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[2008] UKUT 17 (AAC) (13 November 2008)

 


IN THE UPPER TRIBUNAL CJSA 825/08

ADMINISTRATIVE APPEALS CHAMBER [2008] UKUT 17 (AAC)

THURSDAY 13 NOVEMBER 2008

Judge: P L Howell QC

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

APPEAL UNDER SOCIAL SECURITY ACT 1998 FROM DECISION OF AN APPEAL TRIBUNAL

DECISION OF THE UPPER TRIBUNAL

The Secretary of State's appeal is allowed. Under section 12(2) Tribunals, etc Act 2007 the tribunal decision of 21 September 2007 is set aside and the case remitted to the First-Tier Tribunal for redetermination in accordance with the directions given below.

REASONS

Mr P L Howell QC:

1. This appeal to a Social Security Commissioner under section 14 of the Social Security Act 1998 has been automatically transferred to the Upper Tribunal under the Tribunals, etc, Act 2007 and the transitional provisions.
2. The appeal must be allowed and the tribunal decision set aside, as in my judgment the grounds of appeal submitted on behalf of the Secretary of State by Mr D Scholefield in the notice of appeal and submission dated 28 February 2008 at pages 46-53 are correct, and leave to appeal was rightly granted by the tribunal chairman. The decision of the Peterborough tribunal on 21 September 2007 (Mr K Wilding, chairman, sitting alone) was erroneous in law in the two respects that it (1) failed to record any finding of fact to show how the claimant, a Brazilian national, had a relevant right to reside in this country for the purposes of regulation 85A Jobseeker's Allowance Regulations SI 1996 No. 207 at the date of his claim on 18 September 2006 via his wife, a Portugese (and therefore EEA) national who was not then working; and (2) appears to have been based at least in some measure on an endorsement having been made on the claimant's passport, and a letter issued to him by the Home Office, in August and September 2007, when the tribunal's consideration of the case had to be confined to the circumstances obtaining at 17 October 2006, the date of the decision under appeal to it: section 12(8)(b) Social Security Act 1998. In the absence of findings and evidence to show how the claimant or his wife met any of the relevant residence conditions there was no proper basis for the tribunal holding the claimant entitled to jobseeker's allowance on that claim as it purported to do, and the decision has to be set aside as defective in law.
3. In so holding I nevertheless wholly sympathise with, and endorse, the criticism gently implied in the chairman's comment in his formal statement about his reasons at page 20A that the Secretary of State ought to have been represented at the tribunal hearing, especially as his department's own statement of the facts seems to have been inaccurate. These "right to reside" cases are complicated, and tribunals are entitled to expect a better standard of assistance in dealing with them than was afforded here: not necessarily always from someone of Mr Scholefield's calibre and experience, but at least by the attendance of a representative able to deal with the factual evidence as it emerges and relate it to the department's position on the statutory conditions and the issues the tribunal has to decide. Not for the first time, the failure to provide proper assistance has been shown up here as both a source of unnecessary difficulty for the tribunal and a stupid false economy for the Secretary of State.
4. As Mr Scholefield's most recent submission rightly acknowledges, the material before the tribunal here leaves open some possibility that the claimant's wife, who had been in employment up to the beginning of March 2006 when she ceased working to have her baby, may have retained her employment and therefore her status as a worker while off work and on maternity allowance; and it is only right that this and any other possibility which could assist the claimant should be looked at by another tribunal and some clear findings made on all potentially relevant facts: in particular whether she counted as a worker, retained worker status or had any other right to reside at the date of his claim. I therefore remit the case for that to be done and the claimant's appeal against the departmental decision of 17 October 2006 to be redetermined accordingly.

13 November 2008

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