[2008] UKSSCSC CIS_1481_2006 (24 April 2008)

CIS_1481_2006 [2008] UKSSCSC CIS_1481_2006 (24 April 2008)

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UK Social Security and Child Support Commissioners' Decisions

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Cite as: [2008] UKSSCSC CIS_1481_2006

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CIS 1481 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

+ I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I refer the appeal to a new tribunal to rehear in accordance with the directions at the end of this decision.

The claimant and appellant (C) is appealing with my permission against the decision of the Bolton tribunal on 7 02 2006 under reference U 06 122 2005 01988.

I held an oral hearing of the appeal in London on 1 and 2 08 2007. C was represented by Darius A'Zami of the Free Representation Unit ("FRU") accompanied by Emma Baldwin. The Secretary of State for Work and Pensions was represented by Tim Buley of counsel, instructed by the Solicitor to the Department for Work and Pensions ("DWP").

I directed that the Secretary of State produce the tapes of the fraud interview of C, the video recording and records of the surveillance of C conducted as part of the investigation of the case, and other information. Both sets of tapes were produced and made available to Mr A'Zami. I requested a legal officer to check the transcript in the appeal papers against the audio tapes to ensure that they were accurate transcripts. I am satisfied that they were. I did not listen to the tapes. The video tapes were also made available to Mr A'Zami, and he had the opportunity to observe them shortly before the hearing. I did not look at them. I was asked to inspect both the video tapes and the audio tapes as part of the hearing, but I declined to do so.

As new matters emerged at the hearing, I agreed with the parties at the end of the hearing that Mr Buley would subsequently provide me with further information. I also agreed that I would send a draft of parts of the decision to both parties for them to consider any new issues of law that emerged at the hearing or on the further information. This arose because it was clear that they did not have full instructions on all points raised for the other party, in part because of matters that emerged during the hearing itself. I have now received the comments of the parties on the key parts of this decision referred to them after the hearing and after receiving the further information from Mr Buley.

REASONS FOR THE DECISION

Outline:

6 The facts and original decision

15 The appeal to the tribunal

20 The appeal to the Commissioner

21 Submissions for the Secretary of State

28 Submissions for C

34 Surveillance and human rights

37 RIPA and the Home Office code

43 The surveillance of C
46 The investigatory powers tribunal

49 Surveillance: conclusion

51 The evidence derived from the surveillance

55 The interviews with C

59 Suspending human rights

67 Evidence withheld by the Secretary of State

76 The reasons given for withholding evidence

83 Analysis of the reasons given

92 Withholding of evidence: conclusions

95 The tribunal hearing

100 The estrangement issue

101 Directions for the new hearing

The facts and original decision

C started claiming income support in 1997. She originally claimed for herself and her husband (D) because she was then incapable of work. They were living at an address I call 11 H St. On 2 6 1997 C told officials that she no longer lived with D at 11 H St and that she had moved to another address with her grandchild. C and D did not go through a divorce or formal separation. Both claimed and were awarded benefits separately from that time. D continued to be paid benefits throughout the period relevant to this appeal.

On 6 06 2005 an unidentified individual telephoned the local Jobcentre to say that D had been living with C at an address I call 21 E St for the last ten years. Other allegations were made about C. The information was taken by DWP officers as a reason to investigate. (I refer to officers working for various parts of the DWP as "DWP officers".) The investigation was as to the then current position and not the alleged past position. The other allegations were not followed up.

DWP officers asked for, and were given, authority to conduct surveillance on both C and D. This appeal concerns only C. D is not a party to this appeal. He was not been called as a witness by either party before the tribunal or me. He does not appear to have given any relevant evidence to DWP officers. So I comment no further on the position of D save for noting the evidence about D from DWP officers on which, therefore, he has not commented.

At the time the investigation started, according to DWP records, C was living at 21 E St with her two granddaughters, but no one else. That is the position that C maintained throughout the enquiry and appeal.

As a result of the decision to investigate, two DWP officers (officers W and R) conducted surveillance operations on C, D and 21 E St. This included personal surveillance over the period of a month. They left an unmanned vehicle containing operating cameras outside the house on two occasions. DWP officers formed the view from these observations that C and D were living together and were not estranged.

C was summoned to the local Jobcentre for a formal interview. An interview started on 31 08 2006. It was suspended so that C could take advice. C went to her local Citizens Advice Bureau ("CAB") for help. The CAB wrote on her behalf robustly rejecting the "innuendoes and allegations made by parties unknown". The letter informed the Jobcentre that D did visit C and the grandchildren at 21 E St. D collected the children from school and stayed on at 21 E St with them to help with homework. The grandchildren were the children of a daughter of both C and D who rarely saw either her parents or her children. C and D had joint custody of the grandchildren. The separation of C and D was confirmed. It was also confirmed that there was no sexual relationship between C and D and that D gave no financial help to C. "She does not cook for him, or wash his clothes. She does not appear in public or shop or socialise with him." DWP officers knew of this letter at the time of the second interview with C.

A full second interview of C took place on 14 09 2005. It was conducted under caution by officers W and R, both of whom introduced themselves as benefit fraud investigators of the DWP. There appears to have been no equivalent interview of D.

Following the interview, officer W made enquiries of the schools at which the granddaughters attended about whether D was a named contact for them, and if so at what address. Both schools replied that D was a named contact. One gave his address as 11 H St, and the other as 21 E St. Different telephone numbers were also given, but these seem not to have been checked. There was no other evidence presented to the tribunal of any investigations by DWP officers of other sources of information about whether D lived with C. The CAB in its letter had suggested evidence from utility bills, local shops and neighbours. They might also have included the tenancy of 21 E St, the position at 11 H St, liability for council tax and entitlement to council tax benefit, telephone books and accounts, television or other rentals or any bank or equivalent accounts or electoral registers. The CAB suggestions were not taken up and no other sources of information were checked.

A DWP officer was asked for an estrangement decision on 28 09 2006. The request was based only on the evidence of the surveillance, the interview of C, and the enquiries to the schools. The decision, taken the following day, was that C was not entitled to income support as a single person from 3 08 2005 as she "was maintaining a common household with" D and their income and capital should be aggregated. 3 08 2005 was the first day on which surveillance took place. I am told that no equivalent decision was taken about D.

The appeal to the tribunal

C appealed, restating that she lived with her granddaughter but not with D.

She also stated that social services were currently looking at her application to adopt one of her granddaughters. No enquires were made of that source.

The CAB prepared a detailed written submission to the tribunal for C. It is dated 1 02 2006. As is often the case, the CAB was unable to represent her at the tribunal. The CAB also produced a letter from C's landlord about 21 E St and from C's general practitioner about her health and mobility problems. It also tried to get additional information from the DWP officers. But the CAB was prevented by DWP from having access to that information. The CAB's written submission rehearses the decision, the available evidence and the evidence not available, the medical conditions of both C and D, and the position about the grandchildren. The submission also contains the following:

"… she feels she was treated appallingly by the DWP. Doc 18 states that her human right were suspended; this put her at unease throughout this interview, not knowing what was taking place and what would happen to the children should she be locked up. She felt clearly intimidated by the way the interview was conducted, and the bombardment of the type of questions that was put to here which was not relevant to her case."

