DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

The decision of the Newcastle-upon-Tyne First-tier Tribunal dated 16 June 2010 under file reference 228/10/00757 involves an error on a point of law.  The First-tier Tribunal’s decision is set aside.

The Upper Tribunal is not in a position to re-make the decision under appeal.  It therefore follows that the appellant’s appeal against the Secretary of State’s decision dated 16 November 2009 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.  

This decision is given under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

The following directions apply to the re-hearing:

(1)	The re-hearing will be at an oral hearing. 

(2)	The new First-tier Tribunal should be before a different tribunal judge to either Judge Souter (who held the last hearing) or District Tribunal Judge Jacques (who dealt with the subsequent set aside application).

(3)	A copy of the submission to the Upper Tribunal dated 13 April 2011 by Mr Wayne Spencer on behalf of the Secretary of State should be made available to the new First-tier Tribunal.

(4)	The Secretary of State is requested to provide a supplementary submission to the new tribunal clarifying the basis on which it is said that the alleged overpayment of income support is recoverable, bearing in mind the issues raised by Mr Spencer’s submission to the Upper Tribunal.  This supplementary submission should be sent to the HMCTS Newcastle-upon-Tyne regional office within one month of the date of issue of this decision.

(5)	The new First-tier Tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.  Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

These Directions may be supplemented by further directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal. 

REASONS FOR DECISION

The Upper Tribunal’s decision in summary

1.		The appellant’s appeal to the Upper Tribunal is allowed.  The decision of the Newcastle-upon-Tyne First-tier Tribunal dated 16 June 2010 under file reference 228/10/00757 involves an error on a point of law and is set aside. The case now needs to be reheard by a new First-tier Tribunal.  

What this case is about

2.	The case concerns the Secretary of State’s decision that the appellant was overpaid income support (for the period from 18 September 2006 to 22 September 2008) and that the overpayment is recoverable from the appellant for part of that period (18 September 2006 to 14 January 2008).  The sum in question is over £6,000.

3.	The Secretary of State’s decision was confirmed by the First-tier Tribunal at a hearing on 16 June 2010, which was not attended by the appellant.

4.	The appellant’s case was that neither he nor his representative, Mr Malik of Newcastle Law Centre, had been notified of the hearing date.  District Tribunal Judge (DTJ) Jacques took the view that proper notices of the hearing date had been issued and refused a set aside request.  DTJ Jacques also refused permission to appeal to the Upper Tribunal.

The proceedings before the Upper Tribunal

5.	I subsequently gave the appellant permission to appeal.  At the time I took the provisional view that the tribunal’s decision to go ahead on the day and the subsequent refusal to set aside might have been harsh, but arguably were within the bounds of what a reasonable tribunal might do.  I also took the provisional view that it was not entirely clear what more could be said on the appellant’s behalf about the recoverability of the alleged overpayment, had he attended.  I noted that in an interview under caution the appellant had intimated that he had assumed that the Student Loan Company would keep the DWP informed as to the grants and loans he received as a student.

6.	The combined forensic skills of Mr Malik and Mr Rutledge of Counsel, for the appellant, and Mr Wayne Spencer, who now acts for the Secretary of State, and who supports this appeal to the Upper Tribunal, have persuaded me that those initial views were mistaken. 

7.	I am therefore satisfied that the tribunal erred in law both in deciding to go ahead in the appellant’s absence and also in its treatment of the overpayment issue.  Both parties agree that the tribunal’s decision has to be set aside.

8.	The real point of disagreement between the parties is as to the appropriate disposal.  Mr Spencer, for the Secretary of State, suggests that I remit the case for re-hearing before a new First-tier Tribunal.  Mr Rutledge, for the appellant, submits that the Upper Tribunal can decide the matter for itself, rule that the Secretary of State has failed to prove his case and allow the appellant’s appeal against the Secretary of State’s decision of 16 November 2009 accordingly.

9.	I explain later (see paragraphs 19-25) why I agree with Mr Spencer as to what happens next.  First, however, I should explain briefly, if only for the benefit of the previous and especially the next tribunal, why the First-tier Tribunal’s decision involves an error of law.  There are two main problems with the tribunal’s decision: the decision to go ahead in the appellant’s absence and the treatment of the overpayment question.

