DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
1.1.	The decision of the Maidstone appeal tribunal under reference U/45/174/2001/00979, held on 31st July 2001, is erroneous in point of law.
1.2.	I set it aside and remit the case to a differently constituted appeal tribunal.
1.3.	I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision.
Before this case is listed for rehearing, it must be put before a legally qualified panel member to consider whether it is necessary or appropriate to give directions under regulation 38(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The panel member must give the directions appropriate to ensure equality of arms between the Secretary of State and the claimant in accordance with the analysis of the law in this decision.
The appeal to the Commissioner
2.	This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with my leave. The Secretary of State supports the appeal.
3.	The claimant has asked for an oral hearing of the appeal before me, on the ground that he was not been given a fair hearing by the appeal tribunal under the European Convention on Human Rights and Fundamental Freedoms. I agree that he did not have a fair hearing. However, I refuse his request for an oral hearing. He will be able to attend an oral hearing before a differently constituted appeal tribunal at the rehearing and I have given directions to ensure that that hearing is fair.
The issue
4.	This case concerns a recoverable overpayment decision. The basis of the overpayment was that the claimant’s wife was working. The claimant made a number of criticisms of the evidence produced by the Secretary of State, who had the legal burden of proving both the overpayment and its recoverability. One criticism in particular is relevant to this decision. The Secretary of State’s case turned on the identification of the claimant’s wife as the person who had undertaken the work. The claimant challenged that. However, the Secretary of State did not persuade the witness to attend. And the tribunal did not arrange for a witness summons against that person or give other directions by which the claimant’s assertions could be tested indirectly.
The law
5.	I chose to explain my decision in terms of the claimant’s Convention right to a fair hearing under Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms. In particular, I rely on the equality of arms principle that has been developed in the jurisprudence of the Strasbourg authorities as part of that right. It requires that the procedure followed by the tribunal must strike a fair balance between the parties so that none is at a disadvantage as against the others: see paragraph 33 of the judgment of the European Court of Human Rights in Dombo Beheer BV v The Netherlands (1993) 18 European Human Rights Reports 213.
6.	I could, no doubt, have reached the same conclusion under domestic principles of natural justice. However, the Human Rights Act 1998 provides a convenient opportunity for Commissioners to rebase their decisions on procedural fairness in fresh terms. In my view, this would be desirable. I am sure that tribunals are familiar with the principles of natural justice. However, increasingly the cases that come before me suggest that they are not applying them. If there is a common theme in those cases, it is that the tribunal had not provided a procedural balance between the parties. The introduction of the language of balance would provide a touchstone for tribunals. 
7.	I detect at least three factors that have contributed to the trend that I have observed. One factor is that the language of natural justice may have become stale to tribunals from over familiarity. A second factor is that the time between an appeal being lodged and being heard is now much shorter than it was. That will often be to the claimant’s advantage. However, it is not an advantage if a claimant does not have time to prepare a case. The final factor, for which there is clear evidence across all regions of the Appeals Service, is the concern to avoid adjournments. This has led some tribunals to take an approach to hearings that is robust at the expense of fairness. 
8.	The new language would help to counter any staleness with the traditional language of natural justice. That language is the language of procedural fairness. There is nothing wrong with that. But it has led to an emphasis on the disposal of the case, with less concern than is appropriate on the procedure. The language of balance would provide criteria by which appropriate cases for adjournments could be identified and distinguished from inappropriate cases.
9.	There are decisions on which this new approach could be built. I have used the language of equality of arms and balance when dealing with adjournments to allow a claimant to obtain medical evidence (CIB/3427/2001) and with the provision of evidence by the Secretary of State relating to earlier personal capability assessments (CIB/3985/2001). And Mr Commissioner Williams has used the same language when dealing with deemed notice provisions and the exercise of discretions (CDLA/5413/1999). 
The law applied to the circumstances of this case
10.	The claimant alleged that the witness on whom the Secretary of State relied would not be able to identify his wife. That was a key point in the claimant’s case. However, the witness said he would not be attending. As far as I know, the Secretary of State simply left it at that. No attempt was made to persuade the witness to attend in view of the importance to the claimant’s case of his ability to identify his wife. The witness was not even asked to give a written description of the claimant’s wife. As far as the record shows, the tribunal did not even consider exercising its power, under regulation 43(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, to summons him as a witness. 
11.	On the face of it, the claimant’s case was not a fanciful case. It was not even inherently improbable. It is not unknown for mistakes to be made or for someone’s name and details to be used by someone else. There was, though, realistically little more in practice that the claimant could do than he did. He could, it is true, have asked for the witness to be summonsed. But an unrepresented claimant cannot be expected to know the details of every power in the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  
12.	The tribunal has no power to enforce a witness summons. It might have considered that the chances of compliance were so remote that it was not worth the bother. I make no comment on that, other than to say that there is nothing to suggest that the witness would have refused to comply. The fact of the matter is that the tribunal did not even consider the possibility. 
13.	The issuing of a summons was not the only way in which tribunal could have struck a fair balance between the claimant and the Secretary of State. As the Secretary of State points out in the observations on the appeal, there was another possibility. The Secretary of State’s evidence was that the wages paid to the claimant’s wife were paid by automated credits into a bank account. The Secretary of State could have been directed to identify the account used by the employer. This could have been done either as an alternative to a witness summons or as a fail safe measure in case the witness did not comply. Again, as far as the record shows, the tribunal did not even consider the possibility. 
14.	The claimant could also have been directed to produce bank statements for his accounts and his wife’s. He could, perhaps, have done this on his own initiative, but in view of the passage of time they may not have been available without payment to the bank. Also, it is not realistic to expect too much of an unrepresented claimant. He had made clear the case that he wanted to make. The tribunal could have discussed with him the possibility of using bank statements as part of the case he wanted to make. Once again, as far as the record shows, the tribunal did not even mention this to him.
Conclusion 
15.	Put briefly, what happened was this. The claimant made an assertion. He was not in a position to do more than make it. The power to obtain the evidence to test the assertion was outside his control. It lay with the Secretary of State and the appeal tribunal. At best, the tribunal simply did not provide a framework of procedure that would allow the claimant to make an effective presentation of his case. At worst, the absence of the means of testing his assertion counted against the claimant in the tribunal’s assessment of the evidence. 
16.	So, the claimant was deprived of the opportunity to present the case he wanted to the tribunal. The result was that he was at a disadvantage compared to the Secretary of State in the presentation of his case. He did not have equality of arms with the Secretary of State. The tribunal’s proceedings were in breach of his Convention right to a fair hearing. That makes the decision of the tribunal wrong in law. It must be set aside. A rehearing is necessary in order to give the claimant his first fair opportunity to present his case to a tribunal. 

Signed on original	Edward Jacobs
Commissioner
4th July 2002