The submission also states that aspects of the case were being taken up with the local Member of Parliament and that discussions were still taking place.

The tribunal held an oral hearing on 7 02 2006. C attended with no witnesses or representative. She did not have the appeal papers with her, and there is no indication that she was supplied with any. The Secretary of State was represented by a presenting officer who is recorded as relying on the position in the papers. Officer W attended as a witness. The record of proceedings shows that C made a statement and then was questioned by the presenting officer. Officer W then gave evidence. This was followed by an interchange of questions and comments between officer W and C. There is no reference in the record of proceedings to the statement made by the CAB. There is no indication that the chairman asked C, the secretary of state's representative or officer W any questions about the issues raised in that statement.

The tribunal confirmed the decision of the Secretary of State.

In its statement of reasons, the tribunal identified the test to be applied as that in Commissioner's Decision R(SB) 4/83. It applied the civil standard of proof. The burden of proof was not mentioned. It is on the Secretary of State. The tribunal is correct about the standard of proof, save that if Secretary of State is alleging fraudulent conduct on the part of C, that standard must reflect the seriousness of the conduct alleged. Having stated the test, the tribunal set out its views of the evidence before it. It concluded by disallowing the appeal. It made no comment on the issues raised in the grounds of appeal and the CAB submission.

The appeal to the Commissioner

The CAB lodged an application to appeal on the grounds that the tribunal had conducted the appeal inconsistently in a way that favoured the DWP. Specific points included that the tribunal failed to address the point that C had been told during the fraud interview that her human rights were suspended; that the DWP officers conducted surveillance of D but this was ignored by the tribunal; and that the CAB asked for copies of the taped interview and also the photos used in evidence and that this had been refused.

I granted permission to appeal to investigate the "suspended" human rights and the surveillance and the failure to produce evidence. These issues were the subject of written exchanges before the hearing. I also directed an oral hearing. I set out the submissions of the parties before examining the issues in dispute.

Submissions for the Secretary of State

Mr Buley presented the case for the Secretary of State first. His main submission was that whether or not DWP officers had erred in law it was the decision of the tribunal on the estrangement issue alone that was under appeal. There was no issue about the marriage between C and D. Further, no overpayment decision had been made. In his submission, the central issue before the tribunal was whether C was telling the truth. The statement of reasons showed that the tribunal had addressed that issue. There was a clear preliminary case established against C. It was therefore for her to rebut the case against her. The core of this was the surveillance evidence for the Secretary of State showed that D had stayed overnight at C's house on both of the two nights on which overnight surveillance was conducted at 21 E St.

Mr Buley also submitted that C had not put the accuracy of the surveillance evidence in issue, but had rather tried to explain the evidence away. The tribunal took the view in that context that it did not accept her explanation. It had addressed the issue before it fully in compliance with the duty on it to give reasons, as summarised by Lord Brown in South Bucks DC v Porter (No 2) [2004] 1 WLR 1953.

In Porter, Lord Brown conducted a thorough examination of previous decisions about the test to be applied in planning cases in deciding if the reasons given by a planning inspector are adequate to deal with the material considerations before the inspector. He then set out the following test:

"35. It may perhaps help at this point to attempt some broad summary

of the authorities governing the proper approach to a reasons challenge in

the planning context. Clearly what follows cannot be regarded as

definitive or exhaustive nor, I fear, will it avoid all need for future

citation of authority. It should, however, serve to focus the reader's

attention on the main considerations to have in mind when contemplating a

reasons challenge and if generally its tendency is to discourage such

challenges I for one would count that a benefit.

36. The reasons for a decision must be intelligible and they must be

adequate. They must enable the reader to understand why the matter was

decided as it was and what conclusions were reached on the "principal

important controversial issues", disclosing how any issue of law or fact

was resolved. Reasons can be briefly stated, the degree of particularity

required depending entirely on the nature of the issues falling for

decision. The reasoning must not give rise to a substantial doubt as to

whether the decision-maker erred in law, for example by misunderstanding

some relevant policy or some other important matter or by failing to reach

a rational decision on relevant grounds. But such adverse inference will

not readily be drawn. The reasons need refer only to the main issues in

the dispute, not to every material consideration. They should enable

disappointed developers to assess their prospects of obtaining some

alternative development permission, or, as the case may be, their

unsuccessful opponents to understand how the policy or approach underlying

the grant of permission may impact upon future such applications. Decision

letters must be read in a straightforward manner, recognising that they

are addressed to parties well aware of the issues involved and the

arguments advanced. A reasons challenge will only succeed if the party

aggrieved can satisfy the court that he has genuinely been substantially

prejudiced by the failure to provide an adequately reasoned decision."

Mr Buley also addressed two other issues at my request. On the legality of the surveillance, he took me to the Regulation of Investigatory Powers Act 2000 ("RIPA"). He submitted that the surveillance conducted by DWP officers was directed surveillance but not intrusive surveillance. It was properly authorised under RIPA by a person empowered to authorise the surveillance. The necessity of the surveillance was established, and it had not been argued, and was not arguable, that the surveillance was disproportionate. The surveillance was therefore lawful.

He also contended that it was not the task of the tribunal or a Commissioner to oversee the legality of surveillance. That task was limited to the role set out by section 12 of the Social Security Act 1998. Here that task was considering if the Secretary of State was correct in making the supersession decision that stopped C's benefit. Even if he was wrong in submitting that the tribunal and Commissioner had no role in this issue, nonetheless Mr Buley submitted that any illegality of the surveillance did not fetter the ability of the Secretary of State to make the supersession decision. Nor did it impact directly on the decision to be made by the tribunal. For completeness, there was a separate tribunal, the investigatory powers tribunal, that existed to oversee surveillance powers.

Mr Buley also submitted that a social security tribunal had no power to exclude the evidence of an illegal surveillance, or to rule it inadmissible. I indicated that I accepted that proposition without further argument. He contended that the legality of the surveillance had not been in issue before the tribunal. While he accepted that the tribunal had an investigatory jurisdiction, there were no circumstances that should have caused this tribunal to investigate the surveillance here.

Turning to the remarks in the interview about suspending human rights, Mr Buley accepted on behalf of the Secretary of State that the remark was unfortunate. It was accepted that it was wrong in the sense that there was no ground for any derogation from C's rights under either the European Convention on Human Rights and Fundamental Freedoms ("the Convention") or the Human Rights Act 1998. But the officer was not a lawyer and, he submitted, "cannot be criticised for not expressing the precise legal position with perfect accuracy". In any event the remarks did not render the interview unlawful nor did it prevent the Secretary of State making the supersession decision

Submissions for C

In reply, Mr A'Zami submitted that the surveillance evidence was obtained illegally and that both a tribunal and a Commissioner have jurisdiction to decide on both the legality and the admissibility of the evidence. I indicated to Mr A'Zami that I did not accept that a tribunal or Commissioner had any power to render evidence inadmissible by reason of its illegality. Should he wish to take this further, I record that he made that submission, but I do not set out his argument from authority that there are limits in law to the admission of certain forms of evidence. The step from the suggestions to which he pointed in those authorities to a decision in this case that the surveillance evidence could be excluded is not a step that can be based by a tribunal judge either on those authorities or the Human Rights Act 1998. His argument was ingenious but not one open to me.

