AM v The Secretary of State [2013] UKUT 94 (AAC)

IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Before Judge Mark
Decision:
1.The title of these proceedings is amended. The Appellants are the claimant (represented by her appointee) and the appointee himself.
2.The appeal is allowed. I set aside the decision of the tribunal and remit the case to be reheard by a new tribunal in accordance with the directions given below.
REASONS FOR DECISION
Between
AMAppellantThe Secretary of StateRespondentDate 2013-02-21
[1]This appeal is brought with the permission of a First-tier Tribunal Judge and is supported by the Secretary of State. The claimant had been awarded the lower rate of the mobility component and the highest rate of the care component of disability living allowance from 12 March 2004 to 11 March 2007. During that period, in 2006, she married her appointee. I am unclear for how long he had known her before. Towards the end of 2006 she submitted through him as appointee a renewal claim which was successful and she was awarded the same rates of benefit for a further 5 years from 12 March 2007 to 11 March 2012.[2]On 12 June 2010, following an investigation, the award was superseded and it was determined that the claimant was not entitled to any award of either component from and including 12 July 2008 because from that date she did not satisfy the conditions. In essence what was decided was that at least by that date her previous mobility and care needs had disappeared or at least reduced to such an extent that she no longer qualified for any level of benefit. It was also decided that there had been an overpayment of £7403.50 which was recoverable from the appointee.[3]The claimant and the appointee both appealed. Before the appeal was heard, the appointee was also charged with an offence under s.112(1D) of the Social Security Administration Act 1992. The charge (file, p.324) was that “Between 16 July 2008 and 25 May 2010 … [the appointee] being a person whom [sic] was entitled to receive benefit as appointee of [the claimant] failed to promptly notify the Secretary of State for Work and Pensions of a change in circumstances that he knew would affect the entitlement of [the claimant’s] claim for Disability Living Allowance namely, her capabilities had improved, contrary to section 112(1D) of the Social Security Administration Act 1992.” Neither the extent of the improvement in the claimant’s capabilities nor the extent to which that would affect entitlement was stated in the charge, although no doubt evidence was led or was available to be led as to that at the trial.[4]It is unclear whether the appointee pleaded guilty or not guilty to the charge. A solicitor’s letter at p.325 states that he pleaded not guilty and the matter proceeded to trial on 23 June 2011. The prosecution report at pp.326-7 states that he pleaded guilty. A letter from the appointee at p.328 states that the magistrates took an hour and 40 minutes to reach their decision, which suggests that the plea was not guilty. He was, however, convicted, and was given a 12 months conditional discharge (p.327).[5]The tribunal rejected the appeal and the decision notice identifies only the appointee as a party, as does the statement of reasons, although the statement of reasons does go on to state that the appointee was appealing on behalf of his wife, the claimant. It does not appear to have dealt with the appointee’s own appeal directly, although the effect of its reasoning was that that appeal also had to fail. It appears to me that this appeal is brought by the appointee both on his own behalf and on behalf of the claimant and that the documentation should make this clear. The distinction is particularly important in this case for reasons to which I shall now turn.[6]The tribunal concluded that in the absence of fresh evidence indicating that the conviction was wrong, the appointee’s conviction was a complete bar to the appeal.[7]So far as the appointee himself is concerned, the extent to which he could dispute his conviction and the factual basis of it in other proceedings has been the subject of decisions in this and other jurisdictions with which I shall deal below. However, the claimant was not a party to the criminal proceedings. She has not been convicted of anything, and is not bound, any more than any other third party, by the conviction. It was the job of the tribunal to determine her entitlement to benefit on the evidence before it, and the conviction of her husband was not evidence which could be relied on against her, although of course the evidence before the magistrates could be relied on against her if relevant.[8]If, on the basis of a proper investigation of the facts, the tribunal dismissed the appeal, then the conviction may have been relevant to the claim against the husband as appointee for repayment of the overpayment. If on the other hand the tribunal found that the claimant did qualify for benefit at the same rate, or a reduced rate, then either there was no overpayment to be recovered from the husband or only a reduced one, taking into account the reduced benefit to which she was entitled.[9]The position of the husband appointee is different. Tribunals have always had regard to convictions in subsequent proceedings, and have treated convictions as having at least considerable probative weight. The reasons given for this have conflicted. I am grateful to the representative of the Secretary of State for his researches into the case law. Some but not all of the cases were cited to the tribunal.[10]In R(U) 24/55 the Commissioner considered the question of whether the claimant had lost his employment through his misconduct. The facts of the case are summarized in paragraph 3 of the decision:
“In reply to the usual inquiry as to the circumstances in which the employment was terminated the employers stated that the claimant alleged he had been assaulted by a supervisor and issued a summons against the supervisor. The case was dismissed, with costs against the claimant. Having regard to his action, the claimant was not considered suitable for retention in the council’s service and his services were therefore terminated.”
