HDMcA-v-Department for Social Development (IS) [2010] NICom 93

Decision No:  C12/10-11(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 26 June 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the application can properly be determined without a hearing.

2.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

3.	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.

4.	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. 

5.	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. 

6.	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.

7.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to income support (IS), for a particular period, 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.

	Background

8.	The appellant claimed and was awarded IS from and including 26 November 1998.

9.	On 1 August 2008 a decision-maker of the Department decided, in light of evidence gathered by the Department’s Benefit Investigation Services (BIS), that the appellant’s entitlement to IS should be disallowed for the period from 23 February 2005 to 29 July 2008. The stated basis for the disallowance was that the appellant was living together as husband and wife with her partner, who was engaged in remunerative work.

10.	Subsequently, another decision-maker, on 21 August 2008, decided that, on the basis of the decision dated 1August 2008, the appellant had been overpaid IS for the period 23 February 2005 to 29 July 2008 totalling £22,776.71 and that this amount was recoverable from her on the basis of her failure to disclose that she was living as husband and wife with a partner who was engaged in remunerative work.

11.	The appellant appealed separately against the IS disallowance decision and against the overpayment decision.  Both appeals were received by the Department on 5 September 2008.  Both appeals were accepted (it seems the entitlement appeal was accepted by the Department despite being slightly late) and the appeals were linked together and ultimately considered by an appeal tribunal held on 26 June 2009.  The appeal tribunal disallowed both appeals and upheld both decisions of the Department.

12.	On 23 October 2009 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service.

13.	On 11 November 2009 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

14.	On 9 December 2009 a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.

15.	On 2 March 2010 observations were sought from Decision Making Services (DMS) and these were received on 29 March 2010. The observations on the application for leave to appeal will be dealt with in detail below.

16.	Observations were shared with the appellant on 28 April 2010.

17.	On 27 May 2010 a submission in reply to the written observations from DMS was received which was shared with DMS on 3 June 2010.

18.	On 8 June 2010, DMS were asked to provide a further submission on a specific issue raised by the Social Security Commissioner. The relevant submission was received on 18 June 2010. 

	Errors of law

19.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

20.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.” 

	Was the decision of the appeal tribunal in the instant case in error of law?

21.	In the initial written observations on the application for leave to appeal, DMS have included the following submission, which requires to be replicated in full:

‘I respectfully submit that the Tribunal has erred in law by failing in its inquisitorial role to ensure that the evidence gathered by the Department in this case was sufficient to support a decision that would disallow Income Support on the basis of living together as husband and wife for the entirety of the period specified by the IS decision maker.

In making this submission, I fully acknowledge that the Department has contributed to this error by failing in the same approach when originally deciding the period of disallowance in this case.  Furthermore, on appeal, the Department continued in this error by failing to notice the inconsistencies in the evidence gathered.

The LQM (and the Department) has failed to consider a recent Northern Ireland Commissioner decision C8/07-08(IS) & C9/07-08(IS) where the Commissioner in that case decided that the Department had not shown sufficient evidence that would disentitle the claimant for the whole of the disallowance period on the basis of living with a partner engaged in remunerative work.

The claimant in that case had been disallowed for a substantial period of just over three years (much like the present case).  However the Commissioner held that the burden of proof lay with the Department to show evidence supporting the claimant’s disallowance for the whole of the period concerned and the Department had failed to do so.

At paragraphs 31 to 35 of C8/07-08(IS) & C9/07-08(IS) the Commissioner cited Kerr v Department for Social Development [2002] NICA 31 and [2004] UKHL 23 as being relevant to the circumstances.  At paragraph 33 he referred to Lord Hope’s ruling from paragraphs 16 and 17 of Kerr:

 ‘But there are some basic principles which may be used to guide the decision where the information falls short of what is needed for a clear decision to be made one way or the other. ……….If therefore the claimant and the department have both done all that could reasonably have been expected of them, the issue of fact must be decided according to whether it was for the claimant to assert it or for the department to bring the case within an exception.’

