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[2003] UKSSCSC CIS_4220_2002 (03 February 2003)

R(IS) 2/04


Mr C. Turnbull CIS/4220/2002

03.02.03 Commissioner case no. Date

Human rights - recovery of overpayments - "fair and public hearing within a reasonable time" - whether delay by Secretary of State in acting on information may be taken into account

The claimant was in receipt of income support by automated credit transfer. He was abroad from December 1995 to June 1996 but did not inform the Benefits Agency of his absence, with the result that payment of income support continued throughout his absence, giving rise to an overpayment. The Benefits Agency discovered the overpayment in September 1996, but did not act on the information until November 2000, when a supersession decision was made and the overpayment was determined to be recoverable. The claimant appealed. He argued before the tribunal and the Commissioner that the delay in acting on the information was in breach of his right to a fair and public hearing within a reasonable time under Article 6(1) of the European Convention on Human Rights. The tribunal held that delay prior to the making of the appeal could not be taken into account under Article 6, but that even if it could there was no breach of Article 6 because the tribunal had been able on the evidence available fairly to determine the issues.

Held, dismissing the appeal, that:

the tribunal had properly explained its finding that the delay had not rendered the hearing unfair, but that did not necessarily mean that there had been no breach of the separate requirement in Article 6 that the hearing take place within a reasonable time (paragraphs 7 and 8);

the correct approach to an alleged breach of that requirement is (following Dyer v. Watson) to consider first whether the time that has elapsed is one which, on its face and without more, gives cause for real concern, and only if that threshold is reached to examine the circumstances to establish whether the delay was in fact unreasonable (paragraph 9);

time started to run for the purposes of Article 6 in July 2000 when the case was referred to a decision-maker for a supersession decision, as this was the point when the claimant's civil rights first required determination (paragraphs 10-23);

the period from July 2000 to the appeal hearing in July 2002 was insufficient to cross the threshold which would render necessary a further examination of the circumstances (paragraph 23).

Note: See also R(IS) 1/04.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, brought with the leave of the Chairman, against a decision of the Whittington House appeal tribunal made on 17 July 2002. For the reasons set out below that decision was in my judgment not erroneous in law and I therefore dismiss the appeal.
2. This appeal raises the issue whether delay by the Secretary of State in acting on information that benefit has or may have been overpaid can be taken into account in determining whether there has been a breach of the requirement in Article 6 of the European Convention on Human Rights that there be a fair and public hearing of the claimant's civil rights "within a reasonable time".
3. The material facts are as follows:

(1) The claimant is a man now aged 81. He was in receipt of income support from January 1993.

(2) On 17 December 1995 he went to Bangladesh, for a period which he says was originally intended to be only a few weeks, but which in fact lasted until he returned on 1 June 1996. The claimant had throughout his absence continued to be paid income support via automated credit transfer.

(3) The Benefits Agency says that it did not discover that he had been absent until September 1996 at which time, however, "details were not referred to the overpayment section and therefore a decision was not made."

(4) On 28 June 2000 the claimant was interviewed in connection with a further possible overpayment of benefit in 1998, and at that interview the claimant confirmed that he had been in Bangladesh between the dates set out above. There is no evidence that, during the period between September 1996 and about June 2000, the Secretary of State was giving any consideration to whether any action should be taken as a result of the fact that the claimant had been abroad.

(5) On 12 July 2000 there was a formal reference to a decision-maker for determination whether there should be a supersession of the claimant's income support award in respect of the period between 16 January 1996 and 29 May 1996 ("the overpayment period") by reason of the claimant's absence abroad. Although under section 124(1) of the Social Security Contributions and Benefits Act 1992 presence in Great Britain is a condition of entitlement to income support, the overpayment period started on 16 January 1996, rather than on 17 December 1995, because under regulation 4 of the Income Support (General) Regulations 1987 the claimant's entitlement continued during the first 4 weeks of a temporary absence.

(6) On 8 November 2000 a decision was made (a) superseding the claimant's income support award in respect of the overpayment period on the ground of a change of circumstances, namely the claimant's absence abroad and (b) that the resultant overpayment of £1684.08 was recoverable from the claimant on the ground that it would not have been made if he had not failed to disclose that he was abroad.