In the alternative, Mr A'Zami argued that the way the Secretary of State and the tribunal handled this evidence was unfair. C and her advisers had been unfairly denied access to the content of the surveillance evidence both in the formal interview and before and at the tribunal hearing. He made specific points about the consistency between the evidence withheld and the evidence put and assertions made to the tribunal. And he asked me to listen to the tapes and watch the video recording as part of my hearing. I declined to do so.

Mr A'Zami accepted that, in the terms of RIPA, the surveillance was directed but not intrusive. He accepted that authorisation had been applied for and granted. He did not accept that the surveillance was necessary. Nor was it proportionate. Nor did he accept that the surveillance was carried out strictly in accordance with the terms on which it was authorised. The surveillance had been authorised for a specific period, and had been carried out over a longer period. It was authorised at a specific place and had also been carried out elsewhere. It included surveillance within the house although a DWP officer had previously refused to look round the house on a visit to it a few weeks before. That showed that the surveillance was unnecessary. Those matters either were in issue before the tribunal or should have been in issue given the grounds of appeal to the tribunal. There were grounds for arguing a breach of Article 8 of the European Convention on Human Rights.

Mr A'Zami also contended that there was unfairness of a kind that breached Article 6 of the Convention. The tenor of the interview combined with the initial failure, and later refusal, of the Secretary of State to show C the video record of the surveillance evidence, and what Mr A'Zami contended was the misrepresentation to C and the tribunal of the contents of the surveillance video, all combined to make this aspect of the proceedings unfair. That unfairness was compounded by a refusal of the Secretary of State to release the evidence to C and her advisers before the tribunal hearing. This had prevented them from raising the issue in specific terms at the tribunal, although complaints had been registered. By failing to take note of the complaints, and failing to look at the direct evidence, the tribunal had chosen to rely on indirect and hearsay evidence that the appellant could not test, when it should have viewed the direct evidence itself. The unfairness was that C was put in a position at the tribunal where she was, in effect, judged by evidence seen only by the Secretary of State. She had not seen it, nor had her representatives, nor had the tribunal. She had therefore not had a proper appeal.

Mr A'Zami concluded by a detailed submission of the way in which the test of "household" had been applied by the tribunal. Mr Buley had not dealt with this in his submission as he saw no issue arising. I return to that aspect of the appeal below.

Those submissions raise several issues of general importance, some for the first time before a tribunal and Commissioner. I deal with them in the order they arose in the appeal: the surveillance, complaining about surveillance, the interview, the withholding of evidence, and then the tribunal hearing and decision. I then turn to the specific decision.

Surveillance and human rights

I asked the Secretary of State to explain to me whether, and how, the surveillance had been authorised. I am satisfied that proper authorisation for the surveillance of C had been given, and this is now accepted for C. But there is no trace of an indication that the tribunal or C or the CAB were aware of this at any stage in the appeal until I raised the matter. There is also now an argument before me, raised by Mr A'Zami for C, that the DWP officers exceeded their authorisation in the way they conducted their surveillance, and that the authorisation was both unnecessary and disproportionate. The importance of this is that

the surveillance evidence on which the Secretary of State relies is of necessity evidence about the private and family life of C and D and about C's home.

Article 8 of the European Convention on Human Rights provides:

"Right to respect for private and family life

1 Everyone has the right to respect for his private and family life, his home

and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Commissioner Jacobs discussed the relevance of Article 8 of the convention to covert observation of a claimant in R(DLA) 4/02. He found no breach of Article 8 in the surveillance conducted in that case. That decision was made before the United Kingdom enacted RIPA. Since RIPA came into effect, it is that Act that is the starting point for any question about the legality and conduct of any surveillance or observation of a claimant. RIPA deals with both the terms on which surveillance may be conducted and under which data may be held following surveillance. The other aspect protected by Article 8 is the disclosure of information obtained by surveillance.

RIPA and the Home Office code

The relevant provisions of RIPA are in Part II. Section 26 sets out the conduct to which that Part II applies. (There is a separate Regulation of Investigatory Powers (Scotland) Act 2000. This decision refers only to English and Welsh law.) Section 26 provides:

26 Conduct to which Part II applies

(1) This Part applies to the following conduct:

(a) directed surveillance;

(b) intrusive surveillance; and

(c) the conduct and use of covert human intelligence sources.

(2) Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken:

(a) for the purposes of a specific investigation or a specific operation;

(b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and

(c) otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably

practicable for an authorisation under this Part to be sought for the carrying

out of the surveillance.

(3) Subject to subsections (4) to (6), surveillance is intrusive for the purposes of this Part if, and only if, it is covert surveillance that:

(a) is carried out in relation to anything taking place on any residential premises or in any private vehicle; and

(b) involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device.

(4) For the purposes of this Part surveillance is not intrusive to the extent that:

(a) it is carried out by means only of a surveillance device designed or adapted principally for the purpose of providing information about the location of a vehicle; or

(b) it is surveillance consisting in any such interception of a communication as falls within section 48(4).

(5) For the purposes of this Part surveillance which:

(a) is carried out by means of a surveillance device in relation to anything taking place on any residential premises or in any private vehicle, but

(b) is carried out without that device being present on the premises or in the vehicle,

is not intrusive unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle.

(6) For the purposes of this Part surveillance which:

(a) is carried out by means of apparatus designed or adapted for the purpose of detecting the installation or use in any residential or other premises of a television receiver (within the meaning of section 1 of the Wireless Telegraphy Act 1949), and

(b) is carried out from outside those premises exclusively for that purpose,

is neither directed nor intrusive.

(7), (8) deal only with covert human intelligence sources

(9) For the purposes of this section:

(a) surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place;

(b) a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship

is unaware of the purpose; and

(c) a relationship is used covertly, and information obtained as mentioned in subsection (8)(c) is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question.

(10) In this section "private information", in relation to a person, includes any information relating to his private or family life.

(11) References in this section, in relation to a vehicle, to the presence of a surveillance device in the vehicle include references to its being located on or under the vehicle and also include references to its being attached to it.

Section 27 of RIPA deals with authorisation of surveillance and human intelligence sources. As relevant here it provides:

27 Lawful surveillance etc

(1) Conduct to which this Part applies shall be lawful for all purposes if:

(a) an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and

(b) his conduct is in accordance with the authorisation.

(2) A person shall not be subject to any civil liability in respect of any conduct of his which:

(a) is incidental to any conduct that is lawful by virtue of subsection (1); and (b) is not itself conduct an authorisation or warrant for which is capable of being granted under a relevant enactment and might reasonably have been expected to have been sought in the case in question.

(3) The conduct that may be authorised under this Part includes conduct outside the United Kingdom.

(4) In this section "relevant enactment" means:

(a) an enactment contained in this Act;

(b) section 5 of the Intelligence Services Act 1994 (warrants for the

intelligence services); or

(c) an enactment contained in Part III of the Police Act 1997 (powers of the police and of customs officers).

