PLH                                                                             Commissioner's File:  CIB 2977/02

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Incapacity Benefit
Tribunal:	Whittington House
Tribunal case ref:	U/42/158/2001/00321
Tribunal date:	I March 2002
Reasons issued:	14 March 2002

1.	This appeal by the Secretary of State is dismissed, as in my judgment it does not show any error of law on the part of the tribunal chairman sitting alone at Whittington House on 1 March 2002.  Instead the Secretary of State’s notice of appeal and written submissions in support represent an attempt to reargue the factual findings the chairman made on the evidence he took at the full hearing of the appeal on that date, which the Secretary of State had chosen not to attend.  For the Secretary of State to act in that way and then seek to challenge the evidence and the chairman’s findings ex post facto is not a proper use of the right of appeal under section 14 Social Security Act 1998 which is confined to genuine questions of law.
2.	The appeal to the tribunal arose out of a new claim to incapacity benefit made by the claimant, who some time previously had suffered a heart attack, for the period from 6 March 2001.  The only issue before the tribunal on the claimant’s appeal against the rejection of his claim was whether the relevant contribution conditions for a claim at that date were satisfied, namely that he had the requisite number of actual contributions or contribution credits over the last two preceding tax years, 1998/99 and 1999/2000.  The department produced computer records which they claimed showed he had not, and on that basis rejected his claim.  
3.	The claimant disputed this and consistently maintained that although not working throughout the relevant period because of his ill‑health he had already been receiving incapacity benefit on a previous claim, in conjunction with income support, for a sufficient part of the period to give him the credits needed to make up his contribution record; and if the computer records produced by the department did not show this, then it was these that must be at fault.  He produced documentary evidence which appeared to support what both he and his wife had said in the correspondence, that he had in fact been receiving incapacity benefit in conjunction with income support down to March 2000, even though the credits for this might not have been shown on the computer record as they should have been.  
4.	When his appeal against the refusal of benefit came before the tribunal for the first time on 26 October 2001, the Secretary of State failed to attend; and the tribunal chairman decided he had to adjourn the case to give the Secretary of State a further opportunity of dealing properly with the claimant’s contentions. As he recorded in the decision notice of that date on page 46:
“The Appellant says that in tax year 1998/99 he worked from April to 30 November and should be shown to have made national insurance contributions re: this employment.  Also, the Appellant says that he received incapacity benefit not until 30.10.99 but until 15.3.2000.  Therefore he should have more national insurance credits than shown.”
This resulted in a further sheaf of departmental computer printouts being submitted to the tribunal, with a further short submission dated 19 November 2001 stating that (as was undeniable) what the appellant said and the computer records were inconsistent, but not providing any further help to the tribunal about how this could or should be resolved.  
5.	When the matter came before the tribunal again for effective hearing on 1 March 2002, the Secretary of State again failed to attend.  This was not an accidental omission: I understand that for reasons of supposed economy he has simply given up being represented in the vast majority of legal proceedings before appeal tribunals under the Social Security Act 1998 to which he is respondent, even where disputed issues of fact are involved and evidence may need to be taken.  That “policy” decision (I am sure not the fault of the people actually responsible for dealing with the proceedings and coping with the aftermath when things go wrong, but that of others who lack their practical involvement) seems to me the root of his problems in this case. 
6.	As recorded by the tribunal chairman in his note of the proceedings at pages 59 to 60 the claimant and his wife did both attend; and the claimant gave clear oral evidence confirming what they had both consistently said throughout the correspondence, that the incapacity benefit and income support he had been receiving had continued up to March 2000 instead of stopping earlier.  They produced a fresh letter dated 11 December 2001 from the local benefits agency office which appeared to contradict what had been said in the further written submission of 19 November 2001, and expressly confirm what they said had actually happened.  
7.	The tribunal chairman accepted the oral and documentary evidence the claimant and his wife presented at the hearing, and consequently allowed the appeal.  He recorded in a very clear statement of reasons incorporated in his decision notice at page 61 that:
	“Today [the claimant] (thanks to the meticulous filing of his wife) has produced a letter from the Hoxton local office confirming that Incapacity Benefit was paid until March 2000 [exhibit 1] and a letter recalling his book (with Income Support and Incapacity Benefit combined) also dated in March 2000.  In the bundle is a counterfoil showing the encashment of benefit in March 2000 and at page 57 there is a letter stating that JSA (income based) was not claimed until 4/4/00 (see page 57) which does give the appellant’s case a pattern of continuity.  
The law in this area is complex for people not well versed and experienced in the technical complexities of contributions but the appellant has clearly demonstrated that there has to be a genuine question mark over the accuracy of the records relied upon in making the decision.  The evidence the appellant has produced from the local office, his order book and the counterfoils does support his assertions.  In addition he has asserted that his contributions for the previous tax year were sufficient.  There is no direct evidence on this point.
I have reached the conclusion that the appellant having demonstrated that the records in his case are unreliable for 1999/2000 that he is entitled to be believed for the previous year.  This may well be a case where a decision was made much earlier than it was actioned but the payment of Incapacity Benefit as has been demonstrated on the balance of probabilities carries with it the right to credits and it is the reality that counts.  I considered adjourning the matter again for further enquiries but I took into account the age of the matter and the fact that the previous adjournment had not produced any enlightenment and came to the conclusion that I had to make a decision.
