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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> [2009] UKUT 15 (AAC) (19 January 2009) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2009/15.html Cite as: [2009] UKUT 15 (AAC)

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[2009] UKUT 15 (AAC) (19 January 2009)

 


DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant.

The decision of the Bradford East appeal tribunal dated 4 June 2008 under file reference 013/08/01295 does not involve an error on a point of law.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The decision in summary

1. The appellant's appeal to the Upper Tribunal (formerly the Social Security Commissioner) is dismissed. The decision of the Bradford East appeal tribunal dated 4 June 2008 under file reference 013/08/01295 does not involve any error of law. Its decision therefore stands.

T The impact of the new tribunal system on this case

2. This case started as the appellant's appeal to the Social Security Commissioner against the Leeds appeal tribunal's decision. On 3 November 2008 the Tribunals, Courts and Enforcement Act 2007 replaced the appeal tribunal with the Social Entitlement Chamber of the First-tier Tribunal. The 2007 Act also replaced the Social Security Commissioner with the Administrative Appeals Chamber of the Upper Tribunal with effect from the same date. These changes have been made with a view to improving the system of administrative justice as a whole.
3. A Judge of the Administrative Appeals Chamber of the Upper Tribunal, rather than a Social Security Commissioner, has therefore decided this appeal. However, in the context of this particular case these changes only affect the procedures (and tribunal titles) involved – the substantive law relating to the appellant's entitlement (if any) to housing benefit remains exactly the same as before.

The fundamental issues at the heart of this appeal

4. The practical issue at the heart of this appeal is whether the appellant is entitled to housing benefit in respect of his home. The local authority, the respondent to this appeal, initially decided that the tenancy in question had been created to take advantage of the housing benefit scheme. It later decided, in addition, that the tenancy was not commercial in nature. The tribunal agreed that the tenancy was not commercial in nature (and, if necessary, would have agreed with the local authority on the first ground).
5. The present appeal mainly concerns two procedural challenges to the tribunal's decision. First, should the tribunal have gone ahead with the hearing, even though the appellant had previously agreed to short notice of the hearing date? Secondly, should the tribunal have proceeded even though the chairman was the same chairman who had dismissed an earlier appeal by the appellant's wife on similar issues?

The background to this appeal

The family background

6. The factual background to this appeal is complicated and can only be summarised here. The appellant (H) is a man now aged 48. His wife (W) is now aged 44. They have several children. For present purposes these include an older son (S1) and a younger son (S2), both of whom are adults. S2 had a serious accident in August 2004 and requires a high level of care from his parents. At various times, members of the family have lived at No. 42 and No. 48 in the same road.
7. The parents, H and W, had been in receipt of housing benefit for some years. In March 2003, W made a new claim for housing benefit in respect of No. 42. She ticked a box on the claim form to indicate that she was not related to her landlord, the owner of No. 42. It subsequently transpired that in fact No. 42 had been bought by S1 and S2 in 2002.
8. The local authority subsequently decided that W was not entitled to housing benefit as one of the landlords was living at No. 42 and being looked after by her and H. The local authority also decided that the tenancy was not on a commercial basis. The local authority concluded that as a result there had been an overpayment of housing benefit in the sum of £12,325 for a period between 2004 and 2007, which was recoverable from W.

The first tribunal

9. W appealed against the local authority decision. Her appeal was heard by the Leeds appeal tribunal ('the first tribunal'), chaired by District Chairman Holmes, sitting alone on 21 September 2007 (under reference 013/07/02024). W did not attend, but H and S1 both attended and both gave evidence. The tribunal dismissed the appeal and confirmed the local authority's decision on both grounds.
10. In his Statement of Reasons, District Chairman Holmes was critical of the evidence of family members in several respects. In particular, the chairman:

(a) did not accept H's evidence that the errors on the 2003 claim form were innocent mistakes: 'If it had been due to a mistake once, this does not explain why the mistake was repeated several times. The only remaining logical explanation for this error is that it was done to deceive the Council';

(b) did not accept S1's evidence that No. 42 was held by himself and his brother S2 on trust for him alone;

(c) found that 'the [documentary] evidence regarding the actual payment of rent was unreliable', given discrepancies in the amount of stated arrears;

(d) found that the oral evidence of H and S1 at the hearing was unreliable;

(e) concluded that 'as has been clearly shown already in this statement, the Appellant [W] and her husband [H] were dishonest in their dealings with the Council'.