[11]As far as relevant, the Commissioner found in paragraphs 9-11 that:
“9. I turn now to the decision of the local tribunal. It seems clear from the chairman’s helpful formulation of his findings that the foundation of his decision was the view that he ‘must accept the findings of the magistrate that there was no assault.’ 10. It is true that (save in very exceptional cases) the local insurance officer, local tribunal and Commissioner (whom I refer to hereafter as the judicial authorities) must treat a conviction by a criminal court as conclusive proof that the act or omission which constitutes the offence in question was done or made. The judicial authorities have no power to compel the attendance of witnesses and are not in a position to conduct a rehearing of the issues dealt with by a criminal court. 11. Further support for the view expressed above is to found in the fact that to justify a conviction the prosecutor must have satisfied the court beyond reasonable doubt that the claimant did the act or made the omission charged. Clearly however this principle can only apply when it clear that the criminal court has decided the identical issue of fact which the claimant needs to reopen before the judicial authority if he is to succeed in his appeal. This condition is not satisfied in the present appeal […].”
[12]R(U) 24/55 was discussed by Mr Commissioner Rice in R(S) 10/79, a case in which it had to be decided whether the claimant’s involvement in a scrap metal business, for which he had been convicted of benefit offences, amounted to “work” for sickness benefit purposes. The Commissioner decided that the claimant was not engaged in work. In paragraphs 8-10 of his decision the Commissioner said: “8. I am aware that the claimant was convicted at the Nuneaton Magistrates’ Court of 3 offences occurring during the periods now under consideration relating to false representations made in obtaining sickness benefit. I see that the claimant pleaded not guilty, but was nevertheless convicted. It is stated in paragraph 10 of Decision R(U) 24/55 as follows: ‘It is true that (save in very exceptional cases) the local insurance officer, local tribunal and Commissioner (whom I refer to hereafter as the judicial authorities) must treat a conviction by a criminal court as conclusive proof that the act or omission which constitutes the offence in question was done or made. The judicial authorities have no power to compel the attendance of witnesses and are not in a position to conduct a rehearing of the issues dealt with by a criminal court.’ Now although the above approach will in all normal cases be appropriate — it is in any event made subject to the reservation of “very exceptional cases” — what happens when on appeal to the Commissioner the evidence on which the conviction was based is unknown, and the evidence on which the appeal is founded is plainly inconsistent with any grounds upon which conviction could be justified? In those circumstances I consider that the Commissioner should have regard solely to the evidence before him and should ignore the fact of criminal conviction. Of course, the position would be totally different if the evidence on appeal were equivocal, i.e. open to acceptance or rejection, when the existence of criminal conviction would generally conclude the matter, although even there such conviction would only furnish cogent evidence, not unassailable proof. 9. It should also be remembered that even under the Civil Evidence Act 1968 where it applies — and it has no application to decisions made by the statutory authorities under the Social Security Act 1975 in relation to which there are no strict rules of evidence — a person shall be taken to have committed an offence of which he has been convicted only if the contrary is not proved. In the present case, on the evidence before me I regard it as proved on the balance of probabilities that the claimant did not work during the relevant periods and I consider that the existence of the conviction does not require me to hold otherwise. The words from the Decision R(U) 24/55 ‘must treat a conviction by a criminal court as conclusive proof’ overstate the position, and, in my judgment, do not without significant qualification represent the law.” ‘It is true that (save in very exceptional cases) the local insurance officer, local tribunal and Commissioner (whom I refer to hereafter as the judicial authorities) must treat a conviction by a criminal court as conclusive proof that the act or omission which constitutes the offence in question was done or made. The judicial authorities have no power to compel the attendance of witnesses and are not in a position to conduct a rehearing of the issues dealt with by a criminal court.’[13]R(U) 24/55 and R(S) 10/79 were considered by Mr Commissioner Watson in R(S) 2/80 (one of the authorities cited by the tribunal in the decision now under appeal). The Commissioner disagreed with both of these earlier authorities. Once again, the point at issue was whether the claimant had worked for sickness benefit purposes. It was alleged that the claimant, a civil engineer, had performed work for a farmer, Mr. T. As paragraph 6 of the Commissioner’s decision records, criminal proceedings had been instigated:
“The claimant was charged with 4 offences. The first 2 were that he made false representations to obtain sickness benefit because he had worked as a casual labourer: he was convicted and fined £75 on each charge and ordered to pay £50 towards legal aid costs. The dates covered by the offences were 13 to 22 May and 21 May to 9 June 1975. Two further offences charged false representations to obtain supplementary benefit in July and August 1975 and those charges were dismissed by the magistrates. Detailed notes of the evidence were recorded and evidence that the claimant had worked was given by Mr T and, in a reply by the claimant, that he had driven a combined harvester for 1½ hours. The latter related to the offences of which the claimant was acquitted and he said before me that it was in August at harvesting time, as might be expected.”
