Hi all,

Can anyone direct me to or recommend any case law which looks at the Record of Proceedings and what it should include etc in order to be valid. I have a case at the moment where the record of proceedings contains a number of gaps, presumably whoever typed it up was unable to read certain parts of it. Instead they seem to have replaced illegible words with "....." It happens on only a few occasions throughout the record, and I am not sure if it is so incomplete as to make the decision of the tribunal erroneous in law.

Have a look at CDLA/16902 (*60/97) and CDLA/1389/1997. (Both of these are mentioned in Derbyshire caselaw book page 344 if you have it).

Both commissioner decisions highlighted by sara are available online -


CDLA/16902 (*60/97)


CDLA/1389/1997

Not sure if this decision may be useful.

In CIB/5586/1999, Deputy Commissioner Warren held that a failure to adequately record a claimant's oral evidence was a breach of natural justice.

Regulation 55(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 states that the record of proceedings must be 'sufficent to indicate the evidence taken' and arguably this should extend not just to oral evidence and submissions but also a record of what written evidence was before the tribunal.

Excellent guys, those decisions are just what I was looking for. Thanks!

I find R(M) 1/96 to be of most use... See para's 10 to 15...

R(M) 1/96 is available from the OSSCSC website, and I like it because it also discusses the COA decision in Evans, Kitchen & Others. Para 13 starts...

"First, there is a general requirement on the tribunal to set out reasons and material findings of fact in the written record of their decision to enable it to be seen that they have applied their minds to the right questions and dealt with them on the basis of the right law and proper findings of fact, within the powers conferred on them by the legislation. See R v. Immigration Appeal Tribunal ex p. Khan <1983> QB 790, 794; R v. Civil Service Appeal Board ex p. Cunningham <1992> ICR, 816 at 827; Evans, Kitchen & Ors v. Secretary of State (transcript p. 24A-E, 27C-E) ".

Hope this also helps!

R(M)1/96 states that “there is a general requirement on the tribunal to set out reasons and material findings of fact in the written record of their decision”. This will be dealt with in the statement of reasons as opposed to the record of proceedings/evidence.

CDLA/19602/96, CDLA/1389/97 and CIB/5586 deal with cases where there either was no record of proceedings or such record was woefully deficient in terms of the evidence.

It is common ground amongst commissioners that a statement of reasons only has to be adequate, not perfect. The same standard also applies to the record of proceedings.

The commissioner in CDLA/1389/97 states that “the lack of any, or of an adequate, record of proceeding is not of itself and in all circumstances an error of law. The absence of, or deficiency in, the notes of proceedings is not a separate head of error of law. However, it is subsidiary to, and protective and supportive of, the recognised heads of error of law in that it will be an error of law if it prevents a Commissioner from deciding whether a particular error of law has been shown”.

Of course that decision reflects the law at the time, which was contained in the Adjudication regs. Reg 55(1) of the D&A Regs states that “a record of proceedings at an oral hearing, which is sufficient to indicate the evidence taken, shall be made by the chairman…….”

I think, therefore, that the question will be; is the record of proceedings sufficient to indicate the evidence taken and does any deficiency prevent a commissioner from deciding whether a particular error of law has been shown?

Ken’s point about written evidence being noted in the record is an interesting one but I would have thought that as long as the written evidence is mentioned in the statement of reasons then that may suffice, although Rowland and White in the annotations to reg 55 appear to disagree.

However, good luck with your case though!

Cheers guys, the application is submitted now and I referred to Reg 55(1)and the Commr Rowland decision above; CDLA 16902/96.(paras. 8 and 9)

As I said initially the record contained some gaps where words had been replaced with a series of dots, and I was unsure if this was enough to constitute an error of law. But throughout the Statement of Reasons the tribunal refers to evidence taken from the claimant but this evidence doesn't appear in the Record of Proceedings. I've argued that looking at Reg 53(4) and 55(1), the Statement of Reasons and Record of Proceedings are completely separate documents with different requirements for each and that therefore it is not sufficient to indicate (when its beeen re-phrased by the tribunal) what the claimant's oral evidence was in the Reasons when the legislation requires it to be in the Record.

In relation to Nevips question above, the Record falls short on the first requirement (I'd argue it isn't sufficient to indicate the evidence taken) but I may struggle to argue the second point because while the Record is flawed it may not be so flawed as to prevent a Commissioner from deciding whether an error of law has been shown. Still, don't want to say too much because a while ago I discovered, much to my embarrassment, that advisers aren't the only ones to check on Rightsnet! (at the end of an oral hearing, the Commissioner when indicating he would issue his decision as soon as possible, asked me if "BigLee" from Rightsnet would also like a copy! One of those "Please ground, open up and swallow me now" moments!)

Thanks for the help all,

Lee