(7) The claimant appealed on 4 December 2000, contending (among other things) that if the matter had been raised earlier he could have given a "more concrete explanation". He did, however, say in his appeal form that as he had departed for Bangladesh on an emergency basis he had had no time to inform the Benefits Agency.

(8) In a written submission to the appeal tribunal prior to the first hearing on 21 August 2001 it was contended on his behalf (1) that there had been a breach of the requirement in Article 6 that there be a hearing within a reasonable time and that "the delay in bringing this case to this stage means that [the claimant] cannot have a fair trial under Article 6(1) of the Convention and that therefore the overpayment cannot be recoverable" and (2) that in any event the claimant had disclosed to the Benefits Agency that he was going abroad, and that the Secretary of State was not able, some 5 years later, to discharge the burden of proving to the contrary.

(9) That first hearing was adjourned, as were two subsequent hearings, and the appeal was finally heard by the tribunal on 17 July 2002.

4. The tribunal's decision notice set out at some length its reasons for dismissing the appeal, which were then added to in the subsequent statement of reasons. The tribunal held that the Secretary of State had discharged the burden of proving that the claimant had not disclosed that he was going or had gone abroad, and relied particularly on the fact that the claimant had said in his appeal form that he had not had time to inform the Benefits Agency that he was going. As regards the Article 6 point, it said this in its decision notice:

"Mr Beckley, the appellant's representative, submitted that the delay of 4 years by the BA in pursing the matter of the overpayment is such as to make a fair trial impossible and therefore that there would be a breach of Article 6 of the Convention, and hence the Human Rights Act section 6, if the tribunal were to hear the matter. I note that the case law put before me is applicable to delays by the court system itself. That is not the situation here, where the appeal came on with reasonable despatch. Moreover, I do not consider the delay of 4 years to be so unreasonable as to make it impossible, or even unduly difficult, to have a fair hearing. I note that even though there is no applicable limitation period in relation to overpayment issues, in most civil cases time barring only occurs after 6 years. This matter was brought forward after 4 years, following investigation for a further benefit overpayment in 1998. The appellant is able to give his evidence and there is supporting documentation available."

5. The appeal to a Commissioner is based on the contention that the tribunal erred in law in dealing with the claimant's arguments under Article 6, which provides as follows in the first sentence of paragraph 1:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

6. There is no doubt that, quite independently of Article 6, the tribunal was required to take into account, in determining whether the Secretary of State had discharged the burden of proving that the claimant had not disclosed that he was going or had gone abroad, evidential difficulties caused by the lapse of time. In general, the greater the period which elapses before the question is raised, the more difficult it will be to discharge that burden. The tribunal's reasons indicate that it took that into account.
7. The claimant's submissions under Article 6 rely on two of the requirements of that Article, namely that the hearing be fair, and that it take place within a reasonable time. The tribunal's reasons in effect appear to treat those two requirements as one, its reasoning being (a) that delay prior to the making of the appeal could not be taken into account under Article 6, but that (b) even if it could there was no breach of Article 6 because the tribunal had been able on the evidence available fairly to determine the issues. In my judgment the tribunal properly explained its reasons for reaching the latter conclusion, and in my judgment therefore properly dealt with the requirement in Article 6 that the hearing be fair.
8. However, on the issue whether the hearing took place within a reasonable time, the fact that the tribunal considered that it was able, notwithstanding the lapse of time, fairly to determine the issues was not necessarily an answer. As Lord Hope of Craighead made clear in Dyer v. Watson [2002] UKPC D1, [2002] 4 All ER 1 at para. 73:

"The first sentence of the article creates a number of rights which are closely related. But these four rights can and should be considered separately. The rights to a fair hearing, to a public hearing and to a hearing before an independent and impartial tribunal established by law are separate and distinct rights from the right to a hearing within a reasonable time. This means that a complaint that one of these rights was breached cannot be answered by showing that the other rights were not breached. … It is no answer to a complaint that the right to a hearing within a reasonable time has been violated for the Crown to say that the accused can nevertheless be expected to receive, or has received, a fair hearing in public before an independent tribunal established by law."