[14]In paragraphs 10-13 the Commissioner held: “10. The insurance officer’s representative correctly accepted that, as it was sought to review and revise decisions awarding sickness benefit, the onus of proof is on the insurance officer to prove that the claimant was not incapable of work (see Decision R(I) 1/71, paragraphs 9 and 16). Evidence that he worked is probative that he was not so incapable. The claimant was convicted by the magistrates’ courts of the 2 offences mentioned above, which include dates in issue in this appeal. In Decision R(U) 24/55 the learned Chief Commissioner stated that, save in exceptional cases, the statutory authorities (the insurance officer, local tribunal and the Commissioner) must treat a conviction by a criminal court as conclusive proof that the act or omission which constituted the offence in question was done or made. That statement was not necessary for the decision as the appeal was allowed and, with respect, I do not think that it can be supported. Prior to 1968, in civil proceedings, evidence that the defendant had earlier been convicted in criminal proceedings for an act for which he was being sued was inadmissible. Proceedings before the statutory authorities are not civil proceedings and the rules of evidence to not apply. The Civil Evidence Act 1968 has altered the position in civil proceedings. Section 18(1) of the Act defines ‘civil proceedings’ as not including civil proceedings in relation to which the strict rules of evidence do not apply. The Act does not, therefore, apply to proceedings before the statutory authorities but regard should, I think, be had to the principle of the legislation. The Court of Appeal considered the effect of the Act in civil proceedings in Stupple v Royal Insurance Co Ltd [1971] 1 Q.B. 50, see Buckley LJ at pages 75 to 76. The Court decided that the effect of section 11(2)(a) was to shift the legal burden of proof so that the person convicted has to prove, on a balance of probability, that he was innocent of the offence.[11]In paragraph 8 of Decision R(S) 10/79 the learned Commissioner expressed the opinion that, when on an appeal to the Commissioner the evidence on which the conviction was based is unknown and the evidence on which the appeal is founded is plainly inconsistent with any grounds upon which the conviction could be justified, the Commissioner should have regard solely to the evidence before him and should ignore the fact of criminal conviction. On the other hand, in Decision C.S. 9/79 (not reported), paragraphs 16 and 17, the learned Commissioner stated that he knew nothing of the evidence on which the conviction was based but must assume that at least evidence was given before the magistrates which satisfied them that the claimant was working during the days in the period covered by the conviction and that he had to accept that the claimant in that case worked during the period.[12]By section 147(1) of the Social Security Act 1975, proceedings in England and Wales for an offence under that Act shall not be instituted except by or with the consent of the Secretary of State or by an inspector or R(S) 2/80 other officer authorised by the Secretary of State. Section 147(4) provides, amongst other matters, that in Scotland proceedings under the Act may be commenced within specified times on evidence sufficient in the opinion of the Secretary of State to justify a report to the Lord Advocate with a view to consideration of prosecution. It is important that inconsistency of decisions should be avoided, if possible, as they are not understood by the public. That is not to say that a decision at variance with a conviction should not be given provided the evidence supports it. When benefit is denied, or an award is reviewed and revised, in my opinion, the Department should put before the statutory authorities evidence of a conviction concerning the same benefit and copies of such evidence as was available for, and was used in, the criminal proceedings. Not to do so would seem to be inconsistent with steps taken to prosecute. The weight or assistance to be derived from such evidence should, I think, be regarded in a similar manner to that given to proceedings before an industrial tribunal. The statutory authorities are not bound by any conclusion reached by an industrial tribunal; they are not bound by evidence on which a claimant was convicted of an offence. In Decision R(U) 2/74, it was decided that, although findings of fact of an industrial tribunal are not binding on the statutory authorities, such findings reached after inquiry by a judicial authority are cogent evidence on which the statutory authorities can act. It was pointed out that the statutory authorities cannot compel the attendance of witnesses.