The tribunal’s decision to go ahead in the appellant’s absence

10.	There is no doubt but that when an appellant fails to attend an oral hearing of his or her appeal the tribunal may decide to proceed in their absence: see rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.  However, that is a discretion which must be exercised judicially and in the light of the overriding objective.  

11.	In the present case the tribunal’s record of proceedings simply noted that the appellant put in no appearance and continued “No explanation for absence.  Tribunal considered papers”.  The subsequent statement of reasons added nothing by stating simply that “The appellant did not attend the appeal hearing”.

12.	There is no indication that the tribunal considered (under rule 31) whether it was in the interests of justice to proceed.  Now, of course, it might be said that the exercise of such a discretion is second-nature to a tribunal in such circumstances.  If so, however, there needs to be some explanation as to why it was appropriate to go ahead.  In this case there were a number of factors which called for consideration, as Mr Spencer notes at paragraph 4 of his submission to the Upper Tribunal.  The case was complex, the appellant was represented and indeed the law centre were on file as having asked for sight of the full papers and having only made a provisional case – and, one might add, the alleged overpayment in question was a not inconsiderable sum.

13.	The failure to exercise the discretion under rule 31 and/or the failure to explain the exercise of that discretion is a material error of law which means I must set aside the tribunal’s decision.

The tribunal’s treatment of the overpayment question

14.	The tribunal effectively treated this as an open-and-shut case.  It adopted the Secretary of State’s case lock-stock-and-barrel.  In summary, the tribunal’s conclusion was that the overpayment of income support was recoverable from the appellant as he had failed to disclose the material fact that he was no longer in relevant education but had moved into advanced education.  He had been issued with the standard income support INF4 advisory leaflets on various dates and had failed to disclose the material fact in question.

15.	Mr Spencer, for the Secretary of State, has now very candidly conceded in his submission to the Upper Tribunal that the Secretary of State’s case, as set out in his submission to the First-tier Tribunal, was flawed.  He adds that “the question of whether it can be successfully repaired, even in part, is far from cut and dried”.  In other words, Mr Spencer is saying that the Secretary of State’s case is problematic.

16.	Mr Spencer has identified the following errors of law in the tribunal’s treatment of the overpayment question (which Mr Rutledge gratefully adopts).  In summary:

(i)	The tribunal failed to ensure that the Secretary of State’s supersession decision was correct (paragraphs 5-7 of Mr Spencer’s submission);
(ii)	The tribunal failed to explain how the INF4 forms to which it referred amounted to instructions with which the appellant had then failed to comply.  Indeed, the tribunal had referred to INF4 forms sent on three separate dates, yet: the first referred to an earlier award of income support; the second was (rather oddly) issued when the appellant was not even on benefit (and so at a time, as Mr Spencer wryly comments, when he was not “a person whose changes of circumstances were of the slightest interest to the Secretary of State”); and the third was issued after the apparent material change in question (paragraph 9 of Mr Spencer’s submission);
(iii)	The tribunal failed to identify a relevant material fact; the alleged material fact, that the appellant had moved from relevant to advanced education was, on closer scrutiny, nothing of the sort – the appellant had finished one course in July 2006 and started another in September 2006, and so could hardly be expected to disclose a non-existent direct transition between the two (paragraphs 10-11 of Mr Spencer’s submission);
(iv)	Given the difficulty in establishing a case under regulation 32(1A) of the Social Security (Claims and Payments) Regulations 1987 based on the issue of the INF4s (see paragraph 16(ii) above), the tribunal failed to consider whether a duty arose under regulation 32(1B) to disclose the starting of the second course and if there was a failure to disclose that caused the overpayment (paragraphs 12-13 of Mr Spencer’s submission).

17.	It follows that the tribunal’s treatment of the overpayment issue also involves errors of law which provide an independent basis for setting aside the tribunal’s decision.  It will be plain from the analysis summarised above that the Secretary of State’s case for recoverability is, at best problematic.  It may well be weak.  But it is not entirely hopeless.

The disposal of this case

18.	I therefore formally set aside the decision of the First-tier Tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).

19.	Mr Spencer, for the Secretary of State, proposes that the Upper Tribunal should remit the case to be reheard by a different First-tier Tribunal.  He does not give a reason for that suggestion, but presumably it is on the basis that there are insufficient findings of fact for the Upper Tribunal to make a decision either way.

