[2004] UKSSCSC CIS_1459_2003 (25 June 2004)

DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

1.	Our decision is that the decision of the Liverpool Appeal Tribunal held on 6 January 2003 is erroneous in law.  We set it aside.  We remit the case to either the same or a differently constituted tribunal for decision.

2.	This appeal raises the question of what a tribunal should do when the Secretary of State fails to attend to conduct his case at a duly notified tribunal hearing, at which the issue to be determined is whether a departmental officer was right in cancelling the claimant’s benefit entitlement retrospectively.  There is no dispute that on such an issue it is for the Secretary of State to satisfy the tribunal affirmatively that the action taken was correct; or that, if he does so, the consequences for the claimant are potentially serious, since overpayment recovery action may ensue.  We were told that in this case the total benefit at stake and potentially recoverable was over £30,000.  This issue has become one of importance for tribunals faced with the increasingly prevalent practice of the Secretary of State in recent years of not attending tribunal hearings. 

3.	We were constituted as a Tribunal of Commissioners, and an oral hearing was held on 6 and 7 April 2004.  At that hearing Jason Coppel of Counsel, instructed by the Solicitor to the Department for Work and Pensions, appeared on behalf of the Secretary of State and Duran Seddon of Counsel, instructed by Linskills, appeared on behalf of the claimant.  After the hearing, both parties took the opportunity given to them to file further written submissions, following the publication on 6 May 2004 of the opinions of the members of the House of Lords in Kerr v Department for Social Development (Northern Ireland) [2004] UKHL 23, a case potentially relevant to the issue before us.  We are grateful to the legal representatives for their submissions, both written and oral.  

4.	The appeal before the tribunal was against a determination issued on behalf of the Secretary of State on 30 April 2002, which revoked the claimant’s entitlement to income support from 20 June 1988, that is retrospectively for nearly 14 years.  She had been receiving the benefit as a single mother.  The entitlement was revoked on the ground that she had in fact been living together with a man (“M”) who was in remunerative employment.  The decision of the tribunal on 6 January 2003, against which the Secretary of State now appeals, was to reverse that determination and confirm that the claimant’s income support entitlement had continued unaffected.

5.	The claimant is a single woman born in 1963, and is the mother of three children born respectively in 1982, 1989 and 1994.  She was in receipt of income support in respect of herself and her children since at least April 1988, and, in connection with that benefit, over the years she had completed a number of income support enquiry forms confirming her status as a single parent.  

6.	Following observations made by officers of the Department and other investigations, the claimant was interviewed on 28 February 2002.  The substance of the allegation against her was that M and she had been living together as husband and wife since before the birth of their first child in 1989.  Following that interview the claimant’s benefit was suspended.  On 26 April 2002 a decision maker determined that M and the claimant had been living together as husband and wife since 20 June 1988.  We were informed that a decision disallowing benefit from 20 June 1988 was made on or shortly after 26 April 2002.  No copy of that decision is now extant, although a copy of the notification of the decision to the claimant, dated 30 April 2002, was produced at the hearing before us.  That notification, so far as is material, is in the following terms:

	“I am writing to tell you that we have decided you and [M] are living together as husband and wife.  We have made this decision using the information you gave us on 28.2.02.  

	When two people live together as husband and wife, we work out their Income Support as if they are a married couple.  This means that from 20.6.88 we cannot pay you Income Support because your partner is in full‑time work.”

7.	The claimant was interviewed again on 10 May 2002.  During the course of that interview, she was told that there had been an overpayment of benefit and that she would be sent an overpayment letter.  The possibility of prosecution for false representation was also mentioned.  However, the appeal to the tribunal was concerned only with the determination notified to her on 30 April 2002, revoking her entitlement from 20 June 1988.

