Northern Ireland - Social Security and Child Support Commissioners' Decisions

JJO’D v Department for Social Development (IS) [2010] NICom 33

Decision No:  C10/08-09(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 27 May 2008

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 27 May 2008 is in error of law.  The error of law identified will be explained in more detail below.

 

2.     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.

 

3.     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, including the oral evidence of the appellant, 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.

 

4.     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.

 

5.     It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to income support (IS) 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

 

6.     On 11 November 2005, a decision-maker of the Department decided that the appellant had no entitlement to IS from and including 20 September 2004.  On 29 December 2005 an appeal against the decision dated 11 November 2005 was received.  On 11 March 2006, the decision dated 11 November 2005 was reconsidered but was not changed.

 

7.     On 16 May 2006 an appeal against the decision dated 11 November 2005 was heard and disallowed by an appeal tribunal.  On 13 November 2007 an appeal to the Social Security Commissioner was allowed and the case was remitted to a differently constituted appeal tribunal.

 

8.     The appeal was heard as an oral appeal before a newly constituted appeal tribunal on 27 May 2008.  The appellant was represented at the further oral hearing of the appeal by the Law Centre (NI).  The appeal tribunal disallowed the appeal and substituted its own decision.

 

9.     On 14 November 2008 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service.  On 18 November 2008, the application for leave to appeal was granted by the legally qualified panel member but without identifying a relevant ground.

 

         Proceedings before the Social Security Commissioner

 

10.   On 18 December 2008, the appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).  On 14 January 2009 observations were sought from Decision Making Services (DMS) and these were received on 4 February 2009.  DMS opposed the application.  Observations were shared with the appellant on 16 February 2009.  Further submissions in reply were received in OSSC on 16 March 2009.  These further observations were shared with DMS on 19 March 2009.

 

11.   I directed an oral hearing of the appeal.  At the oral hearing, the appellant was represented by Mr Hatton from the Law Centre (Northern Ireland), and the Department was represented by Mr Woods of the DMS section.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

 

         The legislative background

 

12.   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”.

 

13.   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.’

 

14.   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’

 

15.   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).’

 

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

 

         The legal basis for the decision under appeal

 

17.   The decision under appeal to the appeal tribunal was a decision of the Department dated 11 November 2005, in which a decision-maker of the Department decided that the appellant had no entitlement to IS from and including 20 September 2004.

 

18.   The legal basis for the decision dated 11 November 2005 was submitted to be that the appellant, by executing a transfer of property of which he had been the lawful owner, had deprived himself of a capital asset.  As the deprivation was for the purpose of securing entitlement to IS, he should be treated as possessing that capital, under section 132(4) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, and regulation 51 of the Income Support (General) Regulations (Northern Ireland) 1987, as amended.  As the value of the capital which the appellant should be treated as possessing was in excess of the prescribed amount for the purposes of section 130(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, and regulation 45 of the Income Support (General) Regulations (Northern Ireland) 1987, as amended, the appellant no longer satisfied the conditions of entitlement to IS.

 

19.   It is accepted by the appellant and his representative that a lawful transfer of the relevant property did take place on 1 September 2004 and it is accepted by all parties that the appellant continued to live in the relevant property until 20 September 2004.

 

         The proper approach to regulation 51 of the Income Support (General) Regulations (Northern Ireland) 1987

 

20.   In CIS/218/2005, Commissioner Bano set out the approach to be taken when decision-making authorities are faced with the question of whether a claimant should be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to IS or increasing the amount of that benefit, for the purposes of regulation 51(1) of the Income Support (General) Regulations 1987, the equivalent in Great Britain to the Income Support (General) Regulations (Northern Ireland) 1987.  Commissioner Bano stated, at paragraphs 7 and 8:

 