11. W applied for permission to appeal against the first tribunal's decision. Mr Commissioner (now Judge) Bano refused that application, adding that:

'The tribunal was bound to decide the case on the basis of the evidence before them and I cannot set aside their decision because the claimant would like new evidence to be taken into consideration. The tribunal's decision was fully justified by the evidence before them for the reasons which the chairman gave.'

12. On 2 October 2007, shortly after the first tribunal hearing, the local authority received a copy of a letter sent to H and W at No. 42 by S1, who lived at No. 48. Headed 'Eviction Notice', the one paragraph letter stated that it was 'to give you one month notice to vacate the property'. H and W then moved from No.42 to No. 48.

The second tribunal

13. H made a new claim for housing benefit on 17 January 2008, stating that he had moved to No. 48 on 7 January 2008. He stated that he lived there with his wife, S2 and three other minor children. A handwritten one page document headed 'Tenancy Agreement' and signed by S1 was produced. The local authority rejected the claim on 23 January 2008, having decided that the tenancy of No. 48 had been created to take advantage of the housing benefit scheme. The local authority's notepad entry summarised the position, in its view, as follows: 'basically l/l and clmt swapped houses'.
14. H then appealed, stating that from 2002 until January 2008 he had lived at No. 42. He stated that S2 had lived throughout at No. 48. He explained that he had moved to No. 48 in January 2008 because No. 42 'was not big enough to accommodate all my family members' and confirmed again that S2 was already living at No. 48. The local authority subsequently reviewed the case and added a further ground for refusing benefit, namely that the tenancy was not commercial in nature.
15. H's appeal was heard by the Bradford East appeal tribunal on 4 June 2008 under file reference 013/08/01295. The chairman of this second tribunal was again District Chairman Holmes, who had chaired the first tribunal. The second tribunal disallowed the appeal and confirmed the local authority's decision. The tribunal primarily based its decision on the ground that the tenancy was not commercial in nature, but added that it would in any event have also found if necessary that it had been created to take advantage of the housing benefit scheme.
16. The second tribunal made the following findings of fact:

(i) H and W (the tenants) were the parents of S1 (the landlord);

(ii) The reason for the move to No.48 was the outcome of the first tribunal hearing and the fact that H and W did not receive housing benefit in respect of No. 42, not the stated need for H and W to have a larger property;

(iii) There were said to be arrears of £5,500 in respect of No. 42 'yet their son [S1] was still willing to rent [No. 48] to them. It was a stratagem to enable a further claim to be made for Housing Benefit';

(iv) The tenancy letter was in the briefest of terms;

(v) There was 'no evidence to suggest that [the rent charged] was other than a reasonable figure' and a completed rent book had been produced.

17. The second tribunal properly acknowledged that findings (i) and (iv) were of themselves insufficient to justify an overall finding that the tenancy was non-commercial in nature, and that finding (v) supported the argument that the tenancy was commercial. The tribunal also expressly declined to make any finding in respect of bad faith. However, overall the tribunal concluded that 'the overwhelming evidence was that the tenancy was not on a commercial basis.' Had it been necessary to decide so, the tribunal indicated that its view was also that the tenancy liability had been created to take advantage of the housing benefit scheme.

The grounds of appeal to the Upper Tribunal

18. The appellant applied for permission to appeal to the Social Security Commissioner (now the Upper Tribunal). The grounds of appeal are largely an attempt to challenge and re-open the findings of fact made by the second tribunal. Mr Commissioner Mesher (now Judge Mesher) granted permission to leave on two procedural grounds. The first concerned the length of notice given to the appellant of date of the hearing. The second was whether the involvement of the same tribunal chairman in both appeals amounted to a breach of natural justice or of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. I should add that I am satisfied that the tribunal correctly applied the substantive law relating to entitlement to housing benefit.

