TMcC-v-Department for Social Development (JSA) [2011] NICom 184

Decision No:  C2/10-11(JSA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

JOBSEEKER’S ALLOWANCE

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 27 May 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    The decision of the appeal tribunal dated 27 May 2009 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.    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.  There will have to be further calculations concerning the appellant’s actual and notional capital as of the date of claim to benefit.  Although I am in possession of a significant amount of evidence concerning the appellant’s capital, further findings in fact will have to be made following a further assessment of all of the available evidence, which may include the oral evidence of the appellant.  With some reluctance, therefore, I refer the case to a differently constituted appeal tribunal for re-determination.

 

3.    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.

 

4.    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 jobseeker’s allowance (JSA) 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

 

5.    On 10 May 2007 a decision-maker of the Department decided that the appellant was not entitled to JSA.  The decision dated 10 May 2007 was one of a series of decisions in connection with ongoing claims to JSA made by the appellant.  An appeal against the decision dated 10 May 2007 was received in the Department on 28 July 2007.  On 19 July 2007 the decision dated 10 May 2007 was looked at again but was not changed.  On 31 July 2007 a further appeal was received from the appellant.  On 23 August 2007 the decision dated 10 May 2007 was looked at again and was revised.  On various dates after the issue of the revised decision, correspondence in connection with the appeal was received from the appellant.

 

6.    It is accepted that the Department made other decisions in relation to claims to JSA, none of which are relevant to the issues arising in the present appeal.

 

7.    An appeal tribunal hearing took place on 9 April 2008.  The hearing was adjourned at the request of the appellant’s representative.  A further oral hearing took place on 2 June 2008.  The hearing was adjourned for the Department to prepare an additional submission.  The substantive appeal tribunal hearing took place on 27 May 2009.  The appellant was present and was represented.  The Department was represented by a Departmental presenting officer.  The appeal tribunal disallowed the appeal, and issued a decision notice, in the following terms:

 

‘Appeal Disallowed

 

The Appellant is not entitled to Jobseekers Allowance from 4.5.2007 because he is treated as possessing capital that exceeds the prescribed amount.’

 

8.    On 20 November 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 26 November 2009 the application for leave to appeal was refused by the legally qualified panel member.

 

       Proceedings before the Social Security Commissioner

 

9.    On 16 December 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 11 February 2010 observations were sought from Decision Making Services (DMS) and these were received on 5 March 2010.  DMS opposed the application on the grounds submitted by the applicant but supported the application on another identified ground.  Observations were shared with the appellant and the appellant’s representative, Ms Jacqui Loughrey from the Law Centre (NI), on 22 March 2010.  On 29 April 2010 a further submission was received from the appellant’s representative which was shared with DMS on 7 May 2010.

 

11.   On 9 June 2010 I granted leave to appeal.  In granting leave to appeal, I gave as reasons, that:

 

‘… as arguable issues arise as to whether:

 

(a)      the appeal tribunal’s conclusion that ‘… it was reasonable to allow living expenses that are the equivalent of the jobseeker’s allowance rate for the remaining periods when the appellant lived in the United Kingdom because that is the amount that the government has assessed is a sufficient amount for a person to live on …’ is correct in law; and

 

(b)      the appeal tribunal should have investigated whether there had been an actual disposal of capital to his son.’

 

12.   On 6 July 2010 a further submission in response to the grant of leave was received from the appellant’s representative, which was shared with DMS on 8 July 2010.  On 6 August 2010 a further submission was received from DMS which was shared with the appellant’s representative on 20 August 2010.  On 1 September 2010 I directed an oral hearing of the appeal, which took place on 25 October 2010.  At the oral hearing, the appellant was represented by Ms Loughrey from the Law Centre (Northern Ireland), and the Department was represented by Mrs Rush of the Decision Making Services section.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

 

       Errors of law

 

13.   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.

 

14.   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

 

15.   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”.

