WT-v-Department for Social Development (IS) [2011] NICom 203
Decision No:  C10/10-11(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 21 October 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 21 October 2008 is in error of law.  The error of law identified will be explained in more detail below.  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.

2.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made fresh or further findings of fact.

3.	My revised decision is that the decisions of the Department dated 11 February 2008 and 13 February 2008 are upheld.  Accordingly the appellant is not entitled to income support (IS) from 21 March 2007 to 8 May 2007 and from and including 9 May 2007.

4.	Accordingly, although the appeal to the Social Security Commissioners succeeds, the decision in respect benefit entitlement remains the same.

	Background

5.	The appellant had been living with his wife and their seven children at an address in Omagh which I will refer to as ‘RR’.  On 22 March 2006, the claimant took out a mortgage with his wife to purchase a house in Omagh at an address which I will refer to as ‘DR’.  Following a separation from his wife on 24 April 2006, the appellant moved into the house at ‘DR’ with five of his children and claimed IS.  His wife continued to reside in the house at ‘RR’ with their remaining two children.

6.	The appellant and his wife were reconciled on 16 December 2006 when the latter left the house at ‘RR’ and moved into the house at ‘DR’.  The former marital home at RR continued to remain in the couple’s possession.  The claimant made a claim for IS from 22 December 2006 for himself, his wife and their seven children.

7.	The property at ‘RR’ was sold for £204,000.  After the outstanding mortgage was deducted along with other charges, the amount of £175,226.54 was transferred to the appellant and his wife on 21 March 2007.  The appellant invested £154,999 of this money in a saver’s account between 12 April 2007 and 21 April 2007.  A further £18,139.17 was used to pay off other debts.

8.	On 11 February 2008 a decision-maker decided that the appellant was not entitled to IS as he possessed capital in excess of £16,000.  This was an ‘on-line system decision’ which took effect from 9 May 2007.  On 13 February 2008 an ‘off-line clerical decision’ was made to the effect that between 21 March 2007 and 8 May 2007 the appellant was not entitled to IS as he possessed capital in excess of £16,000.  This clerical decision was carried out because the on-line decision of 11 February 2008 could only take effect from 9 May 2007 due to system limitations.

9.	An appeal was received in the Department on 18 February 2008.  The effect of this appeal will be considered in greater detail below.  The appeal hearing took place on 21 October 2008.  The tribunal disallowed the appeal and issued a decision notice to the following effect:

‘1.  Appellant had capital in excess of the prescribed limit for the purpose of entitlement to Income Support from 21.03.2007.  The capital does not fall within any of the categories by which it may be disregarded for the purpose of deciding such entitlement.

2.  Appellant is not entitled to Income Support from 21.03.07 to 08.05.07 inclusive.

3.  Appeal is disallowed from 21.03.07 to 08.05.07 inclusive.’

10.	On 5 November 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 23 November 2009 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

11.	On 31 December 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 28 April 2010 written observations on the application were sought from Decision making Services (DMS).  In these written observations, Mr Crilly, for DMS, opposed the application on the grounds cited by the appellant but submitted that the decision of the appeal tribunal was in error on the basis of another identified ground.  He invited the Commissioner to replace the decision of the appeal tribunal.  The written observations were shared with the appellant on 8 June 2010.  The late application was accepted for special reasons on 10 September 2010.  Also on 10 September 2010 I granted leave to appeal.  In granting leave to appeal, I gave, as a reason, that an arguable issue arose as to whether the appeal tribunal directed itself to both decisions under appeal.

	Errors of law

12.	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.

13.	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?

	The relevant legislative background

14.	Section 130(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that:

‘No person shall be entitled to an income-related benefit if his capital or a prescribed part of it exceeds the prescribed amount”.

15.	Section 132(4) of the 1992 Act provides that:

‘(4) Circumstances may be prescribed in which – 

(a)	a person is treated as possessing capital or income which he does not possess;
(b)	capital or income which a person does possess is to be disregarded;
(c)	income is to be treated as capital;
(d)	capital is to be treated as income.’

