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You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> LG v Department for Social Development (IS) (Income Support ) [2011] NICom 140 (27 January 2011)
URL: http://www.bailii.org/nie/cases/NISSCSC/2011/140.html
Cite as: [2011] NICom 140
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LG-v-Department for Social Development (IS) [2011] NICom 140
Decision No: C7/10-11(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 November 2008
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 appeal can properly be determined without a hearing. The decision of the appeal tribunal dated 21 November 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 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.
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 31 May 2008 a decision-maker of the Department decided that the applicant was not entitled to IS from and including 24 April 2008. An appeal against the decision dated 31 May 2008 was received in the Department on 26 June 2008.
7. The appeal tribunal hearing took place on 21 November 2008. The appellant was present and was accompanied by a friend. The Department was represented by a Departmental presenting officer. The appeal tribunal disallowed the appeal, and made its own decision, as follows:
‘UNANIMOUS DECISION OF THE APPEAL TRIBUNAL
Is that on the 24/4/08 the appellant is not entitled to Income Support as he has actual and notional capital over the prescribed limits. At the date of claim his discovered bank statement show [sic] a credit balance of £2.22. On the 26/6/07 or thereabouts he received £53,027.69 being the net proceeds of sale from his home. On the 20 July 2007 £33,027.6 was deposited in the Abbey where he had a credit balance of £6742.66. The £20,000 balance is unaccounted for and remains to be treated as actual capital. The balance disputed is to be considered as notional capital.’
8. On 16 March 2009 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service (TAS). On 27 March 2009 the application for leave to appeal was refused by the legally qualified panel member.
Proceedings before the Social Security Commissioner
9. On 20 April 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.
10. On 12 June 2009 observations were sought from Decision Making Services (DMS) and these were received on 8 July 2009. In these initial observations on the application for leave to appeal, DMS opposed the application on the grounds cited by the applicant. DMS did submit, however, that the decision of the appeal tribunal was in error of law on another submitted ground but that this error did not render the decision to be perverse. Written observations were shared with the appellant on 8 July 2009.
11. On 27 November 2009, DMS were asked to clarify a reference to a reported decision of a Social Security Commissioner in Great Britain which had been cited in the statement of reasons for the appeal tribunal’s decision. In a reply dated 1 December 2009, DMS submitted that the cited reference in the statement of reasons was erroneous and that the appeal tribunal had meant to refer to another reported decision of the Social Security Commissioner in Great Britain with a similar reference.
12. On 20 May 2010 the appellant was asked to provide copies of bank statements which he had submitted, in his application for leave to appeal, were not before the appeal tribunal.
13. On 25 May 2010 a reply to the request dated 20 May 2010 was received from the appellant, in which he indicated that he had, in fact, submitted all of his bank statements to the appeal tribunal. Further telephone correspondence with TAS revealed that they had no additional bank statements in their possession other than those which had been made available to the appeal tribunal.
14. On 18 June 2010 I granted leave to appeal, citing, as a reason, that an arguable issue had arisen as to whether the decision of the appeal tribunal was in error of law in the manner in which it had addressed the issue of notional capital.
15. There then followed a delay in the making of this decision based on the fact that similar issues which were addressed in another application for leave to appeal which was before the Social Security Commissioner, and which might have impinged on the issues arising in the instant appeal.
Errors of law
16. 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.
17. 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 submissions of the parties
18. In the application for leave to appeal to the Social Security Commissioner, the appellant submitted that the decision of the appeal tribunal was in error of law on the basis that:
‘I suffered severe head injury and I believe the tribunal did not have all bank statements regarding my savings + expenditure. I now have all statements regarding this.’
19. In written observations on the application for leave to appeal, DMS opposed the application on the grounds cited by the applicant. DMS did submit, however, that the decision of the appeal tribunal was in error of law on another submitted ground but that this error did not render the decision to be perverse.
Analysis
The relevant legislative provisions
20. 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”.
21. 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.’
22. 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’
23. 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).’
24. 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
25. 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 approach of the appeal tribunal in the instant case
26. In the instant case, the decision under appeal to the appeal tribunal was a decision of the Department dated 31 May 2008 in which a decision-maker of the Department decided that the applicant was not entitled to IS from and including 24 April 2008. A copy of the decision dated 31 May 2008 is attached to the original appeal submission as Tab No 7. The decision sets out in considerable detail the factual background relating to the appellant’s prior claims to benefit, and disposal of his capital resources, and concludes that:
‘Taking into account that he did not query the termination of his benefit, the pattern of spending and the fact that he did not claim again until his capital balance was under prescribed limits, I have decided that a significant operative purpose of (the claimant’s) expenditure was to gain entitlement to Income Support.