8.	The written material submitted by the Secretary of State to the tribunal on that appeal included a clear statement of the factual case he was seeking to make against the claimant, and numerous pieces of documentary evidence appearing to support it.  Although Mr Seddon did not concede the point, we accept Mr Coppel’s submission that the Secretary of State had furnished sufficient written material to the tribunal to establish that there was a case which needed to be answered by the claimant.  As we are directing that the claimant’s appeal shall be heard again by a tribunal, it is not necessary to rehearse every item of evidence upon which the Secretary of State placed reliance.  It suffices for the present to refer to the following:

(a)	M was named as the father of the claimant’s two younger children on their respective birth certificates.

(b)	M gave the same address as the claimant when he completed an application form for a job on 20 June 1988.

(c)	The school which the two children attended held next of kin details showing that the claimant and M lived at the same address.  There was also evidence that the claimant was referred to as “Mrs M” in those details.

(d)	A number of forms (both official and commercial) had been completed by M showing his address as that of the claimant.

(e)	In other commercial contexts, there was evidence that the claimant had referred to herself as “Mrs M”.

(f)	During the period of observation in September to October 1991 M’s car was seen parked outside the claimant’s house and M was seen leaving that house, although it is only fair to say that the observations were the subject of a challenge by the claimant and her representatives.

(g)	In addition, some of the answers given by the claimant in the transcript of her first interview under caution (such as the name of her children’s father, before the birth certificates were produced to her) were plainly, and later admitted to be, untrue; though whether this was through confusion or dishonesty was also in issue between the claimant and the Department.

9.	What is clear, in our judgment, is that the material submitted to the tribunal by the Secretary of State in written form included evidence from which a reasonable tribunal might properly have concluded, in the absence of a satisfactory explanation from the claimant, that the Department’s stated case against her on the facts had been made out.  In short, there was made out a case to be answered.  Consequently, even on this material alone, this was a case that required a full consideration on the merits, going into the detail of the factual allegations made and considering and evaluating the claimant’s own evidence and explanations in answer to them.  

10.	When the case came on for hearing before the tribunal however, that course was not followed.  

11.	The local officers of the Secretary of State handling the case had (quite wrongly, as is now frankly admitted) failed to arrange for any representative to attend and conduct the proceedings on his behalf, despite the nature of the case from which it should have been self-evident that this needed to be done, and despite a specific prior direction given by the chairman on 19 December 2002 that a presenting officer was required to attend.  Nor had any attempt been made to apply to the tribunal for a postponement of the hearing, on the basis that the local office was unable to comply with the chairman’s direction by having a competent representative prepared and ready to present the case on 6 January 2003 (because, for example, of staffing shortages over the New Year holiday period) or indeed on any other basis.

12.	What actually happened when the claimant’s appeal came on for hearing appears from the extremely clear record of proceedings and subsequent statement of reasons for the decision prepared by the very experienced Regional Chairman, Mr N J Warren, who conducted the proceedings.  The claimant was present, represented by her solicitor.  There were also present two investigating officers from the Department.  As indicated above, there was no presenting officer.  The claimant’s representative handed in a submission dated 4 January 2003 which was a point-by-point rebuttal of the allegations made against the claimant.  In the record of proceedings the chairman noted the receipt of certain additional written information from the Benefits Agency requested in his direction of 19 December 2002, the receipt of the submission on behalf of the representative and also the receipt of a telephone message (to which we will return).  The proceedings opened with one of the investigating officers explaining that she and her colleague were present because they were the fraud investigators; that they were not there as presenting officers; that she understood that the presenting officer could not attend; and that the decision maker could not do so either because he was doing “three other jobs at the moment”.  She mentioned that two “of the people” (presumably presenting officers) had annual leave commitments.  The other investigating officer then intervened suggesting that there should be an adjournment to allow for a presenting officer to attend.   The claimant’s representative objected, making reference to the chairman’s direction of 19 December 2002, the absence of any postponement request, the fact that the burden of proof was on the Secretary of State and the pressure on the claimant.  The representative stated that he wanted the chairman to proceed.  