 

16.   Article 14 of the Jobseekers (Northern Ireland) Order 1995, as amended, provides that:

 

‘14 (1) In relation to a claim for a jobseeker’s allowance, the income and capital of a person shall be calculated or estimated in such manner as may be prescribed.

 

(2) A person’s income in respect of a week shall be calculated in accordance with prescribed rules.

 

(3) The rules may provide for the calculation to be made by reference to an average over a period (which need not include the week concerned).

 

(4) Circumstances may be prescribed in which—

 

(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.’

 

17.   Article 15 (1) of the Jobseekers (Northern Ireland) Order 1995, as amended, provides that:

 

‘15 (1) No person shall be entitled to an income-based jobseeker’s allowance if his capital, or a prescribed part of it, exceeds the prescribed amount.’

 

18.   Regulation 107 of the Jobseekers Allowance Regulations (Northern Ireland) 1996, as amended, provides that:

 

‘107 For the purposes of Article 15(1) and (2A) of the Order (no entitlement to an income-based jobseeker’s allowance if capital exceeds a prescribed amount), the prescribed amount is £16,000.’

 

19.   Regulation 113 of the Jobseekers Allowance Regulations (Northern Ireland) 1996, 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 a jobseeker’s allowance or increasing the amount of that allowance … except— …’

 

20.   The remainder of regulation 113 sets out a number of exceptions, none of which apply in the instant case.

 

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

 

21.   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 decision under appeal to the appeal tribunal

 

22.   As was noted above, the decision under appeal to the appeal tribunal was a decision of the Department dated 10 May 2007, as revised on 23 August 2007.  A copy of the relevant decision is attached to the appeal submission as Tab No 6.  In that decision, the decision-maker noted that the appellant, on 16 November 2005, had actual capital of £61177.50 as a result of the receipt of monies from the sale of his father’s house.  Following detailed calculations, the decision-maker decided that the appellant, on 4 May 2007, had notional capital of £43011.75.

 

23.   The decision-maker was accepting that, following the completion of the sale of his father’s home, the appellant received the balance proceeds of the sale to the sum of £61177.50.  The decision-maker was also accepting that by the date of the claim to JSA, from 4 May 2007, the appellant had disposed of the majority of his actual capital.  As the deprivation was for the purpose of securing entitlement to JSA, he should be treated as possessing that capital, under Article 14 (4) of the Jobseekers (Northern Ireland) Order 1995, as amended, and regulation 113 of the Jobseekers Allowance Regulations (Northern Ireland) 1996, 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 Article 15 (1) of the Jobseekers (Northern Ireland) Order 1995, as amended, and regulation 107 of the Jobseekers Allowance Regulations (Northern Ireland) 1996, as amended, the appellant no longer satisfied the conditions of entitlement to JSA.

 

       The proceedings before the appeal tribunal

 

24.   The first listed oral hearing of the appeal was adjourned.  The record of proceedings for the adjourned oral hearing records that the presenting officer submitted that ‘Department agrees he did not dispose of all of capital for getting benefit.  We consider some of money disposed of on holiday etc appropriately.’  A request for an adjournment of the appeal by the appellant’s representative was granted to enable the representative to obtain receipts and to study bank statements.

 

25.   The record of proceedings for the second listed oral hearing of the appeal records that the appeal tribunal had before it two submissions from the appellant’s representative, case-law in support of those submissions, and a further addendum prepared by the Departmental presenting officer.  In the further addendum, dated 2 May 2008, the presenting officer refers to ‘… attached up to date calculation with regards to (the claimant’s) notional capital.’  The addendum then sets out a series of figures which appeared to set out expenditure which the Department accepted was reasonable.  Attached to the addendum were copies of records from the appellant’s HSBC account with entries from 10 October 2005 to 25 December 2006.