16.	Regulation 45 of the Income Support (General) Regulations (Northern Ireland) 1987, as amended, provides that:

‘For the purposes of section 130(1) of the Contributions and Benefits Act as it applies to income support (no entitlement to benefit if capital exceeds prescribed amount), the prescribed amount is £16,000’

17.	Regulation 51(1) of the Income Support (General) Regulations (Northern Ireland) 1987, as amended, provides that:

‘(1)  A claimant shall be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to income support or increasing the amount of that benefit except—

(a)  where that capital is derived from a payment made in consequence of any personal injury and is placed on trust for the benefit of the claimant; or

(b)  to the extent that the capital which he is treated as possessing is reduced in accordance with regulation 51A (diminishing notional capital rule); or

(c)  any sum to which paragraph 43(2)(a) of Schedule 10 (capital to be disregarded) applies which is administered in a way referred to in paragraph 43(1)(a).’

18.	Regulation 51A provides for the reduction of any notional capital determined under regulation 51.

The proper approach to the issues of capital relevant to benefit entitlement

19.	In R2/09(IS), the Chief Commissioner set out, at paragraph 17, the proper approach to be taken by decision-makers and appeal tribunals, with issues of capital relevant to benefit entitlement.  He stated:

‘17.	How ought a decision-maker or a tribunal on appeal deal with issues of capital relevant to benefit entitlement?  While I do not wish to be too prescriptive, I suggest that a decision-maker or a tribunal on appeal in such circumstances should endeavour to seek the answers to certain questions, in a relevant and coherent order, and, if this is done, it is more likely that the correct decision will emerge.  These are, in my view, the relevant questions:

(Questions (i) to (viii) relate to actual capital.)

(i)	Is capital relevant to the rules of entitlement to the benefit at issue?

(ii)	If so, what is the relevance of capital to the issues in the case eg if the capital is above a certain amount will the claimant’s potential benefit be affected?

(iii)	Is the capital at issue in the case actual capital? and, if so, identify the actual capital.

(iv)	What is the connection between the capital and the claimant eg sole owner or co-owner?

(v)	If there is such a connection, does anyone else have a legal or other interest in the capital?

(vi)	Can any or all of the capital be disregarded, under the disregard rules?

(vii)	If not, what is the value of the actual capital?

(viii)	Having established the value of the actual capital, taking into account the disregard rules, is entitlement to the benefit at issue affected?

(Questions (ix) to (xiv) will help clarify whether one is dealing with actual or notional capital and care should be taken not to ignore these questions on an assumption, often a wrong assumption, that the relevant capital is notional.)

(ix)	Did the claimant ever have capital which might have affected entitlement to the benefit in question?

(x)	Has it been established that the claimant still has that capital? ie is it still actual capital?

(xi)	What is the connection between that capital and the claimant eg sole owner or co-owner?

(xii)	If there is such a connection, does anyone else have a legal or other interest in that capital?

(xiii)	Can any or all of that capital be disregarded, under the disregard rules?

(xiv)	If not, what is that capital’s value?

(Questions (xv) to (xvi) relate to notional capital.

(xv)	If no-one else has a legal or other interest in it, has the claimant deprived himself of the capital for the purpose of securing entitlement to benefit in line with the rules on deprivation? ie has it become notional capital?

(xvi)	What is the value of the notional capital, taking into account the diminishing notional capital rule? ie has the value diminished over the passage of time?

The answers to these questions are not necessarily straightforward and, almost inevitably, rigorous and careful fact-finding will be required by decision-makers and tribunals.’