I have also decided that (the claimant) deprived himself of this money and that he should be treated as having capital of £51,247.62 on 24.04.08, and as such is not entitled to Income Support.
THE LAW USED TO MAKE THIS DECISION
REG 51 of the IS (GEN) REGS (NI) 1987’
27. The decision-maker was accepting that, following the completion of the sale of his former home, on 25 June 2007, the appellant received the balance proceeds of the sale to the sum of £53,027.69. The decision-maker was also accepting that by the date of the claim to IS, on 24 April 2008, the appellant had disposed of the majority of his capital, that is £52,247.62. 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.
28. The appeal tribunal took a different approach. The first key finding by the appeal tribunal is set out at paragraph 9 of its decision, as follows:
‘Having considered the bank statements I do not accept the appellant’s account about depositing money is correct. The Abbey building society account shows that on the 2nd July 2007 there was a cheque deposit of £33,027. From this account on the 21st August 2008 £20,000 was transferred to the appellant’s account in the Northern Bank. This was a transferor [sic] and not the deposit of separate monies. Consequently, no account has been given of the balance monies, £20,000.’
29. The appeal tribunal made no finding that the appellant had, at one stage, following completion of the sale of his former home, been in receipt of capital in the sum of £53,027.69. What the appeal tribunal appears to be concluding is that the appellant was in receipt of that sum, had deposited £33,027 of it in an account with the Abbey Building Society. From the £33,027, £20,000 was transferred to an account with the Northern Bank. The appeal tribunal concluded that £20,000 (£53,027-£33,027) remained unaccounted for.
30. What did the appeal tribunal make, in law, of the missing £20,000? The appeal tribunal concluded that:
‘The appellant has not accounted for this £20,000 and consequently I find that he still has this as actual capital. This finding is sufficient for the conclusion that there is no entitlement to incomes [sic] support.’
31. The appeal tribunal’s reasons for this conclusion are as follows:
‘At volume 2 of the commentary by David Bonner and others on Social Security legislation the question of the calculation of capital is discussed. In R(IS) 25/95 a Tribunal of Commissioners held that the question of capital is something the claimant has to prove to show entitlement to income support. Once it has been shown the claimant possesses capital it is for them [sic] to prove expenditure or the disregards apply.’
32. As was noted above, the reference to ‘R(IS) 25/95’ should be to ‘R(IS) 26/95’. Additionally the final sentence should conclude with the words ‘… or that the disregards apply’. Nothing turns, however, on those two errors.
33. I am of the view that the appeal tribunal’s reasons for its conclusions that the appellant remained in possession of actual capital, as set out above, are problematic, in a number of respects.
34. Firstly, the Tribunal of Commissioners in R(IS) 26/95 were considering three separate cases of which CIS/417/1992 was one. At paragraph 2.328 of Volume 2 of Social Security Legislation 2007 (which may have been the volume which was considered by the appeal tribunal in this case) the authors state:
‘… In CIS 127/1993 the Commissioner raises the question of where the burden of proof lies when considering whether the capital rule is satisfied. The Tribunal of Commissioners in CIS 417/1992 (reported as part of R(IS) 26/95) treat this as part of what the claimant has to prove in showing entitlement to income support.’
35. At paragraph 25 of their decision, the Tribunal of Commissioners in CIS/417/1992, in remitting the case back to a differently constituted appeal tribunal, directed that the issues before the appeal tribunal was whether the claimant satisfied the conditions of entitlement to IS. In that case, that would turn on whether the market value of his actual (or deemed) share of a freehold exceeded the capital limits for entitlement to IS, and the claimant had discharged the burden of proof with respect to that entitlement condition. It seems to me that the authors of social security legislation are correct in concluding that the Tribunal of Commissioners treated the issue of proving the valuation of an actual capital asset as part of proving the conditions of entitlement to a social security benefit – which burden lay on the claimant. That seems to fall short of a conclusion that the decision is authority for the proposition that ‘… the question of capital is something the claimant has to prove to show entitlement to income support.’ And that ‘… once it has been shown the claimant possesses capital it is for them [sic] to prove expenditure or the disregards apply.’
36. Secondly, the authors of social security legislation went on to qualify the statement which they had made in respect of CIS/417/1992. They stated that:
‘However, the argument that the capital rule operates as an exception to the conditions of basic entitlement does not appear to have been put. See sidenote to s.134 which is entitled ‘Exclusions from benefit.’’