9. As Lord Bingham of Cornhill stated in that case (at para. 52):

"In any case in which it is said that the reasonable time requirement … has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives grounds for real concern it is almost certainly unnecessary to go further, since the convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. But if the period which has elapsed is one which, on its face and without more, gives ground for real concern, two consequences follow. First, it is necessary for the court to look into the detailed facts and circumstances of the particular case. The Strasbourg case law shows very clearly that the outcome is closely dependent on the facts of each case. Secondly, it is necessary for the contracting state to explain and justify any lapse of time which appears to be excessive."

10. The time which elapsed between the making of the appeal and the tribunal hearing was some 19 months. That is, however, well short of the sort of period which (in the absence of some exceptional factor) is capable of being held excessive in relation to proceedings of this nature: see the extensive review of the Strasbourg case law in the speech of Lord Bingham in Dyer at paragraphs 30 to 47. However, the time which elapsed between the time when the Benefits Agency had become aware that the claimant had been abroad during the overpayment period and the hearing before the tribunal was a little under 6 years. That is a period which (if the earlier delay can be included in the time taken) at least arguably crossed the threshhold referred to by Lord Bingham.
11. I must therefore consider whether the tribunal was correct in saying that only the time taken by the appeal proceedings themselves counted in determining whether the hearing had taken place within a reasonable time. In other words, from when did time start to run for this purpose?
12. The Secretary of State's submission on that point is that time did not begin to run until the making of the appeal:

"The guarantee made by Article 6(1) applies to "proceedings" which involve a determination of "civil rights and obligations". I submit that there must, for the Article to apply, be a "contestation" (dispute) concerning a civil right. I submit that until the decision maker's decision has been made there is no civil right about which there can be a dispute, and that consequently the claimant's Article 6 rights cannot be breached by the decision maker's decision: for the purpose of Article 6(1) "proceedings" do not begin until the appeal is lodged. I submit that the tribunal is the initial adjudicating authority to which the article applies, and that it is able to remedy any error found in the decision maker's decision. I submit that there has been no undue or unacceptable delay on any part since 7 December 2000."

13. The Secretary of State relies by way of authority on CDLA/3908/2001, in which it was said, in connection with an argument that the Human Rights Act 1998 applied in the case where a tribunal had after 2 October 2000 decided an appeal against a supersession decision made before that date, that the decision maker's decision was not "proceedings" within the meaning of section 7 of that Act. I do not think that that decision is of any direct assistance on the question which I am considering. Article 6 does not use the word "proceedings".
14. In the absence of any authority I would have been inclined to say that for the purposes of Article 6 time should begin to run from the moment when the claimant's rights first require determination, and that in the case of social security adjudication that moment may be earlier than the date when the claimant appeals against a decision by the Secretary of State. Two issues are involved here: the meaning of Article 6, and the application of that meaning in the present context.
15. Strasbourg jurisprudence indicates that in civil proceedings time will generally begin to run, for the purposes of Article 6, when proceedings are launched. However, it may begin to run earlier. In Schouten and Meldrum v. The Netherlands (1994) 19 EHRR 432 the Occupational Association for Health and Mental and Social Well-being ("BVG"), a body charged by statute with the collection of national insurance contributions in Holland, issued a demand for payment of contributions to Mr Schouten in March 1987. Under Dutch social security legislation Mr Schouten could not appeal against such a demand until he had requested a formal confirmation of it in writing, which would include the grounds on which the decision was based. He requested such confirmation on 27 March 1987, but the BVG did not give the formal confirmation, with the reasons for its decision, until 9 December 1988. Mr Schouten appealed on 21 December 1988, and the appeal was heard by the Appeals tribunal on 13 December 1989. The facts in Mr Meldrum's case were similar. The Government of the Netherlands submitted that only the time after the lodging of the appeal was to be taken into account for the purposes of Article 6. The European Court of Human Rights rejected that submission, saying (at para. 62):

"The formal confirmation by the BVG of its decision was an indispensable condition for the institution of proceedings before the Appeals tribunal. Although, as the Government pointed out, the emergence of a dispute concerning civil rights and obligations is often not followed immediately by the institution of court proceedings, this is not decisive in the circumstances of the present case. A plaintiff is usually able to decide when to bring a civil action without having to wait for formalities affecting the admissibility of his claim to be completed by his opponent. The delay caused in each case by the BVG's failure, over a significant period, to provide formal confirmation of its decision is consequently relevant to assessing the reasonableness of the length of the proceedings. The Court therefore agrees with the Commission that in both cases the period to be taken into consideration began when the applicants requested formal confirmation."

