Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C6/97(IS) (4 August 1997)

 


Decision No: C6/97(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 INCOME SUPPORT Application by the claimant for leave to appeal and appeal to the Social Security Commissioner on a question of law from the decision of the Belfast Social Security Appeal Tribunal dated 16 April 1996 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal which held that claimant was overpaid income support amounting to £6,312.21 for the period from 1 February 1993 to 18 April 1994, and that that amount was recoverable as he misrepresented the material fact that he was engaged in remunerative work during that period. The Tribunal gave reasons for its decision in that it considered on the balance of probability that Mr B... was engaged in remunerative work as an insurance broker from 1 March 1993 until at least 22 September 1993, and that he was engaged in remunerative work for K... I... Limited from 1 July 1993 to 18 April 1994.
2. I arranged an oral hearing at which claimant was represented by Mr S... of Counsel instructed by Messrs M..., M... & G..., Solicitors. The grounds of appeal were set out in a letter from claimant's solicitor of 15 January 1997 as follows:-

"Mr B... applies for leave to appeal the Social Security

Commissioner on the following point of law. The Appellant appeals

on a point of law from the decision of the Tribunal. The point

of law is that the Tribunal made a decision supported by no, or

insufficient evidence. The decision was supported by no, no

insufficient evidence was that the Appellant was engaged in

remunerative work for K... I... Limited from 1 July 1993

to 18 April 1994. All the evidence presented to the Tribunal

pointed the other way. Mr B... denied that he was engaged

in the remunerative work during this period. Mr M..., a

qualified accountant, who audited the books and records of

K... I... Limited gave evidence that he was satisfied

that these books were proper and that the returns made to the

Inland Revenue were proper. Mr M... gave evidence that there

were no payments made by K... I... Limited to

Mr B... during this period. There was no evidence at

all to the contrary from the Presenting Officer and in such

circumstances, it is submitted that the decision of the Tribunal

is without foundation and wrong in law."

At the oral hearing Mr S... argued that there were two points at issue (1) was he employed as an insurance broker? and (2) was he engaged in remunerative work from 1 July 1993 until 18 April 1994 with K... I... Limited?

3. Upon receipt of the application for leave to appeal the Adjudication Officer made the following written comment:-

"I respectfully submit that the Tribunal have erred in law in

the following respects:-

1. Regulation 5 of the Income Support (General) Regulations

(Northern Ireland) 1987 provides that remunerative work is

work of not less than 16 hours a week for which payment is

being made or is done in expectation of payment.

Mr B...'s accountant gave evidence that his client

had no expectation of payment for the work done for K...

and was not being paid. The Tribunal failed to consider the

issue of expectation of payment.

In decision R(IS) 5/95 which dealt with an appeal against

the decision of a Social Security Appeal Tribunal that the

claimant, who was a director and an employee of a small

limited company, was in remunerative work, the Commissioner

held that it was necessary to identify the capacity in which

the claimant did any work, as an employee or as a director,

and to ask whether the claimant had a realistic expectation

of receiving payment in the relevant capacity week by week.

He further held that it is enough that there is an expectation

of payment in the future for the current week's work. An

expectation that payment will be made for work done in future

weeks is not an expectation that payment will be made for work

in the current week.

The Commissioner went on to consider the position where a

claimant is not excluded from entitlement to income support

by reason of being in remunerative work, and held that it

should be asked whether regulation 42(6) of the Income Support

(General) Regulations applies to deem the claimant to possess

earnings for the work done for the company based on earnings

in comparable employment.

2. Regarding the employment prior to 1 July 1993 and

Mr B...'s involvement in the company owned by himself

and his ex-wife, the Tribunal made no findings of fact in

relation to that company.

3. Finally, the Tribunal also erred in law in not addressing the

review issue as required by section 69(5) of the Social

Security Administrative (Northern Ireland) Act 1992.

Although I have identified errors in law in the Tribunal's decision

Mr B... may not be able to gain any assistance from these

errors."

4. Mr S... argued that the Adjudication Officer decision was effectively what was being appealed against. Claimant was a director of a company and he admitted working for K..., but the issue was whether the claimant was paid. The evidence was given that he was not paid. He said that the findings of fact did not deal with the question of working and receiving remuneration and said that this should have been gone into.
5. Mrs McRory accepted that the Tribunal did not consider fully the aspect of remunerative employment and quoted R(IS) 5/95. She referred to the interview notes where there were two insurance companies mentioned. There is nothing to show that claimant had signed over his shares to his wife and there are a lot of issues which had not been addressed; namely all things relating to his divorce settlement were not gone into and it was not clear if he still had a loan of £40,000.
6. I have considered all the papers in this case and the evidence given at the hearing before me.

Mr S... relied heavily on the fact that claimant did not receive any payment for his work. That argument ignores the regulations, and in particular regulation 42(6). Also, as far as K... I...s Limited is concerned, Mr S... told me that it began as a renting company: an investment company which bought property, refurbished it and rented it out. It now merely dealt with collecting rents and it now had over 200 properties on its books. He said that the claimant worked for K... from June 1992 until April 1994 but that he was not paid and that there was no evidence that he was paid.

7. Claimant is an insurance broker who, during the course of this period, applied for a loan to the ... Building Society for £90,000 and gave his salary as £52,000 per year as a financial controller. There is no evidence as to what happened to that £90,000, nor any evidence relating to the £25,000 paid up shares in B... Insurance Services Limited. As far as claimant's comment in the interview with the Investigating Officer that he sent a letter to his wife transferring the insurance business to her, he must (and should) know that is not how one transfers shares in a company. That matter should be gone into by the Tribunal.
8. I am satisfied that the Tribunal went down the wrong road and I am surprised no action was taken concerning the ... loan. It did not properly inquire into his financial position in respect of all his financial dealing from the time he applied for income support. Nor did it properly inquire as to whether or not he was engaged in remunerative work, irrespective of whether or not the Tribunal accepts his argument that he was not paid. I grant leave to appeal, both parties having consented to me treating the application as the appeal. I refer the matter back to be reheard by a differently constituted Social Security Appeal Tribunal and that Tribunal should go into the matter properly.

(Signed): C C G McNally

COMMISSIONER

4 August 1997