[13]In my opinion, the fact of a conviction should not be ignored and plainly should have a bearing on the case relating to benefit. A claimant having failed in the criminal proceedings might change his evidence. I prefer the approach in Decision C.S. 9/79 (supra). The onus of proof on the prosecution in criminal proceedings is a heavy one and a court sees and hears a defendant on oath, if he gives evidence. A decision inconsistent with the conviction should not, in my opinion, be given without at least hearing the claimant in person. If a claimant does not attend he has no ground for complaint. By analogy with the provisions of the Civil Evidence Act, in my opinion, the effect of a conviction for an offence relating to the same benefit for the same period, or part of the period, in issue in proceedings before the statutory authorities should have the effect of shifting the burden of proof on to a claimant who has been convicted to show, on a balance of probability, that he is entitled to the benefit in issue. The initial onus must lie on the insurance officer to show that a conviction related to the benefit in issue and covered the period in issue, or part of it, before the onus shifts. If the proceedings are on a claim, and not a review and revision, the onus of proof is anyway on a claimant in most claims and appeals. (Compare Decision R(S) 13/52, paragraph 6).”[14]I have no problem in understanding that weight should be given to a conviction when the matter is reconsidered by a tribunal. The relevant provisions of the Civil Evidence Act 1968 did not need to be applied to tribunals where the strict rules of evidence did not apply, because convictions could be taken account of where probative in any event. Tribunals could also form the view that it would be wrong in the absence of clear evidence to allow a person to challenge a conviction in subsequent civil proceedings. I have some difficulty in following how a conviction could change the legal burden of proof, however, as opposed to the evidential burden. It required an Act of Parliament to change the legal burden of proof in the proceedings to which section 11(2) of the Civil Evidence Act applied, and not only is there no such statutory provision here, but in enacting sections 11(2) and 18(1) of the Civil Evidence Act 1968 (it is the latter provision which excludes tribunals where the strict rules of evidence do not apply), Parliament made it clear that it was only doing so in relation to courts where the strict rules of evidence did apply, and continued to apply after the enactment of that Act. It appears to me to be wholly wrong, in order to introduce the same rule as to the shifting burden of proof, to rely by way of analogy on a statute which changed the burden of proof in other proceedings but expressly left it unchanged in tribunals where the strict rules of evidence did not apply. In my judgment, it would require statutory intervention to alter the burden of proof requirements in relation to tribunals where the strict rules of evidence do not apply.[15]I conclude therefore that R(S) 2/80 was wrongly decided so far as it finds that a conviction leads to the legal burden of proof being shifted. That does, however, still leave open the possibility that the conviction may result in the evidential burden being shifted in subsequent civil proceedings before tribunals where the strict rules of evidence do not apply.[16]In CDLA/473/2008,

Judge Powell put the position as follows at paragraph 24, when he said:

“a person who has been convicted of, or who has pleaded guilty to, a criminal offence is not thereby prevented from deploying defences to the overpayment claim which might not have been available to him in the criminal proceedings. The tribunal which hears an overpayment appeal must investigate the facts for itself. It cannot short circuit matters by saying ‘well, you have been convicted of a criminal offence so that is an end of the matter’. It must, instead, consider the evidence, make findings and reach a conclusion in the usual way. However, in considering the evidence, the fact that an appellant has either been convicted or has pleaded to an offence is a relevant, and often significant, item of evidence provided that the conviction is accepted or that it is proved in some proper manner and the tribunal investigates the facts, makes proper findings and does not rely on a conviction or guilty plea as disposing of the matter.”
[17]The representative of the Secretary of State has also drawn attention to the observations of Mr. Commissioner Mesher (as he then was) in CH/3744/2006 at paragraph 14, where he says:
“In my no doubt unrepresentative experience as a Commissioner, the standard of the examination of questions of true entitlement to benefit in criminal prosecutions is often woeful, so that claimants with some kind of case will often be better off getting the expert evaluation of an appeal tribunal.”
