BS v Secretary of State for Work and Pensions (DLA)

I apologise for the delay in promulgating this decision.

In these two related cases, the F-tT (First-tier Tribunal) dismissed the appellant’s appeal against the Secretary of State’s decisions (i) to revise his entitlement to the middle rate of the care component of DLA from 6 November 2004 and the higher rate of the mobility component of DLA from and including 22 September 2005 and (ii) raise an overpayment of some £41,000 for the periods in question.

The middle rate of the care component was awarded on the basis of the appellant’s claim that he required attention in connection with his bodily functions frequently throughout the day. At the time of the initial award of the care component, the appellant did not satisfy the conditions of entitlement for the mobility, but he was later awarded the higher rate of the mobility component on the basis of his claim that he was virtually unable to walk. His claim was subsequently investigated by the Fraud Investigation Service which produced cogent evidence that he had misrepresented his disabilities throughout the periods covered by the awards. The evidence showed that the appellant was an active, regular crown green bowls player. The evidence included information from the Bowling League, videos obtained through surveillance, and from an interview under caution.

The appellant’s representative (whom I shall refer to as ‘the representative’ hereafter) attacked the F-tT’s decision on extensive grounds, but only one of those grounds was arguable: whether the absence of the document authorising the surveillance under the RIPA 2000 made the surveillance unlawful. If the surveillance was unlawful, he raised further questions regarding the tribunal’s power to admit or exclude evidence, the extent, if any, to which unlawfulness might affect the weight of the evidence, whether unauthorised surveillance breached the appellant’s rights under Articles 6 and 8 of the European Convention on Human Rights as incorporated into UK law by the Human Rights Act 1998 and the appropriate remedy, if any, by a First-tier Tribunal (Social Entitlement Chamber).

It is helpful to note at the outset that the DWP is a governmental body listed under Schedule 1 of Regulation of Investigatory Powers Act 2000 as having the power to authorise covert surveillance, in this case ‘directed surveillance’ as defined in section 26 of Regulation of Investigatory Powers Act 2000 (RIPA 2000).

The representative and the F-tT had requested the Secretary of State to supply evidence that the surveillance was authorised, to no avail.

The Secretary of State did, however, respond to my directions to produce evidence of the authorisation and provided a copy. In the circumstances of this appeal, the provision of that authorisation provides an answer to the representative's original submissions on this issue.

I emphasise here that the representative's objection was to the lack of proper documentation regarding authorisation. He did not suggest that the surveillance carried out was unnecessary, unduly intrusive or disproportionate in any other way. He did, however, rightly criticise the Secretary of State’s failure to cooperate with the F-tT, and argued in his reply to the Secretary of State’s response that his failure to cooperate made the hearing unfair. The representative sought to compare this case to CIS/1481/2006. As will be seen, I do not accept the comparison or his submission on the effect of the failure to cooperate.

Like this appeal, CIS/1481/2006 involved the lawfulness of surveillance under RIPA 2000 which was only shown to be authorised at the hearing before the Commissioner. However, the DWP’s behaviour in CIS/1481/2006 was of an entirely different order from that which occurred in this appeal. In CIS/1481/2006 the DWP’s refusal to produce evidence regarding authorisation for the surveillance was the least of the problems, and one which attracted guidance (but no more than that) from Commissioner Williams. I consider this later. The gravamen of DWP’s behaviour was their refusal to allow the claimant and the Tribunal access to the video evidence obtained by the surveillance, transcripts of the interview under caution and notebooks containing evidence they were saving ‘for court’ (by which they seemed to mean a criminal court) on which they relied. None of these manifest improprieties were addressed, let alone corrected, by the Tribunal. It was content to make a decision based on a number of photographic stills selected by the Secretary of State.

