealed against the tribunal’s decision on the ground that the tribunal had erred in law in refusing to adjourn the hearing to allow her to attend, and on the further ground that the tribunal had erred in finding that the claimant and her partner were living together in December 1997 on the basis of evidence of the situation as it was in August 1998.  I granted leave to appeal on 12 March 2001 because I considered it to be arguable that the tribunal’s failure to adjourn the hearing was unfair in the circumstances of the case, and also because I considered it arguable that the tribunal’s findings with regard to the periods when the claimant’s husband was living away from the claimant were not sufficiently detailed.  I also raised the question of whether the constitution of the tribunal was in accordance with regulation 36 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, but I am satisfied, for the reasons given by the Secretary of State’s representative in his submission of 3 May 2001, that there is nothing in that last point.

8.	The Secretary of State’s representative has submitted that the decision whether to adjourn the hearing was one which lay entirely within the discretion of the tribunal.  It is clear that the tribunal considered the claimant’s representative’s application for an adjournment and, it is submitted that there is nothing to indicate that the discretion whether to grant or refuse an adjournment was exercised in an improper manner.  The Secretary of State also submits that, if the claimant was refused permission by the prison authorities to attend the hearing, there was no unfairness because it was open to her to write to her representative in order to give him instructions in connection with the conduct of the appeal.

9.	The power to adjourn an oral hearing conferred on a tribunal by regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 is unfettered, and in Jacobs v. Norsalta Ltd [1977] ICR 189 the Employment Appeal Tribunal said of the equivalent power of industrial tribunals (as they were then called):

	“We accept, of course, that the power…must not be used arbitrarily or capriciously.  It must certainly not be used in order to defeat the general object of the legislation.  But subject to that, it seems to us that the industrial tribunal has a complete discretion, so long as it exercises it judicially, to postpone or adjourn any case provided there is a good reasonable ground for so doing.”

In Bastick v. James Lane (Turf Accountants) Ltd [1979] ICR 778 the Employment Appeal Tribunal set out the circumstances in which a tribunal chairman’s decision refusing to postpone a hearing could be reversed:

	“Either we must find, in order so to do, that the tribunal, or its chairman, has taken into account some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that the discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal chairman could have decided that we are entitled to rejected it as perverse.”

Those statements were approved by the Court of Appeal in Carter v. Credit Change Ltd [1980] 1ALL ER252., and I can see no reason why the same principles should not also apply to the equivalent power conferred on Appeal Tribunals by regulation 51 of the Decisions and Appeals Regulations.  Accordingly, I propose to consider whether the tribunal in this case took into account an irrelevant matter, failed to take into account a relevant matter, or came to a conclusion which was perverse in refusing to adjourn the hearing at the request of the claimant's representative.

10.	The difficulty in deciding that question is that the tribunal did not state its reasons for refusing the adjournment request, either in the record of proceedings, or in the statement of reasons.  In CDLA/3680/1997 (*59/98) it was held that the record of proceedings should note any consideration of whether to grant an adjournment, and also the reasons for refusing it where a tribunal decides to proceed.  In a case where no reason for refusing an adjournment is given by a tribunal, it may be more difficult for an appellate body to be satisfied that relevant considerations have been taken into consideration than in a case where the reasons for the refusal to adjourn have been given.

11.	The substantive issue before the tribunal was whether the claimant and her partner had been living together as husband and wife for part or all of the period from 1 December 1997 to 6 August 1998.  The claimant contended that her partner had moved back into the matrimonial home only in June 1998, and conceded her liability to repay income support paid to her after that date.  There was admittedly strong evidence that cohabitation resumed at an earlier date, but that evidence was not conclusive and the inferences drawn from the evidence by the decision maker were specifically disputed..  The claimant’s oral evidence could therefore clearly be expected to play an important part in the proper determination of her appeal, and, whilst it was open to the tribunal in the exercise of its discretion to refuse the adjournment request, there would therefore need to be powerful considerations in favour of proceeding with the hearing in order to justify that course.  The tribunal’s failure to identify any such considerations leads me to conclude that the tribunal did not properly take into account the risk of prejudice to the claimant resulting from the hearing proceeding in her absence and that, accordingly, the exercise of the tribunal’s discretion was vitiated by their failure to take into account a matter which it was necessary for them to take into account in deciding whether to grant the adjournment application.  I am therefore satisfied that the tribunal’s decision was erroneous in point of law and that, accordingly, this appeal must be allowed.  In those circumstances, I do not consider that it is necessary to consider the other ground of appeal raised by the claimant, or by me when granting leave.

12.	It is clearly not possible for me to make the findings of fact which are necessary to determine whether the claimant and her husband were living together as husband and wife during the relevant period and, accordingly, I refer the case for rehearing before a differently constituted tribunal.  For the reasons which I have given, it is extremely desirable that the claimant should attend at the rehearing of the appeal.

					(Signed)	E A L Bano
							Commissioner

					(Date)		22 March 2002