The Home Office produced a detailed Code of Practice on Covert Surveillance in accordance with section 71 of RIPA. It is published on the internet at http://security.homeoffice.gov.uk/ripa/publication-search/ripa-cop/human-cop?view=Binary. It covers every authorisation of covert surveillance under Part II of RIPA. Together with implementing regulations, this puts in place the necessary legislation and guidance to ensure that properly conducted surveillance activity is within the permitted exceptions in Article 8 paragraph 2 to the general rights protected by Article 8 paragraph 1.

Section 27 of RIPA makes conduct of surveillance lawful for all purposes if conducted in accordance with the authority appropriate for that kind of surveillance. Permission to conduct surveillance must be requested in writing, and may be granted only by an authorised officer if that officer is satisfied that the authorisation is necessary for one of a number of specific circumstances.

An officer of the rank of senior executive officer or above (or the equivalent in a Jobcentre) may grant authorisation of directed, but not intrusive, surveillance of a claimant by DWP officers. See section 30(1) of RIPA and article 4 of, and column 2 of part I of the Schedule to the Regulation of Investigatory Powers (Directed Surveillance and Covert Intelligence Sources) Order 2003 (SI 2003 No 3171). That Schedule also permits a DWP officer to authorise surveillance for one purpose only of those listed in RIPA, namely "for the purpose of preventing or detecting crime or of preventing disorder".

Directed surveillance conducted by DWP officers consistently with Part II of the 2000 Act and the relevant provisions of the Code of Practice, and therefore subject to and conducted within proper authorisation, can in practical terms be regarded as fully consistent with the conditions that apply to Article 8 of the European Convention on Human Rights, unless challenged in express terms. It follows that if the surveillance of C by officers W and R was within those provisions then those officers were, again subject to express challenge, fully within the law to conduct the surveillance.

The surveillance of C

During the appeal before me C's representatives requested production of the application and authorisation issued for the surveillance of C. This was produced in the form of a copy of the form RIP1 used by officer W to apply for permission to conduct surveillance of C for the purpose of preventing or detecting crime. The application identified both C and D as the subjects of the surveillance. It detailed the nature of the surveillance and also how collateral surveillance of others (including the grandchildren) would be minimised. The surveillance was authorised by a senior executive officer. The officer indicated that she was satisfied that the surveillance was both necessary and in proportion, with minimised collateral surveillance.

It is common ground that the surveillance of C was covert surveillance and also directed surveillance but not intrusive surveillance. It met the test of section 26(9) of RIPA. It met the test of section 26(2) as it was directed but not intrusive and was undertaken in such a manner as is likely to result in obtaining private information about a person. The surveillance was not intrusive because it did not involve the presence of someone on residential premises or the use of a surveillance device in those premises providing a similar level of information: section 26(3) – (5).

Mr A'Zami raised objections to the surveillance and authorisation. I have set out the law and the position agreed by the parties, and I have noted Mr A'Zami's objections. I have done so at length because this is a case of first impression about these provisions in the social security jurisdiction. Having done so, I do not need to take them any further. There are three reasons for that. First, the parties have reached agreement about the authorisation itself. Second, the objections to the evidence derived from the use of that power raise what are essentially questions of fact in the appeal and should be determined in that way. Third, there is another tribunal with specific powers to consider objections to surveillance by DWP officers, with full powers also to provide remedies of the kind that Mr A'Zami seeks. This is the investigatory powers tribunal. Again, as this is a matter of first impression and the parties disagreed with each other about the relevance of that tribunal, I set out the position fully.

The investigatory powers tribunal

Mr Buley drew attention to the investigatory powers tribunal as the appropriate route for a complaint about improperly conducted surveillance. Mr A'Zami was less sure that that tribunal had relevance to the appeal. It is therefore useful, as the matter has not been considered before in this jurisdiction, to note the jurisdiction of the investigatory powers tribunal over DWP surveillance activities.

The investigatory powers tribunal is established, and its jurisdictions defined, by section 65 of RIPA. The relevant issue here is whether that jurisdiction includes the surveillance conducted by DWP officers. The provisions in section 65 relevant to a complaint of this kind are:

(4) The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any conduct falling within subsection (5) which he believes:

(a) to have taken place in relation to him, to any of his property, to any

communications sent by or to him, or intended for him, or to his use of any

postal service, telecommunications service or telecommunication system; and

(b) to have taken place in challengeable circumstances …

(5) Subject to subsection (6), conduct falls within this subsection if (whenever it occurred) it is:

…

(d) conduct to which Part II applies;

…

(7) For the purposes of this section conduct takes place in challengeable circumstances if:

(a) it takes place with the authority, or purported authority, of anything

falling within subsection (8); or

(b) the circumstances are such that (whether or not there is such authority) it would not have been appropriate for the conduct to take place without it, or at least without proper consideration having been given to whether such authority should be sought

but conduct does not take place in challengeable circumstances to the extent that it is authorised by, or takes place with the permission of, a judicial authority.

(8) The following fall within this subsection:

…

(c) an authorisation under Part II of this Act …

Reading these provisions in the context of RIPA as a whole, that tribunal has jurisdiction to consider a complaint about the conduct by DWP officers of surveillance for which they have or should have obtained permission. Those are "challengeable circumstances" about conduct within Part II of RIPA. The procedure for making a complaint of this sort is set out on the tribunal's website at www.ipt-uk.com. I understand that the time limit for a complaint is one year after the relevant incident, although a longer period is allowed in special circumstances.

If that tribunal upholds a complaint, it can deal specifically with remedies for the complaint. Its website summarises its powers as follows:

"Remedial measures such as the quashing of any warrants, destruction of any records held or financial compensation, may be imposed at the tribunal's discretion."

An appeal tribunal can take into account that alternative route for dealing with complaints alleging either unauthorised surveillance or other complaints about the conduct or consequences of such surveillance. The investigatory powers tribunal provides an opportunity for a claimant to seek the destruction of records of surveillance for which there is a justified complaint. The natural consequence is that such evidence must then be excluded from the evidence before any court or tribunal. That is clearly relevant to consideration of the argument that an appeal tribunal or Commissioner should rule on exclusion of such evidence. Parliament has provided a judicial body with the express power to take that step. It is a clear answer in my view to the argument that appeal tribunals and social security commissioners should have those powers.

Surveillance: conclusion

The question here is whether the DWP officers were authorised to conduct surveillance against C or D. Had the Secretary of State disclosed the evidence of that authorisation to the tribunal, then the tribunal would have been entitled both to note the complaint made by C about her human rights being suspended and also consider whether there was substance to any complaint about the surveillance.

More generally, where there is a challenge under Article 8 of the European Convention against evidence produced by the Secretary of State, or the conduct or results of surveillance are otherwise challenged before an appeal tribunal, RIPA now provides effective answers. If the Secretary of State provides the tribunal and the claimant with a copy of the application and authorisation for the surveillance, and it is clear that the authorisation covers the surveillance, then the tribunal will usually need to take matters no further. The tribunal may properly take the view that the Secretary of State can rely fully on the evidence obtained from the surveillance without further investigation by itself. If the claimant has continuing or other concerns, then he or she may take them to the investigatory powers tribunal. With that in mind, I suggest that the Secretary of State should, in cases such as this, produce the proper documentation about surveillance to an appellant and the tribunal together with the evidence from the surveillance on which the Secretary of State seeks to rely.