It is, however, troubling that the DWP held back the authorisation document because they feared its production might impede criminal investigations into the same matter. It is difficult to see how it could do so, given that the surveillance was finished. The Secretary of State’s argument was, in any event, decisively rejected in CIS/1481/2006. That case was but one in a line of cases which rebuked the Secretary of State’s failure to produce relevant evidence in reliance on the same argument. In CIS/1481/2006 Commissioner Williams (now Upper Tribunal Judge) said, at [85], that ‘It is not for one side to an appeal to decide on priorities between civil and criminal proceedings about social security matters’.

In CIS/1481/2006 the Secretary of State’s conduct through his department failed to conform to the standards expected of a public body pursuing litigation. The Secretary of State’s duty to cooperate with the Tribunal, as set out in Kerr v Department for Social Development [2004] 1 WLR 1372,hardly needs restating. Both parties are, of course, required under rule 2(4) of the Tribunal Procedure (First-tier Tribunal)(SEC) Rules 2008 to cooperate with the Tribunal, whilst the Tribunal itself must deal with cases deal with cases fairly and justly in accordance with the overriding objective in rule 2(1). (Footnote: ¹)

But the question for the Upper Tribunal under sections 11 and 12 of the Tribunals Courts and Enforcement Act 2007 is not whether the Secretary of State has breached his duties under the Rules, but whether the Tribunal has erred in law. If unfairness or breach of natural justice is asserted, it must be shown that the Tribunal acted in breach of natural justice and/or in breach of the claimant’s right to a fair hearing under Article 6.

In CIS/1481/2006, there was only one answer to that question since (i) the claimant was not allowed at any stage, including the hearing, to know the evidence she had to meet and (ii) the Tribunal had not redressed the manifest unfairness caused by the Secretary of State’s conduct. The tribunal was rightly found to have erred in law by their failure to put right the procedural improprieties that infected the proceedings.

It is not inevitable that impropriety or unfair behaviour on the part of the Secretary of State will cause a Tribunal to fall into error of law. The Tribunal may, through use of its inquisitorial powers and its duty to hear and determine fairly, and to hear all relevant issues afresh, put right failures of one party or the other. If it does so, it is unlikely to have made an error of law in respect of natural justice or Article 6.

Nor is it inevitable that unfairness, however minor, shown by a party will justify setting aside a decision. The Upper Tribunal has discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 over whether or not a F-tT’s decision is to be set aside. If the unfairness is trivial when looking at the proceedings or decision as a whole, the Upper Tribunal might consider it inappropriate or disproportionate to set the decision aside. If the matter on which the unfairness arose could not have affected the outcome at all, it was immaterial and would not be considered an error at all.

The representative's submission in this case was, in effect, that unless the authorisation (or a copy of it) was produced, the surveillance could not be shown to be lawful. There are three problems with this submission. The first is that at common law, unlawfully obtained evidence is admissible in civil litigation, if it is relevant. Helliwell v. Piggott-Sims [1980] FSR 356 at 357 (CA)confirmed that there was no discretion to exclude evidence on the ground that it was unlawfully obtained and in civil cases, there was no rule that such evidence should be excluded because its prejudicial effect outweighs its probative value.  This is now subject to an individual’s right to a fair hearing under Article 6. The requirement of fairness is, as we will see, incorporated into the rules governing Tribunal procedure. The second is that the representative's submission appears to posit the continuing application of an unabated ‘best evidence’ rule. Although vestiges of the rule remain in courts, it has been substantially superseded by the principle that all relevant evidence is admitted. ‘The goodness and badness of it goes only to weight, and not to admissibility’: Garton v. Hunter [1969] 1 All ER 451, [1969] 2 QB 37 (Denning J, as he then was). Thirdly, Tribunals are not bound by the strict rules of evidence in any event.

This was the position long before the Tribunals Courts and Enforcement Act 2007 and remains so. Rule 15(2) of the Tribunal Procedure (First-tier Tribunal)(SEC) Rules 2008 expressly permits a Tribunal to admit evidence whether or not it would have been admissible in a civil trial in the UK. It can also exclude evidence that would be admissible where it would otherwise be unfair to admit it. The rule is the same for all tribunals within the TCEA 2007 system.