	The appeal tribunal’s treatment of the capital question

20.	In the statement of reasons for its decision, the appeal tribunal made the following findings in fact, with respect to the appellant’s capital:

‘The facts of the case are set out in detail in the Departmental submission and are not disputed by the Appellant.  Specifically he states in his letter held at Tab 10 of the submission that he lodged the nett proceeds of sale of his house at ‘RR’ amounting to £175,226.54 into his bank account on 21.03.2007.  Subsequently at different dates he transferred a total sum of £154,999 from that account into an investment account with Halifax plc.  He provided a statement showing a balance of £155,013.15 in that account on 04.10.2007’

21.	The appeal tribunal’s findings are corroborated by the bank account statements attached to the written submissions as part of Tab No 9.

22.	The appeal tribunal did not include specific findings as to whether the appellant was sole owner of all of the relevant capital or joint owner with his wife.  It did conclude, however, and correctly, in my view, that the appellant had capital in excess of £16,000 at specific relevant dates, namely from 21 March 2007 to 8 May 2007.

23.	In his letter of appeal, against the decisions of the Department, and dated 17 February 2008, the appellant stated, at paragraph two:

‘In real terms I do not have any excess capital as we have a mortgage which we do not receive any help with and the interest from the capital pays the mortgage as you already know, so it appears that we have fallen between two stools and hence the appeal.’

24.	This submission, and other submissions which were made before the appeal tribunal, required the appeal tribunal to consider the question as to whether any or all of the appellant’s capital could be disregarded under the disregard rules.  What are the disregard rules?

25.	Regulation 46(2) of the Income Support (General) Regulations (Northern Ireland) 1987, as amended, provides that:

‘(2)  There shall be disregarded from the calculation of a claimant’s capital under paragraph (1) any capital, where applicable, specified in Schedule 10 (capital to be disregarded).’

26.	Paragraph (1) of regulation 46 provides for the calculation of capital.  Schedule 10 sets out categories of capital which might be disregarded under regulation 46(2).  Paragraph 3 of Schedule 10 provides for the following category:

‘3.  Any sum directly attributable to the proceeds of sale of—

(a)  any premises formerly occupied by the claimant as his home, or

(b)  any premises which the claimant continues to occupy as his home and which were occupied by him as his home immediately before the compulsory acquisition of those premises from him under any statutory provision, 
which is to be used for the purchase of other premises or land intended for such occupation within 26 weeks of the date of sale or such longer period as is reasonable in the circumstances to enable the claimant to complete the purchase.’

27.	In the statement of reasons for its decision, the appeal tribunal made the following conclusions with respect to the applicability of paragraph 3 of Schedule 10:

‘The Appellant in his oral evidence confirmed that he had purchased his present home at ‘DR’ in April 2006 when he moved there while his wife remained living at his former home also owned by him at ‘RR’.

He took out a mortgage to assist in the purchase of the new home.  He said the purpose of buying the new house was for him to have a separate home following separation from his wife.  He and his wife reconciled and she joined him in the new home in December 2006.  The old home was then vacant until it was sold in March 2007.  The need for two separate homes had ceased upon the reconciliation.

The Appellant seeks to rely on Paragraph 3 of Schedule 10 of the General Regulations which paragraph allows for capital to be disregarded for the purpose of entitlement to Income Support if it represents proceeds of sale of the former home of the applicant for benefit and such proceeds are to be used for the purchase of another home for such applicant within 26 weeks from the date of sale or such longer period as may be considered reasonable in the circumstances to purchase another home.

In this case the Appellant had already purchased his present home prior to the sale of his former home and at the time of the purchase it was not in contemplation that the former home would be sold – it was only when a reconciliation took place between the Appellant and his wife that the former home was sold and up to that point he and his wife maintained two separate homes.  As the Appellant had already purchased his present home it cannot be said that he holds the nett proceeds of sale of his former home for the purpose of purchasing another home and therefore his capital does not fall to be disregarded under Paragraph 3 of Schedule 10 of the General Regulations.

The answer to Question 2 is therefore “No”.

For the reasons outlined above the appeal has been disallowed.’

