HDMcA-v-Department for Social Development (IS)  NICom 121
Decision No: C16/10-11(IS)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
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 26 June 2009
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The decision of the appeal tribunal dated 26 June 2009 is in error of law. The error of law identified will be explained in more detail below.
2. Leave to appeal is granted.
3. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
4. For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. This is because there may be further findings of fact which require to be made. Further I do not consider it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.
5. In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.
6. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of whether there has been an overpayment of income support (IS), and whether any overpayment is recoverable from her remains to be determined by another appeal tribunal. In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.
7. This appeal is inextricably linked to my decision in C12/10-11(IS). In that case I decided that the decision of the appeal tribunal was in error of law on the basis that the appeal tribunal had failed to address inconsistencies in the evidence which was before it. I also noted and welcomed the submission by Decision Making Services (DMS) in that case that the Department had contributed to this error by failing in its inquisitorial and evidence-gathering approach when originally deciding the period of disallowance and furthermore, on appeal, by failing to notice the inconsistencies in the evidence gathered.
8. In the instant case, Mr Donnan, for DMS, has submitted that:
‘… I would submit that the Tribunal held on 26/06/09 has erred in law on the basis that it has failed in its inquisitorial role regarding the evidence that was gathered in this case. I would therefore support (the claimant’s) application for leave to appeal on that basis.
I would add that the Department appears to have sufficient evidence to determine a disallowance of IS for certain periods, but such a decision is subject to further fact finding by the Department contacting … employer to establish periods he declared residence at (the claimant’s) home and regarding confirmation of his remunerative work status throughout.
I would also submit that a substantial part of the evidence gathered by BIS in this case attempted to establish whether or not … is the father of (the claimant’s) son (or at least cares for him as if he was). However, if there is insufficient evidence to accompany this that would support that he lived with the appellant for certain periods, then such evidence alone is not conclusive to enable a disallowance of (the claimant’s) IS on the basis of living with a partner engaged in remunerative work.
I respectfully submit that the inconsistencies in the evidence gathered to date provide an insufficient basis for the Department to decide a disallowance of Income Support for the continuous period 23/02/05 to 29/07/08 as was decided in this case.’
9. In addition, Mr Donnan made the following submission, which was also relevant in C12/10-11(IS):
‘Further error of law
I respectfully submit that the Tribunal also erred on a further point regarding its inquisitorial role in consideration of the evidence gathered in this case by the Department. This error occurred at the commencement of the hearing held on 26/06/09, where the LQM noted that “two sets of interview records with the Appellant were missing from the appeal papers” and that “the Appellant had not received the transcripts of these taped interviews”.
The interview records referred to by the LQM were interviews carried out by the Department’s Benefit Investigation Services with (the claimant), in which they interviewed her concerning the allegations of her living with ….
Only records of BIS’s interviews with … were supplied by the Department to the Tribunal (I would acknowledge the failure to supply the transcripts of (the claimant’s) interviews was the Department’s fault and submit that these documents would have been equally if not more important for the Tribunal’s consideration than just … interview records).
However, the record of proceedings indicates that the LQM asked (the claimant) if she wished to proceed with the hearing and she duly agreed. However, I would submit that the LQM should have adjourned the hearing at this point to direct the Department to provide copies to all parties of the typed transcripts of these interviews. By deciding to proceed, the Tribunal neglected to avail itself of evidence which may have had a bearing to the Tribunal’s subsequent findings.
I refer to the Northern Ireland Court of Appeal decision in Mongan v Department for Social Development  NICA 16 in support of this submission. In this case a Commissioner and ultimately the Court of Appeal considered Article 13 (8) (a) of the Social Security (NI) Order 1998.
This legislation states:
“In deciding an appeal under this Article, an appeal tribunal—
(a) need not consider any issue that is not raised by the appeal”
I refer to paragraphs 14 to 17 of the Court of Appeal judgment:
“14 The terms of article 13(8)(a) of the 1998 Order make it clear that issues not raised by an appeal need not be considered by an appeal tribunal. The use of the phrase “raised by the appeal” should be noted. The use of these words would tend to suggest that the tribunal would not be absolved of the duty to consider relevant issues simply because they have been neglected by the appellant or her legal representatives and that it has a role to identify what issues are at stake on the appeal even if they have not been clearly or expressly articulated by the appellant. Such an approach would chime well with the inquisitorial nature of the proceedings before the tribunal.
15…It appears to us that the plain meaning of the words of the statute, taken together with the inquisitorial nature of the appeal hearing, demand a more proactive approach. If, for instance, it appeared to the tribunal from the evidence presented to it that an appellant might be entitled to a lower level of benefit than that claimed, its inquisitorial role would require a proper investigation of that possible entitlement.
