Decision No: 	C5/03-04(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

		SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

	INCOME SUPPORT

	Appeal to a Social Security Commissioner
	on a question of law from a Tribunal's decision
	dated 30 April 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the Department of Social Development (“the Department”) with the leave of a legally qualified panel member against the decision of the appeal tribunal sitting at Newtownards on 30 April 2003 (“the appeal tribunal”).  For the reasons which I give, that decision is erroneous in point of law.  I therefore set it aside and refer the case to a differently constituted tribunal for a complete rehearing.  

2.	This appeal is concerned with an overpayment claim by the Department.  On 17 November 2002, a decision maker gave the following decision which the claimant, or perhaps her family, appealed to the appeal tribunal:

	“We have looked at the decision dated 17 December 1992 awarding Income Support from and including 15 April 1993.  We are satisfied that the decision was given in ignorance of a material fact.  

	Our decision is that [the claimant] was entitled to a reduced award of Income Support for the period as shown ...  

	As a result, an overpayment of Income Support has been made from 15 July 1993 to 02 October 2002 (both dates included) amounting to £6,700.73 as shown ...  

	On 15 July 1993, or as soon as possible afterwards, [the claimant] failed to disclose the material fact that she has capital in excess of the prescribed limit of £8,000.00.  

	As a consequence, Income Support amounting to £6,700.73 from 15 July 1993 to 02 October 2002 (both dates included), as detailed …, was paid which would not have been paid but for the failure to disclose.  

	Accordingly, that amount is recoverable from [the claimant].”

3.	The claimant is a widow who was born on 31 March 1912.  To put matters in context, she was 80 at the end of March 1982 and 90 at the end of March 2002.  She was 91 by the time of the hearing in April 2003.  At that time at any rate she was still fiercely independent and still living in her own house although dependent on her family for many aspects of her daily life.  For example, her son would take her to the shops and his wife would provide her with hot meals.  Against this the tribunal found that she was profoundly deaf and that she was unable to communicate.  It expressed the view that she appeared to be senile and dementing.  She had had a stroke some 12 to 18 months before the hearing.  The appeal tribunal considered that this was a case where it was not reasonable to expect disclosure.  It allowed the claimant’s appeal.  The precise basis on which the appeal tribunal proceeded is not entirely clear.  Its conclusion appears to be that, given the claimant’s fairly obvious disabilities, she lacked the ability to understand her own financial affairs and therefore did not know that her capital exceeded the prescribed limit.

4.	The Department then applied for leave to appeal and obtained this from a legally qualified panel member.  Its grounds of appeal were set out in its letter of 10 July 2003.  The first ground of appeal was that the period under investigation was a period of some nine years.  The appeal tribunal accepted that at the date of the hearing the claimant was no longer able to understand her own financial affairs.  However, it did not investigate, and therefore made no findings about, the length of time for which this had been the case.  I agree that the appeal tribunal erred in this manner.  Further, for reasons to which I am about to refer, the point is an important one.  The claimant’s representative now concedes that the appeal tribunal erred.  I think that he is right to do so.

5.	I am concerned about a particular aspect of the case.  It is a reason why the appeal tribunal should have gone further into the history of the matter.  It is appropriate that I should put the matter in very general terms so as not to express any concluded views – which I do not have.  The claimant had a number of building society accounts over the years. The papers before the appeal tribunal contained a large number of statements relating to these accounts together with photocopies of pass books and some other information.  Unfortunately, (a) these documents appear at various parts of the papers and (b) no one has attempted any sort of meaningful analysis.  No one seems to have cross‑referenced these documents with each other or with the various answers that the claimant gave over the years in the forms which she was asked to complete.  I have had a superficial look at these documents.  I have had no submissions about them and I form no concluded views.  Subject to those very important qualifications, they appear to my mind to raise a number of questions.  

6.	This is because they appear to have been operated with some degree of sophistication.  This, if correct, would either appear to contradict suggestions that the claimant did not understand her financial affairs throughout the whole of the relevant period or else to raise the possibility that she was not without assistance in managing her finances.  It does not appear that the attention of the appeal tribunal was drawn to these documents save in very general terms and for the purposes of establishing the point at which the capital limits were exceeded.

7.	In my view the Department must consider what its case is.  If it does not wish to rely on these documents, save to show that the prescribed limit was exceeded at a particular time, it should make this plain to the claimant’s advisers and to the new tribunal.  If, however, it seeks to make something of these documents in the light of the grounds on which it has appealed to a Commissioner then I direct it to reproduce them in a comprehensible and paginated bundle and to produce an analysis, or submissions call it what you like, drawing attention to what are considered to be significant features.  Those advising the claimant should be provided with such material well in advance of the re‑hearing so that they have a chance to consider it and to prepare such response as they consider appropriate.

8.	I add that this sort of exercise, by which I mean the analysis of bank statements and other financial information, cannot be carried out by a tribunal on its own and without assistance.  In the first place, a tribunal simply does not have the time or the resources.  Secondly, much of the work has to be done before the hearing and at a point when the members of the tribunal are unknown.  Thirdly, it involves an element of endeavouring to see whether a case can be constructed against an appellant – a “prosecution case” – or whether cross‑examination material can be found.  That is not the function of an independent tribunal and may involve a breach of Article 6 of the European Convention on Human Rights if attempted.  The Department has referred to the need to lay the necessary evidential basis for a repayment claim.  It cites Decision C2/02-03 (ICA)(T). Clearly, the Department should lodge the necessary evidence and do so in good time for the re‑hearing.  

9.	For the reasons given I allow the appeal and remit the matter to the new tribunal for rehearing.  

(signed): J P Powell
Deputy Commissioner

27 October 2004