DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the tribunal given at Dundee on 2 October 2007 is erroneous upon a point of law.  I set it aside.  I make the decision the tribunal ought to have made.  It is:

“1.  We allow the appeal against the decision of the Secretary of State dated 13 July 2006 as revised on 2 August 2006 and 23 January and 12 February both 2007, in part, determine that the claimant/appellant is treated as being capable of work from and including 19 November 2003 and supersede the award of income support dated 10 June 1994 at an increased rate from and including 2 February 1994 to the effect that the claimant/appellant is not entitled to income support from and including 19 November 2003, thus supersession to have effect on 19 November 2003.

2.  We allow the appeal against the decision of the Secretary of State dated 11 August 2006 as revised on 23 January and 12 February both 2007, in part, determine that on 19 November 2003 the claimant/appellant failed to disclose the material fact that she commenced working as a karaoke entertainer at the Stags Head Bar, Carnoustie.

As a consequence, income support amounting to £4,677.35 was paid to the claimant/appellant for the period from 29 November 2003 to 29 May 2006 (both dates included) which would not have been paid but for the failure to disclose.

Accordingly, that amount is recoverable from the claimant/appellant.”

2.	This appeal came before me for an oral hearing along with the decision in CSIB/22/08 on 17 June 2008.  It was adjourned on that date until 7 July 2008.  The claimant was represented by Mr Logan, Advocate, instructed by Mr Myles, Solicitor.  The Secretary of State was represented by Mr Bartos, Advocate, instructed by the Office of the Solicitor to the Advocate General.

3.	The claimant has appealed to the tribunal against two decisions.  The first was a decision of 13 July 2006 superseding an award of Income Support from 4 April 2006 and secondly, a decision of 11 August 2006 and finding that there was a recoverable overpayment of Income Support for the period 4 January 2004 to 29 May 2006.  These decisions are set out at pages 9A and 11A of the bundle.  Both these decisions were the subject of a number of revisals.  The final revision of these decisions was carried out on 12 February 2007 and is set out at pages 48 to 50 of the bundle.  In their final form, as revised, the decisions of 13 July 2006 and 11 August 2006 are in the following terms:

	“My revised decision is as follows:

I hereby supersede the decision of the Secretary of State dated 10 June 1994 which awarded Income Support to [the claimant] at an increased rate from and including 2 February 1994 on the basis that she was incapable of work.

A relevant change of circumstances has occurred since that decision had effect in that [the claimant] has been working and the Secretary of State has determined that she is not incapable of work from 1 September 2003 to 30 December 2005 (both dated included);  and from and including 10 February 2006.  In addition, [the claimant] was in South Africa on holiday from 5 January 2006 to 5 February 2006 (both dates included).

Accordingly, [the claimant] is:

•	not entitled to Income Support from 1 September 2003 to 30 December 2005 (both dates included) because she does not fall within a prescribed category of person;

•	entitled to Income Support at the weekly rate of £11.90 from 31 December 2005 to 4 January 2006 (both dates included);

•	not entitled to Income Support from 5 January 2006 to 5 February 2006 (both dates included) because she is not in Great Britain;

•	entitled to Income Support at the weekly rate of £11.90 from 6 February 2006 to 9 February 2006 (both dates included);

•	not entitled to Income Support from and including 10 February 2006 because she does not fall within a prescribed category of person.

Of the sum of £5,090.19 already paid by way of Income Support to [the claimant] for the period from 1 September 2003 to 29 May 2006 (both dates included), £15.30 is to be offset against the arrears of Income Support now due to her for that period under this award and is to be treated as properly paid on account of them.

As a result of this decision, there has been an overpayment of Income Support amounting to £5,074.89 for the period from 1 September 2003 to 29 May 2006 (both dates included) as detailed on the attached schedule.

On 1 September 2003, or as soon as possible thereafter, [the claimant] failed to disclose the material fact that she commenced working as a karaoke entertainer in the Stags Head Bar, Carnoustie.  In addition, she also failed to disclose the material fact that she commenced additional employment working as a karaoke entertainer in the Links Bar, Carnoustie in July 2005 and that she was to be on holiday abroad from 4 January 2006 to 6 February 2006.

As a consequence, Income Support amounting to £5,074.89 was paid to [the claimant] for the period from 1 September 2003 to 29 May 2006 (both dates included) which would not have been paid but for the failures to disclose.

Accordingly, that amount is recoverable from [the claimant].”

It can be seen from the decision that the basis upon which the change of circumstances relied upon for the purposes of the supersession of the award of Income Support was the determination of 10 July 2006 of the Secretary of State under section 31 of the Social Security Act 1998 referred to in CSIB/22/08.