 

26.   At the second listed oral hearing of the appeal, the presenting officer explained the details of the calculation in the addendum date 2 May 2008.  The appeal was once again adjourned at the request of the appellant’s representative.  The appeal tribunal directed the Department to prepare another written submission which dealt with queries which the appellant’s representative had raised concerning the decision-making process and which should ‘… set out the Department’s submitted further calculation of alleged notional capital.’

 

27.   A further written submission was prepared by the Departmental presenting officer on 18 December 2008.  The appeal was listed for its substantive oral hearing on 27 May 2009.

 

       Analysis

 

28.   As was noted by the Chief Commissioner in R2/09(IS), at paragraph 17, there are a number of questions which an adjudicating authority, including an appeal tribunal, should address when considering the question of actual capital.  These are:

 

·             Did the claimant ever have capital which might have affected entitlement to the benefit in question?

 

·             Has it been established that the claimant still has that capital? ie is it still actual capital?

 

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

 

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

 

·             Can any or all of that capital be disregarded, under the disregard rules?

 

·             If not, what is that capital’s value?

 

·             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?

 

·             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?

 

29.   Not all of these questions are relevant in each case in which an appeal tribunal is considering the issue of notional capital but the series of questions serves as a useful checklist nonetheless.  It is essential to note, however, the final question posed by the Chief Commissioner, imposing a requirement to put an actual value on the notional capital.  The reason for the requirement of an actual value, is that, as the Chief Commissioner noted, the further ‘diminishing notional capital’ rule may affect the value of the notional capital over time.  That requires specificity to the value of notional capital at a given point and it is not enough, in my view, to say, in general terms, that the value was, or was bound to have been in excess of the capital limit for entitlement to the relevant benefit.

 

30.   In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal confirmed that the appellant did, at one stage, have actual capital, which might have affected entitlement to the benefit in question.  In this regard, the appeal tribunal noted:

 

‘It is not in dispute that on 16 November 2005 the appellant possessed actual capital of £62,183.61 as per his HSBC bank account statement and that this balance included the sum of £61,177.50, which was capital he received from the sale of his late father’s house.’

 

31.   The next question which the appeal tribunal was obliged to consider was whether if the claimant still had that capital ie was it still actual capital?  The appeal tribunal has made no specific finding in fact that, as of the date of the claim to JSA, the appellant was still in possession of actual capital.  The appeal tribunal appears to have assumed, probably from the details of the appellant’s HSBC bank accounts, and the evidence which he presented in his claim form to JSA, that he had no actual capital (or that any such actual capital was below the capital limit for entitlement to the relevant benefit, and as set out in the legislative provisions above).

 

32.   What is problematic about this aspect of the appeal tribunal’s reasons is that the appeal tribunal has not, in my view, explored in necessary depth, the actual disposal of a sum of £30000 which the appellant submitted was given to his son.  The appeal tribunal noted the appellant’s evidence that the sum of £30000 to his son, and noted that from the records of the HSBC bank account a cheque for £30000 was debited from the appellant’s account on 24 January 2006.  The appeal tribunal went on to consider, in some detail, whether the disposal of this sum was for the purpose of securing entitlement to benefit in line with the rules on deprivation.  That is a question about notional capital rather than a question about actual capital see paragraphs 18 and 20 of R(SB) 38/85, a decision of a Social Security Commissioner in Great Britain.

 

33.   The statement of reasons for the appeal tribunal’s decision also includes a detailed analysis of expenditure which the Department had accepted was reasonable.  The appeal tribunal noted that:

 

‘… The appellant stated in oral evidence on 27 May 2009 that he went on holiday from 7 July 2006 to 7 December 2006.  The decision maker however decided that expenditure of £500.00 a week for a period from 7 July 2006 to 22 December 2006 instead, which the decision maker claimed was 25 weeks, totalling £12,500.00 was reasonable.  The presenting officer submitted that the decision maker had correctly accepted that expenditure of £12,500.00 was reasonable for that period.  The appellant did not dispute this amount of £12,500.00 allowed by the department for that period.  This amount of allowed expenditure is therefore not in dispute.’