The length of notice for the hearing

19. The general rule is that an appellant is entitled to 14 days notice of the time and place of any oral hearing, and that in the absence of such notice the hearing may proceed only with his or her consent (Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991), regulation 49(2)). An appellant may waive this right by giving notice to that effect to the tribunal clerk (regulation 49(3)).
20. The appellant completed the standard TAS1 questionnaire on 14 May 2008, ticking the box to the effect that he could attend a hearing at short notice if a cancellation arose. This suggests that the statement on the Record of Proceedings, inserted by a clerk or by computer, and not by the chairman, that the hearing date had been notified on 7 April 2008 must have been incorrect. Indeed, the Tribunal Service records show that the case was 'ready to list' on 22 May 2008 and that on 29 May 2008 the parties were informed of the hearing on 4 June 2008.
21. The chairman's Record of Proceedings notes that the appellant had told the clerk 'he was not ready for appeal to be heard. He had only short notice for the appeal' and that he had sought representation but the agency concerned was unable to assist. The chairman's note then continues: 'App. says hearing is to go ahead today'. This was presumably in response to a direct question from the chairman as to whether or not the appellant in fact wished to proceed.
22. Mr Commissioner Mesher, when granting permission to appeal, questioned whether a written waiver of 14 days notice could be withdrawn and whether the chairman was aware of the actual length of notice given.
23. Clearly a failure to provide a copy of the submission until the day of the hearing, combined with a failure to enable the appellant time to consider that submission properly, will amount to a breach of Article 6 of the Convention (unreported Commissioner's decision CH/3594/2002). In the present case, however, the submission itself had been made available some time ahead of the hearing. Evidently the appellant attended the hearing aware of the case that he had to answer.
24. The parties have not directly addressed Mr Commissioner Mesher's question as to whether an appellant may withdraw a written waiver of the usual statutory notice period for a hearing. If not, it would follow that there could be no criticism of the tribunal for proceeding. Without deciding the point, I am prepared to assume that such a waiver may be withdrawn. For example, an appellant may agree to short notice but then experience a bereavement, which would make it unreasonable to expect them then to proceed. The question ultimately must be whether or not the appellant received a fair hearing in all the circumstances of the case.
25. In the present case the appellant initially indicated that he was not ready to proceed because of problems in securing representation. He then changed his mind, when asked the question directly by the chairman, and stated that he wanted the hearing to go ahead. In my judgment the appellant had not withdrawn his waiver of short notice under regulation 49. The chairman may or may not have been aware of the precise notice that the appellant had received, but he clearly knew that it was less than 14 days which is why he asked the question.
26. There is a further complication in the present case in that on the TAS1 form the appellant had requested an interpreter, but none was present on the day, apparently due to an administrative oversight. However, the chairman noted in the Record of Proceedings that H 'says he speaks English…He was [going to use] S1 as an interpreter – apparently to answer questions'. The chairman continued to take a careful note of the evidence, observing at the end that 'Appellant was able to communicate, sometimes by self, sometimes using son as an interpreter – but appeared no difficulty.'
27. In his Statement of Reasons, the chairman added:

'During the hearing it appeared that the Appellant always understood the questions asked in English. On occasions he immediately answered in English. On other occasions he asked his son to interpret for him. The Appellant was not at any disadvantage by the lack of an interpreter. It was significant that the Appellant told the Tribunal that he wished to proceed. This was in the knowledge that there was no official interpreter. As the hearing progressed, it became clear that the Appellant was able to understand and also to formulate his answers to questions although he did use his son an interpreter on occasions.'