‘7.  The question which has to be considered when deciding whether capital which has been disposed of  is to be treated as notional capital is not simply whether the disposition was reasonable or prudent, but whether the reason, or one of the reasons, why the claimant disposed of the capital was to secure or increase entitlement to income support.  As Mr Commissioner Howell QC recently stated when applying the ‘significant operative purpose test’ in the context of housing benefit in CH/3169/2004, the issue requires a determination of the actual, or subjective, intention of the claimant:

 

…

 

8.  It was undoubtedly necessary for the tribunal to consider whether it was reasonable or prudent for the claimant to give away large amounts of money to her children, since an improvident gift by a claimant in straitened circumstances increases the probability that one of the reasons for the gift is to secure or increase entitlement to a means-tested benefit.  As Mr Commissioner Howell QC explained, it s also necessary to take into account all the other relevant circumstances, including in this case the very long delay before the claimant reported receipt of the sums paid under the divorce settlement.  Ultimately, however, the tribunal had to decide whether the reason, or a reason, for the gifts which the claimant made to her children was to secure or increase her entitlement to income support.  Because the tribunal failed to make that crucial finding, their decision was wrong in law and must therefore be set aside.’

 

21.   In R(H) 1/06, Commissioner Howell was considering the proper approach to regulation 43(1) of the Housing Benefit (General) Regulations 1987, the wording of which is equivalent to that in regulation 51(1) of the Income Support (General) Regulations 1987, and regulation 51(1) of the Income Support (General) Regulations (Northern Ireland) 1987.  Commissioner Howell stated, at paragraphs 20 to 23:

 

‘20.      I direct the new tribunal that as quite correctly assumed by the previous chairman and not disputed on this appeal, the correct test to be applied in determining whether the claimant is shown to have deprived himself of capital for the purpose of securing entitlement to housing benefit is the well-established one applied on similar wording in the main social security legislation, namely whether the securing of such entitlement is shown to have been a “significant operative purpose” of the claimant’s relevant actions in disposing of his capital.

 

21.       That test is not of course a substitute for the language of the regulation itself, which requires that the purpose of securing such entitlement must be affirmatively established in relation to the particular claimant and his or her actions in each case in order for the “notional capital” provisions to apply.  It has however evolved by long use and acceptance as perhaps the best way that can be got of expressing the perfectly valid point that a person’s actions may well have more than one purpose, and the existence of one does not necessarily negate another.  Thus in order for the regulation to apply the securing of benefit does not have to be the claimant’s sole, or even his predominant, motive or purpose; and it is not a “wholly and exclusively” test.  The point is neatly put in the decision of Mr J G Monroe who was I think the first Commissioner to use the expression, in paragraph 10 of case R(SB) 40/85 when he said:

 

“It is not necessary that the purpose of securing, or increasing the amount of, supplementary benefit shall be the sole purpose, though it must be a significant operative purpose.  For instance one can visualise a case of a man possessed of say £1,000 over the statutory limit whose resources fall short of his requirements to an extent that this £1,000 would make up the deficiency for 12 months.  He might conclude that if he forthwith spent the £1,000 on carpeting his home from wall to wall he could start drawing supplementary benefit at once and thus be no worse off income-wise and have the benefit of the carpeting.  It would be legitimate to conclude that if such was his purpose he had deprived himself of the £1,000 for the purpose of securing supplementary benefit, notwithstanding that another purpose was to have the house carpeted.”

 

22.       Whether the securing of entitlement to benefit was, in this sense, among the purposes which led any particular claimant to act as he did is a question that must be determined by the tribunal of fact in the circumstances of each individual case, the test as already noted being one of subjective purpose: see in the housing benefit context R (Beeson) v Dorset County Council [2001] EWHC Admin 986, 30 November 2001, per Richards J at paragraphs 9, 37 (not challenged on this point in the Court of Appeal).  In the great majority of cases this must be a matter of drawing such inferences as the tribunal of fact thinks fit from the surrounding circumstances, such as the claimant’s state of knowledge of the rules, the nature and timing of the disposals he makes and the timing and manner of his claims for benefit; since direct evidence to show such a purpose is in the nature of things unlikely.  Such a task is however a perfectly normal one for a tribunal of fact to have to undertake, and this is of course by no means the only instance in the law when the purpose for which a thing is done may not be express, and has to be ascertained “as a matter of substance and of fact”: re South African Supply and Cold Storage Company [1904] 2 Ch 268, per Buckley J at p282.  In using the word “significant” Mr Monroe may perhaps have had in mind what was said by Lord Morris of Borth-y-Gest in Sweet v Parsley [1970] AC 132, 155A:

 

“In my opinion, the words ‘premises … used for the purposes of …’ denote a purpose which is other than quite incidental or casual or fortuitous: they denote a purpose which is or has become either a significant one or a recognised one though certainly not necessarily an only one.”

 

It is to that end that a tribunal must assess all the evidence and determine whether such a purpose on the part of the particular claimant before them can be inferred.

 

23.       Finally, the existing case-law in Commissioners' decisions on the same wording as that used in regulation 43 of the housing benefit regulations, and in particular the “significant operative purpose” test, was expressly affirmed by a strongly constituted Tribunal of Commissioners in case R(IS) 1/91 at paragraph 22.  In my judgment the principle so affirmed applies equally to housing benefit cases; it is significant that the context of that case was a claimant on benefit who came into a windfall, spent it quickly and imprudently and then claimed again after a few months when he had no money left.  The decision was however careful to indicate that in assessing `whether he had deprived himself of capital “reasonable and modest living expenditure including the cost of accommodation, meals and other incidentals to a reasonable quality of life (not including gambling for example)” could and should be deducted: paragraph 23.’

 

22.   The correct approach, therefore, to deciding whether the securing of entitlement to benefit was among the purposes which led any particular claimant to act as he did:

 

‘… is a question that must be determined by the tribunal of fact in the circumstances of each individual case, the test as already noted being one of subjective purpose … In the great majority of cases this must be a matter of drawing such inferences as the tribunal of fact thinks fit from the surrounding circumstances, such as the claimant’s state of knowledge of the rules, the nature and timing of the disposals he makes and the timing and manner of his claims for benefit; since direct evidence to show such a purpose is in the nature of things unlikely.’

 

         The logical impossibility argument

 

23.   In CJSA/3937/2002, the facts were that the claimant received IS from 29 September 1994 to 5 January 1996 and from 9 September 1996 to 6 October 1996, when his IS was converted to jobseeker’s allowance (JSA).  He continued to receive JSA until 1 February 1997.  At about that date, he went to Pakistan, where his wife and eight children were living.  While he was receiving benefit he was living at a property which was owned by the claimant free of mortgage.  On 10 October 1996 a transfer of the property to three new proprietors was registered.  The new owners were the claimant’s eldest three daughters.  Neither the claimant nor his solicitors informed the Department of the transfer.

 

24.   On his return from Pakistan, the claimant claimed JSA.  In the renewal claim form no mention was made of the transfer of the property.  The claimant was awarded JSA.  Some 15 months later the Department became aware of the transfer of the property and, following an investigation, formed the view that by making the transfer the claimant might have deprived himself of capital for the purpose of securing entitlement to benefit and, accordingly, should be treated as possessing the capital of which he had deprived himself, except to the extent that the amount of the capital was treated as being reduced.

 

25.   At paragraphs 23 to 27, the Deputy Commissioner stated:

 

‘23.      The further error which appears to me to have occurred is in the tribunal’s failure to deal at all with what may conveniently be called the logical impossibility argument: that since the claimant had been receiving income support or jobseeker’s allowance for many years before the transfer of the Property and the transfer did not reduce actual capital of his which was taken into account in calculating his benefit entitlement, he could not be said to have made the transfer for the purpose of securing either entitlement to, or an increased amount of, jobseeker’s allowance or income support.  This argument has been raised on behalf of the claimant throughout the history of the claim, but it has never been expressly addressed.  It is not possible to tell from the decision whether the tribunal considered the relevance of the claimant’s entitlement up to his departure for Pakistan in January 1997 in forming a view as to his intention in October 1996, or whether he took it into account, if at all, only for the purpose of showing that the claimant had knowledge of the social security system and of the capital limits.  If the former is the case, the decision is erroneous in law in that adequate reasons were not given for rejecting the argument, while if the latter is the case, the decision is erroneous in law in that the tribunal refused or neglected to take into account a matter which should have been taken into account: see R(IS) 11/99.