37. The latter reference is to section 134 of the Social Security Contributions and Benefits Act 1992, in Great Britain. In 2007, section 134(1) of the Social Security Contributions and Benefits Act 1992, read as follows:
‘Exclusions from benefit
134 (1) No person shall be entitled to an income-related benefit if his capital or a prescribed part of it exceeds the prescribed amount.’
38. At paragraph 1.41 of Volume 2 of Social Security Legislation 2007 the authors state:
‘… Since the capital rule operates as an exclusion to benefit it is arguable that burden of proof that a claimant’s capital exceeds the limit is on the Secretary of State.’
39. Accordingly, it is arguable that there is an alternative to the reasoning ascribed to CIS/417/1992.
40. In paragraph 2.328 of Volume 2 of Social Security Legislation 2007, and in relation to the question of the burden of proof, the authors cite two further cases of the Social Security Commissioners in Great Britain – CIS/240/1992 and CIS/30/1993, which, they submit are authority for the propositions that:
(i) once it has been shown that the claimant possesses an item of capital, it is for him to prove that one of the disregards apply; and
(ii) once it has been established that the claimant is the legal owner of property, the burden is on her to show that she does not have all of the beneficial interest.
41. At paragraph 13 of CIS/240/1992, Commissioner Mesher states that:
‘… Although I have not found it necessary in this decision to deal with the general question of the burden of proof in relation to the capital rule, it must be the case that once it is shown that a claimant possesses an item of capital it is for the claimant to prove that one of the provisions of Schedule 10 applies so that the item is disregarded.’
42. The emphasis in the quotation is mine and the reference to Schedule 10 is to Schedule 10 of the Income Support (General) Regulations 1987, which deals with capital which is to be disregarded. In my view, accordingly, CIS/240/1992 is authority for the more limited principle that if a claimant, in possession of a capital asset, wishes to have that disregarded for the purposes of entitlement to IS, the burden of proof that one of the Schedule 10 disregards applies lies on the claimant. Once again that seems to fall short of a conclusion that the decision is authority for the proposition that ‘… the question of capital is something the claimant has to prove to show entitlement to income support.’
43. I accept that at paragraph 36 of CIS/30/93, Commissioner Mesher set out the principle that ‘… once it is shown that the claimant was the legal owner of a capital asset, the burden then falls on her to prove (on the balance of probabilities) that she did not have any or all of the beneficial interest in that asset.’ That statement was, however, in the context of the facts of that particular case, where the claimant had transferred a capital asset. Once again, that principle falls short of a conclusion that the decision is authority for the proposition that ‘… the question of capital is something the claimant has to prove to show entitlement to income support.’
44. Finally, in paragraph 2.328 of Volume 2 of Social Security Legislation 2007, the authors note that all of the decisions cited in connection with the burden of proof in capital cases had to be read in light of the decision of the House of Lords in Kerr v Department of Social Development for Northern Ireland [2004] UKHL 23; [2004] 4 All ER 385. At paragraphs 62 and 63, Baroness Hale stated that:
’62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.
45. It seems to me that there is sufficient doubt and qualification concerning the cited quotation from Volume 2 of Social Security Legislation 2007 to conclude that it is representative of the correct legal position that the burden of proof that a claimant’s capital exceed the limits for entitlement to a relevant benefit lies on the claimant, as part of proving entitlement to benefit.
46. I have also considered, however, the decision of the Commissioner in Great Britain in R(SB) 38/85. At paragraph 18, the Commissioner stated:
‘18. Once it has been shown that a [claimant] has recently received, or otherwise been the owner of, a capital resource … the onus of proving, on a balance of probability, that he no longer has that resource rests on the claimant, since it is for him to establish title …’
47. The Commissioner was clear, however, that there was a requirement on an appeal tribunal to seek evidence and making findings in fact concerning what happened to the capital resource.
48. In the instant case, and as the record of proceedings for the appeal tribunal hearing confirm, the presenting officer of the Department made a submission that the sum of £20,000 was ‘… still unaccounted for.’ Thereafter, there is the following entry:
‘Claimant
They all went into Abbey.