28. It is self-evidently desirable that tribunals should be able to rely on professional interpreters in their hearings and not on family members. There is no statutory duty on the Tribunals Service to provide an interpreter, although I understand that its policy is to provide suitably qualified and professional interpreters where appropriate. Conversely, an appellant has no legal right to the services of an official interpreter in a tribunal hearing. There is, of course, a right to a fair hearing. In the present case the appellant was able to give his evidence without apparent difficulty, either by himself or through his son. He indicated that he wished to proceed in the absence of an official interpreter. The son was willing and able to undertake the task. There was no indication in the course of the hearing from either H or S1 that there were difficulties in understanding the issues. Overall, I am not satisfied that there is any error of law on the part of the tribunal, in these circumstances, in proceeding with short notice and without an official interpreter.

The involvement of the same tribunal chairman

29. The same tribunal chairman sat in both appeals. Did this amount to actual or apparent bias? There is no suggestion in this case of actual bias. But was this a case of apparent bias, such that District Chairman Holmes should have recused himself from sitting on the second tribunal?
30. The question, according to Lord Hope of Craighead in Porter v Magill [2001] UKHL 67 (at paragraph 103) is 'whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.' Moreover, the 'fair-minded and informed observer', according to Lord Steyn in Lawal v Northern Spirit [2003] UKHL 35 'is neither complacent nor unduly sensitive or suspicious' (at paragraph 14).
31. The present case is not one of those where the issue is whether there may be a real possibility of bias because of structural matters relating to the appointment and sitting patterns of tribunal chairman and members (as was in issue in Lawal v Northern Spirit [2003] UKHL 35, Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 and reported Commissioner's decision R(DLA) 4/07). Rather, the issue in this appeal turns on the previous involvement of the same chairman in a subsequent case concerning (effectively) the same parties. In Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [1999] EWCA Civ 3004, Lord Woolf M.R. dealt with this aspect of possible bias as follows:

'25. It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. …a real danger of bias might well be thought to arise … if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v. Kelly (1989) 167 CLR 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be' (emphasis added)

32. The issue raised by the italicised passage in the previous paragraph was explored further by the Court of Appeal in Amec Capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWCA Civ 1418. Dyson LJ reiterated that 'the mere fact that the tribunal has previously decided the issue is not of itself sufficient to justify a conclusion of apparent bias. Something more is required. Judges are assumed to be trustworthy and to understand that they should approach every case with an open mind' (paragraph 20). Referring to the same passage in Locabail, Dyson LJ continued (at paragraph 21):

'…As was said in Locabail, the mere fact that the tribunal had previously commented adversely on a party or found his evidence unreliable would not found a sustainable objection. On the other hand, if the tribunal had made an extremely hostile remark about a party, the position might well be different. Thus, in Ealing London Borough Council v Jan [2002] EWCA Civ 329, this court decided that the judge should not hear the retrial of proceedings where he had twice said of the respondent in preliminary proceedings that he could not trust him "further than he could throw him".'

33. Furthermore, in Lodwick v London Borough Of Southwark [2004] EWCA Civ 306, Pill LJ emphasised that the parties cannot 'assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case' (at paragraph 21). In addition, 'The circumstances in which the need for recusal will arise from what has been said by a Chairman in a previous case are likely to be rare' (paragraph 22).
34. The Commissioners have applied these principles in the social security and child support jurisdictions. In CCS/1876/2006 Mr Commissioner Jacobs found (at paragraph 11) that there was no legitimate reason for an objective observer to suspect bias in a case in which the same chairman had heard successive appeals by the same non-resident parent:

'…The fact that the chairman had previously made a decision adverse to a party does not entitle that party to a differently constituted tribunal. Nor does the fact that the chairman has previously been involved in a decision concerning that party. The issue is whether a fair-minded and informed objective observer who was familiar with legal culture and traditions would believe that there was a real possibility of bias. As part of legal culture and tradition, the observer would know that judges are experienced in approaching cases afresh regardless of previous dealings with the parties…'