28.	In the written observations on the application for leave to appeal, Mr Crilly, for DMS, submitted that:

‘I submit that the tribunal’s reasoning with regards to the issue of paragraph 3 was correct.  For the purposes of this case, I submit that paragraph 3 specifically refers to any sum obtained from the sale of the former home “….which is to be used for the purchase of other premises or land intended for such occupation….”  As noted by the LQM in the reasons for the decision, I submit that the capital amount obtained from the sale of ‘RR’ was not used to purchase the property at ‘DR’.  I further submit that the latter property was purchased by way of a mortgage and not by using the proceeds of the sale of the former home as the purchase took place on 22.03.06, nearly one year before the sale of ‘RR’ in March 2007.  In addition, I submit that it is immaterial for the purposes of paragraph 3 of Schedule 10 if, at a later date and in order for (the claimant) to avoid having to pay a redemption fee, the capital from the sale of ‘RR’ was used to redeem the mortgage for ‘DR’.  With this in mind, I respectfully submit that paragraph 3 of Schedule 10 cannot apply in this case and the tribunal was correct to determine that the capital in question could not be disregarded for income support purposes.  It is also my submission that the tribunal’s reasoning in relation to this matter is clearly outlined and there is no error of law in this regard.  As a result, I submit that the tribunal’s reasoning and determination in relation to the Department’s decision made on 13.02.08 is sound.’

29.	I agree with Mr Crilly’s submission on this issue.  The language of paragraph 3 of Schedule 10 of the Income Support (General) Regulations (Northern Ireland) 1987, as amended is, in a sense, redolent of certainty as well as subjective intent (see the decision of the Social Security Commissioner in Great Britain in CIS/8475/1995).  In another way, it is forward looking or anticipative.  In another sense, the language of paragraph 3 is time-barred.  Accordingly, the overall purpose of the paragraph is to permit a disregard of capital, derived from the sale of ‘… premises formerly occupied by the claimant as his home …’ which is ‘… to be used for the purchase of other premises or land …’ intended ‘… for such occupation within 26 weeks of the date of sale or such longer period as is reasonable in the circumstances to enable the claimant to complete the purchase …’.  The natural scenario envisaged by the paragraph is the sale of a property formerly occupied by the claimant; the initial retention of the proceeds of that sale by the claimant; the formation of a clear intention to use the capital to purchase another property intended for occupation as the home and reasonable certainty that the capital will be used for that purpose within 26 weeks or such further period as might be considered reasonable (see the decision of the Social Security Commissioner in Great Britain in R(IS) 7/01).

30.	In the instant case what the appellant wishes is for the adjudicating authorities to look back and replace an existing intention with another.  His intention in purchasing the second property at ‘DR’ was formed in early 2006.  The intention behind the sale was to have a second property to which he could retreat at a time when his marriage was in difficulties.  The funding for the second property at ‘DR’ was obtained by way of a mortgage.  There was never any suggestion that the property at ‘RR’ should be sold and that the capital gained should be utilised towards the purchase of a second home.  That the capital derived from the sale of the first home ‘RR’ could be intended to redeem the mortgage of the second home ‘DR’ occurred to the appellant (and probably his wife) some time after that mortgage had been taken out, probably in December 2006 when he was reconciled with his wife.  Even then, that intention was never wholly carried through.  For reasons which are clearly understandable, the appellant did not wish to utilise the capital derived from the sale of the first home ‘RR’ to redeem the mortgage on the second home ‘DR’ as he would incur a substantial financial penalty as a result.  Even though the accrued interest from the capital from the sale of the first home ‘RR’ was, de facto, going towards the purchase of the second home ‘DR’ it could not be said that the conditions set out in paragraph 3 of Schedule 10 are met.  At no stage did the appellant think ‘Now that I have obtained the capital from the sale of my former home, I am going to utilise that capital to purchase another property which I intend to occupy as my home and I am reasonably certain that I will carry out that intention within a twenty-six week period.’