13.	The chairman ruled that he would delay the start of the case to allow the investigating officers to make a telephone call to enquire whether there was any possibility of a presenting officer arriving within one hour.  The hearing was then adjourned.  One of the investigating officers made a telephone call to the Benefits Agency.  The record of proceedings summarises what he told the tribunal as a result of his telephone call. 

	“They tell me there’s no compunction [sic] on a PO to appear.  It’s District policy in our district for POs not to appear routinely.  Leave commitments - person who would appear can’t do so.  Advised that the sub from rep today should be enough to justify an adjournment.  If you adjourn I guarantee a PO will appear next time.  IS O/P [income support overpayment] alone exceeds £30,000.  HB + CTB in addition.  No one will attend today - am or pm.”

The claimant’s representative then argued that his submission did not raise new issues of fact but was intended simply to put the presenting officer on notice of the questions that he wished to raise.  He submitted that if the Secretary of State chose to ignore a direction of a chairman he should do so at his own peril.  

14.	The chairman then briefly adjourned.  Immediately following that adjournment, and without inviting any evidence or further submissions from or on behalf of the claimant, he gave the decision summarised in paragraph 4 above, allowing the appeal and confirming the continuation of the claimant’s income support.

15.	The chairman’s full statement issued to the parties on 15 January 2003 records his reasons for taking that course.  He first summarised the Secretary of State’s case against the claimant.

	“2.	… The Secretary of State alleges that [the claimant] has been living together as husband and wife with [M], the father of two of her children.  His case is that they have been living together for 14 years while [M] was in full‑time work and [the claimant] claiming income support.”

16.	Having set out the procedural history, the chairman then made a general reference to his experience of declining attendance by presenting officers and explained that he had directed the attendance of a presenting officer because of the complexity of the case, the form of the decision under appeal and the importance of the case to the claimant bearing in mind the amount of money involved.  The chairman then summarised what had taken place at the hearing before him and the submissions that had been made on the question of an adjournment.  The statement then continued as follows:

	“11.	I accepted what Mr Wilson [the claimant’s solicitor] had to say about his written submission.  It amounted more to a skeleton argument on the factual issues and would not have warranted an adjournment if the presenting officer had attended.  

	12.	It seemed to me that the Secretary of State’s failure to attend, despite the direction which I had issued, had put me into real difficulty.  I had a duty under English law and Article 6 ECHR to conduct a fair hearing in a manner which appeared to be fair.  A presenting officer would be able to summarise the arguments and the evidence; present witnesses for cross‑examination; and deal with any difficulties, such as the form of the decision, which might arise.  It seemed to me that the functions of a presenting officer were vital if justice were to be done in this case.  Who was to perform them?  Having regard to the need to appear to be independent, there were limits to the extent that the Tribunal could do so.  

	13.	I therefore considered the adjournment request.  As I have explained, I did not consider the written submission from Mr Wilson to be new material justifying an adjournment.  Nor was I inclined to grant an adjournment in the exercise of my discretion.  The request was exceedingly unattractive coming from a government Department with large resources at its disposal which had, in an important case, failed to obey a direction.  It was hard to conclude that the absence of cover for an officer on leave was not a direct result of the district’s policy not to attend hearings routinely.  I took into account the extra anxiety caused to [the claimant] by prolonging the proceedings and requiring her to prepare herself twice for attending a Tribunal.  Of lesser weight, but still to be taken into account, was the wasted work and costs for Mr Wilson.  I concluded that an adjournment would not be fair or reasonable.

	14.	What then should I do?  The regulations give me no power to enter judgment in default of appearance.  I was conscious of the duty which a Tribunal has to ensure that justice is done even for parties who do not attend.  Moreover these proceedings are not adversarial.  Public law Tribunals have responsibility to try to ensure that the correct decision is taken.

