AS v Secretary of State for Work and Pensions (CA) (Human rights law : article 6 (fair hearing)) [2015] UKUT 592 (AAC)

UKUT-AAC
AS v Secretary of State for Work and Pensions (CA) (Human rights law : article 6 (fair hearing))
[2015] UKUT 592 (AAC) · 2015-10-30
[61]“ Ever since the decision of the Divisional Court in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble [1958] 2 QB 228, it has been accepted that the process of benefits adjudication is inquisitorial rather than adversarial. Diplock J as he then was said this of an industrial injury benefit claim at p 240:
"A claim by an insured person to benefit under the Act is not truly analogous to a lis inter partes. A claim to benefit is a claim to receive money out of the insurance funds . . . Any such claim requires investigation to determine whether any, and if so, what amount of benefit is payable out of the fund. In such an investigation, the minister or the insurance officer is not a party adverse to the claimant. If analogy be sought in the other branches of the law, it is to be found in an inquest rather than in an action."
[62]What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.[63]If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998 , "a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn." The same should apply to information which the department can reasonably be expected to discover for itself. ” 36. It is true that Kerr was concerned with a claim for benefit and so has to be read in that context. However the Court of Appeal in Jeleniewicz –v SSWP [2008] EWCA Civ 1163 ; R(IS)3/09 , considered the cooperative process vouched for in Kerr extended to a claimant providing information in his or her possession relevant to whether the conditions of entitlement were no longer satisfied. And in a different context, the decision in R(IS) 1/05 rejected an argument that Kerr meant that contrary inferences ought to be drawn against the respondent if he had (routinely) destroyed forms in his possession which may have assisted a claimant in establishing entitlement to an offset on an overpayment appeal. 37. What Kerr and these subsequent authorities show, in my judgment, is that it is a misplaced exercise to rely on a party establishing the burden of proof that rests on them at the start of the evidence gathering exercise. The relevant evidence has first to be gathered and it is only if that the evidence, having been assessed for relevance and cogency and weighed accordingly, is genuinely neutral (in the sense of each side cancelling one another out) that recourse to who bears the onus of proof may be needed. This does not mean, however, that in an overpayment case the Secretary of State does not need to put forward an evidenced and credible case showing why a claimant ceased to be entitled to benefit and that the cause of the claimant continuing to be wrongly paid the benefit was his failure to disclose information material to entitlement or misrepresented such material information. But what that credible case will be will depend on the facts of the individual case and the relevant evidence available to the Secretary of State. It is not something which can be subject to a set of a priori immutable rules as to evidence. 38. Take this appeal. The Secretary of State’s case was in essence(i) that based on the HMRC’s records of earnings the appellant in 2001 and 2002 had earned above the CA earnings limit and so had not been entitled to the CA paid to him in those years, and(ii) the contact from HMRC was the first the CA Unit knew of the appellant’s earnings and having searched their available records they could find no evidence of the appellant having contacted them in either 2001 or 2002 to tell them of his earnings. To borrow a phrase from CSB/347/1983 , I do not see why, if believed, this was not a proper prima facie case for the Secretary of State to put forward showing that the appellant had been overpaid and such overpayment was recoverable from him. 39. I accept that “ mere assertion ” (the quote and underlining are both from CSB/347/1983 ) that “ there is no record ” of telephone contact in the relevant respondent’s office may not amount to credible evidence if it is no more than mere assertion. However even here I struggle with the characterisation of “ there is no record ” as no more than mere assertion. It seems to me that the problem here lies in the view taken in 1983 by the social security commissioners of submission writers and presenting officers from the (then) DHSS. There are two aspects to this. 40. First, as pointed out by Commissioner Jacobs (as he then was) in paragraph 17 of CIS/4064/1999 :