[18]In order to consider how a tribunal, where the strict rules of evidence do not apply, ought to treat a criminal conviction, it necessary to examine the law as it was before the enactment of the Civil Evidence Act 1968, and as it has developed independently of that Act.[19]I start by considering what is meant by the strict rules of evidence not applying. What it does not mean is that a tribunal can come to a conclusion on the basis of material that is not logically probative of that conclusion. The position is illustrated by what was said by Lord Widgery in R v Greater Birmingham Supplementary Benefit Appeal Tribunal ex p. Khan, [1979] 3 All ER 759, when he stated at p,763:
“…[the tribunal] should not regard itself as being bound strictly by the rules of evidence as they are applied in a court of law. It is open to the tribunal in this particular type of case to take into account all the circumstances, so far as they are probative, so far as they help to conclude proof of the truth in the individual case.”
[20]The need for evidence to have some probative value even where the strict rules of evidence do not apply is repeatedly emphasised: see for example R v Deputy Industrial Injuries Commissioner ex p. Moore, [1965] 1 QB 456, at 478; Mahon v Air New Zealand, [1984] AC 808, at 820-821.[21]I note two further matters to be borne in mind. First, a conviction does not constitute res judicata in civil proceedings arising out of the same facts if the litigation does not involve the same parties - see Caine v Palace Steam Shipping co., [1907] 1 KB 670 at 677 and 683, where it is also pointed out that estoppels must be mutual. As an acquittal cannot possibly give rise to an estoppel in civil proceedings, where the burden of proof is different, there can be no mutuality even between the same parties.[22]Secondly, prior to the enactment of the Civil Evidence Act 1968, the rule was that evidence of convictions was not admissible (Hollington v Hewthorn & Co. Ltd., [1943] KB 587). I note that even in that case, counsel seeking to adduce evidence of the conviction (a certain Denning KC) only sought to contend that the conviction was prima facie evidence of negligence on the part of the other party. There was a need to do so in that case because the material witness at the criminal trial had died. Goddard LJ, giving the judgment of the Court of Appeal, put the position at p.594 as follows:
“Is it, then, relevant to an issue whether the defendant, by negligent driving, collided with and thereby injured the plaintiff, to prove that he has been convicted of driving without due care and attention on the occasion when the plaintiff was injured?... In truth, the conviction is only proof that another court considered that the defendant was guilty of careless driving. Even were it proved that it was the accident that led to the prosecution, the conviction proved no more than what has just been stated. The court which has to try the claim for damages knows nothing of the evidence that was before the criminal court. It cannot know what arguments were addressed to it, or what influenced the court in arriving at its decision. Moreover, the issue in the criminal proceedings is not identical with that raised in the claim for damages… To link up or identify the careless driving with the accident, it would be necessary in most cases, probably in all, to call substantially the same evidence before the court trying the claim for personal injuries, and so proof of the conviction by itself would amount to no more than proof that the criminal court came to the conclusion that the defendant was guilty.”
[23]Goddard LJ went on to point out that the opinion of a witness as to whether the driver had been negligent was not relevant and continued:
“So, on the trial of the issue in the civil court, the opinion of the criminal court is equally irrelevant.”
[24]It is clear that case proceeded on the basis that a conviction represents no more than the opinion of the criminal court that the party in question was guilty of the offence charged and that that opinion, not being expert evidence, was not admissible in other proceedings, because it has no probative value. That being the case, it is equally of no probative value in the present case. Although that case was stated by Lord Diplock in Hunter v Chief Constable of the West Midlands Police, [1982] AC 529, at p.543, to be generally considered to be wrongly decided, he offered no explanation as to why it was wrong, or what the Court of Appeal in that case should have decided, and it was never overruled by the House of Lords. Instead, as Lord Diplock pointed out, sections 11 and 13 of the Civil Evidence Act 1968 were passed to overrule it.[25]A separate question is whether there is some public policy requirement that might preclude a convicted person from challenging his conviction. In Hunter v Chief Constable of the West Midlands Police, the House of Lords held that where a final decision had been made by a criminal court of competent jurisdiction it was a general rule of public policy that the use of a civil action to initiate a collateral attack on that decision was an abuse of the process of the court. It was further held that in that case such fresh action as the plaintiff sought to adduce in his civil action fell far short of satisfying the test to be applied in considering whether an exception to that general rule of public policy should be made, which in the case of a collateral attack in a court of co-ordinate jurisdiction, was whether the fresh evidence entirely changed the aspect of the case. The case involved an unsuccessful attempt by the “Birmingham Six” to attack their conviction for murder largely based on confessions said to have been induced by violence and threats, and it may not be entirely inapposite to recall that they did eventually have their convictions set aside as unsatisfactory and were awarded compensation for their incarceration over many years.[26]I have been referred to two subsequent cases in which there has been a refusal by the courts to permit a person convicted of an offence to attempt to get a civil court to review his conviction. Both were concerned with applications to renew private hire or hackney cab licences and both were in relation to the question whether the applicant was a fit and proper person to hold the relevant licence. In Adamson v Waveney DC, [1997] 2 All ER 898, at p.904, Sedley J stated as follows:
“Once some or all of the spent convictions are admitted in evidence … the applicant is then entitled naturally to be heard, not by way of suggesting that the convictions were incorrectly arrived at but in order to persuade the judicial authority that they are either, in truth, irrelevant or such, by reason of their age, circumstances or lack of seriousness, that they should not jeopardise his application. All of that is simple natural justice.”
