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Latest posted decisions Click on the decision number to view the full decision.
This decision of a tribunal of social security commissioners states that failure to make/ supply a record of proceedings (in this case failure of the clerk to produce a legible copy) in breach of regulation 55 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991), is not of itself an error of law.
“…we are satisfied that Parliament cannot have intended that all breaches of regulation 55, whatever their materiality, should render appeal proceedings defective such that a tribunal’s decision is necessarily erroneous in point of law on that ground alone. We would stress that to make, preserve and upon request produce a record of proceedings is a regulatory requirement: chairmen and administrators charged with making, keeping and producing records should appreciate both the mandatory nature of regulation 55 obligations and their practical importance. However, where there is no record of proceedings, that is not necessarily fatal to the integrity of the appeal proceedings. On an appeal to disturb a decision, an appellant must show that the failure to comply with regulation 55 was material to the decision in the sense that it has resulted in a real possibility of unfairness or injustice. Insofar as they suggest otherwise, CDLA/4110/1997, CIB/3013/1997 and CA/3479/2000 should no longer be followed.”
The decision upholds the approaches taken in CSSB/212/1987, CDLA/16902/1996, CIB/867/1997 and CDLA/1389/1997.
In the case of CSDLA/500/2007 the appeal did not succeed. Although the record of proceedings had already been lost when the chairman came to write the statement of reasons, she was able to rely on other notes she had made and included in the statement of reasons an indication of the evidence given at the hearing. An alternative ground that the reasons given by the tribunal were inadequate was also rejected.
In the case of CSDLA/524/2007 the appeal was upheld. The first ground of appeal, namely that the tribunal’s decision was erroneous in point of law simply because the record of proceedings was illegible was rejected. But the second ground for appeal, that the statement of reasons for the tribunal’s decision was inadequate (in part due to the illegible record of proceedings) was accepted.
“In short, in the face of written evidence from the claimant and her husband that she could not walk for more than 30-40 metres without developing severe discomfort, the tribunal found that she could walk 100-200 yards. The reasons do not explain the evidential basis of this finding and an explanation cannot be found in the documents that were before the tribunal or, of course, the illegible record of proceedings. We consider it is now too late to require the tribunal chairman to provide a legible transcript of the record of proceedings. We allow the claimant’s appeal on that ground.”
This appeal, that the tribunal had failed to take proper account of a supporting people contract, was rejected.
"The chairman’s statement must be read as a whole. It is clear that she accepted that an arrangement could be commercial even if it involved support or rehabilitation. She focused on the particular circumstances of the arrangements in these cases and decided that they were not on a commercial basis. She listed the particularly significant factors that she took into account. She classified them as being for a commercial basis, against or neutral. She then considered the circumstances as a whole and reached her conclusion. I find that her analysis was rational. I cannot see that she overlooked any relevant consideration or that she took into account anything that was irrelevant. Her approach to the issue of commercial basis was correct in principle and it is impossible to say that she was plainly wrong in her conclusion."
The claimant stated on her housing benefit and council tax benefit claim form that she was paid £210 weekly for a 40 hour week. The local authority wrongly noted this as £46.95 (The claimant subsequently provided the information a second time when she was sent a postal check form by the local authority).
Regulation 100 of the Housing Benefit Regulations 2006, SI 2006/213) states that overpayments are not recoverable “where they arose in consequence of an official error where the claimant or a person acting on his behalf or any other person to whom the payment is made could not, at the time of receipt of the payment or of any notice relating to that payment, reasonably have been expected to realise that it was an overpayment.”
This appeal succeeds because the claimant’s full explanation for not recognising the difference in earnings quoted was never put before the tribunal. She was not asked any questions about how she could reconcile what the tribunal in its statement of reasons referred to as a clear statement that her weekly earnings were £46.95 with her knowledge of her actual earnings.
“It seems to me that this amounted to a failure by the tribunal to ask material questions pursuant to its duty to act inquisitorially and as such was an error of law”
There was also an error of law because the tribunal had not dealt separately with the issue whether the claimant could reasonably have been expected to realise that the local authority had made a mistake leading to an overpayment a second time just after she had again provided them with all the correct information.
Martin Inch - 10 April 2008