4.	The decision made by the tribunal in relation to the claimant’s appeal against both the supersession and overpayment decision was in the following terms:

“the revised reconsideration decision relating to Income Support issued on 12/02/2007 is confirmed subject to the substitution of the words “19 November 2003” for the words “1 September 2003” wherever they occur and the substitution of the figure of £4698.01” for the figure of “£5,074.89” wherever it occurs.”

5.	The issue which principally concerned the tribunal, as is apparent from their statement of reasons, was the contention that the claimant was not in fact working during the period she was found to be engaged in karaoke in public houses in Dundee and is in effect a challenge to the determination made under section 31 of the 1998 Act by the decision of 10 July 2006.

6.	Whilst there is no right of appeal against a determination made under section 31 of the 1998 Act, Mr Bartos indicated that he was content that the claimant could challenge the import of the incapacity determination in this appeal as this was the first decision into which the determination had been incorporated.  Mr Logan did not dissent from that and I am prepared to accept the Secretary of State’s concession in that regard.  Accordingly, I can deal with what is the substance of the grounds of appeal advanced by Mr Logan.  

7.	The tribunal, in making what was an adverse decision against the claimant, relied upon written statements by two witnesses which they preferred to the oral evidence of the claimant and her witness.  These statements are set out at pages 5A and B and pages 7A and B.  The first statement bears to be signed by the witness and that signature witnessed by two officers of the Department.  The other statement was just signed by the witness, though it bears to have been taken by an officer of the Department who was accompanied by another officer.  What is said by these two witnesses was essential in support of the decisions which were appealed against to the tribunal.  It was also the factual basis upon which the tribunal made the critical findings and in particular, findings 8 – 12.  Neither of the witnesses was present and gave evidence at the tribunal hearing.  Further, the officers of the Department who were present when the statements were made were not present to give evidence before the tribunal.

8.	Mr Logan’s argument before me had two strands.  The first was that the statements were not evidence.  The second was in essence that there was a breach of the rules of natural justice in respect that the claimant did not have the opportunity to test the evidence of these witnesses by either cross-examining the witnesses themselves or by officers of the Department who were present when the statements referred to were given and written down.  The matter spoken of by the witnesses was crucial as the factual issue as to whether the claimant was in fact employed doing karaoke in the public houses referred to in the statements and was being paid for it was essential to the question as to whether the claimant was to be treated as incapable of work.  

9.	Mr Logan, in support of his argument, has referred me to paragraph 9 of R(SB) 5/82 where it was said:

“A tribunal is not, of course, bound by the strict rules of evidence, but nevertheless it must, before admitting second-hand (hearsay) evidence, carefully weigh up its probative value, bearing in mind that the original maker of the statement is not present at the hearing to be questioned on what he actually saw.”

I was also referred by Mr Logan to paragraph 5 of R(SB) 10/86 where it was said:

“5.  But the Adjudication Officer did not give any evidence;  he only made submissions.  If the statements made by the Adjudication Officer’s representative are contested, as in this case they were, and he does not adduce evidence in support of them or submit himself for questioning, no tribunal should accept such statement of unadmitted without supporting evidence.”

Further, I do not consider that these two cases assist the claimant.  The signed statements by the witnesses are not hearsay evidence.  They are signed statements of the first hand evidence by the witnesses in respect of the events set out therein.  They are both evidence and evidence which can be admitted, though the fact that the witnesses did not give evidence orally and thus were not subject to questioning are factors that require to be taken into account when assessing the evidence.  On the face of it, the decision in R(SB) 10/86 is not on all fours with this case.  In this case, what was before the tribunal was a written record of evidence signed by the witnesses and the officer of the Department.  It was not a submission by the Secretary of State.  

10.	In advancing his argument in relation to the asserted breach of the rules of natural justice, Mr Logan referred me to R v. Hull Prison Board of Visitors Ex-Party St Germaine and Others 1979 3 All ER 545 and in particular, what was said by Lord Justice Jeffrey Laing where he said:

“In our judgement, the statutory obligation to make the rules, and R49 (2) in particular, are merely declaratory on one of the basic rules of natural justice, namely that every party to the controversy has the right to a fair hearing.  He must know what evidence has been given and what statements have been made effecting him;  he then must be given a fair opportunity to correct or contradict them (per Lord Denning in Kanda v. Government of the Federation of Malaya [1962] AC 322 at 337 – 338).”