Then the Commissioner stated at paragraph 34:

“In this appeal, the appellant had established entitlement.  However, the Department asserted that her circumstances had changed such that she was no longer entitled as she had a partner in full-time employment from 5 November 2001.  Applying the principles outlined by Lord Hope, it was for the Department to bring the case within the exception that benefit was no longer payable.”

Also at paragraph 37 of this decision the Commissioner stated:

“In this case, it is likely that the alleged partner was in full-time employment for a long period.  However, that evidence was never explored with him and, as explained above, he may have been ill or unemployed for parts of the period under consideration.  The fact that he was alleged to be a partner is but one fact in the case.  The other relevant facts must be ascertained to support an outcome decision.”

I respectfully submit that the same principles extend to this case.  The Tribunal in reaching its decision has ignored a number of inconsistencies in the evidence that would cast doubt on whether the Department could support a disallowance for such a long period as 23/02/05 to 29/07/08.

The Department’s disallowance decision (with effect from 23/02/05) commences on an arguably strong enough footing which is the personnel form submitted by … on 23/02/05 to his employer, upon which he declares his home address to be the same as (the claimants).  However certain evidence which follows on from that declaration does not always support him using that address as his home address.

I will outline these inconsistencies as follows:

(i)	The nomination for death benefit form dated 28/07/03, completed by … at his workplace; nominating (the claimant’s) son for his death benefits is clearly a form completed nearly two years before the period of IS disallowance.  However it should also be noted that the address provided by … on this form is … (his father’s address).  By … own statements he has moved around various addresses in the past.

(ii)	There is a letter issued to … by Her Majesty’s Revenue and Customs office dated 14/04/06 which is addressed to … .  This confirms his tax code as from 06/04/06 and casts doubt on whether he was living with (the claimant) at that time.

(iii)	There is also a bank statement for … from First Trust addressed to him at … .  This statement shows transactions from 03/03/08 to 03/06/08.

(iv)	Also at the interview with BIS on 10/06/08, … gave his address as … or … – his father’s and sister’s addresses.

I should highlight that much of the evidence which raised these inconsistencies was provided by the appellant only after the appeal process commenced (it is dated stamped as received at the Appeals Service on 20/03/09).  So it could only have been the Department’s presenting officer and the Tribunal who should have acted upon such evidence as it was not available to the original IS decision maker who disallowed (the claimant’s) IS on 01/08/08.

I would also submit that these inconsistencies only affect certain times falling within the overall period of disallowance in this case and whilst being sufficient in themselves to cast doubt on … living with (the claimant) at those times, it appears that other stronger evidence exists that the Department would be entitled to rely upon to support them living together for other periods.   

12.	Such evidence includes: 

(i)	As stated at paragraph 19 of this submission, the personnel form submitted by … on 23/02/05 to his employer, upon which he declared his home address to be the same as (the claimant) - …

(ii)	New entrant form signed by … and submitted to his employer on 29/03/06 where he declared his address as being … .  Despite declaring himself single he names (the claimant) as his partner at that address.

(iii)	… also completed a confirmation of employment letter on 29/03/06 where he again declared … as his address.

I would submit that due to the inconsistencies in the evidence, the Department, upon making a request to the Tribunal to have the appeal adjourned, could quite easily have clarified the position by making a telephone call or written request to … employer asking whether … had declared to them a continuous period of residence at (the claimant’s) home at least from 23/02/05 or whether it was indeed the case that he had reported several changes of address since that time.  

I would suggest that perhaps this request to the employer should even have been done originally at the time the IS decision maker was considering an IS disallowance as … interview with BIS (which was available to the decision maker) provided evidence that he did move around different addresses from time to time. 

