October | 2015 | thebedroomtaxblues

Well, I said I wasn’t a prolific writer!

This concerns my fight against the rigged system used by the UK Government to deny benefits.

This is a written submission made to a First Tier Tribunal in December 2015;

WITNESS STATEMENT OF KENNETH MAY.

I, Kenneth May, WILL SAY AS FOLLOWS:-
I am resident at 11, Standfield Gardens, Wardley, Gateshead, Tyne and Wear, NE10 8SS.
The facts and matters set out in this witness statement are within my own knowledge and are true to the best of my knowledge and belief. Where reference is made to caselaw, I set out the source of that caselaw, and believe that information to be true.
COMPLAINT & LEGAL CHALLENGE ON A QUESTION OF LAW.
Scope of complaint
– Lawfulness of the national legislation for processing an application for national welfare benefits under the provisions of the Social Security Act 1998 – (Rule of law – Observance of fundamental rights – Right to be heard – Observance of the principle of respect for the rights of the defence by public authorities -Use of conclusive presumption to violate Community Rights with impunity – conflict between community law and a subsequent national law – preclusion of valid adoption of legislative measures incompatible with community law – non application of incompatible national provision even if adopted subsequently ).
– Lawfulness of provisions of the Human Rights Act 1998 which prevent the setting aside of any incompatible primary or subordinate legislation, and which purport to authorise unlawful violations of Community Fundamental Rights by national legislation.( Rule of law – Observance of fundamental rights – Observance of the principle of respect for the rights of the defence by public authorities – Use of conclusive presumption to violate Community Rights with impunity – conflict between community law and a subsequent national law – preclusion of valid adoption of legislative measures incompatible with community law – non application of incompatible national provision even if adopted subsequently ).

POINTS OF COMPLAINT:
The Applicant complains that there has been a violation of the principle of respect for the rights of the defence, by the authorities, in particular, the right to be heard in a fair hearing, conducted by an independent and impartial tribunal previously established by law, and consequently, the Applicant is deprived of his directly enforceable Community right to have a determination of his civil rights and obligations heard in a fair hearing, conducted by an independent and impartial tribunal established by law, with full jurisdiction.

In particular,
1. the Secretary of State is not an independent and impartial tribunal in this matter because the way in which he exercises the discretion under the Social Security Act 1998 has implications for his Departmental budget and public expenditure, and he can never be independent and impartial,

2. the Social Security Act 1998 Section 8; Decisions by Secretary of State, provides that all decisions and determinations must be taken by the Secretary of State or bodies that are appointed by, approved by and acting on his behalf, and by virtue of the doctrine of necessity – that the exercise of an administrative decision must stand because of the rule against delegation- effectively prevents the applicant from having a fair hearing by an independent and impartial tribunal with full legal authority,

3. the Social Security Act 1998 Section 17; Finality of Decisions; provides that all decisions and determinations taken by the Secretary of State under the provisions of the Social Security Act 1998, are final and conclusive for all further such decisions, and by virtue of conclusive presumption, thereby prevents any reference to an independent and impartial tribunal with full legal authority,

5. the First Tier Tribunal, as constituted under the provisions of the Social Security Act 1998, is not an independent tribunal previously established by law, and is not a body superior to the administrative decision maker,

6. the First Tier Tribunal, as constituted under the provisions of the Social Security Act 1998, is not an impartial tribunal previously established by law,and is not a body superior to the administrative decision maker,

7. the First Tier Tribunal, as constituted under the provisions of the Social Security Act 1998, is not a tribunal previously established by law, as it has no legal powers of enforcement,and is not a body superior to the administrative decision maker,

8. the First Tier Tribunal, as constituted under the provisions of the Social Security Act 1998 , is not a tribunal previously established by law, as its decisions may be set aside at any time at the discretion of a party to the dispute, namely the Secretary of State, and is not a body superior to the administrative decision maker,

9. the First Tier Tribunal, as constituted under the provisions of the Social Security Act 1998, is not a tribunal previously established by law, as a counterclaim or similar legal proceeding cannot be brought, as it has no legal powers to enforce its decisions, and therefore all decisions remain administrative decisions,

11. the Human Rights Act 1998 Section 4, which requires a Declaration of incompatibility to be made, but “(a)does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b)is not binding on the parties to the proceedings in which it is made” is incompatible with Community law, as a valid objection does not result in the automatic suspension of the provision that is being complained off.

12. the Human Rights Act 1998 Sections; 6(2)(a) & (b) which purport to authorise the unlawful violation of Convention Rights by a public authority, while operating under incompatible primary or subordinate legislation, are incompatible with Community law,

13. the Applicant has been denied a fair hearing of his claim for ESA.
ARGUMENT;
It is necessary to dispel any misconceptions that may exist regarding the legal status of substantive Community rights in the UK.
When the UK joined the Community it did so to take advantage of the inherent benefits of membership. Along with those benefits came obligations which Parliament duly agreed to and accepted in various treaties, and did so in order to claim those benefits.
Chief among those obligations was the acceptance by Parliament of the supremacy of substantive Community rights over any inconsistent or incompatible substantive provision of national legislation, whether enacted by Parliament in the form of primary legislation, or by Government Departments or functionaries in the form of subordinate legislation. This is only fair and reasonable, as the UK Government seeks to make it’s claim of right to the economic benefits of Community membership, and thus cannot fairly deny to its citizens the benefit of the fundamental Community rights that are inherent in that membership, and which Parliament has duly accepted.
As evidence that this is the case, the Applicant refers this Tribunal to a passage from the speech of Lord Bridge of Harwich in Factortame (No 2) [1991] 1 AC 603, 658 – 659;
“Some public comments on the decision of the European Court of Justice, affirming the jurisdiction of the courts of member states to override national legislation if necessary to enable interim relief to be granted in protection of rights under Community law, have suggested that this was a novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament. But such comments are based on a misconception. If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the E.E.C. Treaty… it was certainly well established in the jurisprudence of the European Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. Similarly, when decisions of the European Court of Justice have exposed areas of United Kingdom statute law which failed to implement Council directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments. Thus there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply and to insist that, in the protection of rights under Community law, national courts must not be inhibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of that supremacy.”