[27]In Nottingham City Council v Farooq, [1998] EWHC Admin 991, Tucker J, relying on the passages I have cited from Hunter and from Adamson, held that the Justices, acting as a civil appeal court, were not entitled to review the merits of the respondent’s convictions for theft and deception. In that case, the respondent had pleaded guilty to the criminal charges in question but was seeking to say that he did so to assist a friend.[28]As the representative of the Secretary of State has pointed out on this appeal, the First-tier Tribunal has no inherent jurisdiction to strike out an appeal beyond the powers conferred by regulation 8 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the 2008 Rules). He has also pointed out that, as I have already indicated, section 11 of the Civil Evidence Act does not apply to social security decision making; that a criminal conviction does not constitute res judicata as regards civil proceedings; that the language of plaintiffs and defendants is of dubious relevance to a tribunal whose jurisdiction is inquisitorial; and that it is hard to see how an appeal to a First-tier Tribunal lodged nearly a year before criminal charges were even laid can properly be regarded as a collateral attack on the court’s subsequent decision on those charges.[29]In my judgment, the essence of the decision of the House of Lords in Hunter was that it is in general contrary to public policy for a party to use civil proceedings to attack a criminal conviction against himself. That appears to me to be the case whether the civil proceedings commenced before or after the conviction, and is unrelated to the doctrine of res judicata. It also applies whether the civil proceedings are adversarial or inquisitorial. Subject to any exception to the general rule, the judge in inquisitorial proceedings should not review the merits of the conviction at the instigation of the person convicted. If, bearing that in mind, there is no prospect of an appellant’s case, or part of it, succeeding the tribunal has power under rule 8(3)(c) of the 2008 Rules to strike out the whole or part of the proceedings.[30]The crucial questions, however, are(1) whether there is any, and if so what, exception to that general rule in social security appeals, and(2) as to the nature of any investigation into the factual and legal basis of the conviction. I start with the latter question. As Sedley J pointed out in Adamson, it is open to a party to try to persuade the tribunal that by reason of the age, circumstances or lack of seriousness of the facts on which the conviction was based that it should not jeopardise his application.[31]Further, it is necessary to analyse with care the findings of fact and law made by the criminal court insofar as a charge has been contested, and to consider the evidence before that court on which the conviction was based, which was not necessarily the whole of the evidence before it. If a party has pleaded guilty to a charge, it is necessary to consider both the charge, including how specific it is, and the plea, to see what was alleged, and whether what was alleged has been admitted by the plea, or only certain aspects of it.[32]Insofar as the party is only seeking to explain the circumstances of the conviction and the facts on which it was based, without seeking to challenge those facts, there can be no possible objection to his doing so.[33]It also appears to me that if the party in question is seeking to challenge the conviction in civil proceedings based on convincing new evidence that it was wrong, there can be no consideration of public policy which precludes him from doing so before a tribunal when section 11 of the Civil Evidence Act 1968 permits him to do so in another court.[34]That leaves open whether there should be any exception to the general rule of public policy where there is no new convincing evidence and the party is seeking not just to go into the details of the conviction but to challenge it. In this respect there appears to me to be a difference between the primary findings of fact made by the criminal court based on the evidence before it, or the admissions involved in the plea of guilty, and any secondary inferences drawn by the criminal court. A finding that a party did or did not make a statement is something well within the competence of any court or tribunal. It is also able to determine whether or not, for example, a party was seen walking normally at a particular time, or looking after themselves in some way at a particular time. I can see no reason why there should be any exception to the general rule which allows these matters to be relitigated. The tribunal should treat any attempt to do so as against public policy and refuse to permit it except upon the basis on which it could be re-opened in courts where section 11 of the Civil Evidence Act 1968 applies.