“ [ CSB/347/1983 was a decision] given when Commissioners had recently been given jurisdiction in supplementary benefit cases. They were not impressed by the standard of adjudication that they saw in the decisions of the tribunals dealing with those cases. The comments [in CSB/347/1983 about the need to evidence the systems within the respondents’ offices for recording telephone calls] must be understood against the background that (i) they were not familiar with the Department’s procedures and (ii) they wished to instil a proper approach into adjudication by tribunals. Almost two decades later, tribunals know the standards they have to meet and Commissioners are more ready to accept that matters of Department practice are well known without evidence or findings…. ”
On this basis Commissioner Jacobs refused to criticise the tribunal for failing to make findings of fact on the evidence from the respondent’s department as to the system for recording letters and the possibility of the “disclosure” letter allegedly sent by the claimant in that overpayment case having been misfiled. It is my judgment noteworthy that Commissioner Jacobs did not view the relevant “comments” from CSB/347/1983 as laying down a rule of law. Indeed earlier in CIS/4064/1999 the Commissioner had criticised the use by the Secretary of State of comments made by another Commissioner (in CIS/178/1994 ) about matters of evidence and the balance of probabilities in respect of letters which are posted reaching their destination as laying down a rule of law. Commissioner Jacobs (rightly in my view) said this was not so: it was matter of fact on the evidence in each individual case whether a letter posted was received. That applies with equal force in my judgment to the view of the evidence expressed in CSB/347/1983 . 41. Second, it seems to me that the view expressed in CSB/347/1983 about statements made by the respondents’ submission writers and presenting officers was based on a then view of their functions which is no longer true. This was addressed most clearly by (by now) Upper Tribunal Judge Jacobs in Walsall MBC –v- PL [2009] UKUT 27 (AAC) , where he said (at paragraphs 4 to 10): “ The officer who wrote the submission for the tribunal stated: ‘On 17 December 2007 the decision of 15 November 2004 and all subsequent decisions were revised.’ What was the status of that statement? The Social Security Commissioners and their predecessors said that statements by submission writers, decision-makes and presenting officers were not evidence, unless it was based on personal knowledge. See, for example, what the Tribunal of Commissioners said on the evidence of a presenting officer in R(SB) 8/84 at paragraph 25(6). This appears to be based on the presenting officer's status at the hearing: see the decisions of the same Commissioner in CSB/420/1981 and CSB/13/1982 . As the Commissioner said in CSB/582/1987 at paragraph 9: ‘9. … the position of the adjudication officer/presenting officer at the social security appeal tribunal is not just that of a party but is that of an amicus curiae [friend of the court] ...’ As such, the officer was not seen as a witness. The submission writer was likewise acting in a non-contentious capacity. (Commissioners took a similar approach to statements made by a claimant's representative: see R(I) 36/61 at paragraph 18 and R(I) 13/74 at paragraph 9.) With respect to those Commissioners, their approach was out of line with the modern approach to the law of evidence and with the theoretical basis upon which tribunals proceed in making findings of fact. The law of evidence is now less concerned than in the past with exclusionary rules that prevent a court taking account of particular categories of statements or hearing from specified categories of person as witnesses. Nowadays, the approach is to admit evidence for consideration and to take account of any possible deficiencies when deciding the extent to which it is persuasive of the facts to be proved. That approach was becoming evident by at least 1861: see Cockburn CJ in R v Birmingham Overseers (1861) 1 B & S 763 at 767. It is now the accepted approach. By 1973, Lord Simon was able to say in Director of Public Prosecutions v Kilbourne [1973] AC 729 at 756 that relevance and admissibility ‘are frequently, and in many circumstances legitimately, used interchangeably’. Moreover, the strict rules of evidence do not apply in a tribunal: see the decision of the Chief Commissioner in R(U) 5/77 at paragraph 3. All that is required is that the tribunal's findings of fact should be based on material that is logically probative of those facts: see the opinion of the Privy Council delivered by Lord Diplock in Mahon v. Air New Zealand [1984] AC 808 at 820-821. Evidence given by submission writers or presenting officers, even if hearsay, is as capable of being logically probative as