20.	Mr Rutledge, for the appellant, argues that the Upper Tribunal should make its own decision to the effect that the Secretary of State has failed to prove his case as regards the recoverability of the alleged overpayment.  He relies on three decisions of the Social Security Commissioners: CSIS/1512/2002, CDLA/5076/2001 and CIS/51/2007.  In CSIS/1512/2002 Mrs Commissioner Parker substituted her own decision for that of the appeal tribunal below, to the effect that the Secretary of State had not discharged the onus of proof to demonstrate the criteria for a recoverable overpayment.  In CDLA/5076/2001 and CIS/51/2007 Mr Commissioner Howell (as he then was) had criticised the serious deficiencies in the presentation of the Secretary of State’s case at both tribunals.

21.	I do not disagree with anything said in CSIS/1512/2002, CDLA/5076/2001 and CIS/51/2007.  However, the circumstances in CSIS/1512/2002 were far more troubling than in the present case.  For example, there was no copy of the relevant order book instructions in the appeal papers; there was no clear evidence of the decision under supersession; and the relevant dates did not make sense.  All in all, the submission and evidence provided fell “far short of discharging the onus on the Secretary of State” (at paragraph 24).  The Secretary of State’s case in the present matter, as indicated above, is certainly problematic, and may well be weak, but is not hopeless.

22.	I do not think that the decisions of Mr Commissioner Howell in CDLA/5076/2001 and CIS/51/2007 take the appellant any further forward, despite Mr Rutledge’s best endeavours.  The Social Security Commissioners and now Judges of the Upper Tribunal have from time to time had to refer in excoriating terms to the quality of some of the submissions made on behalf of the Secretary of State to tribunals.  For example, in DG v Secretary of State for Work and Pensions [2011] UKUT 14 (AAC) I described the initial submission as “wholly inadequate and quite possibly, despite strong competition in some other cases, the worst I have seen in nearly 20 years’ experience of hearing social security appeals” (paragraph 3).

23.	However, notwithstanding the strictures of Mr Commissioner Howell in CDLA/5076/2001 and CIS/51/2007, it so happened that both appeals were dismissed.  In both those cases, despite the deficiencies in the Secretary of State’s original submissions to the tribunals below – for example, in CDLA/5076/2001 the official submission below “gave only the most garbled explanation even of the decision or decisions that had given rise to the appeal” – the tribunal decisions themselves were sound and did not involve any error of law.

24.	Mr Rutledge makes a number of further points on the appellant’s behalf – that no criminal proceedings have ever been brought, that there is no suggestion of dishonesty, that the events in question took place some years ago and the proceedings have been hanging over the appellant’s head since November 2009.  All those points are well made, but in my view they either go to the question of what weight to be attached to the evidence and/or, if it is eventually found that there were a recoverable overpayment, to the exercise of the Secretary of State’s discretion as to whether to effect recovery.

25.	My conclusion, therefore, is that the case should be re-heard by a fresh First-tier Tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)).  

What happens next: the new tribunal

26.		There will need to be a complete re-hearing in front of a new tribunal (see Directions (1) and (2) above).  That tribunal will have to start afresh and consider whether or not there was an overpayment of income support and, if so, whether or not it is recoverable from the appellant and on what basis.

27.		A copy of the submission to the Upper Tribunal dated 13 April 2011 by Mr Wayne Spencer on behalf of the Secretary of State should be made available to the new First-tier Tribunal (see Direction (3) above).

28.	The Secretary of State should provide a supplementary submission to the new tribunal clarifying the basis on which it is said that the alleged overpayment of income support is recoverable, bearing in mind the issues raised by Mr Spencer’s submission to the Upper Tribunal (see Direction (4) above).
29.		I should just stress that the fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication of the outcome of the re-hearing.  That will be entirely a matter for the judgement of the new tribunal, applying the relevant law to the facts it finds (see Direction (5) above).  

Conclusion

30.		I conclude that the decision of the First-tier Tribunal involves an error of law.  I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).  The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)).  My decision is as set out above.

Signed on the original			Nicholas Wikeley
on 26 May 2011				Judge of the Upper Tribunal