It was held that in neither case were the applicants' civil rights and obligations determined within a reasonable time.

16. That decision in my judgment indicates that, for Article 6 purposes, civil rights may be considered to require determination before the time when the proceedings in which they are determined by a hearing are actually begun. I think that that is capable of undermining the Secretary of State's contention that no civil right requires determination until a social security claimant appeals because until then there is no dispute or "contestation" (the word used in the French version of the Convention). It is true that, even under the pre-Social Security Act 1998 system of adjudication, where decisions were made by an adjudication officer, the latter was held to be acting administratively (and so not "discharging responsibilities of a judicial nature" within the meaning of the exemption from suit in section 2(5) of the Crown Proceedings Act 1947): see Jones v. Department of Employment [1988] 1 All ER 725, and earlier authority there relied upon. I nevertheless think that, however it may be categorised for other purposes, a decision by the Secretary of State, without which there can be no appeal, is clearly a part of the process under which social security entitlements (and therefore "civil rights") are determined.
17. Indeed, if the Secretary of State's argument that Article 6 cannot apply until an appeal has actually been made were correct, it is difficult to see what objection could be taken under Article 6 if there were no or only an inadequate (e.g. limited to law only) right of appeal against decisions by the Secretary of State. Arguments to similar effect have indeed been raised, but have been rejected by the House of Lords and by a Commissioner.
18. In R (Alconbury) v. Secretary of State [2001] UKHL 23, [2001] 2 All ER 929 the issue was whether the availability of challenge only by way of judicial review or of a statutory appeal to the High Court on similar principles (but not by way of appeal on the facts or the merits) to certain categories of planning decision made by the Secretary of State was incompatible with the requirement in Article 6 that a person is entitled to have his civil rights determined by an independent and impartial tribunal. Lord Hoffmann summarised (at paragraph 133) an argument by the Lord Advocate, intervening, as follows:

"[A]rt 6 has no application to the decision by the Scottish Ministers (or the Secretary of State in England). Their decisions do not involve the determination of anyone's civil rights or obligations. They are simply the exercise of legal powers which affect, perhaps change, civil rights and obligations, but do not determine them within the meaning of art 6. The point at which rights or obligations are determined is in the proceedings by way of judicial review, which decide whether the exercise of power by the administrator was lawful or not. As that question is decided by a court which is undoubtedly independent and impartial, that is the end of the case."

This argument was not accepted by the House of Lords. Lord Hoffmann found himself, on balance, unable to accept what he described as this "short cut", preferring the analysis that "the administrative act does in theory come within Art 6 but the administrator's lack of impartiality can be cured by an adequate and impartial judicial review" (paragraph 135). Lord Slynn gave the Lord Advocate's argument short shrift (at paragraph 28): "despite the submissions of the Lord Advocate that a decision on a called-in application is not a "contestation" … it seems to me plain that this dispute is one which involves the determination of "civil rights" within the meaning of the convention."

19. In CIS 540/2002 Mr Commissioner Howell decided that regulation 27 of and paragraph 5 of Schedule 2 to the Social Security and Child Support (Decisions and Appeals) Regulations 1999, which purported to exclude the right of appeal against certain decisions by the Secretary of State, did not comply with Article 6. In paragraph 39 he said:

"The first argument on his [the Secretary of State's] behalf was that by making the regulations in the terms he has the Secretary of State has managed to turn all claims questions into an internal administrative matter of form, preventing there ever being any legally determinable issue or "contestation" about them to which Article 6 can apply. I reject that. While it is true that the Secretary of State's initial determination of any question under section 8 of the 1998 Social Security Act is not itself a legal proceeding or litis contestatio of the kind to which the requirements of Article 6 for a public hearing and so forth can be usefully applied, it seems to me that this argument takes far too narrow a view of what Article 6 requires. In effect, it enables the Article to be stultified, since if the only question is whether there is compliance once an issue is referred to a court or tribunal, but a non-independent executive body can exclude a material issue from ever being so referred, the protection of any civil rights that depend on that issue is lost. Section 1 of the Administration Act makes the existence of a valid claim an essential issue in determining a claimant's civil right to benefit, and in my judgment what Article 6 obviously requires is a scrutiny of the entire system to see if fair, independent and impartial determination of that issue is provided at any stage."