16 Mr McAlister suggested that even if the tribunal had a duty to consider issues not explicitly raised, this was a limited responsibility and he referred to an unreported decision (C5/03-04(IB)) in which Commissioner Brown held that the tribunal was not required “to exhaustively trawl the evidence to see if there is any remote possibility of an issue being raised by it”. We accept that there must be limits to the tribunal’s responsibility to identify and examine issues that have not been expressly raised and we agree with the observation of Commissioner Brown. But as she said in a later passage in the same case, issues “clearly apparent from the evidence” must be considered.
17 Whether an issue is sufficiently apparent from the evidence will depend on the particular circumstances of each case. Likewise, the question of how far the tribunal must go in exploring such an issue will depend on the specific facts of the case. The more obviously relevant an issue, the greater will be the need to investigate it. An extensive inquiry into the issue will not invariably be required. Indeed, a perfunctory examination of the issue may often suffice. It appears to us, however, that where a higher rate of benefit is claimed and the facts presented to the tribunal suggest that an appellant might well be entitled to a lower rate, it will normally be necessary to examine that issue, whether or not it has been raised by the appellant or her legal representatives.”
As paragraph 17 of the Mongan decision states, “the more obviously relevant an issue, the greater will be the need to investigate it”. I would respectfully submit that the transcript of (the claimant’s) interview with BIS was directly relevant to the issue under appeal and that the Tribunal erred in deciding to proceed with the hearing on 26/06/09, instead of ensuring it had sight of all relevant evidence.’
10. In further written observations on the application for leave to appeal, Mr Donnan has submitted that:
‘In light of the Commissioner’s question, I would now submit that because the Department’s decision to disallow entitlement to Income Support is fatally flawed, in that it is based on evidence that is insufficient to support a disallowance for the period as outlined above; then the Commissioner should consider setting aside the tribunal’s decisions as it erred in law on two fronts which I have outlined at paragraphs 11 to 37 and 38 to 44 of my original submission.
In making this submission I am therefore asking the Commissioner to decide this case in the same way that he did in C1/09-10(IS) (SG v DSD (IS)  NICOM 17) to which I made reference in my original observations. In that case the Commissioner set the decision under appeal aside and remitted the case to a newly constituted tribunal.’
11. I am in agreement with Mr Donnan for DMS that the decision of the appeal tribunal is in error of law, on two grounds as set out in the written observations and, accordingly, I set aside the decision of the appeal tribunal.
12. As I noted in C12/10-11(IS), and in relation to the second ground, the transcripts of the interviews conducted by BIS with the appellant were very relevant to the issues arising in the appeal. It was incumbent on the appeal tribunal to ensure that a copy of the transcripts of the interviews was made available to the appellant. It is difficult to see how the appellant could have addressed the issues arising in the appeal without sight of this relevant evidence.
13. The decision of the appeal tribunal dated 26 June 2009 is in error of law. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
14. For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. This is because there is detailed evidence relevant to the issues arising in the appeal to which I have not had access, and there may be further findings of fact which require to be made. Further I do not consider it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.
15. I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:
(i) the decision under appeal is a decision of the Department, dated 21 August 2008, which decided that an overpayment of IS, for the period from 23 February 2005 to 29 July 2008, amounting to £22776.71 had occurred which was recoverable from the appellant;
(ii) the decision dated 21 August 2008 is linked to another decision of the Department dated 1 August 2008 which decided that the appellant was not entitled to IS for the period from 23 February 2005 to 19 July 2008;
(iii) the Department is directed to prepare a new submission for the appeal tribunal hearing by the differently constituted appeal tribunal which addresses:
(a) the legal basis on which the Department submits that the appellant was not entitled to IS from 23 February 2005 to 19 July 2008;
(b) the evidential basis underlying the decision that the appellant was not entitled to IS for the period from 23 February 2005 to 19 July 2008;
(c) the evidential inconsistencies as set out in the written observations from DMS on the application for leave to the Social Security Commissioner in this appeal;
(d) and rectifies omissions and/or errors in the evidential basis underlying the decision that the appellant was not entitled to IS for the period from 23 February 2005 to 19 July 2008;
(e) and includes a copy of the transcripts of interviews conducted by BIS with the appellant, and addresses the relevance of the evidence contained within those transcripts to the issues arising in the appeal;
(f) and sets out the Department’s view of the validity of the evidential basis underlying the decision that the appellant was not entitled to IS for the period from 23 February 2005 to 19 July 2008;
(g) and sets out the legal and evidential basis upon which the Department submits that an overpayment of IS, for the period from 23 February 2005 to 29 July 2008, amounting to £22776.71 had occurred which was recoverable from the appellant.
(iv) on receipt of the new submission, the appellant and/or her representative are to be given sufficient time to address the issues arising therein and to make a response to them; and
(v) it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.
(signed): K Mullan
29 November 2010