31.	In CIS/4269/2003, the Commissioner, in considering the equivalent paragraph 3 of Schedule 10 to the Income Support (General) Regulations 1987, as amended, in Great Britain, stated, at paragraph 10:

‘…It is not necessarily fatal to the application of paragraph 3 that a claimant who has a sum directly attributable to the proceeds of sale of home A is currently living in home B, providing that the condition that the sum is to be used to purchase home C within 26 weeks (or reasonable longer period) of the sale of home A is met.  It will be a relatively rare case in which all those conditions can be met …’

32.	Those conditions are not met in the instant case.  The appellant, having sold home A ‘RR’ and occupying home B ‘DR’ was not intending to purchase a third property, home C, within a 26 week period of the sale of home A ‘RR’.

33.	The time bar of a 26 week period, (followed by such a longer period as might be considered reasonable), confirms to me that the policy intention behind paragraph 3 of Schedule 10 of the Income Support (General) Regulations (Northern Ireland) 1987, as amended, could not have been to permit a claimant to IS to retain or sit on an extensive capital resource until such time as it is convenient to him to redeem that capital resource even where the redemption completes the purchase of a second home.

34.	Accordingly, I cannot find that the decision of the appeal tribunal is in error of law on the basis of failure properly to apply regulation 46(2) and paragraph 3 of Schedule 10 of the Income Support (General) Regulations (Northern Ireland) 1987, as amended.

35.	Ironically, had the appellant utilised the capital proceeds of the sale of the former home at ‘RR’ to redeem the outstanding mortgage on the second home ‘DR’, and taken the hit of the early repayment charge, the capital asset of the second home ‘DR’ could have been considered for disregard under paragraph 1 of Schedule 10 of the Income Support (General) Regulations (Northern Ireland) 1987, as amended ‘… the dwelling occupied as the home …’.

	Was the appellant given a decision that the capital was to be disregarded?

36.	In the written observations on the application for leave to appeal, Mr Crilly submitted that:

‘During the appeal hearing (the claimant) raised the issue that a decision had been made previously by the Department in his case which disregarded the capital derived from the sale of ‘RR’.  The appellant queried why this decision was changed to the effect that the capital in question was to be taken into account for the purposes of his claim for income support.  The LQM considered this matter in the following terms:

“In his oral submission at hearing the Appellant questioned the honesty of those officials within the Department who had prepared the various documents contained within the Departmental submission and he complained of delay in the Department getting out a decision to him after he was interviewed.  He referred to a ‘decision’ having been made that his capital was to be disregarded, set out at Tab 13, and questioned why the case should have been referred on to Belfast resulting in a decision disallowing his entitlement, ie a reversal of the earlier ‘decision’ in his favour.  He stated, however, that the official who had interviewed him had said that the ‘decision’ would be referred to Belfast.

Chairman adjourned the proceedings briefly and asked the Presenting Officer to enquire within her Department whether a decision had been made, as alleged by the Appellant, that his capital was to be disregarded, before the case being referred on to Belfast for a decision.  When the hearing resumed the Presenting Officer handed in a handwritten record of her telephone call to the official concerned, [DB], who stated that no decision was made until advice had been received from [DD] from Decision Services from Decision Making Services (whose advice is recorded at Tab 13).  Earlier in the hearing the Presenting Officer had submitted that [DB] may have ‘run it by’ (ie the question of entitlement) a senior adjudication officer named [AS], for his opinion.

The Tribunal is satisfied that no decision on the question of disregard of capital had been made prior to 05.02.2008.”

I submit that it is understandable before the appeal hearing why (the claimant) may have believed that there had been an earlier decision to disregard the relevant capital in his case.  I can also understand why, in the event of this taking place, (the claimant) may have felt that this was unfair.  However, I respectfully submit that the tribunal fully addressed and clarified this matter to establish that no decision had been carried out before those made on 11.02.08 and 13.02.08 respectively.

