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UK Social Security and Child Support Commissioners' Decisions
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Cite as:  UKSSCSC CSIS_21_2008
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 UKSSCSC CSIS_21_2008 (10 July 2008)
DECISION OF SOCIAL SECURITY COMMISSIONER
"1. We allow the appeal against the decision of the Secretary of State dated 13 July 2006 as revised on 2 August 2006 and 23 January and 12 February both 2007, in part, determine that the claimant/appellant is treated as being capable of work from and including 19 November 2003 and supersede the award of income support dated 10 June 1994 at an increased rate from and including 2 February 1994 to the effect that the claimant/appellant is not entitled to income support from and including 19 November 2003, thus supersession to have effect on 19 November 2003.
2. We allow the appeal against the decision of the Secretary of State dated 11 August 2006 as revised on 23 January and 12 February both 2007, in part, determine that on 19 November 2003 the claimant/appellant failed to disclose the material fact that she commenced working as a karaoke entertainer at the Stags Head Bar, Carnoustie.
As a consequence, income support amounting to £4,677.35 was paid to the claimant/appellant for the period from 29 November 2003 to 29 May 2006 (both dates included) which would not have been paid but for the failure to disclose.
Accordingly, that amount is recoverable from the claimant/appellant."
"My revised decision is as follows:
I hereby supersede the decision of the Secretary of State dated 10 June 1994 which awarded Income Support to [the claimant] at an increased rate from and including 2 February 1994 on the basis that she was incapable of work.
A relevant change of circumstances has occurred since that decision had effect in that [the claimant] has been working and the Secretary of State has determined that she is not incapable of work from 1 September 2003 to 30 December 2005 (both dated included); and from and including 10 February 2006. In addition, [the claimant] was in South Africa on holiday from 5 January 2006 to 5 February 2006 (both dates included).
Accordingly, [the claimant] is:
- not entitled to Income Support from 1 September 2003 to 30 December 2005 (both dates included) because she does not fall within a prescribed category of person;
- entitled to Income Support at the weekly rate of £11.90 from 31 December 2005 to 4 January 2006 (both dates included);
- not entitled to Income Support from 5 January 2006 to 5 February 2006 (both dates included) because she is not in Great Britain;
- entitled to Income Support at the weekly rate of £11.90 from 6 February 2006 to 9 February 2006 (both dates included);
- not entitled to Income Support from and including 10 February 2006 because she does not fall within a prescribed category of person.
Of the sum of £5,090.19 already paid by way of Income Support to [the claimant] for the period from 1 September 2003 to 29 May 2006 (both dates included), £15.30 is to be offset against the arrears of Income Support now due to her for that period under this award and is to be treated as properly paid on account of them.
As a result of this decision, there has been an overpayment of Income Support amounting to £5,074.89 for the period from 1 September 2003 to 29 May 2006 (both dates included) as detailed on the attached schedule.
On 1 September 2003, or as soon as possible thereafter, [the claimant] failed to disclose the material fact that she commenced working as a karaoke entertainer in the Stags Head Bar, Carnoustie. In addition, she also failed to disclose the material fact that she commenced additional employment working as a karaoke entertainer in the Links Bar, Carnoustie in July 2005 and that she was to be on holiday abroad from 4 January 2006 to 6 February 2006.
As a consequence, Income Support amounting to £5,074.89 was paid to [the claimant] for the period from 1 September 2003 to 29 May 2006 (both dates included) which would not have been paid but for the failures to disclose.
Accordingly, that amount is recoverable from [the claimant]."
It can be seen from the decision that the basis upon which the change of circumstances relied upon for the purposes of the supersession of the award of Income Support was the determination of 10 July 2006 of the Secretary of State under section 31 of the Social Security Act 1998 referred to in CSIB/22/08.
"the revised reconsideration decision relating to Income Support issued on 12/02/2007 is confirmed subject to the substitution of the words "19 November 2003" for the words "1 September 2003" wherever they occur and the substitution of the figure of £4698.01" for the figure of "£5,074.89" wherever it occurs."
"A tribunal is not, of course, bound by the strict rules of evidence, but nevertheless it must, before admitting second-hand (hearsay) evidence, carefully weigh up its probative value, bearing in mind that the original maker of the statement is not present at the hearing to be questioned on what he actually saw."
I was also referred by Mr Logan to paragraph 5 of R(SB) 10/86 where it was said:
"5. But the Adjudication Officer did not give any evidence; he only made submissions. If the statements made by the Adjudication Officer's representative are contested, as in this case they were, and he does not adduce evidence in support of them or submit himself for questioning, no tribunal should accept such statement of unadmitted without supporting evidence."
Further, I do not consider that these two cases assist the claimant. The signed statements by the witnesses are not hearsay evidence. They are signed statements of the first hand evidence by the witnesses in respect of the events set out therein. They are both evidence and evidence which can be admitted, though the fact that the witnesses did not give evidence orally and thus were not subject to questioning are factors that require to be taken into account when assessing the evidence. On the face of it, the decision in R(SB) 10/86 is not on all fours with this case. In this case, what was before the tribunal was a written record of evidence signed by the witnesses and the officer of the Department. It was not a submission by the Secretary of State.