This truth was relied upon and confirmed by Lord Justice Laws in Thoburn v Sunderland City Council[2002] EWHC 195 Admin; para 61;
“The present state of our domestic law is such that substantive Community rights prevail over the express terms of any domestic law, including primary legislation, made or passed after the coming into force of the ECA, even in the face of plain inconsistency between the two. This is the effect of Factortame (No 1) [1990] 2 AC 85.”
For the avoidance of any doubt, Lord Justice Laws further stated at para 69;
“..All the specific rights and obligations which EU law creates are by the ECA incorporated into our domestic law and rank supreme: that is, anything in our substantive law inconsistent with any of these rights and obligations is abrogated or must be modified to avoid the inconsistency. This is true even where the inconsistent municipal provision is contained in primary legislation.”

In the judgment delivered in the case Amministrazione delle Finanze dello Stato v Simmenthal SpA. [1978] EUECJ R-106/77 (9 March 1978), the ECJ, when asked by a national court to give a ruling on the validity of a provision of national legislation that was in conflict with a directly enforceable Community Right, gave this unequivocal reply:
“The direct applicability of community law means that its rules must be fully and uniformly applied in all the member states from the date of their entry into force and for so long as they continue in force . Directly applicable provisions are a direct source of rights and duties for all those affected thereby , whether member states or individuals ; this consequence also concerns any national court whose task it is as an organ of a member to protect the rights conferred upon individuals by community law .
In accordance with the principle of the precedence of community law , the relationship between provisions of the treaty and directly applicable measures of the institutions on the one hand and the national law of the member states on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but – in so far as they are an integral part of , and take precedence in , the legal order applicable in the territory of each of the member states – also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with community provisions .
Any recognition that national legislative measures which encroach upon the field within which the community exercises its legislative power or which are otherwise incompatible with the provisions of community law had any legal effect would amount to a corresponding denial of the effectiveness of obligations undertaken unconditionally and irrevocably by member states pursuant to the treaty and would thus imperil the very foundations of the community .
A national court which is called upon , within the limits of its jurisdiction , to apply provisions of community law is under a duty to give full effect to those provisions , if necessary refusing of its own motion to apply any conflicting provision of national legislation , even if adopted subsequently , and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means .”

From the judgment the ECJ made it clear that any provision of UK national legislation that is in conflict with a substantive Community Right is of no valid legal effect. If it existed before 1st January 1973, then it was rendered automatically invalid by the coming into force of the ECA 1972. Any such legislation that may be adopted after 1st January 1973 is to be of no valid legal effect.
With it’s enacting of the ECA 1972 Parliament accepted the obligation that that would be the case in the UK from 1st January 1973, and this has been confirmed in English law in the above named domestic cases.
Further, the ECJ made it perfectly clear that it is the overriding primary duty of any national court or tribunal (or indeed, any “public authority”) to protect those substantive Community Rights conferred upon individuals by Community Law from any infringement of, or violation by, any provision of national legislation. This is to be achieved by the implementation of the individual responsibility of any person to first read and understand the Community Rights, and subsequent to that understanding, to give full effect to those Rights.

Substantive Community Rights relied on by the Applicant;
European Communities Act 1972;
3; Decisions on, and proof of, Treaties and [ instruments] etc.
(1) For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any [ instrument] , shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant [decision of [the European Court])].

Article 6 is in the following terms (so far as material): “(1).In the determination of his civil rights and obligations… everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ….

Article 41: Right to good administration;Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. This right includes: (a)..the right of every person to be heard*, before any individual measure which would affect him adversely is taken;

Article 47; Right to an effective remedy and to a fair trial; Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

Case law in regard to the Substantive Community Rights;
The Franks Report (1957) emphasised that tribunals:… “are not ordinary courts, but neither are they appendages of Government Departments … tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration. The essential point is that in all these cases Parliament has deliberately provided for a decision outside and independent of the Department concerned … and the intention of Parliament to provide for the independence of tribunals is clear and unmistakable.”

Judgment of the Court (Sixth Chamber) of 24 October 1996. – Commission of the European Communities v Lisrestal – Summary; “Observance of the right to be heard is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the proceedings in question. That principle requires that any person against whom a decision adversely affecting his interests may be taken should be placed in a position in which he may effectively make known his views on the evidence against him upon which the contested decision is based.
Consequently, a decision….. adopted when the beneficiary had not been heard before the adoption of the decision, infringes the beneficiary’ s rights of the defence, irrespective of any practical difficulties… in consulting beneficiaries directly. ”
Judgment in Amministrazione delle Finanze dello Stato v Simmenthal SpA. [1978] EUECJ R-106/77 (9 March 1978) ; see below.

OPINION OF ADVOCATE GENERAL WATHELET delivered on 25 February 2014 in Joined Cases C-129/13 and C-130/13 ..It is clear that ‘the rights of the defence, which include the right to be heard …, are among the fundamental rights forming an integral part of the European Union legal order and enshrined in the Charter of Fundamental Rights of the European Union’,…‘[t]he right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely’ …In addition, ‘the right of every person to be heard, before any individual measure which would affect him or her adversely is taken’ is now expressly included in the right to good administration by Article 41(2) of the Charter…..“ Consequently, in my opinion it is apparent from the foregoing that not only are national administrative authorities required to respect the rights of the defence when they implement European Union law, but also that the persons concerned must be able to rely on them directly before the national courts, in order to avoid those rights remaining a dead letter or a pure formality.”
Lord Steyn in R v Anufrijeva [2003] ; “The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey [1983] 1 AC 1, 10G per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech, [1994] QB 198, 209D; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115.”
Ghaidan (Appellant) v. Godin-Mendoza (FC) (Respondent) [2004] UKHL 30; LORD MILLETT at para 59.“….First, the requirement in Section 3 is obligatory. In R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 373 Lord Cooke of Thorndon described the section as “a strong adjuration” by Parliament to read and give effect to legislation in a way which is compatible with Convention rights. With respect, it is more than this. It is a command. Legislation “must” be read and given effect to in a way which is compatible with Convention rights. There is no residual discretion to disobey the obligation which the section imposes.”
GOLDER v. THE UNITED KINGDOM; ECHR 21 Feb 1975 ;
“The Court however considers, like the Commission, that it would be a mistake to see in this reference a merely “more or less rhetorical reference”, devoid of relevance for those interpreting the Convention. One reason why the signatory Governments decided to “take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration” was their profound belief in the rule of law. It seems both natural and in conformity with the principle of good faith (Article 31 para. 1 of the Vienna Convention) to bear in mind this widely proclaimed consideration when interpreting the terms of Article 6 para. 1 (art. 6-1) according to their context and in the light of the object and purpose of the Convention.
This is all the more so since the Statute of the Council of Europe, an organisation of which each of the States Parties to the Convention is a Member (Article 66 of the Convention) (art. 66), refers in two places to the rule of law: first in the Preamble, where the signatory Governments affirm their devotion to this principle, and secondly in Article 3 (art. 3) which provides that “every Member of the Council of Europe must accept the principle of the rule of law …”
And in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts.
The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally “recognised” fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice. Article 6 para. 1 (art. 6-1) must be read in the light of these principles.
Were Article 6 para. 1 (art. 6-1) to be understood as concerning exclusively the conduct of an action which had already been initiated before a court, a Contracting State could, without acting in breach of that text, do away with its courts, or take away their jurisdiction to determine certain classes of civil actions and entrust it to organs dependent on the Government. Such assumptions, indissociable from a danger of arbitrary power, would have serious consequences which are repugnant to the aforementioned principles and which the Court cannot overlook (Lawless judgment of 1 July 1961, Series A no. 3, p. 52, and Delcourt judgment of 17 January 1970, Series A no. 11, pp. 14-15).
It would be inconceivable, in the opinion of the Court, that Article 6 para. 1 (art. 6-1) should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.
The Court thus reaches the conclusion, (without needing to resort to “supplementary means of interpretation” as envisaged at Article 32 of the Vienna Convention,) that Article 6 para. 1 (art. 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts [or a tribunal] in civil matters, constitutes one aspect only. To this are added the guarantees laid down by Article 6 para. 1 (art. 6-1) as regards both the organisation and composition of the court, and the conduct of the proceedings. In sum, the whole makes up the right to a fair hearing.