Courts and tribunals may, not unnaturally, be reluctant to exclude evidence which is reliable and probative although unlawfully obtained; and Strasbourg jurisprudence accepts in turn that there may be no unfairness in admitting such evidence when the fairness of the proceedings are considered as a whole: Khan v UK [2001] 31 EHRR 1061.

It may nevertheless be important for a Tribunal to decide whether the disputed evidence has been lawfully obtained. Realistically, if the evidence was lawfully obtained, the prospect of its exclusion as unfair is minimal. .

Thestarting point is that whether or not the authorisation had been obtained was a question of fact for the Tribunal, to be established on the balance of probability. It follows that the Tribunal was obliged to decide the fact of authorisation as it would any other fact, that is to say on the evidence presented to it, its relevance and credibility. The lawfulness of the way in which the evidence was obtained might go to the issue of exclusion of the evidence, if

. That evidence could be produced by a representative, including a presenting officer. This is established by case law from the Social Security and Child Support Commissioners (now the Upper Tribunal). Representatives may give evidence on questions of fact, even though those facts may be outside their personal knowledge. In CDLA/2462/2003 Commissioner (now Upper Tribunal Judge) Jacobs made it clear that -

CDLA/2462/2003 applied to claimants’ representatives. The same principles, however, apply to presenting officers: PL v Walsall MCB [2009] UKUT 27 (AAC). In that case Judge Jacobs, having reconsidered the approach taken in earlier Commissioners’ cases, considered the law to be as follows -

It follows that it was open to the F-tT to accept evidence from the presenting officer that authorisation had been obtained, subject to being satisfied that the evidence had a credible basis.

The representative submitted that the presenting officer’s evidence should have been given less weight without the authorisation. Whether this is appropriate depends on the nature of the evidence being given. In this case, the presenting officer was either reporting a fact accurately or not. Either the authorisation existed or it did not. There was no middle ground. On this type of issue, either the tribunal believed the presenting officer as a person who had access to files and no personal interest in the matter, or it did not. It chose to believe him. That was a matter for the tribunal, as I will explain a little later.

This is not to excuse the Secretary of State for failing to provide the authorisation. Had he done so when the document was requested by the appellant and then as directed by the F-tT, it would have saved time and expense.

Having finally seen a copy of the authorisation, the representative argued – albeit faintly - that the authorisation might be invalid because instead of signatures, the signature boxes in the document contain e-mail numbers. I do not accept this. The document plainly contains the information which justifies its issue under RIPA 2000 including the names and ranks of the authorising officers, as required. There is reason whatever to suppose that the original document was not properly signed.

Since the surveillance was found to be – and actually was, in fact - authorised, the appellant cannot succeed unless he shows that there was some unfairness in the proceedings beyond the simple lack of the document. (It matters little whether one uses ‘unfairness’ or ‘breach of natural justice’, but where one or the other covers the conduct in the submission more clearly, I shall refer to that one in preference to the other.)

There were three possibilities. (i) An inadequacy in ‘facts and reasons’ arising from the Tribunal’s somewhat bald statement in the Statement of Reasons that it accepted the presenting officer’s evidence that they had obtained authorisation but had not put it in the papers; (ii) as, argued by the representative, that the Secretary of State’s failure to cooperate by not producing the authorisation at an early stage meant he could not prepare and present his case properly; and (iii) that he failed to provide relevant evidence, which is an error of law: - ST v Secretary of State for Work and Pensions (ESA) [2012] UKUT 469

As stated in [12], the question for the Upper Tribunal is whether the Tribunal has erred in law. For this, it is necessary to consider the appellant’s submission that (as in CIS/1481/2006) the tribunal had not shaken itself free of the irregularities in the Secretary of State’s conduct, and so acted unfairly.