	15.	Nevertheless this was a case in which the burden of proof was on the Secretary of State.  This is generally taken to mean that it is for the Secretary of State to place before the Tribunal material which is logically probative of his case on the balance of probabilities.  In my judgment it also implies an obligation to conduct the proceedings in such a way to enable the Tribunal to function.  Without doubt, there are many cases where written material will suffice.  In my view this is not such a case.  I concluded that if the Tribunal were to proceed fairly and lawfully, it was essential for the Secretary of State to provide a presenting officer.  He had failed to do so, despite a specific direction to that effect.  In these circumstances I concluded that I should allow the appeal based on the burden of proof not being discharged.  

	16.	I therefore decided that the award of benefit should not be revised or superseded.”

17.	Before we turn to consider the main submissions made before us, we first set out those matters which were, or during the course of the hearing became, common ground, and are in our view beyond dispute.

(a)	It was agreed that the decision under appeal only concerns entitlement, notwithstanding the reference to overpayment in the interview of 10 May 2002.  It was confirmed at the hearing before us that still no decision has been made as to overpayment.

(b)	Although the decision under appeal is not an overpayment decision, it was accepted by both parties that it is for the Secretary of State to establish that the claimant’s award or awards of income support should be revised or superseded.  Insofar as the burden of proof is of relevance, it lies upon the Secretary of State.

(c)	The standard of proof is the civil standard of proof, namely the balance of probabilities, although the more serious the allegations to be proved, the more cogent is the evidence required to reach the standard of proof (see Re H [1996] AC 563 at 586, per Lord Nicholls of Birkenhead).

(d)	There is no power in a tribunal to strike out a respondent to an appeal nor to give a decision adverse to a party purely on the grounds of non-appearance by that party.  Regulation 46(1)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (relating to striking out of an appeal by a clerk for non-compliance with a direction by a tribunal chairman) only applies to appellants.  Regulation 49(4) of the same Regulations (relating to failure to appear at a hearing) only authorises the chairman, or single panel member, either to proceed with the hearing in the absence of the party or to give directions with a view to the determination of the appeal.

18.	On behalf of the Secretary of State Mr Coppel submitted that the chairman, notwithstanding his reference to the burden of proof not being satisfied, had essentially failed to discharge his inquisitorial or investigatory role, and had in effect decided the case as he did simply because of the non-attendance of a presenting officer and without himself attempting to determine the facts or the merits. 
 
19.	Mr Seddon on the other hand disputed that the principle that tribunals have an investigatory role (as set out in R v Deputy Industrial Commissioner ex parte Moore [1965] 1 QB 456 and R v Medical Appeal Tribunal ex parte Hubble [1958] 2 QB 28) should apply with full force in cases where the burden of proof lies upon the Secretary of State and the allegations are of a serious nature.  He submitted that since appeals now lie from tribunals, via the Commissioners, to the court system - where the proceedings are adversarial - the observations made in those judicial review cases are no longer of universal application.  In such a quasi-adversarial case as this, having declined to adjourn, the chairman was justified in concluding that in the absence of a presenting officer the appeal would have to be awarded to the claimant, as otherwise the chairman would have to put the case of the Secretary of State for him and undertake cross-examination of the claimant.  This course would necessarily cause the chairman to descend into the arena with the inevitable result that the proceedings would become unfair.  Alternatively, Mr Seddon submitted that the chairman’s decision and statement of reasons should be read as showing that the tribunal had considered all the material before it and found, as a fact, that the Secretary of State had not established his case.  Mr Seddon submitted that the direction of 19 December 2002 clearly demonstrated that the chairman was fully aware of the facts of the case and said that in that context paragraph 15 of the statement (and especially the reference to the written material not being sufficient) was adequate to show the tribunal had fully considered the merits and had decided that the Secretary of State’s case had not been made out.

20.	We have the greatest sympathy for the considerable difficulties in which the chairman found himself in this case.  These difficulties were created by the Secretary of State’s local officers who were at fault in the way in which they conducted the case and, in particular, the manner in which they responded to the directions and inquiries from the tribunal about the attendance of a suitable presenting officer: this was both discourteous and inappropriate.  This case was one of some difficulty and some importance.  It was of obvious importance to the claimant - but where there are allegations made that a citizen has improperly obtained large amounts of taxpayers’ money there is also a substantial public interest.  A case of this difficulty and importance ought not to have been handled by the Secretary of State’s local officers in the way that it was.