 

24.       It may be helpful if I explain in a little more detail why in my view the logical impossibility argument requires to be addressed.  It is not disputed that at the time of the transfer the claimant was in receipt of income support or jobseeker’s allowance (depending upon the exact date of the transfer).  At that point, the value of the Property would have been disregarded in determining his capital because under regulation 108 of and Schedule 8 to the Jobseeker’s Allowance Regulations or regulation 46 of and Schedule 10 to the Income Support (General) Regulations 1987, there is to be disregarded “the dwelling occupied as the home”.  The claimant’s ownership of the Property was thus irrelevant to his existing claim and it is therefore very difficult to see what basis he could be found to have had the necessary intention under regulation 113 (or regulation 52 of the Income Support (General) Regulations) in relation to that claim.  It is also very difficult to see how, in such circumstances, the transfer of the Property could be a fact material to the claimant’s benefit entitlement which he ought to have reported.  It is said, however, in the Secretary of State’s first appeal submission at p.82, as I understand paragraph 10, that the disposal was a change of circumstance which should have been reported as soon as reasonably practicable after its occurrence, although the original contention was that the disclosure should have been made on or as soon as possible after 6^th October 1997.  The latter is in fact the basis on which the last tribunal proceeded.

 

25.       In order to support the overpayment decision on the basis of failure to disclose the transfer on or after 6^th October 1997, the Secretary of State must show that there was an overpayment of benefit and that that overpayment was caused by the claimant’s failure to disclose, at that date, the fact that he had transferred the Property to his daughters a year earlier, so that regulations 113 and 114 were not applied when they should have been.  There was no overpayment unless the claimant made the transfer with the purpose specified in regulation 113.  So far as entitlement to benefit is concerned, that issue was concluded against the claimant a long time ago, but it is clear that when the original overpayment decision was set aside, it was envisaged that the question of the claimant’s intention in October 1996 would be reopened: see the Secretary of State’s submission, paragraph 11, on p.82 and the terms of Mr. Commissioner Angus’s order at p.94.  This was on the basis that in order to determine whether disclosure by the claimant was reasonably to be expected, the tribunal had to make a finding on the question of intention.  Inherent in that approach is the assumption, which seems to me to be correct, that if a claimant deliberately deprives himself of capital for the purpose of improving a claim to a relevant benefit, he must be taken to know that that fact is material and that disclosure is reasonably to be expected (as that expression is to be understood in this context).

 

26.       It is well settled, primarily on the basis of the decisions on the comparable provisions of regulation 52 of the Income Support (General) Regulations, that to establish the necessary purpose a positive intention to obtain the benefit must be shown to be a significant operative purpose (R(SB) 40/85; R(SB) 9/91) and that that requires proof that the claimant in question actually knew of the capital limits (R(SB) 12/91).  Since it is unlikely that there will be direct contemporaneous evidence of purpose, it will usually be necessary to look at all the circumstances of the case to consider what inferences may properly be drawn (R(SB) 40/85).  That task is made more difficult in the present case by the fact that the transfer could only affect the claimant’s entitlement to benefit in conjunction with another change in his circumstances.  While he continued to occupy the Property as his home, it made no difference to his entitlement whether the capital was actual or notional, because it fell to be disregarded in any event (since regulation 113(6) incorporates the disregard provisions as part of incorporating the valuation provisions generally).  The transfer would at first sight have a relevant effect only if the claimant were to move out of the Property, so that if he still owned it, it would form part of his actual capital.  Regulation 113 would then potentially step in to make the value of the Property notional capital of the claimant.  If the claimant had looked at the matter in his way, with the necessary knowledge if the benefit system, this would be at least one way in which he could have had the necessary purpose for regulation 113, while not affecting his immediate entitlement to benefit.  That is to say, the logical impossibility argument is not necessarily bound to be successful and one example of its possible failure is a case in which a person in the position of the claimant intended that the disposal of the capital asset should be just one of two or more steps.

