Braintree District Council v Thompson

On an appeal confined to an error of law, a Social Security Commissioner must not substitute his own view of the facts for that of an appeal tribunal. A finding is erroneous in law only where it is unsupported by evidence or perverse, in the sense that no reasonable tribunal could have reached it. Perversity may involve a blatant misunderstanding or total ignorance of a plain and incontrovertible relevant fact. A tribunal may rely on hearsay where the affected party has a fair opportunity to contest it. Where credible evidence conflicts, choosing between competing interpretations is a matter for the tribunal.

The Council sought recovery of £16,196.57 in housing benefit paid directly to the respondent after he and his tenant falsely represented that the tenant was the sole occupant of the property. The respondent and tenant had been convicted of conspiracy to defraud. The Social Security Appeal Tribunal upheld the recovery claim, but Deputy Commissioner Michael Mark allowed the respondent’s appeal, holding that the deception was directed to council tax and income support rather than additional housing benefit, and that the tenancy had not been shown to be contrived. The Council appealed on the ground that the Commissioner had substituted his own factual assessment for that of the Tribunal. The central issue was whether the Tribunal’s findings involved an error of law.

1. Disposition. The appeal was allowed unanimously. The Commissioner had erred in law by interfering with the Tribunal’s findings of fact. The Tribunal’s decision was restored, with the respondent ordered to pay the Council’s costs of £3,000 plus VAT.

2. Appellate jurisdiction. Under section 14(1) of the Social Security Act 1998, an appeal to a Commissioner lies only on a question of law. Primary facts are established from the evidence, from which a legal conclusion may follow. A finding challenged merely as being against the weight of the evidence does not involve an error of law.

3. A factual finding becomes an error of law only where there is no evidence to support it or where it is perverse. Perversity requires that no reasonable tribunal could have reached the conclusion. It may arise from a blatant misunderstanding or total ignorance of an established and relevant fact, but only where the fact is plain and incontrovertible and admits of no reasonable difference of view.

4. The Tribunal was entitled to rely on the criminal trial transcripts, sentencing remarks and certificate of conviction. It was not bound by the rules of evidence and could rely on hearsay, provided the respondent had a fair opportunity to contest the material. The evidence of shared occupation and the resulting reduction in housing benefit supported the finding that the Council had suffered prejudice.

5. The microfiche record suggested a different inference, but it conflicted with apparently credible evidence from the criminal trial. The issue had not been presented to the Tribunal in that form, the record itself acknowledged its limited utility, and the Tribunal was entitled to choose between the competing interpretations. The approach in Reg. v Hillingdon L.B.C., Ex p. Pulhofer [1986] 1 A.C. 484, 518, was equally applicable: the court should leave a fact entrusted to the decision-maker unless the decision was plainly perverse.

6. It was unnecessary to determine the separate questions concerning illegality or the application of regulation 7 of the Housing Benefit (General) Regulations 1987, as the appeal was resolved on the improper exercise of the Commissioner’s appellate jurisdiction.

1. Court of Appeal (Civil Division) — The Council’s appeal was allowed and the Social Security Appeal Tribunal’s decision was restored: [2005] EWCA Civ 178.
2. Social Security Commissioner — On 29 April 2004, Deputy Commissioner Michael Mark allowed the respondent’s appeal, holding that the Tribunal had erred in law in treating the deception as directed to obtaining additional housing benefit and in finding the tenancy contrived.
3. Social Security Appeal Tribunal — On 19 September 2003, the Tribunal dismissed the respondent’s appeal and upheld recovery of the overpayment.