For the reasons given above I have accepted the appellant’s evidence and find that the necessary contribution conditions have been met and allow the appeal.”
(The reference to a “decision made earlier than actioned” was to evidence about the stopping of the earlier incapacity entitlement: according to the department this should have taken place before March 2000, while the claimant said it had not in fact done so.)
8.	The Secretary of State’s single ground of appeal against that decision as recorded in his original notice of appeal at page 66 was that 
“The tribunal has not adequately explained why it accepts the claimant’s evidence”.  
The notice of appeal referred also to some points of detail on the documentary evidence though not, I note, to the most crucial letter from the local office dated 11 December 2001 which, as the chairman had pointed out, clearly supported the claimant’s assertions and raised a genuine question over the accuracy of the other records relied on by the Secretary of State.  In the written submission on his behalf dated 24 June 2002 at pages 75-78 (para 6) the Secretary of State’s grounds of appeal are restated as being that
“…the tribunal misinterpreted the claimant’s evidence relating to his contribution record and that in fact, he does not satisfy the contribution conditions for the receipt of Incapacity Benefit”.  
9.	However the submissions made in support of the appeal consist of no more than a re-examination of certain of the pieces of evidence relied on by the claimant, summarised in paragraph 13 as including the letter from the local office confirming that incapacity benefit had been paid until March 2000, and the contention that for various detailed reasons (which do not actually deal at all with that important piece of evidence)
 “… the evidence is not sufficient to show that the claimant was entitled to Incapacity Benefit in the relevant period”.  [paragraphs 14, 17]
10.	Even if those submissions on the facts of this case appeared persuasive to me, and were supplemented by some kind of explanation (still wholly lacking) to negate the effect of the letter from the local office produced at the tribunal, they would still not amount to grounds for me to set aside the tribunal chairman’s decision under section 14 Social Security Act 1998.  
11.	The reason, as I think the Secretary of State and his advisers ought to be well aware, is that the time for making such submissions on the facts and evidence in the case is at the tribunal hearing, when the evidence is being taken by the appeal tribunal which is the body charged by Parliament with deciding all such factual questions.  Matters such as the sufficiency of evidence and the weight or credibility to be accorded to it are for the tribunal of fact, not a legal appellate body on an appeal confined to law, to determine: and arguments such as those put forward here, that the evidence ought to be reappraised and ought to have led the tribunal to a different conclusion on a question of fact from the one it did reach on the evidence it decided to accept, are simply not maintainable on an appeal which is confined to questions of law. 
12.	In this case there plainly was evidence before the tribunal, namely that of the claimant himself and his wife, backed up by the documents they produced, which once accepted as credible entitled the tribunal to find as it did on the balance of probabilities.  The tribunal did decide to accept that evidence as credible, and that was a matter for it.  The restated ground of appeal in paragraph 6 of the Secretary of State’s submission that the tribunal had “misinterpreted” the claimant’s own evidence is not in fact pursued any further or referred to again in the submission: but in any event is plainly misconceived. What happened was that the claimant gave clear and consistent evidence, unchallenged at the tribunal hearing, that he had been receiving incapacity benefit up to March 2000. The tribunal did not misunderstand that evidence at all, but accepted it.  The reason the evidence went unchallenged at the hearing was that the Secretary of State had elected not to turn up, and thereby forgone the opportunity of challenging it or explaining the apparent discrepancies in his department’s own documents. 
13.	In those circumstances the tribunal chairman was fully entitled to reach the factual conclusions he did, for the reasons he clearly explained.  I record again the view I have expressed elsewhere that the present practice of the Secretary of State in not being properly represented at tribunal hearings is regrettable, and I hope it will soon be reconsidered.  It is unfair to both appellants and tribunals if appeal proceedings come to be perceived or operate in practice as something closer to a second-tier review between the claimant and authority than two parties making out a case before a judicial body.  The criticisms of the tribunal made by the Secretary of State in this appeal appear to me in danger of overlooking that distinction.  If a respondent to inter partes legal proceedings chooses for his own reasons not to attend the hearing where factual issues are to be determined, it does not lie in his mouth to complain that the tribunal has not done his job as well as its own, or has accepted evidence he might have wanted to question or challenge if he had been there to do it. 
14.	The appeal in this case is accordingly dismissed as I am not satisfied the chairman erred in law in determining it as he did.  The only criticism I would make of his handling of the case is in having granted leave to appeal at all: the Secretary of State’s application on page 66 patently failed to identify any arguable point of law, and the chairman’s own comment on granting leave that “only a forensic enquiry by a Commissioner would establish a clear and unambiguous picture” [sc. on the facts of the case] does not appear to me to do so either.  Any confused or mistaken basis of fact there may have been for the decision is not sufficient to warrant the use of the appeal process under section 14 Social Security Act 1998, though that does not of course prevent the Secretary of State using the extensive powers he has under section 10 of that Act if a proper and more thorough enquiry than was presented to the chairman is able to demonstrate that the actual facts warrant it.  

(Signed)
P L Howell
Commissioner
31 October 2002