THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

FURTHER DETERMINATION OF THE UPPER TRIBUNAL JUDGES

The reference made by the First-tier Tribunal (Social Entitlement Chamber) dated 2 October 2009 is discharged.

The documents produced to the Upper Tribunal by the second respondent before and after our order of 10 December 2009 are transmitted to the First-tier Tribunal (Social Entitlement Chamber) and the case is remitted to them to proceed as accords.

REASONS FOR DETERMINATION

1.	On 10 December 2009, we made an order under section 25 of the Tribunals Courts and Enforcement Act 2007 laid out on document 187.

2.	In response to that order, the second respondent has produced his bank statements relating to his business current account for the period from 4 July 2007 to 24 December 2007.  He had already produced such statements for the earlier period, 4 April 2007 to 4 July 2007 to the Upper Tribunal before the oral hearing of 10 December 2009.  In these circumstances, we hold that the second respondent has now complied with paragraph A (1) of our order of 10 December 2009.  We apologise to the second respondent that due to an administrative mistake in our office the statements for the period 4 July 2007 – 24 December 2007 were issued to the appellant and the first respondent rather than being transmitted to the First-tier Tribunal as envisaged in our order.  

3.	On 8 January 2010, the Presiding Judge issued a direction in these proceedings, document 206.  In accordance with that direction, a further hearing took place before us on 28 January 2010.  The second respondent was present, unrepresented, at that hearing.  The appellant was also present, unrepresented.  The second respondent was represented by Mr Simon Collins, Advocate, instructed by the office of the Solicitor the Advocate General for Scotland. We took the view that the matter before us at the above hearing was one of potential contempt of court and that that was an issue only between the Upper Tribunal and the second respondent.  Thus, no submissions from the appellant nor the second respondent were, in our view, appropriate and we did not invite any.

4.	In regard to the second respondent’s credit card statements, covered by paragraph B of our order of 10 December 2009, the second respondent had already produced a statement dated 11 November 2007, document 160.  At the oral hearing he referred to the letter from his solicitors dated 13 January 2010, document 207.  The relevant passage in that letter reads as follows 

“(the second respondent) has produced a copy of his credit card statements with Royal Bank of Scotland Plc dated 11 November 2007.  This is the only statement which he had for that account for the period 1 June 2007 to 31 December 2007 as the card was not active.  We have written to the Royal Bank asking them to confirm that this was the only credit card statement issued during that period and will provide a copy of their reply.  He did not have any other credit cards.”

In answer to a question from the Presiding Judge, the second respondent stated that his solicitor had not yet received the letter from the Royal Bank which he had been seeking, referred to in the above extract from document 207.  We accepted the above extract as being an accurate statement of the position in regard to the second respondent’s credit cards in the period covered by paragraph B of our order.  We thus consider that he has complied with that paragraph.  However, if and when the letter from the Royal Bank of Scotland, referred to in the above extract, is received by his solicitor, it should be lodged with the First-tier Tribunal.

5.	In regard to the second respondent’s joint personal current account statements he referred to headings (c) and (d) at the top of document 208, the letter from his solicitor dated 13 January 2010.  He further stated, in response to a question from the Presiding Judge, that he had, on the basis of advice given at the bottom of his bank statements, destroyed those statements for the period covered by paragraph A (2) of our order of 10 December 2009 and that he had done so around April 2008.  He explained that he kept his business current account statements for a period of five years for Income Tax purposes.  However, it was his practice to destroy personal bank statements after a period of around a year.  He generally did that around the end of one tax year and the beginning of another.  We accepted the second respondent’s explanation as probable and do not consider that he is in wilful breach of paragraph A (2) of our above order.  

6.	We also accept the statement made in the letter from the second respondent’s solicitors, dated 13 January 2010, document 207 under heading (a) that the second respondent “did not have any other bank accounts” during the relevant period other than his joint personal current account and his business trading account.  We thus consider that the second respondent has sufficiently complied with paragraph A (3) of our above order.  

7.	The case is thus remitted to the First-tier Tribunal for them to proceed.  If the second respondent has concerns regarding the disclosure of the documents to any other party, he should follow the procedure laid out in paragraph C of our order of 10 December 2009 as explained in paragraph 14 of our determination of the reference, document 191.  In further proceedings in this case, the First-tier Tribunal will be aware of the width of their powers conferred by rule 16 (1) (b) of the First-tier Tribunal (Social Entitlement Chamber) Rules 2008.  They will notice that the provision just cited is not restricted to the parties.  What they do is a matter for them and not for us as the appeal is before them and the reference was made for a strictly limited purpose.  

8.	The reference made by the First-tier Tribunal on 2 October 2009 is thus discharged in the manner laid out in our further determination and explained in these reasons.  

(Signed)
DJ MAY QC			
Judge of the Upper Tribunal
Date: 28 January 2010

(Signed)
AJ GAMBLE	
Judge of the Upper Tribunal
Date: 28 January 2010

(Signed)
DS BURNS QC
Deputy Judge of the Upper Tribunal	
Date: 28 January 2010