De Silva v Social Security Commissioner

A failure by a social security tribunal to make a proper record of oral evidence may amount to an error of law where it causes sufficient prejudice. However, intervention is unnecessary where the record and written decision resolve any uncertainty about what was said and no material prejudice results. A tribunal deciding benefit entitlement need not set out every detail of the claimant’s living arrangements or finances. It is sufficient to make the relevant finding, decide whether the claimant has discharged the burden of establishing entitlement, and give proper reasons for rejecting the evidence.

The appellant applied for a Jobseekers Allowance in July 1997 after becoming redundant. He lived in the matrimonial home with his wife, who was in remunerative work, but claimed that they were living separate lives. An adjudication officer rejected the claim under the Jobseekers Act 1995. A majority of the Social Security Appeal Tribunal dismissed his appeal. His application for rehearing was refused, and the Social Security Commissioner dismissed his further appeal and refused leave.

The appeal concerned whether the tribunal had misunderstood the evidence, particularly the attribution of a statement about the appellant and his wife becoming a couple again, and whether it had addressed entitlement at the date of application.

The Court of Appeal unanimously dismissed the appeal.

1. Alleged misrecording of evidence. The tribunal’s conclusion on credibility relied materially on an alleged inconsistency concerning who had accepted the visiting officer’s account. Although the hearing note did not expressly identify the speaker, its wording was inappropriate if the answer had been given by the presenting officer. The tribunal’s written decision showed that it had considered carefully who gave the answer and attributed it to the appellant’s representative. The Commissioner would therefore inevitably have reached the same conclusion, and there was no uncertainty prejudicial to the appellant.
2. Record of proceedings. Under regulation 29(7) of the Social Security (Adjudication) Regulations 1995, a failure to make a proper record of a hearing can constitute an error of law if it causes sufficient prejudice. That threshold was not met in this case because the record, read with the written decision, adequately identified the provenance of the evidence.
3. Issue and reasons. The tribunal expressly found that the appellant and his wife were living in the same household at all relevant times. If entitled to reject the appellant’s evidence, it could conclude that he had not discharged the burden of establishing entitlement under sections 3(1)(e) and 35 of the Jobseekers Act 1995. It was not required to give detailed findings on every aspect of the household arrangements or finances. Its explanation of the inconsistencies in the evidence, including a valid example of self-contradiction, was sufficient.
4. Order. The appeal was dismissed. There was no order for costs, save for detailed assessment of the appellant’s publicly funded costs.

• Court of Appeal (Civil Division): Appeal dismissed under [2001] EWCA Civ 539.
• Social Security Commissioner: Appeal dismissed on 6 December 1999; leave to appeal refused on 7 March 2000.
• Social Security Appeal Tribunal: Appeal dismissed by a majority on 16 January 1998; application for rehearing refused on 1 May 1998.
• Adjudication officer: Jobseekers Allowance claim rejected on 22 September 1997.