The evidence derived from the surveillance

Mr A'Zami's objections about the surveillance exercise are covered by that general comment. But the central problem in the appeal arose not from the surveillance itself but from the use to which the surveillance evidence was put linked with a refusal to release the surveillance evidence to the appellant at the proper time.

The evidence from the surveillance was recorded in three forms. There are the records in DWP officers' notebooks and a series of CFIS record sheets giving the dates and times of specific surveillance and the action taken. There are video tapes recorded by a camera in a car parked outside 21 E St. And there are still photographs with dates and times extracted from the video tapes.

I have not seen the notebooks. The CFIS sheets have brief entries for each day from 1 08 2005 to 30 08 2005. They show observations of a male ("Male 1") downstairs at 21 E St at 22.55 on 3 08, at 23.00 on 4 08, at 23.17 on 6 08, at 22.17 on 7 08, at 22.32 on 9 08, at 22.32 on 10 08, at 22 00 on 15 08, at 22.00 on 16 08, a male other than Male 1 at 20.25 on 17 08, Male 1 at 21.35 on 22 08, a male other than Male 1 at 21.40 on 23 08, Male 1 at 21.10 on 24 08, Male 1 followed to 11 H St at 22.20 on 25 08, a male other than Male 1 at 21.15 on 26 08. In addition, an observation car with a video camera was stationed outside 11 E St from midday 11 08 to midday 12 08 and from the afternoon of 24 08 to the afternoon of 25 08.

The still photographs from the video camera in the papers appear to show a male, identified as Male 1, at the door of 11 E St at 19.12 on 11 08, entering the house at 10.50 on 12 08 and leaving then reentering the house at 11.20 on 12 08. They show Male 1 leaving the house at 8.54 on 25 08. They do not show him or any other male leaving the house at any time after 19.12 on 11 08 before the entry at 10.50 on 12 08, or entering the house at any time before leaving at 8.54 on 25 08. The tribunal found as fact that Male 1 was D.

The interviews with C

DWP officers followed proper procedure in suspending the first interview with C to enable her to take professional advice. A full interview was conducted on 14 09 2006 by officers W and R. The CAB representations had been received. Officers W and R started the interview with proper formalities. C was cautioned and given adequate notice and warning about the procedure. She was specifically told that the interview was being conducted in accordance with the practice under the Police and Criminal Evidence Act 1984, and that she could refer to the code of practice if she wanted to. She was also told that she could have copies of the audio tape. That part of the interview went fully in accordance with proper practice, as did the opportunity given to C to obtain advice.

Things went less straightforwardly from there. Officer W asked C if she had anything to state about changes of circumstances, and she indicated not. The interview then proceeded:

"W Now are you sure about that?

C I am, positive.

W Because what I've got to tell you is that we actually received an allegation back in June that you had your partner living with you.

C This June?

W Yeah that basically that your partner D was living with you in your household and although he had another address he wasn't living there. The allegation went on to say that you'd been previously reported and had varied your routine in the past and been sort of bragging in the area that you'd never got caught because you were too clever to be caught.

C Silly.

W So as a result we applied to have your human rights suspended, which means that we have applied to do surveillance at your address.

C Right, I wondered what you meant then.

W And what we've been doing for several weeks day and night is conducting surveillance at your address …"

The transcript shows that officer R then produced a series of still photographs that are contended to show D leaving 11 E St on 25 08 in the morning. Another series of photographs are contended to show D in the house on the morning of 12 08 after C had left it. The interview continued with W and C talking about whether D stayed at C's house or not, and about arrangements for the children. The other officer interjected occasionally at first then took over some of the questioning later. The interviewers later directly accuse C of lying to them and she denied it.

Later in the interview the following exchange took place:

"R I mean the evidence is our surveillance records in notebooks which are used in a court of law. We have to tell the truth in there otherwise we're for the high jump so we write down everything we seen and then we've got the log books which are extracts taken from the notebooks and then we've got the video cameras aw well. But in a court of law they would look at every note taken in this notebook in respect of the surveillance done at your address. So we can't tell lies on that."

C Well he's not living at my address.

R Well we can't tell lies on that.

C Well he's not living at my address.

W Well can you explain why he is there, he was seen last thing at night and he's seen coming out of your house in the morning and he is not seen either going anywhere or coming from anywhere?

R And we've done it on two separate occasions over different dates.

C I think you'd better ask him where he goes when he leaves my house, I don't know."

The notebooks have not been produced.

There was no information in the papers or put to the tribunal about whether the surveillance conducted by the DWP officers was authorised surveillance conducted with proper authority. The remarks of officer W in stating that C's human rights were suspended were not explained to C or anywhere in the papers or to the tribunal. Nor were they further explained to C or the CAB at any other time until this appeal.

Suspending human rights

Individual human rights cannot be suspended by DWP officers.

The Human Rights Act 1998 requires all British public authorities to comply with the enacted provisions of the European Convention of Human Rights on all occasions. That includes all DWP officers.

It is irrelevant for that purpose that DWP officers are not lawyers. Mr Buley's attempted defence of the officers' misrepresentation on the grounds that they were not lawyers is misplaced. Mr Buley's remarks are also misplaced on the facts in that officer W handled other formal aspects of the interview fully in accordance with proper procedure. He had clearly been trained in PACE procedure, and he was clearly aware of some aspects of RIPA. I do not criticise officer W for the comments here nor do I need to do so. It matters not whether his misrepresentation was deliberate or innocent. It is the responsibility of the Secretary of State to provide adequate training and guidance to DWP officers. And the Secretary of State is responsible for any failures in that. I am told that there had at that time been no specific guidance to officers on this aspect of the law. That may explain officer W's comment. As Mr Buley readily accepted, it was unfortunate and regrettable. It was a powerful statement, and it was plainly wrong. I trust that such officers will be given appropriate guidance in the light of this decision if that has not already happened.

The important point here is the effect on C of this statement - an effect that appears from the transcript to have been intended - bearing in mind that C was not accompanied by anyone at the interview. My impression from reading the transcript is that she did not understand what was going on. If so, it is not surprising that this was a ground of appeal put forward for C to the tribunal. The tribunal should have considered it. It did not. In the written submission to the Commissioner for the Secretary of State, it was accepted that the tribunal should have looked at this issue and that it erred in law in not doing so.

Mr Buley stepped back from that admission. Instead he adopted the approach that the remarks made by officer W were of such marginal relevance to the tribunal decision that the tribunal was undoubtedly entitled to reject the contention that C would have been unsettled by officer W's remarks and that it was not arguable in law that the tribunal erred in failing to deal with the point expressly. Mr Buley's argument is that the tribunal was entitled to deal with the alleged breach of human rights expressly put in issue before it without expressly mentioning it. How can that be justified? One argument is that a tribunal not only cannot exclude any evidence but also can rely on what an interviewee says in an interview regardless of the context and regardless of any human rights issue. That, in my view, is self-contradictory here. The evidence includes the conduct and statements of the interviewers as well as the conduct and statements of the interviewee.