 

34.   I find this aspect of the appeal tribunal’s reasoning to be problematical. To begin with, the role of the appeal tribunal was to decide whether the decision under appeal to the appeal tribunal was correct. As the decision under appeal involved issues of the assessment of the appellant’s capital, both actual and notional, there was a requirement on the appeal tribunal to put a value on that capital. It is not correct to assume that just because the Department has accepted an expenditure of capital as reasonable and just because the appellant does not dispute that, that the relevant figures are necessarily correct. In this vein, when the appellant’s bank accounts are considered, it is clear during the period under consideration that is from 7 July 2006 to 7 December 2006, the amount which was deducted from his bank account was £7976.59. It is equally clear that the withdrawals which were made were from various banks around the world.

 

35.   Similar considerations apply to the remainder of the capital expenditure which the Department had accepted as reasonable.  This capital expenditure included a sum of £2000 for funeral costs with the appeal tribunal noting that:

 

‘… The presenting officer confirmed at the adjourned hearing on 2 June 2008 that the department accepted an additional £2000.00 for funeral costs as being reasonable expenditure even though the appellant had not provided any receipt of these funeral costs.  Accordingly this expenditure is also not in dispute.’

 

36.   The accepted capital expenditure also included, for certain periods, sums for weekly living expenses, based on JSA rates.  In R(IS) 1/91 a Tribunal of Commissioners in Great Britain was considering the application of regulation 51 of the Income Support (General) Regulations 1987 as it was then in force, and which dealt with notional capital.  At paragraph 16 of their decision, the Commissioners ruled that in deciding whether an individual has deprived himself of capital for the purposes of securing entitlement to benefit, and in calculating expenditure on living expenses,  ‘… reasonable expenditure on living and other sensible expenses …’ was not restricted to the relevant amount of JSA.

 

37.   The decision in R(IS) 1/91 was followed by Commissioner Mesher in CIS/3268/2002.  At paragraph 10 of his decision the Commissioner stated:

 

‘… Part of his explanation of what had been spent was to meet necessary living and household expenses to top up benefit … and during gaps in receipt of other benefit.  Expenditure for such purposes would normally be accepted as not for the purpose of securing entitlement to income support, so that the amounts concerned would not form part of any notional capital under regulation 51(1).  That was the view of the Tribunal of Commissioners in paragraph 16 of R(IS) 1/91, where it was pointed out that reasonable expenditure on living and other sensible expenses is not for the purposes of regulation 51(1) restricted to the relevant amount of income support.’

 

38.   I accept and adopt the reasoning of the Tribunal of Commissioners in R(IS) 1/91 as approved in CIS/3268/2002 and confirm that the principles in those decisions apply both to the equivalent legislative provisions in Northern Ireland and to the notional capital provisions relating to JSA which apply in Northern Ireland and as set out above.

 

39.   In the instant case, in the statement of reasons for its decision the appeal tribunal noted that:

 

‘The Tribunal finds that it was reasonable to allow living expenses that are the equivalent of the jobseeker’s allowance rate for the remaining periods when the appellant lived in the United Kingdom (UK) because that is the amount that the government has assessed is a sufficient amount for a person to live on and the appellant has not produced any receipts showing actual expenditure on living expenses during those periods that exceeded this weekly amount.’

