‘You’re unbelievable!’ Tribunals and claimants
Simon Osborne looks at a tribunal’s powers to find that a claimant’s evidence is not credible and use that in the decision.
Claimants often give evidence at First-tier Tribunal (F-tT) hearings. They supplement evidence already in claim forms and medical reports by responding to questions and prompts from the tribunal. But in some cases (far from the majority), the tribunal decides to reject the claimant’s evidence on the basis that the claimant is an unreliable witness, with regard to that evidence. That is sometimes only revealed to the claimant in the tribunal’s written reasons for its decision. The claimant may be described as ‘unreliable’ or her/his evidence ‘lacking in credibility’, or other variations on the theme that the tribunal considers the claimant is not to be believed on the relevant points.
Can a tribunal behave in this way? And if so, are there any constraints in how it does so? The answers are heavily reliant on caselaw authority from the Upper Tribunal.
Can a claimant be considered an unreliable witness?
Yes. There is no bar on a tribunal deciding that a claimant’s evidence, or part of it, is rejected because s/he is not to be believed on the relevant points. The essential context is that social security tribunals are inquisitorial in nature, with no formal rules of evidence. That means that it is one of the jobs of the tribunal to weigh all the evidence, including that of the claimant. Although there is no absolute requirement that what a claimant says is corroborated by other evidence,1R(I) 2/51; R(SB) 33/85 there is no obligation on a tribunal automatically to accept what a claimant reports as credible. Tribunals can take into account their observation of the claimant at the hearing, the plausibility and consistency of her/his evidence, and what other evidence says.
Neither caselaw authority nor tribunal procedural rules forbid tribunals from doing so. Indeed, the ability to do so has been pointed to in a recent decision from the Upper Tribunal. In MH v SSWP,2MH v SSWP [2022] UKUT 248 (AAC) a personal independence payment case, the First-tier Tribunal said in its reasons for rejecting the appeal that, regarding various points regarding the effects of his health conditions, it found the claimant to be ‘untruthful’, ‘not to be a compelling witness’ and that his evidence was ‘exaggerated’ and ‘not to be reliable’. Upper Tribunal Judge Hemingway held that, on the facts of the case: ‘The F-tT was, in my judgment, entitled to assess the claimant’s credibility and entitled to reach the conclusions it did with respect to the lack of reliability of certain of his oral and certain of his written evidence.’
What constraints are on the tribunal?
Aggrieved claimants may worry or object that mere prejudice has been at work in rejecting their evidence. That, of course, is not what is supposed to happen. The most direct legal safeguard is that tribunals must observe the rules of natural justice, which include not acting in a biased way, and giving all parties to the appeal a fair chance to take part in the appeal and to state their case. The procedural rules that apply to tribunals include as an ‘overriding objective’ that the rules enable cases to be dealt with ‘fairly and justly’.3r2 Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685 But whether natural justice considerations require that a tribunal’s concerns about a claimant’s credibility be put to them in a hearing is (at most) a moot point, and ultimately will depend on the individual facts of the case (see ‘Must doubts about credibility be put to the claimant?’ below).
In making their decision, tribunals must weigh the evidence (without bias), make proper findings and (if requested) give reasons for the decision. In general, those reasons should enable the reader to understand why the tribunal came to the conclusion it did. Again though, the extent to which a tribunal is obliged to give details as to why it found the claimant to be unreliable is highly dependent on the individual facts (see ‘Must tribunals give reasons for their views?’ below).
The most useful overview is provided by Deputy Commissioner (as he then was) Wikeley, reviewing the caselaw authority in CIS/4022/2007. Subsequent authority has not fundamentally affected the value of that summary, which is worth citing in full:
‘In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant’s evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant’s evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant’s evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (eg, the person’s reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness’s account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted. As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately “the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it”.’
Must doubts about credibility be put to the claimant?
As the above summary says, there is no such general requirement, but the individual facts will be important. More recently, in CC v SSWP (ESA) [2019] UKUT 14 (AAC), a case in which the claimant’s tearfulness in the hearing was judged by the tribunal to be an affectation, Upper Tribunal Judge Poole said:
‘The general position is that, in the context of social entitlement tribunals, natural justice does not demand matters of inference or credibility be specifically put to claimants at oral hearings. Demeanour (including tearfulness before the tribunal) also does not have to put to a claimant for specific comment….The caveat to this general position is that natural justice is always assessed in the particular circumstances of a case. It will be contrary to natural justice if a case is decided on a basis a claimant had no fair chance to address. Accordingly, when a new matter arises at the hearing, not foreshadowed in the papers, which is determinative of the appeal, then a claimant should be given a reasonable opportunity to be heard about it.’ It is worth remembering however that tribunals may act wisely even if they go further than what is strictly required by the law. In R(DLA) 8/06, Commissioner (as he then was) Jacobs was particularly concerned with observations of the claimant made during the hearing, and held:
‘Tribunals have an inquisitorial function and may fail to comply with that function if they neglect to make appropriate inquiries in the light of an observation made during the hearing. Tribunals must also ensure that the parties have a fair hearing and the failure to allow a claimant to comment on observations may be a violation of that duty, as in CDLA/440/1995 (cited by the Secretary of State).