LORD HOFFMANN in Matthews v MOD;HL 13 Feb 2003; stated;
28. If the purpose of section 10(1)(b) and (2)(b) had been to give the Secretary of State a discretionary power to swoop down and prevent people with claims against the Crown from bringing them before the courts, I would agree. That proposition is in my opinion well supported by authority. In the great case of Golder v United Kingdom (1975) 1 EHRR 524 the Strasbourg court decided that the right to an independent and impartial tribunal for the determination of one’s civil rights did not mean only that if you could get yourself before a court, it had to be independent and impartial. It meant that if you claimed on arguable grounds to have a civil right, you had a right to have that question determined by a court. A right to the independence and impartiality of the judicial branch of government would not be worth much if the executive branch could stop you from getting to the court in the first place. The executive would in effect be deciding the case against you. That would contravene the rule of law and the principle of the separation of powers.
29. These principles require not only that you should be able to get to the court room door. The rule of law and separation of powers would be equally at risk if the executive government was entitled, as a matter of arbitrary discretion, to instruct the court to dismiss your action. There are different ways in which one could draft a law to give the executive such a power. It might say that the cause of action was not complete without the government’s consent. That would look like a rule of substantive law. Or it could provide that the government could issue a certificate saying that the action was not to proceed. That looks like a procedural bar. But provided one holds onto the underlying principle, which is to maintain the rule of law and the separation of powers, it should not matter how the law is framed. What matters is whether the effect is to give the executive a power to make decisions about people’s rights which under the rule of law should be made by the judicial branch of government.
PARTICULAR’S OF COMPLAINT;

1. the Secretary of State is not an independent and impartial tribunal in this matter because the way in which he exercises the discretion under the Social Security Act 1998 has implications for his Departmental budget and public expenditure, and thus he can never be independent and impartial,

A claim for benefits requires the determination of the question of whether the claimant has a civil right to receive those benefits claimed. There is no dispute between the parties that the determination therefore involves the determination of the claimants civil rights and obligations.
This has been accepted and confirmed by the Secretary of State in, inter alia, R(IS) 6_04 para 35;

“..there is in my judgment no doubt that the determination of questions of entitlement to any social security benefits to which the Claims and Payments regulations apply is a determination of the claimant’s civil rights and obligations for the purposes of Article 6. That is so whether the benefit involved is an insurance benefit dependent on the payment of contributions, a universal benefit not so dependent, or a means-tested one, and was conceded by the Secretary of State before me….The wider scope of Article 6 follows inevitably from the fact that Parliament has made all relevant benefits including the means-tested ones a matter of defined legal right for those who meet the prescribed conditions for entitlement; not a discretionary administrative handout. ”
It was also accepted and confirmed by the Secretary of State in R(IS) 6_04 para 36 that;

“..it was again in my view rightly conceded by the Secretary of State that his own determination of a claims question is not that of an “independent and impartial tribunal” for the purposes of Article 6. I agree it cannot be: see CF 3565/2001, paragraph 12.”

It is accepted by the applicant that, in an effort to reduce the costs incurred, the initial determination falls to be made by a body other than an “independent and impartial tribunal”, but only as long as there are safeguards, procedural and judicial, and they be sufficient to correct any earlier deficiencies and ensure compliance with his directly enforceable Community right of access to an “independent and impartial tribunal established by law”under Article 6 of the Convention, and thus he must be in a position to challenge a determination of his civil rights and obligations made by the Secretary of State before an independent and impartial tribunal established by law, should he choose to do so. That is not the case under the provisions of the Social Security Act 1998.
.
2. the Social Security Act 1998 Section 8; Decisions by Secretary of State, provides that all decisions and determinations must be taken by the Secretary of State or bodies that are appointed by, approved by, and are acting on his behalf, and by virtue of the doctrine of necessity – that the exercise of an administrative decision must stand because of the rule against delegation- effectively prevents the applicant from having a fair hearing by an independent and impartial tribunal with full legal authority,

The UK Government, in a carefully crafted piece of national legislation intended to circumvent the protection offered by Article 6, and thus violate the substantive Convention Rights of the people who’s interests they are elected to represent and protect, did by its enacting of the Social Security Act 1998, abolish the existing procedure, which met the requirements of Article 6, and replaced it with one in which all determinations and decisions, as well as all administrative actions, in relation to a person wishing to exercise his civil right to claim benefit were now to be made and taken by the Secretary of State himself without differentiation (in practice, by virtue of the Carltona Principle, by officers, or appointed bodies, such as this First Tier Tribunal, who are, because of the rule against delegation, acting on his behalf and therefore can only act in his interests).