I further submit, however, that even if a decision to disregard the capital had been made prior to February 2008, there are provisions within regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 to allow the Department to revise such a decision if it was appropriate to do so.  I submit that such action, if it had taken place in this case, would not have constituted an error in law in the first place.  Consequently, I do not support (the claimant’s) application for leave to appeal on this ground.’

37.	In my view aspects of the Department’s recording of the decision-making action which was taken in connection with the effect of the appellant’s capital on his entitlement to IS are not satisfactory.  What I have to decide, however, is whether those aspects which were unsatisfactory had any effect on the legality of the decisions which were made.

38.	At Tab 12 of the original submission is a copy of a Form A6 described as a form ‘… which is the property of the Department for Social Development’.  It appears to me, from the content of Tab 12 and from the detail of the record of proceedings for the appeal tribunal hearing, that Tab 12 is a record of a telephone call between one decision-maker of the Department with another decision-maker of the Department.  I accept that the second decision- maker was more senior to the first and I accept that the purpose of the telephone call was for the first decision-maker to obtain advice on the issues which were arising in the decision-making process.  At the end of Tab 12, the following is recorded:

‘… Re [AS] capital can be disregarded as it is reasonable in the circumstances [DB].’

39.	I accept that DB was the junior decision-maker and AS was the senior.  What I do not accept is that the document at Tab 12 is a decision of the Department for the purposes of Article 9 of the Social Security (Northern Ireland) Order 1998, as amended.

40.	At Tab 13 of the original submission is a document headed ‘Specialist Advisory Officer’s Request for Advice’.  I accept that this document represents a further request for advice from the decision-maker associated with the appellant’s case, such request being directed to the DMS section of the Department for Social Development.  DMS is a specialist section within the Department providing detailed and expert advice to decision-makers within the Department.

41.	Also at Tab No 13 of the original appeal submission is a copy of a memorandum from DMS.  The memorandum is in connection with the decision-making process surrounding the appellant’s entitlement to IS.  The memorandum contains the following:

‘A decision maker has disregarded this capital under the provisions of Paragraph 3 of Schedule 10 to the IS(Gen) Regs (NI) until he can use it to pay off his mortgage.’

42.	The author of the memorandum goes on to advise that the appellant cannot avail of the capital disregard in paragraph 3 of Schedule 10 of the Income Support (General) Regulations (Northern Ireland) 1987, as amended.

43.	I find the drafting of the cited passage from the memorandum to be unfortunate.  This is because I cannot find any evidence of a decision to the effect that paragraph 3 of Schedule 10 of the Income Support (General) Regulations (Northern Ireland) 1987, as amended, applied to the appellant’s circumstances and which satisfies the provisions of Article 9 of the Social Security (Northern Ireland) Order 1998, as amended.  It is also because it is understandable that any reader of that paragraph, such as the appellant, who had no understanding of the social security decision-making process, would have a reasonable belief that a decision had been made.  I emphasise again that I conclude that there is no evidence available to me that there was in place, at this stage of the decision-making process, a decision which satisfied Article 9 of the Social Security (Northern Ireland) Order 1998, as amended.  I also accept the submission from Mr Crilly that even had such a decision been in place, it could have been revised by another decision-maker under Article 10 of the Social Security (Northern Ireland) Order 1998 and regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, or superseded under Article 11 of the 1998 Order and regulation 6 of the 1999 Regulations.

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

44.	In the written observations on the application for leave to appeal, Mr Crilly submitted that:

‘The LQM recorded the following in the reasons for the tribunal’s decision:

“The decision under appeal is the decision dated 13.02.2008 that Appellant is not entitled to Income Support for the period 21.03.2007 to 08.05.2007.”

I submit that there were two decisions to be considered in this case and that the tribunal erred in only addressing the decision dated 13.02.08.  The first decision was an on-line, system decision made on 11.02.08, notification of which was issued to (the claimant) on the same date.  The effect of this decision was that (the claimant) was not entitled to income support from 09.05.07 as he possessed capital in excess of the prescribed amount.

