I'm helping a client with a HB appeal. She is alleged not to have been living in the property for which she was claiming benefit, and the council is seeking to recover an overpayment of around £1500.

The LA, in thier sub, have referred to information given by the client at an IUC, but they did not include the transcript in the bundle. I rang to ask for the transcript to be sent to TTS and was told that the fraud department have said that transcript isn't to be made available as they intend to prosecute (client is oblivious of this).

I'm sure I don't need to tell you what I think of this, but the question is how do we deal with it. Here's what I've gone for in my sub:

2.1.1 At section 5 paragraph 31 of the summary of facts, the authority refers to an interview under caution, but they have not included the transcript of the interview in the appeal bundle. We think this is a serious omission because the authority is seeking to rely on issues which were put to the client at the interview. We asked the authority to produce the transcript of the interview for the hearing, but they have flatly refused. However, the client has given us no cause to doubt her word and we are content for the hearing to proceed without the transcript as the tribunal can make the appropriate findings with the client's verbal evidence at the hearing. In the alternative, it is open to the tribunal to adjourn proceedings and issue a direction requiring the transcript to be produced.

What do you think about:

1) the issue in general?
2) my approach to it with the tribunal?

Thanks,

Hi Tony.

My personal preference would be to have all the evidence held produced, as you don’t know what it might contain. For example, in one case I did the Department contended that they were not aware that he was working. They provided a copy of the IUC, which stated (on page 1, would you believe) that the Department did in fact have prior knowledge that he was working. Even the tribunal chair had overlooked this until I pointed it out. We won the appeal.

In McGinley and Egan v United Kingdom (1999), the European Court of Human Rights held, as a general point, that if the withholding of documents hinders a person’s ability to ground a case then this would be a breach of his article 6 right to a fair hearing. Now, obviously, a lot would turn on how much of a hindrance the non-disclosure would be.

Regards
Paul

While assisting a clmt earlier this year, the LA refused to provide some of the documents on the grounds that they had provided all documents relied on by them in making the decision (notably distinguished from all RELEVANT documents). There was no concurrant prosecution, so the circs are not identical. Nevertheless, I'm happy to share an extract from my letter TO THE LA is reproduced below - it may or may not be helpful:
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a) s.35 of the Data Protection Act makes it plain that non-disclosure provisions do not apply where disclosure is for the purpose of legal proceedings.

b) point 7.195 of the HB/CTB Guidance Manual (as at April 2007) makes it equally plain that ALL evidence relevant to the appeal should be made available to the tribunal and disclosed to the appellant. The suggestion is reiterated that it is not for the Council to decide what is relevant.

If, following this letter, you still refuse to provide the information free of charge, my advisor will seek a direction from a Clerk to the Tribunal requiring you to produce what has already been requested; this being on the grounds that such disclosure is in the interests of justice (relates to Nevips HRA point). If such a direction was given, and your authority maintained its refusal, my advisor will consider asking the Tribunal to draw an inference from that refusal.

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The documentation was eventually provided. Unfortunately, the Tribunal found for the LA in any case.

Thanks to you both.

I've suspended work on sub and written to the LA in the terms suggested.

Interestingly, one of the reasons given for the refusal was that the IUC is not relevant to the decision. The appeals officer says that the summary of the information obtained in the IUC was given by a fraud officer.

Its strange isn't it, that the council say the IUC is not relevant to the decision, but is apparently the basis for a prosecution, the success of which is likley to turn on the outcome of the appeal. That makes the IUC extremely relevant in my book!

Thanks again,

Tony

If there was an IUC, your client should be given a copy of the tape as a matter of course.

I always understood that this was a requirement of the Police and Criminal evidence Act

Its a requirement of code E of the Code of Practice under S60(1)(a) and S66 of the Act

If the IUC isn't relevant to the tribunal case, why have they included a summary of it in the papers, huh?

If the summary in the papers isn't in the form of a signed statemnt by someone with personal knowledge of the interview (ie, was there), but is merely in the subs, then argue to the Tribunal that that piece of "evidence" is nothing of the sort and ought to be ignored. Subs - anonymously drafted and often word-processed with bits left over from the last time (name and sex-changes being very common) are simply not evidence in even the loose sense in which Tribunals apply the rules.

You could also try pointing out that if the hearing goes ahead, and is decided against your client, there would be a right to have the decision set aside solely on the grounds that "a document relating to the proceedings in which the decision was amde was not sent to, or was not received at an appropriate time by a principal party to the proceedings or the party's representative or was not received at an appropriate time by the person who made the decision."

Maybe they would just like to agree that the whole IUC is not relevant and all direct and indirect refs to it should be expunged from the whole case. You could ahve a lot of fun asking where people got their infomration from and then saying "but that document is not in evidence today so I would submit that the Tribunal cannot accept that as evidence."

Stainsby - but the tape only has to be supplied if the person is charged or informed that they will be prosecuted (4.19 of Code E).