Corroborative evidence that it was the intention to deny the protection of substantive Article 6 Community Rights to claimants of welfare benefits, was provided by the Secretary of State himself in a submission in R(IS) 6/04 to Commissioner Howells QC at para 39; “The first argument on his 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.”
Commissioner Howells noted that; “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 a 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.”
Commissioner Howells went further at para 47 to say; “the restriction of the possibility of challenge to judicial review applications only (described by the Social Security Advisory Committee in its report, supra, as “unacceptable”) would be likely to make for reduced access (to justice) for claimants,”

This is exactly the method of achieving arbitrary power that was warned of, and rejected by, the ECJ in Golder v United Kingdom ECHR 21 Feb 1975;
“Were Article 6 para. 1 (art. 6-1) to be understood as concerning exclusively the conduct of an action which had already been initiated before a court, a Contracting State could, without acting in breach of that text, do away with its courts, or take away their jurisdiction to determine certain classes of civil actions and entrust it to organs dependent on the Government. Such assumptions, indissociable from a danger of arbitrary power, would have serious consequences which are repugnant to the aforementioned principles and which the Court cannot overlook (Lawless judgment of 1 July 1961, Series A no. 3, p. 52, and Delcourt judgment of 17 January 1970, Series A no. 11, pp. 14-15).”

LORD HOFFMANN in Matthews v MOD;HL 13 Feb 2003; stated at para 28; “ In the great case of Golder v United Kingdom (1975) 1 EHRR 524 the Strasbourg court decided that the right to an independent and impartial tribunal for the determination of one’s civil rights did not mean only that if you could get yourself before a court, it had to be independent and impartial. It meant that if you claimed on arguable grounds to have a civil right, you had a right to have that question determined by a court. A right to the independence and impartiality of the judicial branch of government would not be worth much if the executive branch could stop you from getting to the court in the first place. The executive would in effect be deciding the case against you. That would contravene the rule of law and the principle of the separation of powers”. And at para 29; “What matters is whether the effect is to give the executive a power to make decisions about people’s rights which under the rule of law should be made by the judicial branch of government.”

As the Secretary of State is the ultimate statutory body that has been charged by Parliament to make all determinations of fact, based on evidence tendered by the Secretary of State, and subsequently take all decisions to be taken based on his own evidence, and that duty cannot be delegated, and he is by his own admission not an “independent and impartial tribunal established by law” while determining the claimant’s civil rights and obligations, then Parliament has ruled that the Applicant has no right of access, under the provisions of the Social Security Act 1998, to a fair hearing by an “independent and impartial tribunal established by law”, and as a consequence, the Applicant has no right of defence before a court of law against the “evidence” relied upon in the unsubstantiated allegations that are made by, and which may be the foundation of a decision by, the Secretary of State.
This was corroborated by a Tribunal of Commissioners in R(IB) 2/04 at para 30 when it was held : “As we note below (see paragraph 55(1)), although section 8 of the 1998 Act does provide for appeals against “any decision that falls to be made under or by virtue of a relevant enactment”, it substantially restricts the extent to which a claimant can appeal simply against determinations made as a preliminary to or in the course of arriving at outcome decisions, as opposed to the outcome decision itself.”

Observance of the rights of the defence is a general principle of Community law which applies where the authorities are minded to adopt a measure which will adversely affect an individual, and includes provisions of national legislation where the measure is not in essence a regulation, but rather a determination of individual concern which is merely made in the form a regulation. In accordance with that principle, the addressees of decisions which significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision. (see, inter alia, Commission v Lisrestal and Others, paragraph 21, and Mediocurso v Commission, paragraph 36, Lord Steyn in R v Anufrijeva [2003] ).

Without the right to a defence, the Applicant is forced to accept any unsubstantiated allegations made by the Secretary of State, and the effect is that the executive has decided the case against him.

Without the right to a defence, it is self evident that the Applicant cannot have a fair trial governed by the rule of law, for the rule of law would not permit such a situation to exist.

COMPLAINT: This constitutes a breach of the applicant’s directly enforceable Community right to have a determination of his civil rights and obligations heard in a fair hearing by an independent and impartial tribunal, established by law, with full jurisdiction, as guaranteed by Article 6 of the ECHR, and further, is in breach of the UK’s obligation’s in accordance with article 189 of the EEC treaty and the established case-law of the Court of Justice of the European Communities, that directly applicable community provisions must, notwithstanding any internal rule or practice whatsoever of the member states, have full, complete and uniform effect in their legal systems in order to protect subjective legal rights created in favour of individuals.

As authority for this complaint the applicant cites the judgement in; Amministrazione delle Finanze dello Stato v Simmenthal SpA. [1978] EUECJ R-106/77 (9 March 1978);see below;
3.the Social Security Act 1998 Section 17; Finality of Decisions; provides that all decisions and determinations taken by the Secretary of State under the provisions of the Social Security Act 1998, are final and conclusive, for all further such decisions, and by virtue of the use of the principles of the rule against delegation and conclusive presumption, thereby prevents any reference to an independent and impartial tribunal with full legal authority,

Section 17; Finality of Decisions; states;
(1) Subject to the provisions of this Chapter and to any provision made by or under Chapter 2 of Part 1 of the Tribunals, Courts and Enforcement Act 2007, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulations under section 11 above, any decision made in accordance with those regulations shall be final.
(2) If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of– (a) further such decisions;

As all determinations and decisions in this matter by the Secretary of State are matters of individual concern to the Applicant, with legally binding consequences for the Applicant, he must be in a position to challenge before a court of law the validity and accuracy of those determinations and decisions. That is not the case under the provisions of the Social Security Act 1998.
In Racal Communications Ltd. [1981] A.C. 374; Lord Diplock pointed out that where Parliament had provided that the decision of an inferior court was final and conclusive the High Court should not be astute to find that the inferior court’s decision on a question of law had not been made final and conclusive, thereby excluding the jurisdiction to review it.

The UK Government admitted, and provided evidence, that this was the case in Kingsley v United Kingdom 35605/97 [2000] ECHR 528 when they submitted to the ECJ at para 32 that; “a statutory body, cannot delegate its ultimate decision-making function”, and that as a result of the rule against delegation, and the doctrine of necessity, a fair hearing before an independent tribunal is therefore not legally possible.

COMPLAINT: This constitutes a breach of the applicant’s directly enforceable Community right to have a determination of his civil rights and obligations heard in a fair hearing by an independent and impartial tribunal, established by law, with full jurisdiction, as guaranteed by Article 6 of the ECHR, and further, is in breach of the UK’s obligation’s in accordance with article 189 of the EEC treaty and the established case-law of the Court of Justice of the European Communities, that directly applicable community provisions must , notwithstanding any internal rule or practice whatsoever of the member states, have full, complete and uniform effect in their legal systems in order to protect subjective legal rights created in favour of individuals.