 

27.       The problem with this for present purposes is that the matter does not seem clearly to have been put to the claimant on this basis, although such an approach may well underlie the notes at p.51.  This raises concerns about whether the rules of natural justice have been fully observed.  Further, even if the tacit assumption of the tribunal was that the claimant’s intentions must have extended to some such further step, the obligation to give adequate reasons required the tribunal to make that clear in the light of the express submission as to logical impossibility.  If he had done so, it would have been possible to consider whether the evidence relied on, and if necessary other evidence, was sufficient to justify such a finding as to the claimant’s intention.  As it is, the point cannot be considered, and clearly it is one on which oral evidence might cast some light.’

 

26.   The Deputy Commissioner’s reasoning on the logical impossibility argument and its applicability is careful and judicious and I adopt the principles which have been set out.

 

27.   Applying those principles in the instant case, at the date of the transfer of the property, the appellant was in receipt of IS, and was continuing to live in the relevant property.  At that point, as in CJSA/3937/2002, the value of the property would have been disregarded in determining his capital because regulation 46(2) of and paragraph 1 of Schedule 10 to the Income Support (General) Regulations (Northern Ireland) 1987, there is to be disregarded ‘the dwelling occupied as the home’.

 

28.   Once again, and as in CJSA/3937/2002, it is arguable, therefore, that the appellant’s ownership of the property was thus irrelevant to his existing claim and:

 

‘… it is therefore very difficult to see what basis he could be found to have had the necessary intention …’

 

29.   Looking at the record of proceedings for the appeal tribunal hearing and the statement of reasons for the appeal tribunal’s decision it is clear that no consideration was given to the ‘logical impossibility’ argument.  I would stress, however, that I attach no fault to the appeal tribunal for that.  The argument, and the decision of the Deputy Commissioner on which it is based, were not set out in the appeal submission nor cited in argument before the appeal tribunal.  (Indeed, the two representatives at the oral hearing before me were equally unaware of the relevant principles).

 

30.   That is not the end of the matter, however.  Although at the date of the transfer of the property the appellant was in receipt of IS, and was continuing to live in the relevant property, it is accepted that the appellant left the property on 20 September 2004.  The fact of his leaving the property on 20 September 2004 is the reason behind the disallowance of IS from that date.  In paragraph 26 of CJSA/3937/2002, the Deputy Commissioner had stated:

 

‘…While he continued to occupy the Property as his home, it made no difference to his entitlement whether the capital was actual or notional, because it fell to be disregarded in any event (since regulation 113(6) incorporates the disregard provisions as part of incorporating the valuation provisions generally).  The transfer would at first sight have a relevant effect only if the claimant were to move out of the Property, so that if he still owned it, it would form part of his actual capital.  Regulation 113 would then potentially step in to make the value of the Property notional capital of the claimant.  If the claimant had looked at the matter in his way, with the necessary knowledge if the benefit system, this would be at least one way in which he could have had the necessary purpose for regulation 113, while not affecting his immediate entitlement to benefit.  That is to say, the logical impossibility argument is not necessarily bound to be successful and one example of its possible failure is a case in which a person in the position of the claimant intended that the disposal of the capital asset should be just one of two or more steps.’

 

31.   It seems to me, therefore, that if the logical impossibility argument is to applied in the instant case, it requires not only that the appeal tribunal considers the position at the date of the transfer of the property, when the appellant remained within the property but also at the date of his moving out of the property when different considerations might apply, or as the Deputy Commissioner put it, consideration was being given to a second step.