Another argument is that a tribunal can rely on such evidence without giving any express basis for doing so. In this case that means that the tribunal can rely on this interview without express attention to the fact that those representing the interviewee raise the conduct of the interviewers before it in the strongest polite language available. Mr Buley supported this proposition with the comments of Griffiths LJ in Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119, as applied by the Court of Appeal in R(Iran) v SSHD [2005] EWCA Civ 982 and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409. As applied to the case before me, Mr Buley submitted that the test is:

"… if it be that the [tribunal] has not dealt with some particular argument but it can be seen that there are grounds on which he would have been entitled to reject it,

[the Commissioner] should assume that [it] acted on those grounds unless the

appellant can point to convincing reasons leading to a contrary conclusion."

I do not accept that argument as assisting Mr Buley here. Even if I apply that test to this case, I find that this tribunal fails it. I know that the surveillance was conducted properly. The tribunal did not. The CAB's written submission put a human rights issue expressly before the tribunal. But it was not mentioned by the tribunal at the hearing or in its reasons. The tribunal should have been alert to consider the issues in the written submission, and the presenting officer should have been prepared to clarify the position. No evidence or submission was put to the tribunal to justify or defend the statement of the officers. The tribunal failed to investigate the matter. The record of the tribunal hearing and reasons are silent on the issue. It would have been easy for the chairman to ask the presenting officer or officer W to clarify the point. No questions were asked of either. There is nothing to indicate that the tribunal gave any thought to what the CAB termed the "appalling behaviour" of the DWP. It cannot, applying the Eagil Trust test, be seen that the tribunal had grounds for rejecting that accusation without consideration. More generally, that test should now be read with the guidance of the Tribunal of Commissioners in CSDLA 500 2007 and CSDLA 524 2007 about tribunal records of proceedings.

I confirm my provisional view, and the initial view of the Secretary of State, that the tribunal erred in law in not dealing expressly in any part of the tribunal proceedings or record with this ground of appeal.

Evidence withheld by the Secretary of State

Unknown to the tribunal (perhaps because of its failure to make any enquiries) DWP officers refused to produce evidence used indirectly at the hearing to C's representatives before the hearing without telling the tribunal this. This was despite express requests by the CAB and C's Member of Parliament.

One ground of appeal to the Commissioner by the CAB was that it was refused access to the evidence on which the Secretary of State was relying at the hearing. There are two relevant elements to that evidence: the video recording and the tapes of the interview.

Mr Buley argued that these points were not in issue before the tribunal. I do not accept that argument. They follow from the points that the tribunal failed to examine.

The refusal of access took place despite the offer made to C at the formal interview about the audio tapes and the comments about the notebooks. Separately, the tribunal was not provided with the surveillance evidence directly nor, as we have seen, any clue about the authorisation of the surveillance. Nor was it provided with witness statements from any officer. Nor was it provided with a summary of the evidence of any appropriate officer. All it had before it, and all that C and the CAB were allowed to see or hear, was the brief summary on the CFIS Surveillance Record Sheet, some copies of still frames said to be taken (by an unnamed person) from the video record, a transcription of the interview, and oral evidence of officer W.

Both the audio tapes and the video tapes were produced to Mr A'Zami at his request ahead of the hearing before me. As noted above, I refused to listen to the audio tapes or to look at the video tapes. I did so because it is no part of my task at this stage of the appeal to make findings of fact. I accept the relevance of listening to the tapes both to ensure the accuracy of the transcription and to see whether the way in which those involved spoke to each other gave indications of the demeanours of the interviewers and of the interviewee. I had the accuracy checked. But I saw no reason why I should form a view about the demeanours of those involved.

There are clear reasons why a tribunal should consider this if asked to do so. It is directly relevant to the question of the weight to be put on the evidence of C and of both DWP officers. It is also directly relevant to the submission for the Secretary of State about C's reactions in the interview to the points made to her. I also accept the relevance of the fact-finding appellate body watching the video, or at least the relevant parts of it. And there is the separate issue of allowing the appellant and representatives the opportunity to check the full video tapes ahead of any hearing in which it is in evidence to see if DWP officers have given evidence accurately as to its contents.

These are relevant because officers W and R made a number of factual allegations in the interview that were said to be based on the video evidence. And they produced stills also said to be based on that evidence. I have set out part of those allegations above. Officer W repeated in evidence to the tribunal the central allegation that on two occasions over four days D did not leave C's home at night. And the Secretary of State relied on C's reaction to those allegations as the central part of the finding on estrangement. But the video evidence was not produced to the tribunal or the appellant. Nor was officer R, who was, according to the CFIS record, the officer who organised the video car placement. The only evidence before the tribunal of the accuracy of the allegations made by the officers to C at the interview were the stills and officer W's evidence about what he - or someone else, as officer W did not actually give any evidence that he had personally watched the video tapes - thought he saw on the video.

In his argument before me Mr A'Zami made the following accusation:

"Although the AT did not have the benefit of the video evidence from the two nights of surveillance and photographic stills of that evidence they have now been

presented at this stage. The video of the first night of surveillance, and this

appears to be so on the basis of the photographic stills presented, appears to show

only a man leaving in the evening (with children). It does not show that man, or any other, returning to the house until the next morning."

That allegation should be read in its context. Continual surveillance was maintained of C, and to a lesser extent of D, over a month. During that month, officers alleged that there was evidence of D staying at C's house overnight on two occasions. They were, it was alleged, the two occasions when surveillance was mounted outside the house. Mr A'Zami's allegation, linked with the points made at the tribunal itself, suggest another conclusion. There was evidence that D stayed on one of those two nights. The officers assumed that D stayed on the other occasion. They produced no evidence to show a basis for that assumption. Further, the officers declined to follow up the initial evidence that D stayed at his own home on at least one of the nights in the period, and officer W declined to give any evidence at all about this. No other evidence of "staying over" at either address was offered in respect of the month. It was implicitly accepted, however, that C only lived at one address.

I did not and do not make any findings of fact on this evidence. It will be for a tribunal to consider whether officers W and R did have the evidence they say they had, or that at any rate that was a reasonable interpretation of the evidence.

What I must conclude at this stage is that both the appellant and her representatives and then also the tribunal were prevented by those acting for the Secretary of State from checking the accuracy of the allegations put to C by the DWP officers, even though there was available primary evidence that could be checked. Further, C's representatives made it clear they wanted to check the evidence. They were entitled to do so. If the statement by Mr A'Zami is true - or arguable as an interpretation of the evidence, and I express no view on its accuracy - then it undermines the approach taken both by the officers in the fraud interview and in the case presented to, and accepted by, the tribunal. That relied on the clear assumption that C was lying. Put at its simplest, Mr A'Zami's submission also calls into question the credibility of the officers and their evidence. That must be relevant to any evaluation of the evidence from the interview.

