Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2001] NISSCSC C3/01-02(JSA) (17 October 2001)

 


Decision No: C3/01-02(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 JOBSEEKERS ALLOWANCE
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 25 August 2000
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application, by the claimant, for leave to appeal against the decision dated 25th August 2000 of an Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. I held a hearing of the application at which I granted leave to appeal. With the consent of the claimant's representative Mr McVeigh of the Northern Ireland Citizens Advice Bureau and the Department's representative, Mr Bennett of the Decision Making and Appeals Unit, I treat the application as an appeal and proceed to determine any questions arising thereon as though they arose on appeal.
2. I am grateful to both representatives for their considerable assistance in this case.
3. The grounds of appeal are two fold:-

1. That encumbered capital was wrongly included in the calculation of personal capital.

2. That the Tribunal had wrongly ignored the fact that disclosure had been made on 4th November 1998 of the fact that the claimant had capital which could have brought her above the point which a taper should have been applied.

4. At hearing and in his observations by letter of 12th September 2001 Mr Bennett conceded that the Tribunal had erred in relation to the second ground i.e. the period of overpayment and he submitted that any recoverable overpayment for the period from 4th December 1998 to 8th December 1998 should be reduced and that after 9th December 1998 the claimant had disclosed all that could be required of her. Mr McVeigh agreed with this.
5. I consider the Tribunal erred in relation to the period of the overpayment in that it did not take into account the disclosure actually made. I agree also with Mr Bennett in that, if it is determined that there was capital in excess of the relevant amounts then any recoverable overpayment produced thereby should be reduced for the period from 4th December 1998 to 8th December 1998 and that the question of a recoverable overpayment could not arise for any period after 9th December 1998. The Tribunal's decision is set aside for the reason that it did not take into consideration the disclosures actually made on 24th November 1998 and 9th December 1998.
6. Mr McVeigh submitted that with relation to ground one the money which the claimant had saved and which was used to pay for central heating on 15th May 1999 should be disregarded under paragraph 13(b) of Schedule 7 to the Jobseeker's Allowance Regulations (Northern Ireland) 1996 (the JSA Regulations). The relevant paragraph provides as follows:-

"13. Any sum - …

(b) acquired by the claimant (whether as a loan or otherwise) on the express condition that it is to be used for effecting essential repairs or improvements to the home,

and which is to be used for the intended purpose, for a period of 26 weeks from and including the date on which it was so paid or acquired or such longer period as is reasonable in the circumstances to enable the claimant to effect the repairs, replacement or improvements."

7. Mr McVeigh submitted that the applicant having acquired the monies by way of savings, the process of saving could amount to acquiring. That may be correct but reading the above provision as a whole it is obvious that it is only money acquired on an express condition and which is to be used for its intended purpose within 26 weeks or such longer period as is reasonable which can be disregarded. I do not think it can be reasonably said that money which a claimant herself saves is money acquired on an express condition. There is no condition attached to money which one person saves out of his own income. He can use such monies as and when he sees fit. I do not therefore consider that the claimant's savings can be excluded under regulation 13(b).
8. Mr Bennett submitted that he did not consider that paragraph 13(b) applied to the Housing Executive grant obtained by the claimant. When the claimant got the grant the repairs had already been done and paid for by money borrowed by the claimant. Mr Bennett was prepared to accept, and I think rightly, that in generality of cases where there was no other money available money could be acquired on the express condition that it was to be used for effecting essential repairs or improvements if it was acquired for the purpose of carrying out improvements but not until after the improvements had actually been done. I am of the view that to come within paragraph 13(b) the sum must be as follows: -

1. Acquired by the claimant.

2. On the express condition that it is to be used for effecting essential repairs or improvements to the home.

3. To be used for that purpose.

The sum can be disregarded for a period of 26 weeks from the date on which it was so paid or acquired or such longer period as is reasonable in the circumstances to enable the claimant to effect the repairs, replacement or improvements.

9. I do not consider that any sum acquired after the repairs have been done and paid for can be said to be going to be used for the intended purpose of effecting the repairs.
10. Two further matters are to be considered: -

1. Did the claimant possess the capital in question i.e. was she beneficial owner of it?

2. If so was there any encumbrance secured on the capital? A debt can be an encumbrance but to qualify for a deduction from the capital value it must be secured on the capital.

11. I am in agreement with Mr Bennett that the Tribunal erred in that it appeared to consider the possible disregard of the claimant's Housing Executive grant under paragraph 9 of Schedule 7 to the JSA Regulations instead of under the said paragraph 13. This may have led the Tribunal into not making adequate investigations into the situation vis a vis the claimant's capital.
12. Mr Bennett further submitted that the Tribunal had erred in that it did not consider whether or not disclosure was reasonably to be expected in this case and gave as an example the question of whether the claimant could have been expected to disclose her capital if she was expecting to repay loans out of it. In support of his argument in this respect Mr Bennett cited decision C6/00-01(IS). Mr Bennett referred particularly to paragraph 23 of that decision. While the claimant's state of mind is undoubtedly relevant as to whether or not disclosure was reasonably to be expected that state of mind is not determinative of the matter. In paragraph 21 of the said decision I stated:-

"Failure to disclose arises in circumstances were there is a nondisclosure (that was not disputed) and disclosure is reasonably to be expected. The Tribunal had to ask itself whether disclosure was reasonably to be expected from the claimant. The mere fact that he did not know of the necessity to disclose would not mean that a disclosure was reasonably to be expected if, in all the circumstances including reading information which he should have read, the claimant should have appreciated the necessity for disclosure."

13. The claimant's state of mind therefore while relevant is not determinative, disclosure is reasonably to be expected if a reasonable person, in the circumstances and with the information which he had or should have obtained would have made disclosure.
14. As I am in agreement with the representatives that this is not a case where I can make the decision which the Tribunal should have given I remit this matter to a differently constituted Tribunal. I direct the representatives to make available to the Tribunal submissions supported by such evidence as can be obtained as to the fact situation relating to the capital and loans. This will obviously relate particularly to the circumstances and terms of the loans.
15. As regards whether or not the capital is possessed by the claimant the presumption must be applied that the legal ownership and the beneficial ownership are presumed to be vested in the same person. It would therefore be for the claimant to rebut this presumption.
16. I remit the matter to the new Tribunal for re-hearing and direct the Tribunal: -

1. To consider what capital the claimant possessed and to bear in mind in particular regulation 108 of the JSA Regulations.

2. To ascertain the capital to be taken into account by applying regulation 108 and Schedule 7 of the JSA Regulations.

3. To calculate that capital by applying regulation 111 of the JSA Regulations.

If the claimant is found to have had capital over the amount at which the taper applies:-

4. To bear in mind the disclosures made on 24th November 1998 and 9th December 1998 in computing the period of any overpayment.

5. To consider whether it was reasonable to expect disclosure in the circumstances i.e. whether or not a reasonable person would have disclosed the amount of capital.

17. I also direct the decision maker to make available to the Tribunal and to the claimant in reasonable time before the hearing a submission on the amount of

the overpayment which the decision maker considers is recoverable.

(Signed): M F BROWN

COMMISSIONER

17 OCTOBER 2001