evidence, whether or not hearsay, given by anyone else. Moreover, in the context of a tribunal, roles are often not as clear cut as they are in a court. For example: a claimant may be accompanied by someone for moral support who also acts as representative and gives evidence that is in part derived from personal knowledge and in part based on information provided by the claimant. Likewise, the role played by a presenting officer may be less clear cut than decisions such as CSB/582/1987 suggest. There is no reason in principle why a presenting officer cannot give evidence, as was recognises by the Commissioner in R(SB) 10/86 at paragraph 5. There is no reason to draw a distinction, so far as admissibility is concerned, between evidence within the officer's personal knowledge and other evidence. If the officer relays statements made by another officer, what is said is nonetheless evidence. However, it is hearsay evidence and this may affect its probative worth: see R(SB) 5/82 at paragraph 9. On the modern approach to evidence and to the nature of proof in a tribunal, the submission writer’s statement was evidence. It was also of some probative value. The writer may, or may not, have personally made the decision on 17 December 2007. If so, the writer could speak from personal knowledge. If not, the writer was able to report the contents of the computer records of the claim and was under a duty to report that information to the tribunal, as it was not accessible by the claimant: see Baroness Hale in Kerr v Department for Social Development [2004] 1 WLR 1372 at paragraph 62. Moreover, the writer had no reason to misstate what the records contained or to mislead the tribunal, as the local authority’s role in the proceedings is a non-contentious one: see Diplock LJ in R v Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 QB 456 at 486. ” 42. I respectfully agree. The final paragraph quoted immediately above has a particular resonance on this appeal and, in my respectful view, undercuts the analysis in CSB/347/1983 suggesting that statements in what is now termed the Secretary of State’s appeal response, such as “ there is no record [of any telephone contact ” and, even more so, “ a search for a written record has been made and none can be found ”, were not capable of discharging the burden of proof on the then benefit officer to show there had been a failure to disclose. In my judgment, such statements can amount to evidence. The critical issue is what weight is to be attached to them, and that is for the First-tier Tribunal classically to assess. The blander or broader the statement, the less weight it might be given. However in this case there was a specific evidential statement made in the appeal response that a full search of the CA Unit’s clerical records had been made and in my judgment that evidence was entitled to be given weight. The particular weight to be attached to it was a matter for the fact-finding tribunal to evaluate as part of its fact-finding jurisdiction, and does not here give rise to any error of law. 43. Accordingly, in so far as the comments in CSB/347/1983 about telephone recording systems was laying down a rule of law, in my judgment it should no longer be followed. Order books cashed by appellant after March 2002 44. I can deal with this argument much more shortly. It fails on the basic level that it raises issues of fact that were never put before the tribunal before it came to its decision. 45. The argument made by Mr Power was that despite the evidence on pages 25 and 26 showing, respectively, a record of orders books issued to the appellant between April 2000 and July 2004 with only the last one marked returned and a date of 13 September 2004 for the first order in such a book being uncashed, the tribunal erred in law in not investigating the address to which the order books were in fact sent and whether the orders cashed between March 2002 and September 2004 had been cashed by the appellant. 46. The problem with both arguments, which is even more acute than the first argument, is that no argument was made to the tribunal by the appellant even when he was represented that the order books might have been sent to the wrong address or that someone else was cashing the orders between 2002 and 2004. The submission made at the first hearing before the tribunal, when the appellant was represented, was that he had returned the order book in 2002 and had not been paid after March 2002. At that time pages 25 and 26 were in the appeal bundle and available to the appellant and his then representative. No issue was raised at that stage about wrong addressing or any orders subsequently encashed having been cashed by someone else. Nor was any request made for the CA Unit to supply the address to which it in fact sent the orders book or for the counterfoils on orders cashed after March 2002 to be produced to see who had signed for them. In these circumstances the issues of whether the order books had been correctly addressed and who cashed the orders after March 2002 were not issues expressly raised by the appeal. (And it was far too late for Mr Power to produce evidence with his skeleton argument of wrongful addressing. Even then that evidence dated from 2007 and so lacked any obvious factual relevance.) 