Secretary of State for Work and Pensions v HS (JSA)

An adverse inference for non-compliance with a tribunal direction is evidential, not punitive. It may be drawn only where the tribunal considers it probable that the missing evidence does not exist or would damage the defaulting party’s case. In inquisitorial social-security proceedings, an inference may sometimes be drawn without other evidence on the point, but the tribunal must assess the inherent probabilities and give adequate reasons where realistic alternative explanations exist.

A provider’s authority to issue a notice under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 may be presumed regular unless it is challenged. A tribunal should not determine an unnotified point adversely to a party without giving that party an opportunity to address it.

The Secretary of State appealed against a First-tier Tribunal decision allowing HS’s appeal against a four-week jobseeker’s allowance sanction for failing to attend a Work Programme appointment.

The First-tier Tribunal initially inferred, from an apparent failure to comply with a direction, that HS had not been adequately notified. Its later statement of reasons instead held that Barnardo’s authority to issue the appointment notice had not been proved. The Secretary of State contended that relevant documents had in fact been supplied late and produced evidence of delegated authority.

The central issues were whether the First-tier Tribunal could decide the case on the papers despite HS’s request for an oral hearing, whether it had fairly and lawfully drawn adverse inferences, and whether the dispute over receipt of the appointment notice required factual determination.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside and the case remitted to a differently constituted First-tier Tribunal.

2. The First-tier Tribunal erred by deciding the case without appreciating that the Secretary of State’s supplementary response had been received. That caused an inadvertent breach of natural justice because the Secretary of State’s case was not heard. It also erred by relying on an alleged failure to provide evidence of delegated authority without giving the Secretary of State notice of that issue and an opportunity to address it.

3. There was a breach of rule 27(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, because HS had requested a hearing and her appeal was never listed for one. The irregularity could nevertheless be waived where the tribunal decided the case wholly in favour of the party who had not consented to a paper determination.

4. An adverse inference is not a sanction for disobeying a direction. It is permissible only where the tribunal considers it probable that the absent evidence does not exist or would harm the defaulting party’s case. In social-security proceedings, which have an investigatory character, an inference may be possible without other evidence on the specific point, but only after considering the inherent probabilities. Where realistic explanations for default exist, reasons must address why the adverse explanation is more probable.

5. There was a presumption of regularity concerning Barnardo’s delegated authority to issue notices under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011. The Secretary of State need not prove that authority in every case where it is properly asserted and unchallenged, though evidence may be required if the claimant or tribunal raises the point.

6. A live factual dispute remained as to whether HS received the notice. The First-tier Tribunal had not held an oral hearing at which that issue could be resolved. The Secretary of State was directed to address whether later letters had revised the decision under appeal.

• Upper Tribunal (Administrative Appeals Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal decision was set aside and remitted to a differently constituted panel.
• First-tier Tribunal: On 5 November 2014 it allowed HS’s appeal against the jobseeker’s allowance sanction.
• Secretary of State: On 6 August 2013 the Secretary of State decided that HS was not entitled to jobseeker’s allowance for four weeks for alleged failure to participate in the Work Programme.