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[2005] UKSSCSC CSDLA_773_2004 (04 February 2005)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CSDLA/773/04

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER: D J MAY QC

Appellant: Respondent: Secretary of State

Tribunal: Edinburgh Tribunal Case No:

DECISION OF SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the appeal tribunal given at Edinburgh on 20 April 2004 is not erroneous upon a point of law. The appeal fails. I dismiss it.
2. The claimant has appealed to the Commissioner against the decision of the tribunal which is recorded at page 193. The grounds of appeal are in short compass. They are:

"[The claimant] feels that there has been an error in law and a breach of the rules of natural justice.

The chair of the tribunal would not bring his carer in with him and would not bring her into the room. Because of the appellant's memory loss he could not give accurate answers to the questions put.

The tribunal had received a letter (report) confirming his memory loss. Mr Hynd also felt that he was being badgered to give answers that he was not sure about. The tribunal lasted 45 mins".

The Secretary of State does not support the claimant's appeal as can be seen from a submission at pages 256 and 257.

3. I do not consider that there is any merit in the grounds of appeal. It was said by a Tribunal of Commissioners in R(S) 4/82 that the requirements of the rules of natural justice could for practical purposes be reduced to three – 1) an absence of personal bias or malafides, 2) an obligation to base their decision on the evidence and 3) to listen fairly to the contentions of all persons entitled to be represented. I do not accept that in that context there has been any breach of the rules of natural justice. As is pointed out by the Secretary of State, the opportunity was given by the chairman to the claimant's representative to call the claimant's former wife to give evidence. The claimant's representative declined to do so. That was a matter for her. What happened before the tribunal in that regard is recorded at pages 191 and 192. Having given the opportunity to the representative to call the claimant's wife and that having been declined it cannot be asserted in my view that there was a breach of the rules of natural justice by the tribunal because of the assertion in the grounds of appeal that the claimant's former wife was not present in the room when he gave his evidence and was not allowed by the chairman to be so. If the position that the claimant's representative wished to advance before the tribunal was that the claimant suffered memory loss and could not give accurate answers to the questions put, then clearly the claimant's representative could have called the claimant's former wife as a witness and made an appropriate submission in respect of both the evidence of the claimant and his former wife.
4. In relation to the assertion that the tribunal received a letter confirming the claimant's memory loss I note what is said by the Secretary of State in paragraph 4.3 of his submission. The claimant's representative was given an opportunity to respond to that submission but has not done so I accept the Secretary of State's submission. If there was any other document asserted to have been before the tribunal I am not directed to it nor can I find such a document.
5. It is asserted in the grounds of appeal that the claimant was badgered to give answers that he was not sure about. No examples of this are given in the grounds of appeal. The record of proceedings is an extensive record of the detailed evidence given by the claimant. There is nothing therein nor in the statement of reasons which gives any hint that the tribunal was not conducted properly and fairly. Unspecified allegations about the conduct of the tribunal in grounds of appeal are simply not sufficient to demonstrate any breach of the rules of natural justice.
6. I should perhaps add in the light of what was submitted by the Secretary of State in paragraph 4.1 of his submission that I express my disagreement with my brother Commissioners in CJSA/5100/2001, CIB/2308/2001, CIB/2751/2002 and CS/3202/2002 in relation to the legal tests to be applied in cases where breaches of the rule of natural justice are asserted. In paragraph 6 of CJSA/5100/2001 the Commissioner said:

"However the Human Rights Act provides a convenient opportunity to rebase their decisions on procedural fairness in fresh terms. In my view that is desirable".

I dissent from that proposition because the incorporation of the European Convention on Human Rights into domestic law does not in itself supplant existing domestic law. R(S) 4/82 provides a long standing, precise and clear definition of what constitutes the requirement of the rules of natural justice. It is good law and requires to be followed by Commissioners which I do. I see no need to adapt the language which it uses nor do I find its language "stale to tribunals from over familiarity" which is the import of paragraph 7 of CJSA/5100/2001. The Secretary of State in his submission said that the relevant case law as to whether the claimant was accorded a fair hearing was paragraph 15 of the decision in CIB/2308/2001. However, that paragraph deals with the principle of equality of arms which is not the basis of the claimant's complaint in this case. Thus the principles to be followed are those contained in R(S) 4/82 which is what I have done. If it is asserted that a convention right has been breached then it is for the appellant to raise the issue separately and focus it properly.

7. The appeal fails.

(Signed)

D J MAY QC

Commissioner

Date: 4 February 2005