Tribunal procedure and practice – evidence – drawing an adverse inference
The claimant failed to attend a Work Programme appointment despite having been sent notice under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 by a “provider”. The Secretary of State imposed a sanction in the absence of any explanation from the claimant for her failure to attend. The claimant appealed against that decision, stating that she had replied to the Secretary of State to say she had not received the original notice. A First-tier Tribunal judge directed the Secretary of State to provide copies of all notices issued to the claimant and warned that in the event of a failure to comply it was likely that the tribunal would draw adverse inferences. The Secretary of State eventually supplied various documents, including a copy of the relevant letter requiring the claimant to attend the Work Programme appointment. However, these documents were not forwarded to the judge and she allowed the claimant’s appeal, having inferred from the Secretary of State’s apparent failure to reply that the claimant had not been adequately notified of the appointment and that in the absence of such notification she had not failed to participate. The Secretary of State requested a full statement of reasons and the judge, having seen the supplementary submission, stated that the appeal had been allowed because where a notice to attend was given by a “provider” the Secretary of State must establish that it had delegated responsibility and, in the absence of such evidence, the tribunal had found that the claimant had not been appropriately notified. The Secretary of State appealed to the Upper Tribunal.
Held, allowing the appeal, that:
the First-tier Tribunal had made its decision in ignorance of the fact that the Secretary of State had provided the information it had been directed to provide and, as his case was not heard, that gave rise to an inadvertent breach of the rules of natural justice;
a failure to comply with a direction to provide evidence might entitle a tribunal to draw an adverse inference against the offending party and so infer that the facts were not as that party said they were but only if the tribunal was satisfied that the probable reason for the offending party’s failure was that the evidence did not exist or would harm its case;
because social security cases involved an investigatory approach, it might be permissible to draw an adverse inference even if there was no other evidence on the particular point, but only if regard was had to the “inherent probabilities” (dicta of Lord Sumption in Prest v Petrodel Resources Limited  2 AC 415 applied);
accordingly a tribunal drawing an adverse inference might be required to give reasons for doing so beyond merely stating that there had been a failure to comply with a requirement to produce evidence;
the Secretary of State might be required by a claimant or tribunal to provide evidence to prove that a provider had the relevant powers, but it did not follow that he was obliged to do so in every case and the First-tier Tribunal had erred in holding against the Secretary of State the fact that he had not provided evidence without giving him notice of the point.
The judge set aside the First-tier Tribunal’s decision and remitted the case for hearing before a differently constituted tribunal.