47. As I have discussed in relation to Mongan , however, in some cases an issue might be raised by the evidence even if not put in issue by a party. But I fail to see anything in the papers before the tribunal that began to raise either the wrongful addressing of the order books or another person cashing the order books as issues. To start with the accuracy of the appellant’s evidence was not of the highest order, most relevantly his initial argument that he had returned the order book in 2004 when contrasted with later claim of his having returned the order book in March 2002. In addition, he did receive the last of the order books, the one issued to him on 16 July 2004, as it was agreed he had returned this book, and on his own case he got the order books up until March 2002. It is therefore not immediately apparent why the other order books might have gone elsewhere only for the last one to end up with the appellant, and I note that nothing was said by the appellant at either hearing about him having problems collecting his post between 2002 and 2004. Lastly, the effect of the evidence on page 26 would seem on its face to have been that orders from the last order book (i.e. the one that was then returned by the appellant) had been cashed, but on his own case the appellant had received this order book. 48. All in all I can identify no credible evidence that ought to have led the tribunal to take these as issues relevant to the appeal such as to lead it to seek further evidence from the respondent as to which address the order books had been sent and who had in fact cashed the orders. Breach of ‘reasonable time’ criterion in article 6 ECHR 49. I turn lastly to the argument on article 6 of the ECHR and what was said to be a breach of its “reasonable time” criterion for determining the appeal. For the sake of the argument I will simply assume that the appeal was not determined within a reasonable time. 50. This in effect was the argument for which an oral hearing had been sought on behalf of the appellant. What the argument lacked in presentation at the hearing it did not make up for in terms of merit. 51. Although perhaps a back-to-front approach, an immediate difficulty with the argument was what remedy the tribunal could have afforded the appellant in deciding the appeal. The tribunal’s statutory function was to decide whether the overpayment of CA was recoverable from the appellant. It had no power to award the appellant compensation for the effects of any delay, nor does the Upper Tribunal. Both tribunals are creatures of statute and derive their powers from statute, and neither tribunal has any statutory power to award compensation. Section 8 of the Human Rights Act 1998 (“the HRA”), however, only allows compensation or damages to be awarded by a court or tribunal which has the power to make such awards in civil proceedings: see section 8(2) of the HRA. 52. It is true that a tribunal is a “public authority” for the purposes of the HRA and by section 6(1) of the HRA it is unlawful for a tribunal to act (or fail to act) in a way which is incompatible with a right under the ECHR. Assuming therefore that there had been a breach of the “reasonable time” criterion, what would article 6(1) require the tribunal to do? One conceptual difficulty is that by the time the tribunal hears the appeal the delay, and thus the breach, has already occurred. If the tribunal hears the appeal, is it acting incompatibly with an ECHR right? In my view, the answer to this question is no. This is for two different strands of reasoning. (i) First, as was pointed out in CSIS/460/2002 , section 6(1) of the HRA is subject to section 6(2). The latter provides that section 6(1) does not apply if the public authority has to act in a certain way because of primary legislation. I am inclined to agree with Mrs Commissioner Parker (as she then was) in CSIS/460/2002 that when seized of a statutory appeal under section 12 of the Social Security Act 1998 in respect of a whether an overpayment is recoverable under section 71 of the Social Security Administration Act 1992, the First-tier Tribunal is required by unambiguous primary legislation to determine the appeal. Section 12(2) of the Social Security Act 