BS v Secretary of State for Work and Pensions (DLA)

A tribunal may determine whether covert surveillance was authorised on the evidence available to it. It may accept credible evidence from a presenting officer, even where the authorisation document has not been produced. Under the tribunal procedural rules, relevant evidence may be admitted notwithstanding ordinary civil evidential rules, subject to fairness.

A party’s failure to cooperate does not of itself establish an error of law by the tribunal. The question is whether the tribunal acted unfairly or breached natural justice. A procedural error need not lead to a decision being set aside where it was immaterial and could not have affected the outcome.

The appellant had received the middle-rate care component and subsequently the higher-rate mobility component of disability living allowance. Following a fraud investigation, the Secretary of State revised the awards and raised an overpayment of about £41,000. The evidence included surveillance footage, bowling-club information and admissions made in an interview under caution.

The First-tier Tribunal dismissed the appellant’s appeals. Before it, the Secretary of State had not produced the document authorising the surveillance under the Regulation of Investigatory Powers Act 2000, although the presenting officer said that authorisation had been obtained. On appeal, the Secretary of State produced a copy of the authorisation.

The central issues were whether the absence of the document rendered the surveillance unlawful or the hearing unfair, and whether the First-tier Tribunal had made a material error of law.

1. The Upper Tribunal declined to set aside the First-tier Tribunal’s decision. Any error in the First-tier Tribunal’s treatment of the absent authorisation document was immaterial and could not have affected the outcome.

2. The relevant question on an appeal under the Tribunals, Courts and Enforcement Act 2007 was whether the First-tier Tribunal had erred in law. The Secretary of State’s failure to cooperate with a tribunal did not automatically make the tribunal vicariously responsible for that failure. A tribunal may use its inquisitorial powers and its duty to decide fairly to remedy a party’s procedural default. Even an established procedural unfairness will not necessarily justify setting aside a decision where it is trivial or immaterial.

3. Whether surveillance was authorised was a question of fact, to be decided on the balance of probabilities from relevant and credible evidence. The First-tier Tribunal was entitled in principle to accept a presenting officer’s evidence that authorisation existed. A representative or presenting officer may give evidence, including hearsay evidence, and any deficiencies ordinarily go to its weight rather than admissibility.

4. The Tribunal Procedure (First-tier Tribunal)(SEC) Rules 2008 permitted the tribunal to admit evidence regardless of ordinary civil admissibility rules and to exclude otherwise admissible evidence only where its admission would be unfair. Unlawfully obtained but relevant evidence was not automatically inadmissible in civil proceedings. The fairness of the proceedings as a whole remained material.

5. There was no breach of natural justice or Article 6. The appellant knew the surveillance case he had to meet, saw the video evidence, had legal representation and could address the other evidence. The missing document caused no identified prejudice. Excluding the reliable surveillance evidence would have been perverse.

6. The subsequently produced authorisation showed that the surveillance was lawful under section 27 of the Regulation of Investigatory Powers Act 2000. No challenge was made to its necessity or proportionality. Accordingly, there was also no breach of Article 8.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeals and did not set aside the First-tier Tribunal’s decision, because any error was immaterial.

• First-tier Tribunal: dismissed the appellant’s appeals against the revision of his disability living allowance awards and the resulting overpayment decisions.