‘And as I said, less eloquently, in CDLA/4585/1997 at paragraph 17:
“However, law is one thing; practice is another. It is always good practice at the end of a hearing to put to a claimant for comment any impression that may have been formed as a result of observations made during the hearing, so that the claimant may have a chance to comment.”’
Further, a tribunal’s observations alone may not be reliable:
‘An observation can only be taken into account if it is reliable. The problem with an observation is that it is a limited snapshot on a particular day. It may not give a reliable picture of the claimant’s disablement. Take as an example a claimant who has asthma. The claimant may walk into the tribunal room and talk without any sign of breathlessness. The claimant may have used an inhaler before coming into the room. And the waiting and hearing rooms are likely to be warm and dry. But that same claimant may be breathless without medication or in cold or damp conditions… In other words, the tribunal’s observation does not give a picture of the claimant’s overall disablement. The tribunal could not rely on the observation in this example without further inquiry.’
In JM v SSWP,4JW v SSWP [2019] UKUT 50 (AAC) which did not involve observations of the claimant in the hearing, the tribunal had not accepted the claimant’s evidence that she suffered from blackouts. Judge May QC held that the First-tier Tribunal had not been obliged to raise its doubts about credibility with the claimant. He considered to do so with a claimant suspected of dishonesty could be to adopt ‘the approach of an adversary rather than a dispassionate assessor of the evidence before it’. Whether the result of not giving the claimant a chance to address the tribunal on that point is fully compliant with that of an inquisitorial tribunal is evidently a matter of judgement in the individual case.
Must tribunals give reasons for their views?
The short answer is yes, but not necessarily in detail. Depending on the facts of the case, it may be enough for the tribunal to record that the claimant’s evidence was rejected as not credible, or to give just brief reasons for why that was so. As was said in CIS/4022/2007, ‘there is no universal obligation on tribunals to explain assessments of credibility in every instance’.
But the facts may require something more. The reasoning may need to make it clear that bias has not been involved, or that concerns about the claimant’s credibility have not obscured other evidence as a whole, or at least avoid creating the impression that it has. Thus in VS v SSWP,5VS v SSWP (ESA) [2017] UKUT 274 (AAC) Judge Jacobs was not troubled by the First-tier Tribunal drawing adverse conclusions from the failure of the claimant to produce an existing medical report until directed to do so, but:
‘What I do criticise the tribunal for is the lack of balance and proportion in the manner in which it explained its decision. The critical and condemnatory tone that runs through much of its reasoning creates the impression that the tribunal was more concerned to discover and punish the claimant for what she had done than it was to assess the evidence as a whole by reference to the statutory criteria.’
By contrast, in MH v SSWP the tribunal’s reasons, although somewhat repetitive in spelling out the tribunal’s disbelief of the claimant’s evidence, made sufficient reference to the other evidence so that it was clear that the tribunal did not ‘simply rely upon its adverse credibility finding’.
In MH, the tribunal had also been careful to not go so far as to reject everything the claimant said merely on the basis of a few instances of exaggeration/dishonesty. Indeed, it had formally given itself a reminder that ‘the fact that the witness has lied about some matters does not mean that he or she has lied about everything’. That principle was imported from a criminal case, R v Lucas [1981] QB 720. In the Upper Tribunal, Judge Hemingway thought that was so obviously correct an approach that there was no need formally to rule on the application of Lucas in the social security context.
In summary
Tribunals can decide that a claimant is an unreliable witness. But that must be in the context of an approach of ensuring fairness and natural justice. Caselaw authority sets out some general principles. Doubts about credibility do not in general have to be put to a claimant by the tribunal. But the individual facts, especially where the doubts are based on observation of the claimant, may require that they are, and some may consider it good practice even if not a strict requirement. Tribunals do need to give adequate reasons in written decisions. Again, there is no general duty to give reasons for considering the claimant an unreliable witness, but the reasoning is capable of disclosing bias, tribunals should not simply rely on some instances of dishonesty to refuse the appeal, and the facts may require a little more by way of explanation.
1     R(I) 2/51; R(SB) 33/85 »
2     MH v SSWP [2022] UKUT 248 (AAC) »
3     r2 Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685 »
4     JW v SSWP [2019] UKUT 50 (AAC) »
5     VS v SSWP (ESA) [2017] UKUT 274 (AAC) »