As authority for this complaint the applicant cites the judgement in; Amministrazione delle Finanze dello Stato v Simmenthal SpA. [1978] EUECJ R-106/77 (9 March 1978);see below;

4. in a violation of the principle of respect for the rights of the defence and natural justice, in particular the right to be heard; by virtue of the Social Security Act 1998; Section 12; (2) (a) & (b), the Applicant is not in a position to challenge a determination of fact embodied in a decision or the evidence presented and relied upon by the Secretary of State in the making of that determination of fact, or the evidence with regard to the establishment of the existence or not of grounds for revision or supersession of an award, and therefore has no right of defence in this matter of individual concern to the Applicant;
The Social Security Act 1998; Section 12; Appeals;(2) (a) & (b)states;
(2) In the case of a decision to which this section applies, the claimant and such other person as may be prescribed shall have a right to appeal to the First-tier Tribunal, but nothing in this subsection shall confer a right of appeal in relation to– (a) a prescribed decision, or a prescribed determination embodied in or necessary to a decision , or (b) where regulations under subsection (3A) so provide.

Section 17; Finality of Decisions; states;
(1) Subject to the provisions of this Chapter and to any provision made by or under Chapter 2 of Part 1 of the Tribunals, Courts and Enforcement Act 2007, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulations under section 11 above, any decision made in accordance with those regulations shall be final.
(3) If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of– (a) further such decisions;

By virtue of these provisions Parliament has ruled that the Applicant has no right of defence to certain decisions and determinations, which are measures of individual concern to the Applicant, and no right of access, under the provisions of the Social Security Act 1998, to an “independent and impartial tribunal established by law”, and he is therefore not in a position to challenge before the courts the correctness or otherwise, of a determination of fact by the Secretary of State, which is a determination of individual concern to the Applicant.
This is not a case where the decision maker is applying a measure of professional knowledge or experience, the issue is one of fact.
Errors of fact cannot be corrected because there is no independent body with the legal authority to rehear and examine the evidence on which the determination is based or to substitute its own views as to the eligibility of the applicant. The Applicant is therefore not in a position to object to or challenge the “evidence” used, or the conclusion that is based on that evidence, before a court of law. The Applicant is presented with a fait accompli, and as Lord Hoffman has stated“ The executive would in effect be deciding the case against you.”

CLAIM;The effect of the complained of provisions, is to provide a system under which there is no independent, or even quasi-independent, fact-finding body at the initial administrative stage, and no right of access to such a body at any stage, and consequently, the applicant is affected by a measure that is of individual concern which he could not challenge in a fair hearing by an “independent and impartial tribunal established by law”
COMPLAINT: This constitutes a breach of the applicant’s directly enforceable Community right to have a determination of his civil rights and obligations heard in a fair hearing by an independent and impartial tribunal, established by law, with full jurisdiction, as guaranteed by Article 6 of the ECHR, and further, is in breach of the UK’s obligation’s in accordance with article 189 of the EEC treaty and the established case-law of the Court of Justice of the European Communities, that directly applicable community provisions must , notwithstanding any internal rule or practice
whatsoever of the member states, have full, complete and uniform effect in their legal systems in order to protect subjective legal rights created in favour of individuals.

As authority for this complaint the applicant cites the judgement in; Amministrazione delle Finanze dello Stato v Simmenthal SpA. [1978] EUECJ R-106/77 (9 March 1978);see below;

A further insidious effect of these provisions is in regard to the Secretary of State’s powers of “revision”or “supersession” of existing decisions and existing awards. There is a fundamental difference between a decision on a claim and a decision on an application for review of an existing decision or award.
The correct legal position was explained by Commissioner Micklethwait in R(1) 1/71;

“I think that this case illustrates how important it is that at all levels the fundamental difference between a decision on a claim and a decision on an application for a review, and the nature of the grounds for review should be understood. The difference depends on a simple principle. A claimant must in general prove his title to a benefit. Once he has done so and has been awarded, and perhaps paid, the benefit, he can fairly resist that those who contend that the award should be cancelled or varied on review must show that there are valid grounds* for review.” [*valid grounds for review of existing decisions and existing awards are; changes in circumstances, errors of law, and ignorance of, or mistake as to, a material fact]

As it is for the Secretary of State to provide evidence that grounds for a review actually exist before a review of an existing award or decision can take place, then the Applicant must be in a position to challenge and object to the correctness or otherwise of that evidence, which is a determination of individual concern to the Applicant. That is not the case under the provisions of the Social Security Act 1998.

CLAIM;The effect of the complained of provisions, is to provide a system under which there is no independent, or even quasi-independent, fact-finding body at the initial administrative stage, and no right of access to such a body at any stage, and consequently, the applicant is affected by a measure that is of individual concern which he could not challenge in a fair hearing by an “independent and impartial tribunal established by law”.
COMPLAINT: This constitutes a breach of the applicant’s directly enforceable Community right to have a determination of his civil rights and obligations heard in a fair hearing by an independent and impartial tribunal, established by law, with full jurisdiction, as guaranteed by Article 6 of the ECHR, and further, is in breach of the UK’s obligation’s in accordance with article 189 of the EEC treaty and the established case-law of the Court of Justice of the European Communities, that directly applicable community provisions must, notwithstanding any internal rule or practice whatsoever of the member states, have full, complete and uniform effect in their legal systems in order to protect subjective legal rights created in favour of individuals.

As authority for this complaint the applicant cites the judgement in; Amministrazione delle Finanze dello Stato v Simmenthal SpA. [1978] EUECJ R-106/77 (9 March 1978);see below;

5.the First Tier Tribunal, as constituted under the provisions of the Social Security Act 1998, is not an independent tribunal previously established by law, and is not a body superior to the administrative decision maker,

The First Tier Tribunal, as constituted under the provisions of the Social Security Act 1998, is not independent of the Executive. It’s constitution, rules of procedure and legal authority are regulated by the Executive and the Secretary of State, who is a principal party to the dispute and it must act in his interests.

As authority for this complaint the applicant cites the judgement in; Amministrazione delle Finanze dello Stato v Simmenthal SpA. [1978] EUECJ R-106/77 (9 March 1978);see below;

7. the First Tier Tribunal, as constituted under the provisions of the Social Security Act 1998, is not an impartial tribunal previously established by law, and is not a body superior to the administrative decision maker,

The First Tier Tribunal, as constituted under the provisions of the Social Security Act 1998, is not an impartial tribunal, because it has accepted directions from a principal party to the dispute, the Secretary of State, which limit both the it’s scope of reference and it’s legal authority.

