AM v The Secretary of State

A criminal conviction of an appointee does not determine a claimant’s entitlement to social security benefit where the claimant was not a party to the criminal proceedings. The tribunal must determine entitlement on the evidence before it.

As against the convicted person, public policy generally prevents a collateral challenge to primary facts found by a criminal court or admitted by a guilty plea. However, a specialist tribunal may examine the evidence and may reach its own conclusions about benefit entitlement, including the inferences to draw from those primary facts. A conviction cannot, by analogy with the Civil Evidence Act 1968, shift the legal burden of proof in tribunal proceedings without statutory authority.

The claimant had been awarded disability living allowance. Following an investigation, the Secretary of State superseded the award from July 2008, decided that no component was payable, and sought recovery of an overpayment from her husband, who acted as her appointee.

The appointee was convicted of failing promptly to notify an improvement in the claimant’s capabilities. The First-tier Tribunal dismissed both appeals on the basis that, absent fresh evidence showing the conviction was wrong, the conviction was a complete bar to the appeal.

The appeal, supported by the Secretary of State, concerned the effect of that conviction on the claimant’s entitlement and on the appointee’s liability for any overpayment.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside and the case remitted for rehearing by a differently constituted tribunal. It had wrongly treated the appointee’s conviction as a complete bar to the appeals.

2. The claimant was not a party to the criminal proceedings and was not bound by the appointee’s conviction. The new tribunal must determine her entitlement on the relevant evidence. It may consider evidence used in the criminal proceedings if relevant, but may not rely on the conviction itself as evidence against her.

3. As to the appointee, the general public-policy rule in Hunter v Chief Constable of the West Midlands Police prevents a convicted person from using civil or inquisitorial tribunal proceedings to relitigate primary facts determined by the conviction, or facts admitted by a guilty plea. The tribunal may nevertheless analyse the charge, plea, findings and evidence. It may also hear an explanation of the circumstances without permitting a challenge to the primary facts. Convincing new evidence may justify a challenge on the basis available under the Civil Evidence Act 1968.

4. A specialist social security tribunal may make its own findings on the social security consequences of primary facts found or admitted in the criminal case. It may draw its own inferences about the claimant’s abilities and entitlement, using its specialist expertise. It may also consider whether evidence before the criminal court was capable of supporting a particular primary finding.

5. R(S) 2/80 was wrongly decided insofar as it held that a conviction shifts the legal burden of proof in tribunal proceedings. Such a change requires statutory intervention. The conviction may nevertheless have the limited consequences flowing from the public-policy rule.

6. The later conviction was not a “circumstance” within section 12(8)(b) of the Social Security Act 1998. It could be considered to the limited extent stated because it concerned evidence and facts relevant to the period covered by the decision under appeal. Any recovery decision must also identify the extent to which benefit paid to the appointee was paid to, or applied for the benefit of, the claimant.

• Upper Tribunal (Administrative Appeals Chamber): Appeal allowed. The First-tier Tribunal decision was set aside and the case remitted for rehearing by a new tribunal.
• First-tier Tribunal: Dismissed the appeals, treating the appointee’s criminal conviction as a complete bar in the absence of fresh evidence showing it was wrong.