11.	Mr Logan also referred me to Errington v. Wilson 1995 SC at 550.  In that case, it is said in the rubric:

“A sec 9 hearing took place before a justice of the peace in relation to 44 batches of a particular cheese produced by the petitioner, which were allegedly contaminated and unfit for human consumption.  In respect of the conduct of proceedings, the justice prohibited cross examination of witnesses and any questions to witnesses were to be put through her.  Counsel for the petitioner at the hearing declined to put any questions in that way to the witnesses for the food authority.  The justice decided that the cheese should be disposed of or destroyed.  The petitioner thereafter sought judicial review of that decision.”

I was directed to what was said by the Lord President at page 558.  He said:

“In the present case the prejudice which resulted from the refusal to allow cross examination is self evident.  There was a difference of opinion between experts on points which were crucial to a sound determination of the questions which the justice had to decide.  The result of her refusal to allow cross examination was that the evidence of the second respondents’ witnesses could not be challenged in the only manner which was likely to be effective in a case of such difficulty.  So I consider that the Lord Ordinary was well founded in his decision that by refusing to allow cross examination in these circumstances the justice disabled herself from reaching a fully informed conclusion upon the evidence.  This amounted to a denial of natural justice to the petitioner, as her duty to act fairly in this case required her to permit cross examination of the second respondents’ witnesses.

The answer to that question must in the end depend upon the circumstances.  In my opinion it is clear from the facts in this case that the justice could not decide whether the cheese failed to comply with food safety requirements without examining the evidence of the expert witnesses.  We were not referred in detail to their evidence, but the documents which were shown to us indicate that important questions were raised by the petitioner’s expert about the reliability of the evidence of the second respondents’ witnesses.  The nature of these questions was such that they could not be answered without a detailed study and understanding of the witnesses’ evidence.  Counsel for the second and third respondents submitted that the point which was being made by these witnesses was a simple one.  There were no statutory guidelines, but they said that the matter could be decided by the application of the PHLS Guidelines which did not give rise to any questions of difficulty.  But the application of those guidelines to this case was disputed, and the justice could not decide that issue fairly between the parties without examining the detail of their evidence.

In a case of this difficulty there was an obvious risk of unfairness if the second respondents’ witnesses were not open to cross examination on the detail of their evidence.  There was a risk that defects in that evidence would lie undetected, and that the justice would not be informed about the issues which she had to decide.  It is no answer to this point to say that she put both parties on an equal footing by denying to both of them the opportunity of cross examining each other’s witnesses.  Nor is it an answer to say that the public have an interest in food safety.  The consequences for the petitioner and his business were likely to be very serious if the case went against him, and he had a right under the statute to attend and to call witnesses.  The issues which the petitioner’s representative wished to raise in cross examination were issues on which the petitioner wished to be heard.  These were issues which he wished to raise by way of challenge to the evidence of the second respondents’ expert witnesses.  The unfairness to him lay in the denial to him of the opportunity of opening up these issues by putting questions about them directly to the second respondents’ expert witnesses.”

12.	Mr  Logan submitted that if it was a breach of the rules of natural justice to deny cross-examination by a party’s representative when the witnesses were present, then it must also be a breach of the rules of natural justice when cross‑examination was not available to a party to an appeal due to the non‑attendance of either the witnesses or those who took the statement from the witnesses or were present when the statement was made.

13.	Mr Bartos’ response to this was to submit that there had been no motion to adjourn the hearing before the tribunal by the claimant’s representative and the issue of the breach of the rules of natural justice, which was taken by Mr Logan, were not raised before the tribunal.  It was Mr Bartos’ submission that the claimant had clear notice of what was said in relation to her and she had the opportunity to present her own evidence thereon.  He also directed me to the decision of Regina v. Deputy Industrial Injuries Commissioner, ex-party Moore [1965] 1QB 456 which was also reported as RI 4/65.  The Court was unanimous and I was particularly directed to what was said by Lord Justice Diplock at page 20 of the report he said:

“Where, as in the present case, a personal bias or mala fides on the part of the deputy commissioner is not in question, *488 the rules of natural justice which he must observe can, in my view, be reduced to two.  First, he must base his decision on evidence, whether a hearing is requested or not.  Secondly, if a hearing is requested, he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing.  In the context of the first rule, “evidence” is not restricted to evidence which would be admissible in a court of law.  For historical reasons, based on the fear that juries who might be illiterate would be incapable of differentiating between the probative values of different methods of proof, the practice of the common law courts has been to admit only what the judges then regarded as the best evidence of any disputed fact, and thereby to exclude much material which, as a matter of common sense, would assist a fact-finding tribunal to reach a correct conclusion:  ef. Myers v. Director of Public Prosecutions.  [FN26].