As authority for this complaint the applicant cites the judgement in; Amministrazione delle Finanze dello Stato v Simmenthal SpA. [1978] EUECJ R-106/77 (9 March 1978);see below;

8. the First Tier Tribunal, as constituted under the provisions of the Social Security Act 1998 , is not a tribunal previously established by law, as the Tribunal accepts that its decisions may be set aside at any time at the discretion of a party to the dispute, namely the Secretary of State, and is thus not a body superior to the administrative decision maker,

As authority for this complaint the applicant cites the judgement in; Amministrazione delle Finanze dello Stato v Simmenthal SpA. [1978] EUECJ R-106/77 (9 March 1978);see below;
9.the First Tier Tribunal, as constituted under the provisions of the Social Security Act 1998, is not a tribunal previously established by law, because a counterclaim or similar legal proceeding cannot be brought before it by the Applicant, as it has no legal powers to enforce its decisions, and therefore all decisions remain administrative decisions,

The Secretary of State offered corroboration of this point with his view “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,” in R(IS) 6/04 at para 39.
For corroboration of the fact that the tribunal has no legal powers to enforce it’s decisions, please see HMCTS Form GAPS 173/97 Ver. 5441Representitive (see attached 1), which states; “ Unlike the courts, the Tribunal has no legal powers to enforce its decisions. If a decision requires the department or council pay benefit to a person…the Tribunal will not be able to assist that person to compel payment…..The department or council is entitled to suspend payment of any benefit awarded by the Tribunal, if a person is appealing against the Tribunals decision. The Tribunal can also suspend the effect of its decision.”
The Human Rights Act 1998 Section 21; Interpretation, etc; (1) In this act – “tribunal” means any tribunal in which legal proceedings may be brought” , Section 7; Proceedings;(2);In subsection (1)(a) “appropriate court or tribunal” means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.

As authority for this complaint the applicant cites the judgement in; Amministrazione delle Finanze dello Stato v Simmenthal SpA. [1978] EUECJ R-106/77 (9 March 1978);see below;

10.the Human Rights Act 1998 Sections; 3(2)(b) & (c), which prevent the setting aside of any incompatible primary or subordinate legislation by a national court or tribunal, are incompatible with Community law, as the valid objection does not result in the automatic suspension of the provision that is being complained off.

As authority for this complaint the applicant cites the judgement in; Amministrazione delle Finanze dello Stato v Simmenthal SpA. [1978] EUECJ R-106/77 (9 March 1978);see below;

11.the Human Rights Act 1998 Section 4, which requires a Declaration of incompatibility to be made by a court or tribunal, but “(a)does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b)is not binding on the parties to the proceedings in which it is made” is incompatible with Community law, as a valid objection does not result in the automatic suspension of the provision that is being complained off.

COMPLAINT: There has been a breach of the applicant’s directly enforceable Community right to have a determination of his civil rights and obligations heard in a fair hearing by an independent and impartial tribunal, established by law, with full jurisdiction, as guaranteed by Article 6 of the ECHR, and further, is in breach of the UK’s obligation’s in accordance with article 189 of the EEC treaty and the established case-law of the Court of Justice of the European Communities, that directly applicable community provisions must, notwithstanding any internal rule or practice whatsoever of the member states, have full, complete and uniform effect in their legal systems in order to protect subjective legal rights created in favour of individuals.
As authority for this complaint the applicant cites the judgement in; Amministrazione delle Finanze dello Stato v Simmenthal SpA. [1978] EUECJ R-106/77 (9 March 1978);see below;

12.the Human Rights Act 1998 Sections; 6(2)(a) & (b) which purport to authorise the unlawful violation of Convention Rights by a public authority, while it/he/she is operating under provisions of incompatible primary or subordinate legislation, are incompatible with Community law,and as such are of no valid legal effect,

Section 6(1) of the HRA1998 states in express words “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” That is correct, and has been the case since the coming into force of the ECA 1972 on 1st January 1973.
It is simply not the case that it was “lawful” for a public authority to act in a way which is incompatible with a Convention Right prior to the HRA 1998, and that only since 2nd October 2000 with the coming into force of the HRA 1998, did such an act then become “unlawful”.

When the UK Government published it’s White Paper on the Human Rights Act “Rights Brought Home: The Human Rights Bill” (1997) (Cm 3782), it made a false representation as to both fact and the law when it stated that; “ ..there at present is no requirement in our domestic law on central and local government, or others exercising similar executive powers, to exercise those powers in a way which is compatible with the Convention. This Bill will change that…. ” **
That statement is simply not true.
When Parliament enacted the European Communities Act 1972, it made any infringement of an individual’s Convention Rights an unlawful act, including any infringement by public authorities, and that has been true from 1st January 1973 to the present day.
By means of this false representation The Human Rights Bill was presented to Parliament and the public as an attempt to remedy a mischief that did not exist, while it’s true intention was to provide impunity for the violators of those Convention Rights, by creating the false representation that if ordered to do so by a provision of primary or secondary legislation, the violation of an individual’s Convention Rights by a public authority did not constitute an unlawful act.

In effect, the Human Rights Act 1998 (6)(2 a & b) can be read as; “It is unlawful for a public authority to violate a citizens Convention Rights, except when it, he or she receives orders to violate a citizens Convention Rights by the UK Government in the form of primary legislation, or a Government functionary or Department in the form of subordinate legislation”.
As the UK Government has no legal authority to violate a citizens Convention Rights, any order that it may issue instructing a public authority to do so is also without any legal authority, and that in turn makes the UK Government a serial and mass violator of Convention Rights.