The second decision was a clerical, off-line decision which was made on 13.02.08.  Notification of this decision was issued to (the claimant) on the same date.  The effect of this decision was that (the claimant) was not entitled to income support for the period 21.03.07 to 08.05.07.  The clerical decision was carried out because the on-line decision of 11.02.08 could only take effect from 09.05.07 due to system limitations.  In these circumstances it was still necessary to cover the whole of the period not addressed by the on-line decision from when (the claimant) received the capital amount in question on 21.03.07.

In his original letter of appeal dated 17.02.08, received in the Department on 18.02.08, (the claimant) stated:

“Further to recent correspondence I wish an appeal on the decision to disallow Income Support on the grounds of excess capital.”

I submit that (the claimant) was notified of each of the two decisions on 11.02.08 and 13.02.08 respectively.  I further submit that he would have been in receipt of these notifications by the time he wrote his letter of appeal on 17.02.08 and, consequently, his appeal lay against both decisions.  However, whilst I am submitting that the tribunal erred in only considering the later decision dated 13.02.08, I would like to point out at the same time that it was not helped in this matter by the Department’s appeal submission.  Section 1 of the submission clearly refers to the decision dated 13.02.08 as being the decision under appeal even though reference is later made to both the clerical and system decisions under tabs 13 to 15 in Section 4 of this document and further evidence of these is contained in the papers accordingly.

I submit that the circumstances and reasons concerning (the claimant’s) non-entitlement to income support are identical for each of the decisions made on 11.02.08 and 13.02.08.  With that in mind, I submit that there is no evidence to suggest that (the claimant’s) circumstances had changed in any way on 09.05.07 and that these remained the same from this date.  With this in mind, I submit that the Department was correct to decide on 11.02.08 that (the claimant) was not entitled to income support from 09.05.07 onwards.  If the Commissioner agrees with this as well as my submission that the tribunal’s decision concerning the decision dated 13.02.08 is correct, I would respectfully invite the Commissioner to make the decision that the tribunal should have made in relation to the Department’s decisions dated 11.02.08 and 13.02.08 respectively.’

45.	I accept Mr Crilly’s submission in its entirety.  The Department did make two decisions in respect of the appellant’s entitlement to IS.  Those decisions were dated 11 February and 13 February 2008.  The appellant’s appeal was against both of those decisions.  The appeal tribunal was, therefore, obliged to hear an appeal against both of those decisions.  The appeal tribunal only dealt with one decision.  Accordingly, its decision is in error of law.

	My revised decision

46.	I have already concluded that the appeal tribunal’s decision with respect to the appeal against the decision of the Department dated 13 February 2008 was correct and that the appellant was not entitled to IS from 21 March 2007 to 8 May 2007.  The basis of that decision was that the appellant had capital in excess of the capital limits for entitlement to IS and that capital could not be disregarded under the capital disregard rules.

47.	The decision of the Department dated 11 February 2008 was to the effect that the appellant was not entitled to IS from and including 9 May 2007.  The basis of that decision was also that the appellant had capital in excess of the capital limits for entitlement to IS and that capital could not be disregarded under the capital disregard rules.  I agree with Mr Crilly that there was no change in the appellant’s circumstances between 8 May 2007 and 9 May 2007.  Accordingly if, on 8 May 2007, he had capital in excess of the capital limits for entitlement to IS and that capital could not be disregarded under the capital disregard rules, that was also the position on 9 May 2007.  The decision of the Department dated 11 February 2008 is upheld.

	Disposal

48.	The decision of the appeal tribunal dated 21 October 2008 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.

49.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made fresh or further findings of fact.

50.	My revised decision is that the decisions of the Department dated 11 February 2008 and 13 February 2008 are upheld.  Accordingly the appellant is not entitled to IS from 21 March 2007 to 8 May 2007 and from and including 9 May 2007.

(signed):  K Mullan

Chief Commissioner

18 August 2011