Dealing with (i), the possible inadequacy of facts and reasons: The typed Record of Proceedings did not record evidence or submissions from the presenting officer regarding the authorisation. However, on re-reading the representative's submission to the Upper Tribunal, I note that he states that the respondent (by whom he must mean the presenting officer) ‘informed the Tribunal and the representativeat the start of the hearing that the RIPA 2000 authorisation was not available but that one had been obtained and was held by the respondent’s fraud investigation staff who were not at the hearing’. It is clear, therefore, that the presenting officer did address the issue of the elusive authorisation at the hearing.

It was for the F-tT to decide whether the presenting officer’s evidence was credible. As this was a matter that was troubling the representative, the F-tT should have recorded the presenting officer’s evidence in the Record of Proceedings, and it would have taken little effort to add a few words of explanation about why it was accepted. Having said that, it must be implicit in circumstances like these that there was no reason why the respondent or his Department, who are obliged to obtain authorisation, self-certifying, and accustomed to doing so, and would lie on this matter.

I should add that, even if the Tribunal did err by not spelling this out, I would not have set aside the decision on this basis, having regard to the fact that authorisation did exist, and the otherwise careful and well analysed decision by the Tribunal.

As regards (ii), I am unable to see that the absence of the authorisation document prejudiced the appellant or his representative in the preparation or presentation of their case. The circumstances are these:

Submission (iii) also fails. ST v Secretary of State for Work and Pensions emphasises the duty on the Secretary of State under rule 24(4)(b) of the First-tier Tribunal Rules to provide documents relevant to an appeal. In ST the appellant’s submission was that she had passed the Work Capability Assessment (WCA) previously and her condition had not changed. Indeed, the same doctor had examined her on both occasions. If, as the appellant believed, her condition had not changed, it was relevant to compare the two reports to see why she had passed before, but no longer did so.

But as ST also points out, it is not every document that must be supplied. Nor will the Tribunal have necessarily erred in law if it goes ahead without a document that is relevant, if its contents can be established credibly in another way. In the instant appeal (and insofar as it was necessary to do so at all) the Tribunal found that authorisation had been granted on the basis of the presenting officer’s evidence. The Tribunal did not need to compare documents. All it needed to do was decide if it was likely that government body accustomed to obtaining authority for surveillance and having the power to issue it themselves, had done so in a routine case.

Finally, even if I am wrong and the F-tT did err in law by acting without the document, my conclusion is that its error would be immaterial. It could not have affected the outcome of the case.

Whilst one can think of situations in which a tribunal can be said to have acted unfairly or to have made a material error even though it came to the correct factual conclusion on the evidence, I cannot see how that occurred here. In terms of natural justice and fairness, the appellant had a full and fair opportunity to put his case, and did so with legal representation throughout. He had the opportunity to deal with the video evidence. His only complaint is that he would have liked to see the actual authorisation document. But as I have explained, that was not a legal necessity. I do not, therefore see any breach of Article 6 or of natural justice, insofar as there is any difference.

As far as Article 8 is concerned, the appellant’s right to respect for his private life is a qualified right. It may be found to give way where an interference by a public authority, such as surveillance in a benefit fraud investigation, is in accordance with the law and the interference is necessary in a democratic society in the interests, amongst other things, of the economic well-being of the country or the prevention of disorder or crime.

RIPA 2000 provides the framework to ensure that surveillance by public bodies takes place within a clear legal framework which is compliant with the UK’s obligations under the European Convention on Human Rights. RIPA 2000 lays down the requirement of proportionality in designing and carrying out that surveillance No question has been raised about the substance of the authorisation or the proportionality of the surveillance carried out. Section 27 of RIPA is relevant. It provides:

Insofar as breach of the appellant’s right to respect for private life might have been in question, the authorisation provides an answer which renders the surveillance lawful.