I got the £20,000’
It seems to me that the appeal tribunal, in exercising its inquisitorial role, should have shown the appellant the relevant entries in the bank statements, pointing out the apparent gap in the capital sums. Further, and more significantly, the appeal tribunal could have been more rigorous in determining the reason for the apparent gap in the capital sums. I say that because perusal of the relevant bank statements reveals that the appellant was apparently in possession of significant capital sums, prior to the date on which his solicitor states he had come into possession of the proceeds of the sale of his former home, Thus, for example, on 2 July 2007, the date on which £33,027.69 was deposited into the ‘Abbey’ bank account, the appellant already had close to £7,000 in that account. Some two months earlier, in May 2007 he had close to £16,000 in the same account. It may have been the case, for example, (although I accept unlikely), that the appellant received the proceeds of the sale of his former home in two tranches. Nonetheless, it would have been important to determine the source of these significant pre-existing sums. Finally, I am of the view that the appeal tribunal could have been more rigorous in its examination of what happened to what it claimed was a missing £20,000. I say this because it was clear that the appellant had given evidence of problems in articulation based on his previous head injury. In addition, the appeal tribunal had some evidence, from the community brain injury team, that the appellant had disposed of certain capital assets for the purpose of clearing debts.
49. I have concluded, therefore, that there is sufficient doubt about the manner in which the appeal tribunal addressed an apparent gap in the appellant’s capital sums, and in the legal basis for its conclusions that he remained in possession of actual capital for its decision in this respect to be held to be in error of law.
The error submitted by the Department
50. In the written observations on the application for leave to appeal to the Social Security Commissioner, DMS submitted that:
‘The Tribunal decision that (the claimant) had notional capital in excess of the prescribed limit, whilst it may be correct in principle, is wrong in law as the amount of notional capital needs to be quantified. The Tribunal did not consider any expenditure listed on the bank statements to establish whether or not any of it could be deemed to be allowable expenditure. It may be that upon examination, none of the expenditure can be allowed. However to make a robust decision on deprivation of capital, this consideration should have been given to all episodes of expenditure. I submit that this would have enabled the Tribunal to attribute a specific figure in respect of notional capital. By not establishing an exact figure for (the claimant’s) notional capital the Tribunal have erred in law, however I respectfully submit this does not render the Tribunal decision perverse. In this instance the Tribunal considered actual capital and found (the claimant) had £20,000 for which there was no evidence of expenditure and, citing R(IS) 25/95, the Tribunal correctly attributed this as actual capital to (the claimant). The Tribunal stated;
“This finding is sufficient for the conclusion that there is no entitlement to Income Support”.
I submit that this may be the reason why the Tribunal did not give the notional capital the scrutiny it required because, in it’s view, the actual capital was sufficient to exclude (the claimant) from Income Support.’
51. Despite having arrived at its conclusions with respect to actual capital it was incumbent on the appeal tribunal, as the Chief Commissioner in R2/09(IS) makes clear, to go on to consider the position with respect to notional capital. As was submitted by DMS, that includes a requirement to attribute a specific figure for notional capital. That figure could be £0 if the appeal tribunal had concluded that the appellant had deprived himself of all of the relevant capital for the purpose of securing entitlement to benefit in line with the rules on deprivation. Nonetheless, there is a requirement to attribute a specific figure based on evidential assessment.
The appellant’s grounds for appealing
52. As was noted above, the appellant submitted that the decision of the appeal tribunal was in error of law on the basis that he had suffered a severe head injury and he believed that the appeal tribunal did not have all the relevant bank statements regarding his savings and expenditure. The appellant now concedes that all of the relevant information was before the appeal tribunal although I would note, for the reasons set out above, that the appellant may wish to adduce in evidence, or the new appeal tribunal wish to seek in evidence, statements from the ‘Abbey’ bank account for the period prior to 2 July 2007.
53. The submission that the appellant had suffered a severe brain injury is not a basis upon which the decision of the appeal tribunal could be said to be in error of law but was, as was noted above, a factor in exercising a more rigorous inquisitorial approach.
Disposal
54. The decision of the appeal tribunal dated 21 November 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 and I refer the case to a differently constituted appeal tribunal for re-determination.
55. 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 31 May 2008, a decision-maker of the Department decided that the appellant was not entitled to IS from and including 24 April 2008;
(ii) the Department is to prepare an additional submission for the appeal before the differently constituted appeal tribunal which:
(a) provides details of the decision-making process giving rise to the appeal;
(b) provides details of any further decisions in connection with entitlement to IS, which may have been made subsequent to the date of the decision under appeal;
(c) sets out the factual background to the issues arising in the appeal, supported by relevant evidence;
(d) sets out the legal basis for the decision under appeal, and provides details as to how the principles arising in R2/09(IS) apply to the issues arising in the appeal;
(e) comments on the submissions made by the appellant, in his letter of appeal;
(iii) on receipt of the further submission prepared by the Department, the applicant and/or any representative may wish to prepare a further submission for the appeal tribunal hearing. In this respect, the appellant is advised to seek representation in connection with the further appeal;
(iv) at the oral hearing it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and
(v) 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
27 January 2011