21.	  We were comforted at the hearing to hear that the Secretary of State, through his Counsel, accepted this.  Mr Coppel for the Secretary of State said that it was the Secretary of State’s policy to appear by way of a presenting officer at every tribunal appeal hearing where the tribunal had made a direction requiring a presenting officer to attend.  That is an assurance which will, we are sure, be welcomed by appeal tribunals: and, we are equally sure, it is an assurance that will not be abused by tribunals.  Mr Coppel said that, in the case before us, a presenting officer ought to have attended the tribunal hearing in line with the Secretary of State’s policy - and the local officers erred in not arranging for an officer to attend.

22.	In the appeal, a witness statement of Mr Lyndon David Walters was filed on behalf of the Secretary of State.  Mr Walters is a very experienced civil servant in the Department for Work and Pensions, who is responsible for policy administration.  Mr Walters said:

“The Secretary of State recognises the important role that [presenting officers (“POs”)] can play at appeal hearings and that current levels of attendance of POs are unacceptable.  Accordingly, he has asked Jobcentre Plus, the Pensions Service and the Disability and Carers Service to reverse the decline which has occurred in attendance rates, especially in complex cases….  The Department has begun to address the position in a variety of ways….

The issue of attendance of POs at appeals was addressed by the National Audit Office (“NAO”) in its recent report entitled “Getting it right, putting it right: improving decision-making and appeals in social security benefits” (HC 1142, Session 2002-03: 7 November 2003).  The NAO’s Recommendation No 6 stated:

‘The Department should consider implementing a “spend-to-save” scheme to send a presenting officer to all complex appeal tribunals, to represent them, to advise the tribunal and to provide direct feedback to decision-makers.’

…  The Secretary of State has accepted the recommendation of the NAO in relation to attendance of POs, and is taking the steps I have set out above in order to meet it.  The expected improvements will not occur overnight, but a real commitment has been made to improve the situation….

On 25 March 2004, The Public Accounts Committee of the House of Commons published its Report on the NAO’s “Getting it right, putting it right” report.  It made the following recommendation:

‘The Department should take a more risk-focused approach to sending officers to represent them at tribunals in order to ensure that the Department’s case is properly heard.  Currently, there is no strategy or logic dictating when presenting officers attend.  The Department should devise and adhere to criteria for attendance.  These might include, for example, sending presenting officers to all complex appeals tribunals, to represent them, to advise the tribunal, and to provide feedback to decision-makers.’

The recommendation of the [Public Accounts Committee] in relation to the attendance of POs at appeal tribunal hearings substantially reflects that of the NAO, and the Secretary of State is, likewise, content to accept it….”

23.	Mr Walters also refers to the Council on Tribunals’ Annual Report, and correspondence passing between the Chairman of the Council (Lord Newton) and the Secretary of State, which repeated criticisms made by the President of the Appeal Tribunals (His Honour Judge Michael Harris) about the trend of falling rates in presenting officer attendance, to which the Secretary of State has responded in similar terms to those set out in Mr Walter’s own statement.

24.	Therefore, with regard to the future, appeal tribunals will have comfort that (i) if the tribunal directs that a presenting officer attend a hearing, then such an officer will attend (or make a timely application for a postponement, if attendance is not possible); and (ii) although this will take some time to implement, the Secretary of State is developing criteria to identify cases of complexity that require a presenting officer and, in those cases, a presenting officer will attend whether or not the tribunal has made an express direction.   We hope that in consequence of this case, and of the current review of departmental policy and procedures described in Mr Walters’ statement, tribunals will in future not be placed in the predicament Mr Warren faced on 6 January 2003.  