"In our judgement, the statutory obligation to make the rules, and R49 (2) in particular, are merely declaratory on one of the basic rules of natural justice, namely that every party to the controversy has the right to a fair hearing. He must know what evidence has been given and what statements have been made effecting him; he then must be given a fair opportunity to correct or contradict them (per Lord Denning in Kanda v. Government of the Federation of Malaya  AC 322 at 337 – 338)."
"A sec 9 hearing took place before a justice of the peace in relation to 44 batches of a particular cheese produced by the petitioner, which were allegedly contaminated and unfit for human consumption. In respect of the conduct of proceedings, the justice prohibited cross examination of witnesses and any questions to witnesses were to be put through her. Counsel for the petitioner at the hearing declined to put any questions in that way to the witnesses for the food authority. The justice decided that the cheese should be disposed of or destroyed. The petitioner thereafter sought judicial review of that decision."
I was directed to what was said by the Lord President at page 558. He said:
"In the present case the prejudice which resulted from the refusal to allow cross examination is self evident. There was a difference of opinion between experts on points which were crucial to a sound determination of the questions which the justice had to decide. The result of her refusal to allow cross examination was that the evidence of the second respondents' witnesses could not be challenged in the only manner which was likely to be effective in a case of such difficulty. So I consider that the Lord Ordinary was well founded in his decision that by refusing to allow cross examination in these circumstances the justice disabled herself from reaching a fully informed conclusion upon the evidence. This amounted to a denial of natural justice to the petitioner, as her duty to act fairly in this case required her to permit cross examination of the second respondents' witnesses.
The answer to that question must in the end depend upon the circumstances. In my opinion it is clear from the facts in this case that the justice could not decide whether the cheese failed to comply with food safety requirements without examining the evidence of the expert witnesses. We were not referred in detail to their evidence, but the documents which were shown to us indicate that important questions were raised by the petitioner's expert about the reliability of the evidence of the second respondents' witnesses. The nature of these questions was such that they could not be answered without a detailed study and understanding of the witnesses' evidence. Counsel for the second and third respondents submitted that the point which was being made by these witnesses was a simple one. There were no statutory guidelines, but they said that the matter could be decided by the application of the PHLS Guidelines which did not give rise to any questions of difficulty. But the application of those guidelines to this case was disputed, and the justice could not decide that issue fairly between the parties without examining the detail of their evidence.
In a case of this difficulty there was an obvious risk of unfairness if the second respondents' witnesses were not open to cross examination on the detail of their evidence. There was a risk that defects in that evidence would lie undetected, and that the justice would not be informed about the issues which she had to decide. It is no answer to this point to say that she put both parties on an equal footing by denying to both of them the opportunity of cross examining each other's witnesses. Nor is it an answer to say that the public have an interest in food safety. The consequences for the petitioner and his business were likely to be very serious if the case went against him, and he had a right under the statute to attend and to call witnesses. The issues which the petitioner's representative wished to raise in cross examination were issues on which the petitioner wished to be heard. These were issues which he wished to raise by way of challenge to the evidence of the second respondents' expert witnesses. The unfairness to him lay in the denial to him of the opportunity of opening up these issues by putting questions about them directly to the second respondents' expert witnesses."
"Where, as in the present case, a personal bias or mala fides on the part of the deputy commissioner is not in question, *488 the rules of natural justice which he must observe can, in my view, be reduced to two. First, he must base his decision on evidence, whether a hearing is requested or not. Secondly, if a hearing is requested, he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing. In the context of the first rule, "evidence" is not restricted to evidence which would be admissible in a court of law. For historical reasons, based on the fear that juries who might be illiterate would be incapable of differentiating between the probative values of different methods of proof, the practice of the common law courts has been to admit only what the judges then regarded as the best evidence of any disputed fact, and thereby to exclude much material which, as a matter of common sense, would assist a fact-finding tribunal to reach a correct conclusion: ef. Myers v. Director of Public Prosecutions. [FN26].
FN26  3 W.L.R. 145
These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his".
He went on to say:
"Where, however, there is a hearing, whether requested or not, the second rule requires the deputy commissioner (a) to consider such "evidence" relevant to the question to be decided as any person entitled to be represented wishes to put before him; (b) to inform every person represented of any "evidence" which the deputy commissioner proposes to take into consideration, whether such "evidence" be proffered by another person represented at the hearing, or is discovered by the deputy commissioner as a result of his own investigations; (c) to allow such person represented to comment upon any such "evidence" and, where the "evidence" is given orally by witnesses, to put questions to those witnesses; and (d) to allow each person represented to address argument to him on the whole of the case. This in the context of the Act and the regulations fulfils the requirement of the second rule of natural justice to listen fairly to all sides (see Board of Education v. Rice [FN27].
FN27  A.C. 179, 182."
Mr Bartos' submission was in effect that in the context of what was said there, the rules of natural justice have been complied with.
D J MAY QC
Date: 10 July 2008