The reasons given for withholding evidence

The importance to this appeal is that those acting for the Secretary of State refused to release the audio tape and video evidence to the CAB. A CAB officer wrote to the local Jobcentre on 9 11 2005 specifically asking the Jobcentre to make available to the appellant any photographs, any tape recordings, and either a tape or disk of the video surveillance. In an undated reply later that month an appeals officer at the office stated:

"I am afraid I cannot concede to your wishes. This is not the sort of evidence that we would put before a tribunal and is not the evidence that we are relying on in our submission."

Events showed that the Secretary of State relied expressly on the evidence that the appeals officer said was not "the sort of" evidence they would put to a tribunal. That statement was simply and obviously wrong. It also directly contradicts what C was told in the formal interview.

The CAB, justifiably, did not leave matters there. The request to produce the evidence was repeated by C's Member of Parliament to DWP ministers. The refusal was also repeated, this time at the highest level. It was an express refusal in terms by the then acting External Relations and Communications Director of Jobcentre Plus (since, I understand, confirmed in that post) expressly writing to C's Member of Parliament on behalf of the Chief Executive of Jobcentre Plus and at the express request of the Parliamentary Under Secretary of State for the Department.

The Communications Director wrote to C's Member of Parliament on 12 01 2006 – a month before the tribunal hearing. The letter reads, in part:

"When I read your letter I immediately asked for a full investigation into the issues raised…

During August directed surveillance was authorised and undertaken at [C's] home address for a period of three weeks. Evidence is available that [D] regularly entered

the property with his own key and also left the property early in the morning.

Video evidence has also been obtained showing [D] resident at the property overnight on two random occasions when the covert surveillance vehicle was sited outside. Unfortunately, as the case could still be submitted for legal proceedings neither the video nor the stills are available outside the Fraud Investigation Service or the DWP Solicitor's Branch. However, a transcript of the Interview Under Caution (IUC) is enclosed as requested." (Emboldening added by me)

It will be for a new tribunal to consider if that is a fair summary of the evidence when it has seen it.

The letter went on to deal with other aspects of the case. From this it is clear that the Communications Director had been made fully aware of the fact that C's appeal had been referred to the Appeals Service for consideration by what he termed an "Appeal Board". It should be noted that the Appeals Service was then still part of the departmental responsibilities of the Secretary of State for Work and Pensions.

The letter concluded:

"If [C] is not satisfied with the action taken by Jobcentre Plus to resolve the issues raised she can within six months of the date at the top of this letter contact the Independent Case Examiner (ICE). ICE is a separate, impartial body which considers complaints about our service, but they will not consider matters of law or Government policy…"

There is no suggestion that the matters of law on which the Communications Director based his letter should be raised with the tribunal.

I put expressly to Mr Buley the point that the only fair reading of the reference to legal proceedings that I could attribute to the passage I have emboldened in the extract set out from this letter was that the Communications Director, or those who had advised him on the law, did not consider the proceedings before the "Appeal Board" were legal proceedings. On that basis, the logical application of his view in the context of the allegations in this case appeared to be the "Appeal Board" was outside the scope of the Human Rights Act. Certainly, there was an express refusal to disclose to an appellant evidence on which the Department relied against the appellant at a tribunal hearing. Mr Buley, in fairness, had not previously seen the letter and immediately disowned any such approach. I directed him to take instructions from the writer of the letter about what his letter was supposed to mean. And again in fairness I should record that Mr A'Zami produced it at the last minute, so not allowing Mr Buley to take prior instructions, because FRU was itself only given it the afternoon before. I accept that this was not an "ambush" point. Fairness required that Mr Buley be given proper time to take instructions, and the writer of the letter be given time to consider this. This time was given after the hearing.

Analysis of the reasons given

I have since been informed by Mr Buley (on instructions though not, so far as I can see, from the writer of the letter as I directed) that there was no intention to suggest that the Human Rights Act did not apply to an appeal tribunal or that the proceedings of the tribunal were not legal proceedings. The letter was intended to refer only to criminal proceedings. I am glad to hear that that is accepted for the Secretary of State, although it still does not explain how a communications director came both to use the words used and also to misdescribe his own department's tribunals. Nor does that acceptance alter the fact that a Director of Jobcentre Plus, dealing with the matter at the request of a named government minister, expressly refused to release evidence to an appellant before a tribunal notwithstanding that DWP officers intended to rely on selected parts of that evidence before the tribunal. Nor did the Secretary of State take any steps, through any officer, to ensure that the tribunal was aware that the appellant had been refused access to directly relevant evidence.

As the Commissioner emphasised in CIS 1216 2006 and CH 1220 2005, it is not for one side to an appeal to decide on priorities between civil and criminal proceedings about social security matters. I endorse Commissioner Levenson's comment at paragraph 22 of those decisions:

"… at some stage the whole matter became the subject of criminal proceedings and the same letter also stated:

"The Department of Work and Pensions lawyers take the view that criminal proceedings take precedence over an appeal tribunal. Your tribunal will therefore be adjourned until such time as the criminal proceedings have been concluded".

I observe that the local authority had no legal power to make the statement in the final sentence or to give any such undertaking or reassurance (neither did the Secretary of State) and no practical way of enforcing it. This was a matter solely for the tribunal or one of its legally qualified panel members (subject to the supervision of the High Court)."

It is difficult in that context to understate the importance of the contentions made by Mr A'Zami. If he is correct, then C was formally interviewed by DWP officers in a fraud interview on the basis of accusations of fact that cannot be substantiated – that two random overnight video observations both showed clearly that D had stayed at C's house on both of the two nights. At the same time, they - and later one of the most senior officers of that part of the DWP – refused to allow anyone to check the factual accuracy of their allegations before the matter went to a tribunal. Nor did they alert the tribunal to their refusal to disclose evidence to the appellant. Nor was the evidence offered directly to the tribunal. So C and the CAB were put in a position that they could not make the submission that Mr A'Zami has now made. They were prevented by the other party from taking their own view of the video evidence. And they were prevented by the other party from taking any view about the value of the stills extracted from that evidence.

This also applied to the tapes of the interview notwithstanding that officer W had offered copies of the tape to C during the interview. Nor were the notebooks produced as the officers indicated in the interview, notwithstanding that extracts from them were produced and, again, C was told that they would be produced.

If that is so, then Mr A'Zami is entirely justified in contending the whole process was unfair, whether judged by European law or English law. It may be that was what the CAB had in mind in referring to the matter as "appalling".

Mr A'Zami can, in my judgment, validly maintain his argument even if he is wrong in his view of the evidence in the video recording. It is a question of assessing the evidence. It must be tested properly as must the contentions of fact made for the Secretary of State. He is entitled to ask the tribunal to make its own mind up about what the video evidence shows. He is also entitled to have the conduct of the interview tested against those conclusions. And he is also entitled to ask the tribunal to make its own mind up about the evidential value of what was said in the interview in that context and not abstracted from it.

I must express the gravest concern about the way the requests to release the evidence were handled for the Secretary of State. The refusal by the appeals officer was plainly wrong both in general terms and also in the context of this appeal. The error did not stop there. It was repeated at the highest departmental level in the most unfortunate and inappropriate terms.