25.	However, that relates to the future.  In relation to the case before us, we have to decide whether, in the difficult circumstances in which he found himself, the tribunal chairman did or did not err in law.  In our judgment, we consider he unfortunately did fall into error.  We consider that, in determining the appeal in favour of the claimant in the way he did - immediately after deciding against an adjournment, and without taking evidence or recording findings of his own as to what the actual facts were - Mr Warren must have misdirected himself as to the right course for a tribunal in this difficult situation; and his decision must consequently be set aside as erroneous in law.

26.	It is not in our judgment open to doubt that, as an appeal tribunal under the Social Security Act 1998 hearing the claimant’s appeal against the departmental determination revoking her entitlement to benefit, Mr Warren was sitting as an “inquisitorial” tribunal.  By that we mean his function was to carry out a complete reconsideration and redetermination for himself of the facts and merits of the decision under appeal, the purpose being to ascertain and determine the true amount of social security benefit to which the claimant was properly entitled: see R v Deputy Industrial Commissioner ex parte Moore [1965] 1 QB 456 and R v Medical Appeal Tribunal ex parte Hubble [1958] 2 QB 28 referred to above; the Commissioners’ case R(S) 4/82 (especially paragraph 25) and the recent decision of a Tribunal of Commissioners in CIB/4751/2002 (especially paragraph 32); and the further recent reaffirmation of the principle in Kerr v Department for Social Development (Northern Ireland) [2004] UKHL 23 (especially at paragraph 14 per Lord Hope, and paragraph 61 per Lady Hale).  In our judgment this is and remains a principle of general application to all proceedings in such tribunals.  We do not accept Mr Seddon’s submission that it is in some way disapplied or diluted by the existence of further rights of appeal, confined to points of law, to the higher courts; or by the nature of the issues in a given appeal (for example, whether a case concerns entitlement or overpayment).  The distinctions suggested by Mr Seddon are unsupported by authority or principle and would be artificial, issues relating to entitlement and overpayment not being entirely discrete, as this case illustrates.  Mr Warren was right in directing himself as he did in paragraph 14 of his statement of reasons that the proceedings before him were not adversarial and he did not have any power to enter judgment in default against a party who failed to comply with a direction or to attend.

27.	The practical options in the circumstances that faced Mr Warren on the hearing date were therefore:

(i)	to proceed to conduct a full hearing and determination of the facts and merits on such material, written and oral evidence and representation as he had before him on 6 January 2003; or 

(ii)	to adjourn for the purpose of being better able to conduct such a hearing at another date, if he considered the interests of justice required it.  

28.	Which of these courses to adopt was a matter for his procedural discretion and judgment in the management of the case.  In our view he was fully entitled to decide against an adjournment of the proceedings, for the reasons summarised in paragraph 13 of his statement.  On the footing that the alternative was to proceed to a determination of the facts and merits - as Mr Wilson appears to have envisaged in opposing the adjournment by reference to his submission on the factual issues - that was an entirely proper exercise of the chairman’s discretion.  We reject the submission by Mr Coppel that the reference to departmental policy shows an improper consideration had been taken into account: this merely reflects what had been stated by the investigating officer after telephoning the local office, as set out in the paragraph 13 above.

29.	However, we have to accept Mr Coppel’s submission that the chairman misdirected himself and fell into error of law in what he proceeded to do then.  It is in our judgment quite clear from the final part of his contemporaneous note of the proceedings, and the reasons he recorded in paragraph 15 of his statement, that the chairman decided to go ahead with the determination of the appeal on 6 January 2003 by recording a decision in favour of the claimant immediately after announcing his refusal of the adjournment, and without going into the merits of the case at all, on the basis that the absence of a presenting officer prevented the burden of proof being discharged.  In that we think the chairman was plainly mistaken, since the effect was that he put himself in the position of making a final determination, without having carried out his primary duty as an inquisitorial body to address the merits and the evidence in the case for himself and make and record findings of his own on the material facts necessary for its proper decision.  A tribunal is not entitled to rely upon a “failure to discharge the burden of proof as a substitute for a proper enquiry where there is evidence that there is something into which there needs to be an enquiry” (CI/1021/2001, paragraph 9: Mr Commissioner Angus).

