ML-v-Department for Social Development (IS) [2013] NICom 49
Decision No:  C4/13-14(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 8 December 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Newry on 8 December 2011.

2.	I grant leave to appeal and with the consent of the parties I treat the application for leave as if it were an appeal.  For the reasons I give below, I allow the appeal and I set aside the decision of the appeal tribunal.

3.	I exercise my power under Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 (‘the Order) to make findings and give the decision I consider appropriate in the light of them, which is that the applicant is entitled to income support from and including 14 January 2011.

	REASONS

	Background

4.	The applicant previously claimed income support (IS) from the Department for Social Development (the Department) from 30 December 2003 to 14 January 2010.  Following an investigation by the Department her IS was disallowed on the basis that she had undisclosed capital.  The applicant was prosecuted and found guilty of fraud in 2009.  An overpayment of benefit made during the period from January 2003 to January 2010 was found to be recoverable.  The applicant had appealed that decision but subsequently withdrew the appeal.  An IS claim in May 2010 was disallowed.

5.	On 14 January 2011 the applicant made a further IS claim.  The Department requested information from her about her bank accounts.  Following receipt of information from the applicant, the Department decided that she possessed or was deemed to possess capital in excess of the prescribed limits and disallowed the claim.  She appealed to a tribunal which disallowed the appeal.

6.	The applicant requested a statement of reasons for the tribunal decision, which was issued on 25 April 2012.  She applied to the legally qualified member (LQM) of the tribunal for leave to appeal to the Social Security Commissioner.  Leave was refused on 29 June 2012 in a determination issued on 16 July 2012.  On 15 August 2012 the applicant applied to a Social Security Commissioner for leave to appeal.

	Submissions

7.	The applicant, through her representative Ms Loughrey of Law Centre (NI), submits that the tribunal has erred in law on the basis that:

(i)	the reasons for the decision are inadequate to explain how it viewed the applicant’s evidence regarding how she spent her capital;

(ii)	the tribunal proceeded on a misapprehension of fact regarding the question of whether the Department’s calculation of the applicant’s expenditure was disputed by her.

8.	The Department was invited to make observations on the applicant’s grounds.  Mrs Rush replied for the Department.  She supports the application for leave to appeal.

	Hearing

9.	I held a hearing of the application.  Ms Loughrey of Law Centre (NI) appeared for the applicant.  Mrs Rush of Decision Making Services (DMS) appeared for the Department.

10.	Ms Loughrey submitted that the tribunal’s reasons were inadequate as the tribunal did not explain what it considered had happened to the capital previously held by the applicant as required by paragraph 17 of R2/09(IS) – a reported decision of the former Chief Commissioner.  She further relied on paragraph 42 of my own decision in C7/11-12(IS).  She submitted that the tribunal should have sought an explanation from the applicant as to what she had done with the money formerly in her bank accounts.

11.	Ms Loughrey further submitted that the applicant did not agree with the Department’s submission regarding capital, contrary to the understanding of the tribunal.  In her appeal letter she simply said that “I do not have the capital which the Department says that I have”.  However, the tribunal did not deal with that submission.

12.	I put to Ms Loughrey that the record of proceedings included a question from the LQM about the origin of unaccounted for capital and a further statement “Gave [the applicant] opportunity to explain what money spent on”.  Ms Loughrey submitted that the tribunal had adopted the submissions of the Department in the form of figures set out at Tab 9A, and had no basis for stating that this was not in dispute.  She submitted that this was an error of fact on the part of the tribunal.

13.	Ms Rush accepted that the tribunal had insufficient evidence before it that the applicant possessed capital in excess of the prescribed capital limit at the date of claim.  I expressed misgivings that the tribunal relied upon the document at Tab 9A, which was a submission by the Department interpreting financial evidence which was not before the tribunal.  Mrs Rush conveyed her own dissatisfaction in particular with the final two columns in Tab 9A, and accepted that it was not material which could be relied upon to make relevant findings.

14.	Ms Rush submitted that a letter from Nationwide Building Society in February 2011 was evidence of actual capital at the date of claim.  There was older evidence of building society accounts holding figures in excess of the prescribed limit in 2003.  Ms Rush indicated that on her own rigorous examination of the accounts, the amounts held fell below the prescribed amount in April 2006.  Ms Rush accepted that no further money came into the accounts at this period.

15.	While the Department’s case to the tribunal was that the applicant continued to possess unaccounted for capital, Ms Rush indicated to me that she could see no evidence of unaccounted for capital in the case and that she was unhappy with the presentation of the case to the tribunal.  She expressed reservations about the use of tables for figures other than actual capital such as had been presented in Tab 9a.  She felt that aspects of the figures in Tab 9A revealed double counting which she could not defend.  She felt that the Department had misled the tribunal and that the Department’s first instance decision was flawed.

	Assessment

16.	In my joint decision on files C8/11-12(IS) & C1/12-13(IS), where a similar table to that in Tab 9a in the present case was used, I said:

“It appears to me that the tribunal was quite seriously misled by the Department’s document at Tab17a.  This was an honest attempt by the Department to present an account of the appellant’s actual capital, notional capital and capital no longer possessed by him.  However, it seems to me that it was seriously flawed.  I consider that if the Department is to present such documents as evidence, they should be based on the work of an appropriately qualified individual, such as a forensic accountant.  If they are simply submissions by an officer of the Department based on a contested view of the facts, they should clearly take that form and carry an endorsement to confirm that that is what they are.  Tribunals can then adopt an appropriately critical view of the information submitted.  The present tribunal based its conclusions on the unsupported assertions of the Department, without adequate care in examining the actual evidence, and has made irrational findings of fact in consequence”.

17.	It seems to me that the tribunal in the present case was similarly misled by the Department’s reliance on the document at Tab 9a.  I accept the submissions of both parties and find that the decision of the tribunal based on the figures in Tab 9a was in error of law.

18.	I grant leave to appeal and I set aside the decision of the appeal tribunal.

19.	Ms Rush for the Department now submits that the original decision on the claim of January 2011 was based on inaccurate findings.  I directed her to make further submissions on the form the decision on the claim of January 2011 should have taken.

20.	In those submissions, she refers to the evidence of the applicant’s capital and analyses the amount of capital held by the applicant in bank or building society accounts.  She assesses this as £1065.04 at the date of claim.  She accepts that there is no evidence of the applicant possessing any other capital.  She submits that the decision which the Department should have made was that at the date of claim the applicant had capital of £1065.04.  She indicates that she will be recommending that the Department reconsiders some earlier decisions in the applicant’s case.

21.	Ms Loughrey has responded to suggest that I should direct Ms Rush to refer the applicant’s case to the Department for reconsideration, in which case the applicant may consider withdrawal of her application.  However, in terms of the options for disposal of the present appeal, I consider that I am restricted by Article 15 of the Order from adopting the course suggested by Ms Loughrey.

22.	Instead, I have decided to exercise my power under Article 15(8)(a)(ii) of the Order to make findings and give the decision I consider appropriate in the light of them.

23.	I find that the applicant had capital of £1065.04 at the date of claim on 14 January 2011.  It is not disputed that the applicant otherwise satisfied the conditions of entitlement to IS at 14 January 2011.  I therefore allow her appeal and find, as no other conditions of entitlement are disputed, that she is entitled to IS from and including 14 January 2011.

(signed):  O Stockman

Commissioner

28 June 2013