20. On the basis of the above authorities, I conclude that, for the purpose of Article 6, a decision by the Secretary of State in respect of social security benefits is part of the process whereby a claimant's civil rights are determined, and that, for the purpose of determining whether the hearing required by Article 6 took place within a reasonable time, time does not necessarily start to run only at the time when the claimant appeals.
21. Although this question is not before me, I think that, where the Secretary of State's decision is one on an initial claim for benefit, the claimant's rights require determination as from the time that the claim is made, and that time should therefore begin to run immediately. The same would apply in the case of an application by a claimant for supersession. In the present case, however, the supersession of the claimant's original award of income support was by the Secretary of State on his own initiative (see section 10(1) of the Social Security Act 1998). There was of course no application by the claimant for it. The supersession decision was necessary before the decision that there was a recoverable overpayment, which was the part of the decision which in practice mattered to the claimant, could be made: section 71(5A) of the Social Security Administration Act 1992.
22. Article 6 cannot help the claimant unless time started to run in September 1996 when the Benefits Agency became aware that the claimant had been abroad during the overpayment period. However, I do not think that it can be said that the claimant's civil rights required determination, and therefore that time started to run, at that time. All that had by then happened was that the Benefits Agency had acquired knowledge which should, no doubt, have caused it to consider much sooner than it did whether there was a case to supersede the award and to recover the resulting overpayment. This would have involved further investigations as to what the claimant had disclosed. The information available to the Secretary of State which may lead to supersession may at any particular stage in a case be anywhere on a scale varying from mere suspicion to absolute certainty. It cannot be the case that time begins to run when the Benefits Agency learns facts giving rise to mere suspicion, requiring substantial further investigation, and I think that it is impracticable to attempt to identify any particular degree or state of knowledge which could be regarded as the yardstick of when a claimant's civil rights in this respect require determination and time starts to run.
23. However, in my judgment the reference of the case to a decision maker for decision on 12 July 2000 did provide a concrete and readily identifiable moment from which the claimant's rights required determination and time started to run for the purposes of Article 6. It was the moment when those employed by the Secretary of State themselves recognised that a formal decision was necessary. The time between then and the tribunal's hearing was, however, not such as to cross the threshold (referred to in Dyer – see paragraph 9 above) which renders necessary a detailed investigation of the circumstances in order to see whether the time taken was in fact unreasonable. I therefore consider that, although the tribunal was technically wrong to hold that time began to run only when the claimant brought his appeal, that did not in the circumstances sufficiently invalidate its reasoning to make its decision erroneous in law.
24. My above conclusion makes it unnecessary to consider the difficult issue of what (if any) remedy I could have granted if I had concluded that there had been an infringement of Article 6. It would have been of no benefit to the claimant simply to hold the tribunal's decision invalid on that ground, because of course it was his appeal. The only remedy of any use to him would have been a decision setting aside the decision of 8 November 2000 as invalid. There is an interesting discussion of the remedies available in Dyer (see in particular the analysis of Lord Millett at paragraphs 128 to 133). That remedy might perhaps have been open.

Conclusion

25. By way of summary, therefore, I reject the Secretary of State's contention that, for the purposes of the requirement in Article 6 of the Convention that a hearing take place within a reasonable time, time necessarily only begins to run when a social security claimant appeals. In the present case time began to run when the case was referred to a decision maker for decision of the supersession issues. However, the time which elapsed between then and the tribunal hearing was not of sufficient length to cross the threshold which requires a detailed assessment of reasonableness in the light of all the circumstances to be undertaken. The claimant's appeal therefore fails.

Date: 3 February 2003 (Signed) Charles Turnbull

Commissioner