30.	We do not agree with the chairman’s recorded view, reiterated in the submissions made to us by Mr Seddon, that the absence of a presenting officer made it impossible for a fair hearing to be conducted into the merits in this particular case.  There was a written submission on behalf of the Secretary of State before the tribunal.  The claimant was represented and the claimant’s representative had prepared a detailed rebuttal of the Secretary of State’s submission.  The chairman could have put the points made in the written submission to the claimant and come to a conclusion based on the claimant’s replies, any cross-examination of the investigating officers by the claimant’s representative and the representative’s submission.  It is notable that in his full statement the chairman himself does not refer to any difficulty that he might have had in questioning the claimant:  the difficulties to which he refers are those of not having a presenting officer to present the case or the investigating officers for cross-examination.  If the chairman had put the Secretary of State’s case to the claimant and asked the investigating officers to proffer themselves for cross-examination, this would not, in our judgment, have affected the independence or impartiality of the tribunal or fairness of the proceedings.  The duty of a tribunal to investigate the issues before it can legitimately involve the chairman questioning the claimant, even with probing questions - see, for example, the decision of a Tribunal of Commissioners in R(S) 4/82, particularly at paragraphs 27-28.  In that case it was pointed out by the Tribunal that it was the clear duty of the tribunal members, in the exercise of their investigatory functions to ask the claimant the obvious questions which arose:  and there could be no question of “bias” or unfairness in the mere fact that they did so.  Of course any interventions by the chairman himself to identify points that required an answer would have to be made carefully and phrased factually and neutrally:  but that is a skill developed and deployed by all chairmen experienced at conducting proceedings of an inquisitorial nature, and as often needed when parties are represented as when they are not.

31.	We therefore consider the chairman’s lack of confidence in his own ability to conduct a fair hearing of the merits in these circumstances was undoubtedly misplaced; but in any case having decided not to adjourn we consider he erred in law in declining even to attempt such an exercise before determining the case in favour of the claimant as he did.  That amounted to - or at least came perilously close to - pronouncing the “default judgment” he had rightly earlier directed himself he had no power to give.

32.	We cannot accept Mr Seddon’s submission that the chairman did in substance make a determination of the facts and merits of the case for himself.  The only reference to the underlying facts of the case is to be found in the brief summary in paragraph 2 of the statement, quoted above.  The chairman’s careful note of the proceedings shows that he did not in fact go into any evidence at the hearing, and paragraph 15 of the statement is in our view consistent only with the decision being based not on any consideration of the merits, but on the chairman’s view that the absence of a presenting officer effectively prevented him from properly carrying out any such consideration at all.  In that we consider he was mistaken, but in any event in the leap from there to his summary determination of the appeal in favour of the claimant we have no doubt he was in error.

33.	Perhaps anticipating this conclusion, Mr Seddon had a fall-back position.  This was to the effect that, if we should find that the chairman had made inadequate findings of fact, we should set his decision aside and substitute our own decision on the material before us.  This we decline to do.  As we have indicated above, at least in respect of some of the period under consideration, the material before us raises a prima facie case - a case that requires a response - that M and the claimant were living together as husband and wife.  The claimant did not attend the hearing before us.  All of the issues between the claimant and the Secretary of State are factual.  The claimant’s credibility is very much in issue.  In our view, the issues require the claimant to have the opportunity of giving oral evidence.  This appears to us plainly a case where the disputed factual issues require full consideration before a properly constituted fact-finding tribunal.  Mr Seddon’s submission that we should give the final decision in favour of the claimant came close to saying that his client had no case to answer.  It suffices to say that, as we indicate above, we consider that she has.

34	The appeal by the Secretary of State is accordingly allowed and the case remitted for rehearing.  We consider that that rehearing could be before either the same or a differently constituted tribunal.

His Honour Judge Gary Hickinbottom
Chief Commissioner

PL Howell
Commissioner

A Lloyd-Davies
Commissioner

25 June 2004