Tribunal drew unfair inference that claimant had opted for paper hearing to avoid questioning when, in fact, obvious inference was that he was shielding during first Covid-19 lockdown

JS v Wirral Metropolitan Borough Council (HB)
[2021] UKUT 219 (AAC)
CH/550/2021

Background

The claimant had a benefit fraud conviction from 2011, having pleaded guilty in the magistrates’ court to the offences of dishonestly making a false statement or representation and dishonestly failing to give prompt notification of a change in circumstances. The offences related to failures to declare savings. The local authority repeatedly refused claims for housing benefit on the basis that the claimant still held capital assets in excess of £16,000. Despite the claimant's evidence that he had lost his savings in gambling debts, three successive appeal tribunals dismissed his appeals.

On 16 September 2019, the claimant made a further claim for housing benefit, stating he had just £1,000 in capital. However, the local authority again decided he had no entitlement due to having excess capital, and on 17 September 2020 a further First-tier Tribunal dismissed his appeal following a paper hearing.

In its statement of reasons, the tribunal noted that the claimant had returned a hearing enquiry form on 20 April 2020 indicating that he did not want a hearing, and commented that -

'[The claimant] has provided very little detail to this tribunal about the circumstances in which he claimed to have disposed of the sum of £20,000 in 2010. His account is that he paid it out to clear gambling debts, but there is no detail as to, for example, how those debts arose, what was the nature of the gambling, how the payment was made, or to whom it was made, for example, was it to one person or several or to a business such as a bookmaker. [The claimant] had chosen to have a paper hearing so had not made himself available for questioning on these points. He had not provided any documentary evidence relating to the alleged debts, although the tribunal did not put any sufficient weight on this in view of the alleged nature of the debts.'

The claimant then appealed to the Upper Tribunal and Judge Wikely granted permission to appeal on the grounds that it might have been unfair for the tribunal to proceed with a paper hearing for the following reasons -

1. The tribunal drew an inference from the claimant’s choice of a paper hearing that he had something to hide. However, the first Covid-19 national lockdown began on 23 March 2020 and was still very much in force when he completed the hearing enquiry form on 20 April 2020. The file made it clear that he was aged 74 at the time and had serious medical conditions including the loss of an eye and PTSD, and on that basis the natural and obvious inference was that he was staying at home for his own safety and security, and in accordance with official government advice.
2. As the pandemic spread, the First-tier Tribunal office began arranging virtual hearings by using telephone hearings or video-platform hearings. However, the hearing enquiry form issued to the claimant implied that the choice was either a face to face hearing or a paper hearing and nothing in between. If the claimant had been offered a telephone hearing he may have accepted, but he was not given any such opportunity.
3. It was obvious on reading the papers on file that the credibility of the claimant's account was critical, and the central importance of credibility meant that the tribunal needed to hear at first hand from the claimant so his account could be properly tested.

The local authority's representative supported the appeal to the Upper Tribunal, arguing that, given the lack of detail in the claimant’s notice of appeal to the First-tier Tribunal, it was not appropriate for the appeal to be dealt with at a paper hearing. This was against the background that the claimant was shielding when he completed the hearing enquiry form, and that it would have been possible to have held a telephone hearing by the time the appeal was heard.

Issue before the Upper Tribunal

Whether it was unfair for the tribunal to proceed with a paper hearing.

Decision

Judge Wikeley allows the claimants appeal, sets aside the decision of the tribunal, and remits the case to be heard by a new tribunal.

Reasons for decision

Judge Wikeley says that he is satisfied that the First-tier tribunal erred in law for the reasons set out in his permission to appeal, adding that -

'In a nutshell, it was not fair to proceed with a paper hearing. I therefore allow the Appellant’s appeal to the Upper Tribunal, set aside (or cancel) the tribunal’s decision and remit (or send back) the original appeal for re-hearing to a new tribunal, which must make a fresh decision. I formally find that the tribunal’s decision involves an error of law on the ground as outlined above.' (paragraph 10)