 

40.   If the appeal tribunal was considering that it was obliged, as a matter of law, to restrict allowable expenditure for living and other expenses to the relevant amount of JSA, then that reasoning would be in error.  I do not consider that the appeal tribunal in the instant case felt that it was so restricted.  Nevertheless, I am concerned about the appeal tribunal’s apparent conclusion that because the appellant could not produce receipts showing actual expenditure during the relevant period then the figure should be restricted to the JSA rate.  In CIS/515/2006, a decision of a Social Commissioner in Great Britain, Commissioner Williams stated, at paragraph 45:

 

‘45      The nature of an item of expenditure as from income or capital is a question of fact.  This must be determined on the balance of probabilities.  It is in my view inherently improbable that a claimant such as Mrs S will be able to produce receipts for day to day expenditure for a period several years in the past.  She is under no legal duty to keep receipts, or accounts, for past years or at all.  She can be asked to produce the records she has, and she can be expected to keep the sort of records reasonable people in her position actually keep.  (Were she under a specific duty, as with value added tax, the answer would be different).  And she can be asked if she can explain any large and unusual payments out.  But to demand actual receipts for all expenditures, however small, over a ten year period is not reasonable, and places the practical burden of proof not only on her rather than the Secretary of State but also places it far too high.  She is fully entitled to ask that general conclusions be drawn from her oral evidence and from the actual amounts she holds in all her assets at any particular time, and from time to time.’

 

41.   I agree with those conclusions.  Applying them to the instant case, it seems to be that in the absence of evidence in the form of receipts for expenditure during the relevant period, the appellant could have been put to his own evidence concerning that issue.  Following that the appeal tribunal would have to assess that evidence in conjunction with all of the other evidence which was before it and draw appropriate conclusions.  To conclude that because the appellant could not produce actual expenditure receipts for the relevant period expenditure would have to be restricted to JSA rates, is contrary to the principles in CIS/515/2006, and is, accordingly, in error.

 

42.   In written observations on the original application for leave to appeal, Mrs Rush submitted that:

 

‘The tribunal also found that the significant operative purpose of the expenditure of the remaining capital was to secure entitlement to jobseeker’s allowance.  However, I submit that the tribunal failed to consider the purpose behind the two other large withdrawals which appear on the claimant’s bank statement.  The first of these was a payment of £2,565 on 22 June 2006 to “Sta Travel” and the second, a payment to “American Express” on the same date, for £2,347.54.  The tribunal failed to consider the significant operative purpose behind these particular payments and, by failing to do so, I submit it erred in law.  The payments would appear to have been made in connection with the claimant’s holiday and if it was accepted that the purpose of these payments was not to secure entitlement to benefit then the amount of notional capital would be reduced by the said amounts.  However, this consideration would only reduce the amount of notional capital it would not bring it below the capital limit.’

 

43.   I agree with the submission concerning the appeal tribunal’s failure to make relevant findings concerning the two relevant payments.  I can understand why Mrs Rush has gone on to submit that if it was accepted that the purpose of these payments was not to secure entitlement to benefit, and the amount of notional capital was reduced by the relevant amounts, this would have the effect of lowering the amount of notional capital but would not bring it below the capital limit.  That was because Mrs Rush was building those payments into the equation of allowed expenditure which had been formulated by the Departmental decision-maker and was accepted by the appeal tribunal.  For the reasons set out above, I find that to be problematical.  I do accept, however, that the further calculations which have to be undertaken concerning the appellant’s actual and notional capital as of the date of claim to benefit may, and I emphasise ‘may’ mean that the statutory tests for entitlement to JSA are not satisfied.  Those calculations require to be made at appeal tribunal level which will have the advantage of hearing and assessing all of the relevant evidence.

 

       Disposal

 

44.   The decision of the appeal tribunal dated 27 May 2009 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.

 

45.   The Department is directed to produce a further submission for the further appeal tribunal hearing before a differently constituted appeal tribunal.  That further submission is to include specific propositions concerning the appellant’s capital, both actual and notional, at the date of the claim to benefit.  Further, there should be discrete submissions on what capital expenditure the Department has accepted was not incurred for the purposes of securing entitlement to benefit and the evidential basis on which the Department has accepted that such expenditure was reasonable.

 

46.   The appeal tribunal is to follow the guidance given by the Chief Commissioner in R2/09(IS) and is to follow the guidance given in that decision as to the proper approach to the issue of actual and notional capital.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

23 June 2011