35. The Commissioner added, however, that as a matter of good practice chairmen might sometimes feel it appropriate to transfer a case to a different chairman, for example 'when they have dealt adversely with a claimant on a number of occasions'. Thus chairmen 'should not feel obliged to hear a case just because the law says that they may' (paragraph 12).
36. Similarly in CIS/1599/2007, the same tribunal chairman had heard the claimant's appeal against an entitlement decision and later a second appeal against the consequential but separate overpayment decision. The tribunal chairman had dismissed both appeals. Mr Commissioner Bano dismissed the claimant's further appeal, finding that the chairman had conducted a complete rehearing of the case on the overpayment appeal and had given reasons for his decision based entirely on evidence given at the second hearing. There was also no evidence that the chairman had behaved in a hostile manner towards the claimant.
37. In CSIB/85/2007, the claimant appealed against a decision that she qualified for only one mental health point on the personal capability assessment. The claimant did not attend the first tribunal, which dismissed her appeal. A District Chairman set that decision aside, as the claimant's explanation for her non-attendance had not been put before the tribunal. A rehearing was then directed in front of a different panel. However, due to an oversight the appeal was re-listed before a second tribunal that included the same (female) chairman. The chairman noted that she had sat on the previous tribunal but recorded '[the claimant] had no problem with her hearing oral evidence today'. The second tribunal awarded the claimant five mental health points, but as this was still insufficient to meet the statutory points threshold her appeal was again dismissed. On further appeal, Mrs Commissioner Parker regarded the case as 'exceedingly borderline', but allowed the appeal 'with some reluctance' on the narrow basis that, although the claimant had been offered the right to object, it was unclear whether in reality she had in fact been an given adequate opportunity to object.
38. In my judgment the present case is closer to CCS/1876/2006 and to CIS/1599/2007 than to CSIB/85/2007. I note the narrow ground on which Mrs Commissioner Parker allowed the appeal in the latter case. It may also be significant that in CSIB/85/2007 the second tribunal was dealing with exactly the same issue as the first tribunal and that the case management direction for a new panel had not been implemented. Those features were not present in CCS/1876/2006 and CIS/1599/2007, or in the present appeal.
39. Finally, however, I remind myself of the Court of Appeal's warning in R (on the application of PD) v West Midlands and North West Mental Health Review Tribunal [2004] EWCA Civ 311 that when applying the test of whether there has been an appearance of bias, such as to undermine the right to a fair hearing, 'citation of authorities may cloud rather than clarify perception. The court must be careful when looking at case precedent not to permit it to drive common sense out of the window' (paragraph 8).
40. In the present case there is nothing in my view which would lead a fair-minded and informed observer to doubt District Chairman Holmes's impartiality and objectivity in presiding over the second tribunal, notwithstanding that he had decided similar issues adversely to the appellant's wife in the earlier first appeal. I rely in particular on the following factors:

(i) Although the chairman had made findings which were adverse to the credibility of H, W and S1 in the decision of the first tribunal, those conclusions were expressed in moderate terms and were both explained and justified by reference to the evidence before him;

(ii) Although the issues before the two tribunals were related (as they were in CCS/1876/2006 and even more so in CIS/1599/2007), they were not identical (as in CSIB/85/2007);

(iii) Given the complex factual background, there was some justification for having judicial continuity in having the same experienced chairman hearing the two appeals;

(iv) The two hearings were conducted some 9 months apart.

41. Bearing in mind the observations of Mr Commissioner Jacobs in CCS/1876/2006 at paragraph 12, District Chairman Holmes could possibly have decided that in the circumstances it might have been better for him not to hear the second appeal. He could not have been criticised for any such decision. Equally, however, he cannot be criticised for taking a more robust approach and proceeding to hear the second appeal. The case law from the courts certainly justifies adopting such an approach, and of course tribunal judges enjoy the same independence as judges in the mainstream courts, embodied in section 1 of the Tribunals, Courts and Enforcement Act 2007. Thus tribunal judges swear the same judicial oath as judges in the courts, undertaking to 'do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will'.

Conclusion

42. For the reasons explained above, the decision of the tribunal does not involve any error of law. I must therefore dismiss the appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007.

Signed on the original Nicholas Wikeley

on 19 January 2009 Judge of the Upper Tribunal