FN26 [1964] 3 W.L.R. 145

These technical rules of evidence, however, form no part of the rules of natural justice.  The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non‑existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant.  It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above.  If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.  The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his”.

He went on to say:

“Where, however, there is a hearing, whether requested or not, the second rule requires the deputy commissioner (a) to consider such “evidence” relevant to the question to be decided as any person entitled to be represented wishes to put before him;  (b) to inform every person represented of any “evidence” which the deputy commissioner proposes to take into consideration, whether such “evidence” be proffered by another person represented at the hearing, or is discovered by the deputy commissioner as a result of his own investigations;  (c) to allow such person represented to comment upon any such “evidence” and, where the “evidence” is given orally by witnesses, to put questions to those witnesses;  and (d) to allow each person represented to address argument to him on the whole of the case.  This in the context of the Act and the regulations fulfils the requirement of the second rule of natural justice to listen fairly to all sides (see Board of Education v. Rice  [FN27].

FN27 [1911] A.C. 179, 182.”

Mr Bartos’ submission was in effect that in the context of what was said there, the rules of natural justice have been complied with.  

14.	Mr Logan, in his reply, pointed out the antiquity of the case and referred me once again to what was said in Emmett v. Wilson.  He also sought to rely on an asserted breach of the requirements of Article 6(1) of the European Convention on Human Rights which makes provision in relation to the entitlement to a fair and public hearing.

15.	I am not satisfied that there was a breach of the rules of natural justice by the tribunal.  I do not consider that Article 6(1) innovates on what was already required by the Common Law of Scotland in relation to the rules of natural justice.  The claimant was not only aware of what was being said in relation to her but dealt with it.  She appears at the time to have been content that the hearing should continue without seeking an adjournment to attempt to secure the presence of the witnesses.  It is quite apparent from what was said by the Lord President in Errington that the breach of the rules of natural justice in that case arose on the  circumstances of the case and, in particular, in the circumstances set out by him in the last paragraph of the quotation from his opinion above.  The circumstances in the instant case were somewhat different in respect that what was involved were simple questions of fact in relation to which the claimant had full and fair notice of what was being said in relation to her.  When that is combined with the absence of a motion for an adjournment, it cannot in my view be said that the tribunal erred in law in relation to a breach of the rules of natural justice and by determining the appeal before them on the basis of the evidence they had.  The requirements set out in R v. Hull Prison Board of Visitors and R v. Industrial Injuries Commissioner quoted above have been adhered to.  The latter case makes the distinction as to the allowance of questioning when the witness is present at the hearing as opposed to when he is not.  That is  envisaged in sub-paragraph (c) of what was said by Lord Diplock in the quotation set out above.  Clearly, the absence of the witnesses and the reliance on statements was a matter to be taken into account when assessing the evidence.  It is apparent that the tribunal weighed the evidence as they were required to do.  The tribunal found both the evidence of the claimant and the witness who attended on her behalf as lacking in credibility.  That is quite clear from paragraphs 2 to 8 of the statement of reasons.  It is also apparent from these paragraphs why they were disposed to accept the evidence in the written statements by the two witnesses.  

16.	Mr Logan also raised a further point in relation to the amendment to the Social Security (Incapacity for Work) (General) Regulations 1995 and the Social Security (Incapacity for Work) (Amendment) Regulations 2006.  This argument was based upon the amendment to regulations 16 and 17 of the original Regulations.  It is his submission that the tribunal, in relation to the amending Regulations had to consider whether, for the purposes of regulation 16(3)(e), the claimant was earning, in any given week, an amount not exceeding £20.00.  That was not an argument which was placed before the tribunal.  The position of the claimant before the tribunal was simply that she was not working.  It is therefore difficult to see why the tribunal should have explored this and I find that there is no error in law in their not doing so.

17.	Mr Bartos submitted that the tribunal had erred in law in a failure to identify properly what was being appealed to them and in relation to the calculation of the overpayment.  It was his submission that the sum should have been reduced by 11 weeks at £36.40 per week.  He submitted that I could make the decision that the tribunal ought to have made.  I asked him to provide a draft of the decision I ought to have made.  This he did.  Mr Logan accepted that if I was against him on his arguments, he did not consider he could object to what Mr Bartos proposed should be the decision I should make.  I accepted that concession and also Mr Bartos’ submission in relation to error of law and accordingly, I have made the decision I have in paragraph 1.

18.	Whilst the appeal is successful, that success is of no benefit to the claimant.

					(Signed)
					D J MAY QC
					Commissioner
					Date:  10 July 2008