BS v Secretary of State for Work and Pensions (DLA): [2016] UKUT 73 (AAC): [2016] AACR 32

Upper Tribunal Administrative Appeals Chamber decision by Judge Lane on 2 February 2016.

Read the full decision in CDLA/688/2015.

Judicial Summary

Tribunal procedure and practice – fair hearing – surveillance of appellant under Regulation of Investigatory Powers Act 2000 – whether authorisation required at First-tier Tribunal

Human rights – Article 6 and Article 8 – whether appellant’s rights breached by surveillance under Regulation of Investigatory Powers Act 2000

A fraud investigation, involving video surveillance authorised under the Regulation of Investigatory Powers Act 2000 (RIPA), found that the appellant was regularly playing crown green bowls and the Secretary of State decided that he was therefore no longer entitled to disability living allowance (DLA) and that he had also been overpaid some £41,000 which was recoverable. The appellant appealed against both decisions and the First-tier Tribunal (F-tT) directed the Secretary of State to provide it with a copy of the authorisation under RIPA for the surveillance. The Secretary of State failed to do so, contrary to rule 2(4) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. However, the F-tT rejected the appeals, relying upon the presenting officer’s evidence that such authorisation had been obtained and was held by the fraud investigation team. The appellant appealed to the Upper Tribunal (UT) and among the issues before it were whether the absence of the authorisation made it unlawful, the extent to which this might affect the weight of the video evidence and whether there were breaches of the appellant’s rights under Article 6 (right to a fair hearing) and Article 8 (right to respect for private life) under the European Convention on Human Rights (ECHR). The Secretary of State subsequently provided the UT with a copy of the authorisation in response to its directions.

Held, disallowing the appeal, that:

  1. the question for the UT was not whether the Secretary of State had breached rule 2(4) but whether the tribunal had erred in law. It was not inevitable that impropriety or unfair behaviour by the Secretary of State would cause the F-tT to err as it may put right failures of one party or the other. Nor was it inevitable that unfairness shown by a party would justify the UT in setting aside a decision. If the unfairness was trivial it would be inappropriate or disproportionate to do so and if it could not have affected the outcome it was immaterial (paragraphs 12 to 15);

  2. the UT rejected the submission that authorisation under RIPA for the surveillance had to be proven. Unlawfully obtained evidence was admissible in civil litigation, if it was relevant and the unabated “best evidence” rule had been substantially superseded. Rule 15(2) expressly permitted a tribunal to admit evidence whether or not it was admissible in a civil trial. Courts and tribunals may be reluctant to exclude evidence which was reliable and probative although unlawfully obtained, and Strasbourg jurisprudence accepted that there may be no unfairness in admitting such evidence: Khan v UK [2001] 31 EHRR 45. If the evidence had been lawfully obtained, the prospect of its exclusion as unfair was minimal (paragraphs 16 to 19);

  3. whether the authorisation had been obtained was a question of fact for the tribunal to establish on the balance of probability given the relevance and credibility of the available evidence including the presenting officer’s evidence: PL v Walsall Metropolitan Borough Council [2009] UKUT 27 (AAC). It was open to the F-tT to accept evidence from the presenting officer that authorisation had been obtained, subject to being satisfied that the evidence had a credible basis (paragraphs 20 to 23);

  4. there were no grounds for setting aside the F-tT’s decision on the basis of some unfairness or breach of natural justice within the proceedings; the presenting officer had confirmed the existence of the authorisation and explained why it was unavailable, it had not been required by the tribunal and the appellant’s case had not been prejudiced. Even if the F-tT had erred by acting without the document, its error would have been immaterial as it could not have affected the outcome of the case (paragraphs 27 to 35);

  5. there was no breach of either Article 6 or Article 8 the appellant had had a full and fair opportunity to put his case and to deal with the video evidence while the right to respect for private life was lawfully and proportionately qualified under RIPA (paragraphs 36 to 40).

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