 

32.   Without attributing any blame to the appeal tribunal, consideration should have been given to the potential application of the logical impossibility argument.  The failure to give consideration to that potential application renders the decision of the appeal tribunal as being in error of law.

 

         The appellant’s grounds for appealing to the Social Security Commissioner

 

33.   Having found that the decision of the appeal tribunal is in error of law on the basis of the analysis set out above, I do not have to consider the appellant’s grounds for appealing.  I would indicate, however, that the issues raised by the appellant’s representative in those grounds may be raised during the further re-hearing of the appeal.

 

         The calculation of the capital

 

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

 

‘I would like, at this point, to refer to the calculation of capital made by the Tribunal.  The Tribunal decided that the capital asset was worth £60,000, applied a 10% deduction to it and added actual capital of £693.02 which resulted in a valuation of £55,093.02.  I submit that a 10% deduction of the £60,000 valuation would be £6000.00 making the capital asset £54,000.  The total capital should therefore be £54,000 plus £693.02 actual capital [bank account] resulting in a figure of £54,693.02.  As a result, I would also submit that the subsequent calculation, for 11 November 2005, taking into account diminishing capital is also incorrect.  I submit that although the Tribunal erred in calculating (the claimant’s) capital, it is not enough to invalidate the decision as the capital is still well in excess of the capital limit of £8000.’

 

35.   In the further submission prepared in response to the written observations from DMS, the appellant’s representative agreed that there had been an error in how the capital had been calculated and added that it was incumbent on the appeal tribunal to determine the precise amount of notional capital rarely than merely the amount is over the prescribed capital limits as set out in the relevant legislative provisions.

 

36.   Once again this is an issue which can be addressed in the further oral hearing of the appeal before the differently constituted appeal tribunal.  I would note, however, that the Chief Commissioner, at paragraph 17 of R2/09(IS) set out the proper procedure to be applied in cases where issues of capital are relevant to benefit entitlement.  That approach includes the proper assessment of notional capital where that was one of the relevant issues.

 

         The potential notification to the Housing Benefit Department

 

37.   The record of proceedings for the appeal tribunal hearing records that the appellant’s representative adduced evidence from the appellant as to whether he informed the Housing Benefit Department, in connection with a claim to housing benefit following his leaving of the relevant property on 20 September 2004, that he had transferred and left the property.  The applicant’s representative had submitted that this evidence was relevant to the issue of the appellant’s intention when making the relevant transfer.  The evidence and submission concerning notification to the Housing Benefit Department was not addressed by the appeal tribunal in the statement of reasons for its decision.

 

38.   The issue having been raised by the appellant meant that the appeal tribunal was under a duty to consider it.  That required the appeal tribunal to acknowledge, in its statement of reasons that the issue was considered by the appeal tribunal.  It required the appeal tribunal to indicate what it made of the evidence concerning the potential disclosure and the effect of that disclosure on the appellant’s intention.  The issue having been raised by the appellant in his oral evidence to the appeal tribunal, and by the representative through submissions with respect to it, the appellant was entitled to know, through the statement of reasons, what was the appeal tribunal’s determination in connection with the issue, and the reasons for its conclusions in connection with it.

Disposal

 

39.   The decision of the appeal tribunal dated 27 May 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.

 

40.   The Department is directed to prepare a further submission which deals with the following issues:

 

(i)            the basis on which it submits that the appellant is not entitled to IS from and including 20 September 2004;

 

(ii)          the application of the ‘logical impossibility’ argument to the issues arising in the appeal;

 

(iii)        the correct calculation of capital, both actual and notional;

 

(iv)         any further claims to IS, or other relevant social security benefits and the impact of any further claims on the issues arising in the appeal.

 

41.   It will be for both parties to the proceedings to make further submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal, which may include the submissions made in connection with the proceedings before the Social Security Commissioner.

 

42.   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

 

Commissioner

 

 

 

22 April 2010