1998 says the claimant shall have a right of appeal and the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 set out the mechanisms to ensure this right of appeal is made effective. The issue the tribunal is then required to decide on an appeal in respect of section 71 of the Social Security Administration Act 1992 is whether the Secretary of State shall be entitled to recover the overpayment and, if that is the case, the First-tier Tribunal is then obliged to determine the amount recoverable and the period of the overpayment (s.71(2)). That language to my mind is inconsistent with the First-tier Tribunal not deciding an appeal because of unreasonable delay. (ii) Second, the premise for the above argument mischaracterises the “reasonable time” right in article 6(1) of the ECHR. As Lord Millett put it in Attorney General’s Reference No.2 of 2001 [2003] UKHL 68 ; [2004] 2 AC 72 , at paragraphs 134-138:[134]“ The fundamental distinction and the one which is directly relevant to the present issue is that a failure to comply with the other requirements of Article 6 puts the verdict itself in doubt. If the hearing is not fair, or is before a tribunal which is not independent and impartial or does not sit in public, then the correctness of the tribunal's decision is brought into question. The object of these rights is to secure to the individual a just determination of the dispute or criminal charge which is as far beyond challenge as human justice can make it.[135]But the object of the reasonable time guarantee is different. The failure to hold the hearing within a reasonable time does not in itself ("automatically") cast doubt on the verdict. There is nothing wrong with the trial and the verdict is not suspect. The defendant cannot and does not challenge the propriety of the verdict on this ground. He can only say in effect:
"you were right to convict me, but you should have done so sooner."
The vice lies in the delay itself, with all its harmful consequences to the defendant. This is what Article 6 prohibits and for which a remedy must be found. The vice does not lie in the holding of the trial itself; and it is a misreading of Article 6 to think that it prohibits it.[136]Thus I agree with Lord Rodger's statement, in paragraph 148, that "everyone has a right to have his case heard fairly, publicly and in a reasonable time. If his case is not heard fairly, there is a breach; if his case is not heard publicly, there is a breach; and if his case is not heard within a reasonable time, there is a breach". Where I part company with him is in his conclusion that the three rights and the three breaches are parallel. In my opinion the third right is very different. In that case, and that case alone, the conduct of the hearing itself may be beyond reproach. This difference ought to be, and in my opinion is, reflected by an Article which confers a positive right to a hearing (being a hearing which is fair and held in public within a reasonable time), and a right not to be subjected to a hearing which is unfair or held in private; but no right not to be subjected to a late (but otherwise irreproachable) hearing.[137]This is a matter of right, not remedy. It marks the scope of the reasonable time requirement; it is not concerned with the nature of the remedy for breach. This is amply demonstrated by the jurisprudence of the Strasbourg court, which habitually accepts a reduction of sentence as sufficient reparation for breach of the reasonable time requirement. A mere reduction of sentence could not sensibly be regarded as sufficient reparation for conviction and sentence after a hearing which should never have taken place. The Strasbourg court cannot, of course, quash the conviction; but if the national court has failed to do so one would expect it to require reparation to be made for the wrongful conviction and sentence. The only rational conclusion from its failure to do so is that the hearing and sentence themselves are not incompatible with Article 6, and that the only violation consists of the delay.[138]My Lords,[138]it is essential to keep in mind the difference between what the state authorities ought to do and what they are entitled to do. They ought to hold the trial within a reasonable time, and if they fail to do so they commit a breach of the defendant's Convention rights. But they remain entitled to hold the trial after the reasonable time has expired, though they must make adequate reparation for their failure to hold it sooner; and they do not act incompatibly with the defendant's Convention rights by doing so. ” This reasoning in my judgment is just as applicable in tribunal proceedings: see Attorney General’s Reference No.2 of 2001 [2003] UKHL 68 ; [2004] 2 AC 72 , at paragraph 21 . 