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Neutral Citation Number:
Reported Number:	R(IS)17/04
File Number:	CIS 1459 2003
Appellant:
Respondent:
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	25/06/2004
Date Added:	08/07/2004
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	tribunal jurisdiction
Secondary Category:	Tribunal procedure and practice (including UT)
Secondary Subcategory:	tribunal practice
Notes:	Tribunal practice - inquisitorial role and burden of proof - failure of Secretary of State to attend hearing The claimant had appealed against a Secretary of State's decision which revoked entitlement to income support on the ground that she had been living together with a man who was in remunerative employment. The decision had effect retrospectively for nearly 14 years. It was established law that in such a case it was for the Secretary of State to satisfy the tribunal that the action taken was correct. In view of the difficulty and importance of the case, a tribunal chairman directed that the Department should arrange for a presenting officer to conduct the case at the hearing. However, the Department failed to do so and did not request a postponement. The claimant and her representative attended the hearing and the representative handed in a submission. Two investigating officers from the Department were also present, one of whom requested an adjournment to allow a presenting officer to attend. After it had been ascertained by telephone that no presenting officer could arrive within one hour, the chairman briefly adjourned and, without hearing any evidence or further submissions, allowed the appeal, stating in his statement of reasons that, while it was vital for a presenting officer to be present for justice to be done, it would not be fair and reasonable to grant an adjournment. The burden of proof on the Secretary of State implied, in his view, an obligation to conduct the proceedings in such a way to enable the tribunal to function. He had failed to do so and the burden of proof had not been discharged. The Secretary of State appealed to the Commissioner. It was accepted on behalf of the Secretary of State that the local officers were at fault in the way they conducted the case. Nevertheless, it was submitted that the chairman had fallen into error of law in failing to discharge his inquisitorial or investigatory role. Held, allowing the appeal, that: 1. the function of a tribunal in every case is to carry out a complete reconsideration and redetermination of the facts and merits of the decision under appeal (paragraph 26); R v. Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1 QB 456, R v. Medical Appeal Tribunal ex parte Hubble [1958] 2 QB 228, R(S) 4/82, CIB/4751/2002 [reported as R(IB) 2/04] and Kerr v. Department for Social Development (Northern Ireland) [2004] UKHL 23 followed. 2. the practical options that were open to the chairman in this case were therefore to conduct a full hearing on the material, evidence and representations before him or to adjourn (paragraphs 27 and 28); 3. the chairman's own note of the proceedings and statement of reasons showed he had done neither, but instead proceeded to a decision in favour of the claimant without going into the merits of the case at all. That was an error as the evidence before him showed the need for a proper enquiry; CI/1021/2001 followed. 4. the duty of a tribunal to investigate the issues before it could legitimately involve questioning a claimant, even with probing questions, and there could be no question of bias or unfairness in the mere fact that it did so (paragraph 30); R(IS) 4/82 followed. 5. the Tribunal of Commissioners noted and approved an assurance by the Secretary of State that measures were to be taken to ensure the attendance of a presenting officer in any case where directed by a tribunal, or if the complexity of the case requires it whether or not such a direction has been given. The case was remitted for rehearing before either the same or a differently constituted tribunal
Decision(s) to Download:	R(IS) 17_04 bv.doc