[35]On the other hand, the assessment of benefit entitlement is entrusted by statute to the Secretary of State with an appeal to the First-tier Tribunal. Special provision is made for that tribunal to consist of a judge with specialist knowledge of that area of the law and, in appropriate cases for there to be included on the tribunal a registered medical practitioner and a member with a disability qualification. The judge, or the jury, in a criminal case will not normally have such expertise.[36]Given that benefits are by statute to be determined by a specialist tribunal, it appears to me that there should be an exception to the general rule of public policy to the extent that the specialist tribunal should be able, in appropriate cases, to substitute its own findings as to social security law for that of the criminal court, and should be able to make its own findings as to the inferences and conclusions to be drawn from the primary facts found by, or admitted to, the criminal court, as to the abilities or otherwise of the claimant and his entitlement to benefit.[37]By way of examples only, a tribunal should not be precluded by public policy from refusing to take account of a conviction based on a person not being virtually unable to walk if the primary finding of the court has been that the person is not virtually unable to walk because he can walk 50 metres without the court considering the question of severe discomfort or the time, speed and manner of walking, or that he can perform certain descriptors for incapacity benefit or ESA without considering severe discomfort or reasonable repetition. Even if these matters have been considered, moreover, it must be open to the tribunal, with the benefit of its medical member and the member with a disability qualification to use its superior expertise to come to a different conclusion, or draw different inferences, while taking into account the primary facts found by the criminal court. It would also be open to the tribunal to consider whether there was any evidence before the criminal court upon which it could base a particular finding of fact, as pointed out in R(S) 10/79, paragraph 8.[38]The new tribunal in the present case will therefore need to take into account the evidence before the criminal court and the admissions involved in any guilty plea by the appointee in considering the entitlement of the claimant, but it is in no way bound by the conviction of the appointee as regards its findings on the claimant’s claim. Insofar as it finds against the claimant on her claim and there is an overpayment decision to be made against the appointee, the tribunal should take into account the general rule of public policy to which I have referred except to the extent indicated in this decision.[39]In considering the question of who is liable to repay any overpayment, as the representative of the Secretary of State has pointed out on this appeal, it is necessary to consider what became of the benefit received by the appointee. The claimant can only be liable to repay it to the extent that it was paid to her or applied for her benefit by the appointee.[40]The representative of the Secretary of State has raised a further matter on this appeal, which is whether section 12(8)(b) of the Social Security Act 1998 precludes the tribunal from having regard to the criminal conviction because the conviction is not a matter obtaining at the time when the decision appealed against was made. In my judgment, the tribunal can have regard to the conviction, to the limited extent that I have indicated, just as it can have regard to any admission contained in a guilty plea or any evidence adduced at the trial. The conviction limits the extent to which the tribunal can properly take into account evidence on matters which are determined by the conviction. It affects the way in which the primary facts are determined but it is not, in my judgment a ‘circumstance’ within the meaning of section 12(8)(b) any more than a medical examination of the claimant after the relevant date which sheds light on his or her condition before that date is such a circumstance.[41]In CJSA/2375/2000 a claimant had been disqualified from jobseeker’s allowance for two weeks in respect of a failure to attend a course and for a further four weeks in respect of a failure to attend a second course. After the date of the second decision, the first disqualification was set aside by a tribunal. In relation to the appeal in respect of the second disqualification, which otherwise failed, the Commissioner held that the tribunal decision setting aside the first disqualification had to be taken account of although it was after the date of the second decision, observing that, in a case like that, the tribunal dealing with the second appeal “is entitled to take account of any factor known to it that relates to a past period or past event that was relevant to the decision under appeal, even if the position at the date of the hearing is different from that at the date of the decision.” In my judgment, the criminal proceedings and the conviction are to be taken into account in the same way as the decision of the tribunal on the first appeal in that case. (signed) Michael Mark Judge of the Upper Tribunal 21 February 2013

Cited in 2 later judgments