** “Rights Brought Home: The Human Rights Bill” (1997) (Cm 3782);
“Although the United Kingdom has an international obligation to comply with the Convention, there at present is no requirement in our domestic law on central and local government, or others exercising similar executive powers, to exercise those powers in a way which is compatible with the Convention This Bill will change that by making it unlawful for public authorities to act in a way which is incompatible with the Convention rights. The definition of what constitutes a public authority is in wide terms. Examples of persons or organisations whose acts or omissions it is intended should be able to be challenged include central government (including executive agencies); local government; the police; immigration officers; prisons; courts and tribunals themselves; and, to the extent that they are exercising public functions, companies responsible for areas of activity which were previously within the public sector, such as the privatised utilities. The actions of Parliament, however, are excluded.
A person who is aggrieved by an act or omission on the part of a public authority which is incompatible with the Convention rights will be able to challenge the act or omission in the courts. The effects will be wide-ranging. They will extend both to legal actions which a public authority pursues against individuals (for example, where a criminal prosecution is brought or where an administrative decision is being enforced through legal proceedings),and to cases which individuals pursue against a public authority (for example, for judicial review of an executive decision). Convention points will normally be taken in the context of proceedings instituted against individuals or already open to them, but, if none is available, it will be possible for people to bring cases on Convention grounds alone. Individuals or organisations seeking judicial review of decisions by public authorities on Convention grounds will need to show that they have been directly affected, as they must if they take a case to Strasbourg
It is our intention that people or organisations should be able to argue that their Convention rights have been infringed by a public authority in our courts at any level. This will enable the Convention rights to be applied from the outset against the facts and background of a particular case, and the people concerned to obtain their remedy at the earliest possible moment.

No rule of national law can authorise an act in violation of a Convention Right, by virtue of the supremacy “of the specific rights and obligations which EU law creates… that is, anything in our substantive law inconsistent with any of these rights and obligations is abrogated or must be modified to avoid the inconsistency. This is true even where the inconsistent municipal provision is contained in primary legislation.”. (Lord Justice Laws in Thoburn v Sunderland City Council [2002] EWHC 195 Admin; para 69;)
No national body, not the Queen, not Parliament, not the UK Government, not a Government Department or functionary, has the legal authority to absolve another body from the consequences of it’s violation of an individual’s Convention Rights.
These provisions [Sections; 6(2)(a) & (b) ] of national law were designed to allow public authorities to violate the Applicant’s Fundamental Convention Rights with impunity, by reliance on the rule in English law of the operation of a “conclusive presumption”, that is, that any provision of national legislation will, and therefore does, comply with an individual’s Convention Rights.

The effect of Sections; 6(2)(a) & (b) is that Parliament has ruled that “public authorities” can act in a way that is incompatible with a Convention Right and then espouse the defence that “ I was just following orders ( e.g. Parliament’s orders via primary or secondary legislation).”
Ignorance of the law, convenient though it sometimes may be, is no defence against the law. This maxim of law applies to all “public authorities”, be they courts, judges,tribunals, Government departments, Local Authorities, and even individual civil servants (“ Public authority includes;..any person certain of whose functions are functions of a public nature”), and each is solely responsible for it’s actions, or any failure to act as their duty requires. If any civil servant, at what ever level, carries out an illegal order that results in a violation of an individual’s Convention Rights, then it, he or she becomes complicit in the illegal act and they then become personally liable for that illegal act, or their failure to act in defence of those rights.

Just as the law requires of the natural person knowledge of the law, then the law also requires of the legal person that is a public authority, knowledge of the law (“ Interpretation of legislation; .. primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”, Ghaidan (Appellant) v. Godin-Mendoza (FC) (Respondent) [2004] UKHL 30; LORD MILLETT at para 59.“….First, the requirement in Section 3 is obligatory. In R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 373 Lord Cooke of Thorndon described the section as “a strong adjuration” by Parliament to read and give effect to legislation in a way which is compatible with Convention rights. With respect, it is more than this. It is a command. Legislation “must” be read and given effect to in a way which is compatible with Convention rights. There is no residual discretion to disobey the obligation which the section imposes.”).
It is the intention of the Convention Rights to prevent a repeat of the wholesale and systematic abuse of citizen’s rights that took place during World War II, where functionaries carried out illegal orders on a massive scale, based on the very same “conclusive presumption” that, as the order came from a person in, or a department of, the “government” then that order must be legal . The Convention’s response to that abuse and subsequent claim of defence, was to create a system of individual responsibility, so that each link in a chain of command, must examine and verify to it’s/his/her satisfaction that the order they are told to carry out is lawful and compatible with an individual’s Convention Rights. It is an obligation and a duty that cannot be shirked, and they are to be held correspondingly liable for any dereliction of that duty.
European Union law precludes (forbids) the application of a conclusive presumption that a provision of national legislation observes the fundamental rights of the European Union, (N.S. v SSHD Case C-411/10) and further, an application of national law on the basis of the conclusive presumption that the Applicant’s fundamental rights will be observed by a provision of national legislation is inconsistent with the duty of the public authorities to interpret and apply national law in a manner consistent with Convention fundamental rights, and is a breach of the injunction contained in Section 3(1); Interpretation of Legislation, of the HRA 1998.
Indeed, were a provision of national legislation to require a conclusive presumption of compliance with fundamental rights, it could itself be regarded as undermining the safeguards which are intended to ensure compliance with fundamental rights by the European Union and its Member States.
According to the European Court’s settled case-law, “the Member States must not only interpret their national law in a manner consistent with EU law but also make sure they do not rely on an interpretation which would be in conflict with the fundamental rights protected by the EU legal order or with the other general principles of EU law” (see Joined Cases C-411/10 and C- 493/10 N.S. and Others [2011] ECR I-13905, paragraph 77; Case C-101/01 Lindqvist [2003] ECR I-12971, paragraph 87, and Case C-305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I-5305, paragraph 28).
CLAIM;The effect of the complained of provisions, is to provide a system under which there is no independent, or even quasi-independent, fact-finding body at the initial administrative stage, and no right of access to such a body at any stage, and consequently, the applicant is affected by a measure that is of individual concern which he could not challenge in a fair hearing by an “independent and impartial tribunal established by law”

COMPLAINT: These provisions constitute a breach of the applicant’s directly enforceable Community right to have a determination of his civil rights and obligations heard in a fair hearing by an independent and impartial tribunal, established by law, with full jurisdiction, as guaranteed by Article 6 of the ECHR, and further, is in breach of the UK’s obligation’s in accordance with article 189 of the EEC treaty and the established case-law of the Court of Justice of the European Communities, that directly applicable community provisions must, notwithstanding any internal rule or practice whatsoever of the member states, have full, complete and uniform effect in their legal systems in order to protect subjective legal rights created in favour of individuals.

As authority for this complaint the applicant cites the judgement in; Amministrazione delle Finanze dello Stato v Simmenthal SpA. [1978] EUECJ R-106/77 (9 March 1978.;see below;

13,.. the Applicant has been denied a fair hearing of his claim for ESA.