53. The consequence of the above, as Upper Tribunal Judge Wikeley put it pithily in AH –v- London Borough of Hackney (HB) [2014] UKUT 47 (AAC) , is that an appellant’s remedies as regards delay must lie elsewhere. That approach, it seems to me, is entirely consistent with the approach of the Grand Chamber of the European Court of Human Rights in Cocchiarella –v- Italy (Application no. 64886/01), decided on 20 March 2006. That case concerned delays in the adjudication of Italian social security benefits and the Grand Chamber saw nothing wrong in principle with the “reasonable time” breach under article 6(1) being remedied by way of a domestic compensation scheme. Nothing in Cocchiarella founds an argument that unreasonable delay leads to the remedy of appeals for that reason alone being decided in favour of the appellants. 54. Furthermore, the argument that the tribunal should remedy the article 6 breach by simply allowing the appeal whatever its merits has been (rightly in my view) rejected in previous authority: see R(IS)1/04 at paragraph 24, CSIS/460/2002, HJ –v- SSWP [2009] UKUT 47 (AAC) at paragraph 36, AH –v- London Borough of Hackney (HB) [2014] UKUT 47 (AAC) at paragraph 12. and, to like effect, Attorney General’s Reference No.2 of 2001 [2003] UKHL 68 ; [2004] 2 AC 72 , at paragraph 21. 55. Mr Power’s argument founded on the House of Lords decision in Magill –v- Porter [2001] UKHL 67 ; [2002] 2 AC 357 . Or at least it founded on an article written about that decision. No copy of this article, let alone the decision itself, was provided to me or Mr Cooper, either before or at the hearing. That was unacceptable. The hearing in effect had been sought and granted to explore the article 6 argument. It was not just simple common courtesy but to aid the sensible use of the hearing that copies of an authority relied on ought to have been supplied by the party relying on it. If this was not reasonably possible, at the very least copies of the article relied on ought to have been supplied or, if even that was not possible, a properly reasoned explanation provided in advance to say why neither could be supplied, which may then have allowed the respondent and the Upper Tribunal to obtain their own copies of the authority. The Upper Tribunal is sensitive to the fact that Law Centres and other advice agencies have limited resources. But the cooperation called for in the “overriding objective” ought at least to have caused those acting for the appellant to explain in advance their difficulty (if this was the case) in providing caselaw for the hearing. 56. Mr Power relied on Magill–v-Porter for the proposition that unreasonable delay of itself is sufficient to show a breach of article 6(1) of the ECHR whether or not there has been any actual prejudice arising from the delay. It is fair to say that paragraphs 87 and 108 of that House of Lords’ decision in Magill-v-Porter would seem to support this proposition. However, those statements of Lord Hope were, strictly speaking, obiter as it was found that the time the proceedings took in that case did not breach the reasonable time requirement in article 6(1) (see paragraph 114 of the decision). More importantly, however, the (majority) decision of the nine member House of Lords in Attorney General’s Reference No.2 of 2001 [2003] UKHL 68 ; [2004] 2 AC 72 , in effect overrules this approach and holds that prejudice must be shown in addition to unreasonable delay in order for a breach of the reasonable time criterion in article 6(1) to arise such that criminal proceedings ought not to take place. To that extent it seems to me that HJ –v- SSWP [2009] UKUT 47 (AAC) was wrongly decided on this point. 57. In any event, the argument made on behalf of the appellant could cope with this setback because, as I understood it, the argument was that the appellant had in fact been prejudiced by the delays. Moreover, recognising the difficulties I have outlined above in terms of simply allowing the appeal because of the delay, the argument in the end was that the tribunal had to exercise more care and be especially sensitive to the appellant’s difficulties in giving accurate evidence given the 13 years or so since the overpayments arose, and the tribunal was therefore too hasty in finding the appellant’s evidence “ vague and unconvincing ”. 