Mr Buley has since drawn my attention to instructions given to officers about disclosing evidence. I am glad to see them. I trust that training accompanies them. Even so, I fail to see any justification at all for the official actions taken here. If C was to be prosecuted, then she was entitled to have copies of the evidence produced to her so that she could prepare her defence. So the question of potential prosecution did not justify the evidence being withheld. That was confirmed in the fraud interview itself, where the proper procedure was followed. Nor is it relevant that an officer did not think the evidence was going to be used by his side of the appeal. That is for both parties to decide for themselves. If the issue was the practical one of getting the video evidence copied, then again that does not justify a refusal to disclose it in any way to an appellant. And there was a complete failure to tell the tribunal about these refusals.

Withholding of evidence: conclusions

These proceedings are legal proceedings. And they are proceedings to which the Human Rights Act applies without any exceptions. Further, they are proceedings in which the burden of proof is on the Secretary of State. None of the reasons given by the appeals officer or by the Communications Director present any basis whatsoever for the usurpation by them from the judicial authorities of an exclusive right, regardless of the wishes of the other side or of the role of the tribunal, to choose to discharge that burden of proof by selecting the evidence that the tribunal is offered and refusing to disclose any other evidence. C, and any similarly placed appellant, is entitled to the disclosure of all evidence held by the other party that is relevant to the decision under appeal. If there is a problem, such as that of a pending criminal prosecution, then the tribunal must be informed of it and asked for directions. Anything else is a denial of justice.

The result in this appeal was a denial of justice. It was a tribunal hearing that was fundamentally unfair before it even started. The only remedy available to me is to ensure that the matter is now properly considered before a tribunal that has all the evidence. C, the CAB and FRU may wish to take aspects of this outside my jurisdiction up with the Member of Parliament.

I emphasise again that I am taking Mr A'Zami's contention as he made it. This case must go to a new tribunal. The Secretary of State must produce to that tribunal all relevant evidence, and in particular all evidence on which his officers relied in the decision under appeal: the video recording, the tape recording, and the notebooks. And both officers (or any other officer who actually took part in the investigation) should produce proper witness statements and be offered for cross-examination as witnesses. That tribunal must see for itself the whole of the relevant video and the written record and, if asked, listen to the tapes of the interview, in order to establish the facts. It must decide for itself what the evidence shows, and not rely on hearsay evidence or secondary evidence or assertion or assumption when the primary evidence is readily available. It must then consider how far it can rely on the statements made by any of those who took part in the fraud interview. Only then can it take a fair and impartial view of the weight to be put on that evidence in deciding whether the Secretary of State has satisfied it on all the evidence that C was not estranged from D at the date in question.

The tribunal hearing

How did this tribunal deal with all these matters? The simple answer is that it did not. Unfortunately, it added further errors itself to the way this case was handled, and I accept Mr A'Zami's points on that.

This was a case where it was for the Secretary of State to prove that C was not estranged from D. Aside from the issue of what evidence was, and what was not, before the tribunal, I am also disturbed at the way the tribunal handled the evidence that it did have before it, given that the Secretary of State produced a witness and that C was unrepresented.

According to its record of proceedings, the tribunal took evidence from the appellant, and apparently allowed her to be cross-examined, before it heard the witness for the respondent. The tribunal allowed the presenting officer to open the case by relying on the papers, notwithstanding that the appellant did not have any. It then heard a statement from C and allowed her to be cross-examined on it. It appears to have forgotten that, as the burden of proof was on the Secretary of State, the appellant was entitled to hear the evidence against her, and entitled to test it, before answering it. At no point did it seek to introduce any point made for C in the carefully written four page submission to it by the CAB for C.

With regard to the witness, the tribunal does not appear to have received any evidence in chief in any form, written or oral, beyond a few brief remarks at the hearing. Officer W did answer some questions from C. But when C put one specific point to him – about the night of 26.08 – his reply was that he "cannot comment" as a colleague (officer R) wrote the note about that night. It does not appear to have been noticed that the writing used in that part of the record, the CFIS notes, appears to be the same as that used for the crucial observations visits that were the core of the case against C. If that is so, of what was officer W competent to give evidence? I can see nothing in the papers or tribunal record that evidences that officer W even watched the video tapes, let alone arranged for them to be recorded.

I conclude that any findings of fact made by this tribunal must be entirely disregarded as unreliable and that therefore a new hearing of this appeal must start again without any reference to the record of the previous tribunal.

The estrangement issue

I have left on one side the factual question before the tribunal. Was C estranged from D? The parties agreed that the test was R(SB) 4/83. I take that to mean that the meaning of "household" was its ordinary meaning. But that was not an estrangement decision. In this case the key issues are: were they back together? Did they ever split up? As the Commissioner observed in CIS 72 1994, that decision is not particularly helpful in this context. I suggest that the tribunal will find help from CIS 72 1994 in its emphasis on both the facts and the state of mind of the two individuals about the continuing status of their marriage. The latter aspect does not appear to have been considered in this case to date. And there is also help in the more recent cases of CIS 4096 2005 and CPC 683 2007.

DIRECTIONS FOR THE NEW HEARING

(a) This appeal is to be heard at an oral hearing. A district chairman is to be consulted about the listing of the case to ensure adequate time and facilities for the hearing.

(b) The parties are to indicate their availability, and the availability of all witnesses, for a hearing within one month of the release of this decision.

(c) The Secretary of State is to be represented before the hearing. He may wish to consider legal representation at the case.

(d) Both the officers I refer to as officers W and R should be available to give oral evidence at the hearing. Any evidence in chief of the witnesses should be submitted in proper form from those witnesses as part of their evidence, those witness statements to be served on the tribunal at least 14 days before the hearing. If the officers wish to rely on notebooks, then they are to be produced to the tribunal and appellant before the hearing.

(e) The audio tapes are to be put in evidence before the tribunal. If the appellant and her representatives so request, the tribunal should listen to the tapes of the interview of which transcripts are available in the papers.

(f) The video tapes are to be put in evidence before the tribunal. The tribunal should watch any part of the video recording of the surveillance undertaken of the appellant that either party wishes them to consider.

(g) The Secretary of State is to produce to the tribunal all the still photographs taken from the video recording that are in his possession.

(h) Both parties should consider whether they wish any other person to give evidence. If they wish to call any other witness, then they are to give notice of the name and contact address of the witness, together with a statement of the evidence of the witness, to the tribunal not later than one month from the date on which this decision is issued.

(j) If either party wishes to place any further documentary evidence before the tribunal then they are to send it to the tribunal as soon as possible and in any event not later than one month after the date of issue of this decision.

(k) If either party wishes to provide the tribunal with a further submission or skeleton argument for the hearing, then this should be sent to the tribunal and the other party at least three days before the hearing.

(l) For the avoidance of doubt, I make no findings of fact in this decision. The questions of fact are entirely at large for the tribunal to decide.

These directions, which have been shown in draft to the parties and amended in the light of their comments, are subject to any further direction by a chairman.

David Williams

Commissioner

24 04 2008

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	UK Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2008] UKSSCSC CIS_1481_2006 (24 April 2008) URL: http://www.bailii.org/uk/cases/UKSSCSC/2008/CIS_1481_2006.html Cite as: [2008] UKSSCSC CIS_1481_2006