At the WCA, after the HCP had introduced herself, the first thing that the Applicant did was to present to the HCP a copy of the last determination of his eligibility to receive ESA and he then stated to the HCP that there had been no change in his circumstances since the date of that determination by a First Tier Tribunal on 29/10/2012 (see attached 2). This formed the basis of the Applicant’s claim to have a civil right to receive ESA, as a consequence of his conditions.
The Applicant is still suffering from Depression and PTSD, those conditions still affect him, he is still under medication for those conditions, and this evidence is corroborated by the fact that he has continued to supply to the DWP, medical evidence in the form of Fit Notes to that effect.
It was held in R(I) 2/51 at para 14 that “ there is no rule of English law that corroboration of the claimant’s own evidence is necessary ”, although the Applicant has provided such corroboration.

To recap, in his claim of ESA the Applicant has presented the following evidence;
(a) a First Tier Tribunal decision that his conditions did mean that he is entitled to receive ESA,
(b) a statement that there had been no change in his circumstances since the date of that decision,
(c) corroborating medical evidence that there had been no change in his circumstances in the form of Fit Notes to that effect.
The Secretary of State’s evidence consisted of; a different medical opinion, that of the HCP.

In R(S) 6/78 it was held; “ Merely obtaining a different medical opinion is not a change of circumstances, though it may be evidence of such a change if there is other evidence of it e.g. if a person had resumed work or if a condition had been wholly cured as a matter of medical fact.
A medical opinion, or any other opinion, is not a change of circumstances. The onus of proof is upon the insurance officer. (see Decision R(I) 1/71, paragraphs 9 to 16).”
In R (SB) 33/85 it was held that; “ when an adjudication authority rejects a claimant’s evidence it must identify the grounds for such rejection”.
As it is the Applicant’s claim is that there has been no change in circumstances, and his claim is corroborated by evidence, the onus of proof then lies with the Secretary of State to prove otherwise.
As it has been ruled that merely obtaining a different medical opinion does not constitute a change in circumstances, and the Secretary of State has provided no further corroborating evidence of such a change and identified no grounds for the rejection of the Applicant’s evidence, then on the balance of probabilities, the Applicant’s claim must be accepted as proven.
Thus it is the Applicant’s complaint that the Secretary of State’s decision constitutes a breach of natural justice by inter alia ; a failure to take into account relevant matters and the consideration of irrelevant matters; making a perverse decision; reaching a decision which no court properly directing itself could properly reach; a failure to follow procedures, including those regarding standards of proof.
CLAIM;The effect of the complained of actions, is to cause a breach of the rules of natural justice, and consequently, the applicant is affected by a measure that is of individual concern which he could not challenge in a fair hearing by an “independent and impartial tribunal established by law”
COMPLAINT: There has been a breach of the applicant’s directly enforceable Community right to have a determination of his civil rights and obligations heard in a fair hearing by an independent and impartial tribunal, established by law, with full jurisdiction, as guaranteed by Article 6 of the ECHR, and further, is in breach of the UK’s obligation’s in accordance with article 189 of the EEC treaty and the established case-law of the Court of Justice of the European Communities, that directly applicable community provisions must, notwithstanding any internal rule or practice whatsoever of the member states, have full, complete and uniform effect in their legal systems in order to protect subjective legal rights created in favour of individuals.

As authority for this complaint the applicant cites the judgement in;-
Amministrazione delle Finanze dello Stato v Simmenthal SpA. [1978] EUECJ R-106/77 (9 March 1978);
2 . The direct applicability of community law means that its rules must be fully and uniformly applied in all the member states from the date of their entry into force and for so long as they continue in force . Directly applicable provisions are a direct source of rights and duties for all those affected thereby , whether member states or individuals ; this consequence also concerns any national court whose task it is as an organ of a member to protect the rights conferred upon individuals by community law .
3 . In accordance with the principle of the precedence of community law , the relationship between provisions of the treaty and directly applicable measures of the institutions on the one hand and the national law of the member states on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but – in so far as they are an integral part of , and take precedence in , the legal order applicable in the territory of each of the member states – also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with community provisions .
Any recognition that national legislative measures which encroach upon the field within which the community exercises its legislative power or which are otherwise incompatible with the provisions of community law had any legal effect would amount to a corresponding denial of the effectiveness of obligations undertaken unconditionally and irrevocably by member states pursuant to the treaty and would thus imperil the very foundations of the community .

4 . A national court which is called upon , within the limits of its jurisdiction , to apply provisions of community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation , even if adopted subsequently , and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means .
And the Applicant brings to the attention of this tribunal the ruling of Commissioner Howells QC in R(IS) 6/04 when he held: “ By section 6 of the Human Rights Act both the tribunals and I are, as public authorities, forbidden to cause or allow an infringement of Article 6 in the decisions we give …section 6(1) of the Human Rights Act 1998 required that a tribunal or Commissioner consider whether the purported exclusion of appeal rights by statutory instrument was contrary to Article 6 since this concerned the tribunal’s own actions,” Wilson v. First County Trust Ltd (No. 2) [2002] QB 74 followed.
The same reasoning falls to be applied by this Tribunal to the purported exclusion of the Applicant’s right of defence and the purported exclusion of his directly enforceable Community right to have a determination of his civil rights and obligations heard in a fair hearing by an independent and impartial tribunal, that is previously established by law, with full legal authority.
THE REMEDY AND RELIEF SOUGHT BY THE APPLICANT;

The remedies and relief available under Article’s 41 & 47 and Article 6 are focused on bringing any infringement or violation of a person’s human rights to an end.
Accordingly, the Applicant seeks that appropriate remedy to, and relief from, these infringements and violations of his Community Rights.
The Applicant calls upon this Tribunal to do it’s duty under Community Law and apply Community Law in regard to these violations of his directly enforceable Community Right to a Defence, and his Community Right to have a determination of his civil rights and obligations heard in a fair hearing by an independent and impartial tribunal, established by law, with full jurisdiction, and the violations of his rights as guaranteed by Article’s 41 & 47, and accordingly, to give full effect to the provisions of Community Law, as is required by the UK’s obligation’s in accordance with article 189 of the EEC treaty and the established case-law of the Court of Justice of the European Communities.

Natural justice requires a point by point rebuttal by the Respondent of the Applicant’s points of complaint.

STATEMENT OF TRUTH.

I believe that the facts set out in this Witness Statement are true.
Signed: Name: Kenneth May Date:

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Monthly Archives: October 2015

My fight against the Bedroom Tax.