58. Put this way however (and it seems to me that, for the reasons given above, the article 6 argument could only have purchase in this way), in the end this is really no more than an argument on the merits of the evidence. The tribunal had to hear and decide the appeal and make the best it could of the evidence before it. The tribunal was plainly aware of the very long time span of the events with which the appeal was concerned, and so did not disregard this as a relevant consideration. True it is that it did not say that the events took place a long time ago and it had to therefore treat the appellant’s evidence with care and make due allowance for the time delays and the knock-on effect this might have on his evidence. However, this was so obvious from the facts of the case that it didn’t need to be said and, just as importantly, I cannot conclude that the tribunal did not take account of this when assessing the appellant’s evidence. 59. Difficult though it may have been, as I have said the tribunal had to determine the appeal on the evidence before it. Appeals can, however, quite commonly involve events that took place months or years before (see section 12(8)(b) of the Social Security Act 1998) and involve appellants who may have particular difficulties in recalling past detail. Overpayment appeals by their very nature are about times past. First-tier Tribunals are therefore well used to dealing with such appeals. In this case, moreover, the appellant’s case was not, or was not consistently, that he was hampered in remembering what had occurred because of the passage of time. At the end of the final hearing he was recorded as saying, when asked when he telephoned the CA Unit to tell them of his earnings, “ How am I supposed the know that, it’s 13 years ago(?) ”. However at the hearing 3 months previously his case was that he had notified the CA Unit of his earnings at the relevant time, and that he had returned the order book after March 2002. The latter statement in particular was a positive statement made by or on behalf of the appellant about what had occurred 12 years previously. 60. Further, at a time a little nearer the recoverable overpayment decision – dated 19 February 2007 – the appellant was putting forward a positive case based on his own assessment of his earning in 2001 and 202 that he had not exceeded the allowable earnings limit for CA and so had not been overpaid at all. The appellant’s evidence and arguments, as I have already pointed, were not consistent with one another. Regardless of this, however they were positive assertions made by the appellant as to what had occurred in 2001 to 2004. It was the tribunal’s function to assess that evidence. 61. Even if, however, the appellant’s case had been that he simply could not recall what had happened in 2001-2004, there was still the evidence from the respondent’s CA Unit for the tribunal to evaluate. That evidence to recap was that(i) the appellant’s earnings in 2001 to 2004 were such as to disentitle him to CA (which the appellant (in the end) accepted), and(ii) their records showed no contact (telephone or otherwise) from the appellant about his earnings between 2001 and 2004. On its own in my judgment that was evidence which the tribunal was entitled to hold was probative of the overpayment being recoverable (none of the other constituent parts of establishing failure to disclose being in issue). In the end nothing in the appellant’s (contradictory) evidence robbed that evidence of its probative worth, or at least the tribunal was entitled so to find. 62. I accept that the tribunal’s reasons could well have been more detailed. I also accept that it could have done more to explain why it found the appellant’s evidence vague and unconvincing. It could, not should I stress, even have asked for records of telephone keeping from the CA Unit. However on the appellant’s equivocal evidence it was perfectly entitled not to do so. There was, however one looks at it, no material error of law in the decision to which the tribunal came. The reasons it gave revealed adequately why the appellant had lost and that reasoning and the decision arrived at was properly based on the evidence before the tribunal. Conclusion 63. For the reasons set out above, this appeal is dismissed and the tribunal’s decision of 16 May 2014 stands as the determinative decision on the appeal. Signed (on the original) Stewart Wright Judge of the Upper Tribunal Dated 30 th October 2015 [1] This date at the end of 2002 accounts for the Secretary of State having decided that only part of the overpayment was recoverable from the appellant. The overpayment runs from 16.04.01 to 12.09.04 but only the part up to 5 January 2003 was held recoverable under section 71, it being accepted by the Secretary of State, and not in issue on this appeal (either here or below), that the overpayment arising from the first effective date after the CA Unit received the HMRC evidence was not caused by any failure to disclose by the appellant but rather was caused by the failure of the Secretary of State to suspend payment of the CA once he had received the HMRC evidence on the appellant’s earnings.

Cited in 6 later judgments