However, if the decision maker (or presenting officer) had obtained such evidence, then depending on the reply from … employer, the Department may have needed to submit to the Tribunal that perhaps a number of closed period disallowances may have been more appropriate in the circumstances.  The IS disallowance decision may have then been changed to reflect only the periods of time … told his employer he lived at … .

Alternatively, if the employer had confirmed no changes of address from … from at least 23/02/05, the Department could have submitted to the Tribunal that it was content to rely on the decision made.  

I would submit that there is a reasonable amount of other evidence gathered by the Department in this case, such as … special leave applications to his employer to care for his “partner and son” dated 14/02/07 and 04/09/07and the data capture form for Springfield Primary School dated 11/09/07 where (the claimant) names … as the father of her son.

However, whilst such evidence is persuasive, it does not place … as living with (the claimant) those particular dates as no addresses are declared on these documents, but I would submit it appears valid as supporting evidence to build up a picture of a partnership for periods where the Department could provide an evidential basis for … living at … .

I would add that there is a further aspect to be considered regarding whether the Department in this case should have contacted … employer.  

Namely, that the Department would also have had an opportunity to further clarify … employment status to ensure he was engaged in remunerative work throughout the period that disallowance of (the claimant’s) IS was being considered.  Again, I refer to paragraph 37 of C8/07-08(IS) & C9/07-08(IS) as relevant to this point.  

Also to support this observation, I would refer to a more recent Northern Ireland Commissioner’s decision, (which the Tribunal in this case would not have been aware of in reaching the decision that it did, but nevertheless contains principles very relevant to the circumstances of this case).

That decision is C1/09-10(IS) (also referred to as SG v Department for Social Development (IS) [2010] NICOM 17).

In that decision the Department sought recovery of an overpayment on the basis of a disallowance of the claimant’s Income Support that she was living together with a partner and that partner was engaged in remunerative work.

The Commissioner expressed dissatisfaction with the evidence gathered in that case, finding it was not sufficient to show disentitlement for the whole of the period that the Department had decided.  At paragraph 52, the Commissioner stated: 

“While I also accept that the appellant is alleged to have provided information concerning her partner’s employment status, and terms and conditions, the responses to very general questions would be insufficient to draw a conclusion that during the lengthy period from 30 September 2003 to 9 March 2006, the appellant’s partner was engaged in remunerative work and that the remunerative work exceeded 24 hours per week, for every week of the period.”

The Commissioner also held at paragraph 55:

“There is no analysis of the basis for the conclusion that the appellant was not entitled to IS for the relevant period, in terms of section 123(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, and regulation 5 of the Income Support (General) Regulations (Northern Ireland) 1987, as amended. There is no assessment of the available evidence relating to remunerative work or findings in fact concerning that issue.”

In failing to address the inconsistencies in the evidence that was before it (which may have cast doubt on whether the Department could support a disallowance of (the claimant’s) IS for the entirety of the period decided upon), I submit that the Tribunal has erred in law.’   

22.	I am in agreement with DMS that the decision of the appeal tribunal is in error of law on the basis set out in the written observations, and, accordingly, I set aside the decision of the appeal tribunal. I recognise, and welcome the submission by DMS that the Department has contributed to this error by failing in its inquisitorial and evidence-gathering approach when originally deciding the period of disallowance in this case, and furthermore, on appeal, by failing to notice the inconsistencies in the evidence gathered.

23.	For the sake of completeness, it is important to note that in the written observations on the application for leave to appeal, DMS have submitted that the decision of the appeal tribunal is in error of law on another basis, as follows:

‘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 [2005] 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.’

24.	Once again, I am in agreement with the submission from DMS on this issue. 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.
	Disposal

25.	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. 

26.	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. 

27.	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 1 August 2008, which decided that the applicant was not entitled to IS for the period from 23 February 2005 to 19 July 2008;

(ii)	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)	and addresses 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.

(iii)	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 

(iv)	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):  Kenneth Mullan

Commissioner

4 October 2010