Mote v Secretary of State for Work and Pensions and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Sir Peter Gibson,Lord Justice Lloyd |
| Judgment Date | 14 December 2007 |
| Neutral Citation | [2007] EWCA Civ 1324 |
| Docket Number | Case No: C3/2006/2601 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 2007 |
[2007] EWCA Civ 1324
Lord Justice Lloyd
Lord Justice Richards and
Sir Peter Gibson
Case No: C3/2006/2601
Case Nos CIS/1216/2005 and CH/1220/2005
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS
(Mr H. Levenson)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr John Lofthouse (instructed by Edward Hayes) for the Appellant
Mr Jason Coppel (instructed by The Solicitor to the Department for Work and Pensions) for the Respondents
Hearing date: 13 November 2007
Between February 1996 and September 2002 the appellant, Mr Mote, was in receipt of income support totalling approximately £32,000. The decision to pay that benefit was then revised on the ground that it had been made in ignorance of a material fact, namely that his income exceeded the applicable amount and that he was therefore not entitled to the benefit. During much of the period he had also been in receipt of housing benefit totalling approximately £35,000 from the local authority, Chichester District Council. Those payments were made in the belief that he was entitled to income support, a matter which, if correct, entitled him to housing benefit without separate means testing. That decision was also revised, on the ground that he had not, after all, been entitled to income support. The result of the revised decisions was that the appellant had received overpayments totalling approximately £67,000 which were recoverable from him pursuant to s.71 of the Social Security Administration Act 1992 and regs. 98–99 of the Housing Benefit (General) Regulations 1987.
The appellant brought separate appeals to the Social Security Appeal Tribunal (“the tribunal”) against the decisions that benefit had been overpaid. The appeal in respect of housing benefit was brought in July or August 2002, and the appeal in respect of income support in July 2003.
In January 2004, before the appeals were heard, the appellant was charged with criminal offences of dishonesty in relation to his benefit claims. In April 2004 he was committed to the Crown Court.
Early in 2004 the department and the council wrote to the tribunal to ask it to consider postponing the hearing of the appellant's appeals in the light of the criminal proceedings. In May 2004, however, the district chairman directed that there be no further postponement and that the matters be listed before him, sitting alone. He refused further written requests by the claimant for a postponement.
The hearing of the appeals was then fixed for 3 September 2004. On that date there was no attendance at the hearing by the appellant or his representatives. The chairman took that as an implied application to adjourn, which he again refused. He proceeded to hear the appeals, which he dismissed on the day, though written reasons for the decision were not given until early 2005. A subsequent application to set the tribunal's decision aside was also dismissed. (There were in fact two separate decisions, one in respect of income support and the other in respect of housing benefit. But the latter followed from the former and it is convenient to refer to them collectively as the decision of the tribunal.)
The appellant obtained leave to appeal from the tribunal's decision to the Social Security Commissioners. The appeals were heard in March 2006 by Mr Levenson, who dismissed them in a decision dated 20 July 2006. He refused permission to appeal to this court, but permission was granted by the Rt. Hon. Sir Henry Brooke in January 2007.
In the meantime the criminal proceedings had taken an eventful course. In June 2004, not long after his committal to the Crown Court, the appellant was elected a Member of the European Parliament. In November 2004 the criminal proceedings against him were stayed on the ground that they were in breach of his privilege as an MEP. Following an application by the Attorney General, the European Parliament adopted a resolution in July 2005 waiving the appellant's immunity. Despite an application by the appellant to the Court of First Instance for annulment of the European Parliament's decision, the stay on the criminal proceedings was eventually lifted and directions were given with a view to a trial being fixed for July 2007.
That is how matters stood at the time when permission to appeal to this court was granted. Since then, however, the trial has taken place, and on 17 August 2007 the appellant was convicted on 21 out of a total of 25 counts against him. On 4 September he was sentenced to 9 months' imprisonment on each of the 21 counts, to run concurrently.
At the hearing before us, Mr Coppel applied on behalf of the respondents for material relating to the criminal trial to be admitted in evidence on the present appeal. He sought in particular to rely on the judge's sentencing remarks and on passages in the summing up which referred to admissions made by the appellant in the course of the trial about the receipt of previously undisclosed funds during the period relevant to the benefit claims. Mr Lofthouse had not had sufficient notice of the application and would have needed an adjournment in order to respond to that material. In any event the main relevance of the material was to the exercise of this court's discretion to remit the case to the tribunal if we were persuaded that the appeal was otherwise well founded. We deferred a decision on the application until the conclusion of the hearing, but decided then that the appeal could fairly be determined without recourse to the additional material.
At the time of the hearing before us, the appellant also had an outstanding application for leave to appeal against conviction. That application has since been heard by the Court of Appeal (Criminal Division), presided over by the Lord Chief Justice, on 5 December 2007. The court granted leave to appeal and heard the substantive appeal. Judgment was reserved. In view of our decision not to have recourse to the material relating to the criminal trial, however, we are in a position to reach a decision on the appeal before us without waiting for the Court of Appeal (Criminal Division) to hand down its judgment.
The issues
An appeal to this court from the commissioner lies only on a point of law. The appeals from the tribunal to the commissioner also lay only on a point of law. In practice, therefore, it is possible for us to focus directly on the tribunal's decision and the question whether it was affected by a material error of law, and it is unnecessary to refer to the detail of the commissioner's decision. Nonetheless I wish to pay tribute to the thoroughness with which the commissioner addressed the issues in his decision.
Mr Lofthouse, appearing for the appellant, has advanced two main submissions. The first is that the tribunal chairman erred in deciding not to adjourn the hearing of the appeals on 3 September 2005. The second is that the substantive decision dismissing the appeals was based on an inadequate exercise of the tribunal's inquisitorial function and an inadequate analysis of the facts.
The decision not to adjourn the hearing of the appeals
Reg. 49(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 confers on the tribunal the power to proceed with a hearing in the absence of a party, having regard to all the circumstances including any explanation offered for the absence. Reg. 51(4) empowers the tribunal to adjourn an oral hearing at any time on the application of any party or of its own motion. On the face of it, therefore, the chairman had a broad discretion whether or not to proceed with the hearing. He gave detailed reasons for his decision not to adjourn.
He said first that there might well be cases in which it would be preferable for social security appeals to await the outcome of a related criminal prosecution, but whether or not that was so would depend on the circumstances of each case and in particular the precise nature of the criminal charges and the precise issues raised by the appeal.
He then examined the extent of overlap between the issues in the criminal proceedings and in the tribunal proceedings. In summary, he said that the criminal court would be concerned with the question of dishonesty, which was wholly irrelevant to the tribunal proceedings; and that the tribunal was concerned with entitlement to benefit, whereas it would be no answer to the criminal charges for the appellant to say that he had not gained by any deception because he had not been paid any benefit to which he was not entitled: the question of entitlement would at most be relevant to mitigation. So the issues were separate.
The chairman said that he could not see how proceeding with the appeals could possibly prejudice the criminal proceedings. He referred to the power of the trial judge to exclude any evidence that would be prejudicial to a fair trial. He could not accept the concerns expressed in correspondence that if the appellant had to give evidence it might compromise his own position in the criminal proceedings and would negate the presumption of innocence and infringe his right to silence. The presumption of innocence would be respected in the tribunal proceedings. The right to silence had very limited relevance to those proceedings, but the chairman would have advised the appellant, had he attended the hearing, that he did not have to reply to any question where to do so might incriminate...
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