Mote v (Secretary of State for Work and Pensions & Anor

A tribunal hearing social-security proceedings while related criminal proceedings are pending retains a real discretion whether to proceed or adjourn. It must consider all the circumstances, including whether continuation creates a real risk of prejudice causing injustice. Such risk weighs heavily in favour of adjournment but is not automatically decisive.

The Human Rights Act 1998 does not create a mandatory stay. Proceedings may continue where Convention rights are respected and the criminal court retains powers to prevent an unfair trial. A party’s privilege against self-incrimination does not create a defence or an automatic right to postpone civil proceedings. The tribunal’s inquisitorial function does not require speculative investigation where the party provides no explanation and declines to engage with the evidence.

The appellant received income support and housing benefit. The benefit decisions were revised after it emerged that his income exceeded the applicable amount, producing recoverable overpayments. The appellant appealed to the Social Security Appeal Tribunal.

While related criminal proceedings for dishonesty were pending, the tribunal refused to adjourn, heard the appeals in the appellant’s absence and dismissed them. The Social Security Commissioner dismissed appeals on points of law in decisions dated 20 July 2006. The appellant appealed to the Court of Appeal, challenging both the refusal to adjourn and the adequacy of the tribunal’s inquisitorial fact-finding.

The Court of Appeal unanimously dismissed the appeal. Richards LJ gave the judgment, with Sir Peter Gibson and Lloyd LJ agreeing.

1. Adjournment discretion. Regulations 49(4) and 51(4) gave the tribunal a broad discretion to proceed in a party’s absence or to adjourn. The relevant question was whether continuing the social-security appeals created a real risk of prejudice causing injustice in the criminal proceedings. Any such risk would weigh heavily in favour of an adjournment, but would not necessarily be decisive. The Human Rights Act 1998 had not materially changed that approach. The tribunal could respect Convention rights, while the criminal court retained powers to stay proceedings for abuse of process or control the evidence. This approach was consistent with Jefferson Ltd v Bhetcha [1979] 1 WLR 898, V v C [2001] EWCA Civ 1509, Barnet London Borough Council v Hurst [2002] EWCA Civ 1009 and R v L [2006] EWCA Crim 1902.
2. The chairman was wrong to describe the issues as wholly separate, since entitlement to benefit might bear on dishonesty. That was not a serious error, because a tribunal finding on entitlement would be inadmissible in the criminal proceedings. The fact that the same parties were involved did not itself establish prejudice. The alleged opportunity to rehearse the prosecution case had not been shown to cause substantial prejudice and had not been raised before the tribunal. The appellant was not entitled to an adjournment merely to retain tactical surprise.
3. The privilege against self-incrimination did not create a defence to the appeals or a general right to silence in civil proceedings. The appellant could have participated without answering questions which might incriminate him, and he identified no concrete way in which participation would have harmed the criminal case.
4. The tribunal was required to decide on the evidence before it. Further investigation was unrealistic where the appellant had given no explanation for the bank account or loan evidence, had declined further questions and deliberately did not attend. The chairman had a rational evidential basis for inferring that unexplained payments were income and for relying on the appellant’s own statement of monthly earnings. It was unnecessary to match that income to particular bank entries or to assume that the identified accounts were the only possible sources or destinations of payment. An immaterial error concerning receipt of a retirement pension did not affect the decision.

The Commissioner was therefore right to find no material error of law in the tribunal’s decisions.

• Court of Appeal (Civil Division) dismissed the appeal from the Commissioner’s decisions: [2007] EWCA Civ 1324.
• Social Security Commissioners dismissed the appellant’s appeals on points of law in decisions dated 20 July 2006.
• Social Security Appeal Tribunal refused to adjourn, heard the appeals in the appellant’s absence on 3 September 2004 and dismissed them. An application to set aside was also dismissed.