It is very unusual for a judge to start the introduction [pdf, p2] to his judgment with the words, “Oh dear. Oh dear. Oh dear.” But this is exactly what Nicholas Wikeley did in his ruling on a case involving the Department for Work and Pensions (DWP). And while the case itself is unresolved, it illustrates exactly how difficult the process is for anyone appealing a DWP decision to a tribunal.
“Warning bells”
Wikeley, a judge at the upper tribunal, was reviewing an appeal from the First-Tier Tribunal (FTT) – the first stage in a benefit appeal. It involved a case that was ongoing since 2014. And it is a case that had come to his attention in the past.
The appellant (person who appeals) is facing a claim from the DWP that she was overpaid more than £53,000 worth of Disability Living Allowance. Originally, she was facing a criminal prosecution. But that was dropped [pdf, p9] after the Crown Prosecution Service (CPS) discontinued the case because:
material has come to light which has prompted a further review of the case.
And the CPS found that:
There is no longer sufficient evidence to provide a realistic prospect of conviction.
As Wikeley points out [pdf, p10], there is no indication of what the “new evidence” is. And there is the possibility that it doesn’t affect the criminal case as civil and criminal cases require different standards of evidence. But as Wikeley states:
However, the Tribunal displayed a worrying lack of curiosity in its approach to this issue. Warning bells should have been ringing when it heard the criminal case had been dropped because of ‘new evidence’. At the very least the Tribunal should have asked what that new evidence was and whether it was relevant to the Secretary of State’s duty to disclose under rule 24(4)(b). Its failure to act in a suitably inquisitorial manner was a further error of law.
“I agree. I am speechless”
Amongst the evidence contested from the FTT was a DVD of footage of the appellant gathered by a DWP fraud officer. But although the appellant disputed the evidence, she wasn’t able to view it with the tribunal or give her views on it. The representative for the DWP agreed [pdf, p9] this was not right:
The failure of the First-tier Tribunal to allow the claimant the opportunity to comment on issues that arose from their viewing of the DVD constitutes a breach of natural justice.
Wikeley concurred [pdf, p9], stating:
I agree. I am speechless.
And that’s not all
But there’s even more. Including the fact that the appellant’s legal representative wasn’t available for the FTT hearing and no adjournment was granted. And the fraud officer, who compiled the DVD evidence, has seen been dismissed from the DWP. As Wikeley says [pdf, p12]:
The fact that a fraud officer central to the case had been dismissed was potentially of relevance to the issues the Tribunal had to determine. It is, of course, entirely possible her dismissal had nothing to do with the present proceedings…
But we do know criminal proceedings against the Appellant had recently been discontinued in circumstances which at the very least raised a question mark about the propriety of the counter-fraud investigation.
Wikeley concluded [pdf, p14] his judgment:
I hope I do not see this case again.
The fight for justice
It is impossible, as Wikeley points out, to comment on the rights and wrongs of this actual case. But what it does show is the battle one person has had to endure just to have a fair hearing. And other cases show that this isn’t a one-off.
In August 2017, senior judges from an upper tribunal ruled that the DWP was acting illegally in a case brought by two people who failed to appeal the decision to stop their Employment and Support Allowance in time. Current Department for Work and Pensions (DWP) rules state that the first stage of appealing a decision – a mandatory reconsideration – needs to be lodged within a month.
But senior judges ruled that it should be “obvious” that people with long-term health conditions might have problems which meant that they could not complete the appeal process in time. And this is just the tip of the iceberg. Figures from 2016-2017 show that the DWP spent £39m fighting benefit appeals.
Access to justice should be a fundamental right for all citizens. This case may be a one-off in terms of both the length of time it has taken and the clear exasperation Wikeley felt in dealing with it. But it is representative of the system as a whole. And it is a system we need to radically overhaul to ensure justice and access to benefits is fair to everyone.
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