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Cite as: [2011] NICom 225
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NJM-v-Department for Social Development (JSA) [2011] NICom 225
Decision No: C3/11-12(JSA)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
JOBSEEKERS ALLOWANCE
Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 1 March 2010
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal. The decision of the appeal tribunal dated 1 March 2010 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the appellant is not entitled to jobseekers allowance (JSA) from and including 25 June 2009 is confirmed.
2. This decision will come as a disappointment to the applicant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.
Background
3. On 13 September 2009 a decision-maker of the Department decided that the appellant was not entitled to JSA from and including 25 June 2009. The basis of the disallowance was that the appellant was deemed to have capital in excess of statutory limits for capital in connection with entitlement to JSA. On 29 September 2009 an appeal against the decision dated 13 September 2009 was received in the Department. On 29 September 2009 the decision dated 13 September 2009 was reconsidered but was not changed.
4. The oral hearing of the appeal took place on 1 March 2010. The appellant was present and was accompanied by his mother. The Department was represented by a Departmental presenting officer. The appeal tribunal disallowed the appeal and confirmed the decision of the Department dated 13 September 2009. On 23 April 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service. On 7 May 2010 the application for leave to appeal was refused by the legally qualified panel member (LQPM).
Proceedings before the Social Security Commissioner
5. On 9 June 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners. On 2 July 2010 written observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 23 July 2010. In these written observations, Mrs Rush, for DMS, opposed the application on the grounds cited by the appellant. Written observations on the application were shared with the appellant on 30 July 2010. On 1 September 2010 written observations in reply were received from the appellant which were shared with Mrs Rush on 3 September 2010. On 12 October 2010 further correspondence was received from the appellant. There then followed a delay in the promulgation of this decision due, in part, to the fact that similar issues were being considered by a Social Security Commissioner in another case and it was considered that the decision in the case should await the outcome of the other case. In the event, however, the other case was decided on a different basis to what has been decided here.
Errors of law
6. 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.
7. 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
8. 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”.
9. 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.’
10. 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.’
11. 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.’
12. 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— …’
13. 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
14. 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 appellant’s grounds for seeking leave to appeal
15. In the original application for leave to appeal which was before the LQPM, in the renewed application before the Social Security Commissioner, in the written observations in reply, and in other correspondence, the appellant has submitted that the decision of the appeal tribunal was in error of law on the basis of a number of grounds. I will deal with each of these as follows.
(i) Was the appellant the legal and beneficial owner of capital in excess of the statutory limits for capital in connection with entitlement to JSA?
16. This was, of course, the substantive issue arising in the appeal. The appellant submits that there was evidence before the appeal tribunal of a verbal contract between him and his mother, that a verbal contract is as binding in law as a written contract and that the appeal tribunal did not consider this issue. Further, the appellant submits that his mother had forwarded a letter to the Department concerning the circumstances in which a particular capital resource came to be in his account.
17. I have looked at the record of proceedings for the appeal tribunal hearing and it is clear, from that document, that the appeal tribunal did record the appellant’s evidence concerning the verbal contract which he submitted existed between him and his mother. Additionally, the appeal tribunal took oral evidence directly from the appellant’s mother. Turning to the statement of reasons for the appeal tribunal’s decision, there is no specific mention of the appellant’s submission concerning the verbal contract. It is abundantly clear, however, from the remainder of that statement of reasons that the appeal tribunal did not accept the evidence from the appellant concerning the ownership of certain capital resources.
18. The appeal tribunal rejected the appellant’s evidence that certain capital resources did not belong to him. An appeal tribunal is entitled to reject evidence which is before it as not being credible. In C14/02-03(DLA), Commissioner Brown, at paragraph 11, stated:
‘ … there is no universal rule that a Tribunal must always explain its assessment of credibility. It will usually be enough for a Tribunal to say that it does not believe a witness.’
19. Additionally, in R3/01(IB)(T), a Tribunal of Commissioners, at paragraph 22 repeated what the duty is:
‘We do not consider that there is any universal obligation on a Tribunal to explain its assessment of credibility. We disagree with CSIB/459/97 in that respect. There may of course be occasions when this is necessary but it is not an absolute rule that this must always be done. If a Tribunal makes clear that it does not believe a claimant’s evidence or that it considers him to be exaggerating this will usually be sufficient. The Tribunal is not required to give reasons for its reasons. There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision. It will, however, normally be a sufficient explanation for rejecting an item of evidence, including evidence of a party to an appeal, to say that the witness is not believed or is exaggerating.’
20. This reasoning was confirmed in CIS/4022/2007. After analysing a series of authorities on the issue of the assessment of credibility, including R3/01(IB)(T), the Deputy Commissioner (as he then was) summarised, at paragraph 52, as follows:
21. In the instant case, however, the appeal tribunal set out the basis on which it arrived at its conclusion with respect to the appellant’s evidence. Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it. It is clear to me that the appeal tribunal was also rejecting the evidence concerning the existence of a verbal contract between the appellant and his mother. Accordingly, I find no error in this respect.
(ii) Was the appellant told by an officer of the Department to withdraw a capital resource from his Credit Union account?
22. The appellant submits that the appeal tribunal failed to consider his submission and evidence that he was told by an officer of the Department to withdraw a capital resource from his Credit Union account. He submits that the evidence contained at page 17 of the document which was attached to the original appeal submission as Tab No 2 is supportive of his submission on this issue. In the written observations on this particular issue, Mrs Rush, for DMS, submitted that:
‘… The entry at page 17 on form JSA3 originally showed capital of £8,500 in a bank account and £10,367 in the Credit Union. This latter figure was amended to £1,367in the Credit Union with an entry at page 36 indicating that of the £10,367 held in the Credit Union £9,000 was held for the claimant’s mother … I submit that while an alteration has been made to page 17 of the form that (the claimant) has put his initials beside this alteration to authenticate it and that the officer who made the alteration could only have done so if (the claimant) had advised that his savings in the Credit Union had reduced to the amended figure of £1,367.00. Furthermore I submit that the tribunal did consider this evidence but it is clear from the statement of reasons that it did not believe that (the claimant) was advised by an officer of the Department to withdraw money from the Credit Union.’
23. Once again, it is clear to me why the appeal tribunal rejected the appellant’s evidence on this issue. The appeal tribunal stated that it did not believe the appellant’s evidence in this regard. My comments, set out above, with supporting jurisprudence, on the appeal tribunal’s right to reject evidence as not being credible remain apposite. Further, the appeal tribunal has stated that it regarded such an eventuality as being implausible, and that if the appellant had been so advised by an officer of the Department then the matter would have been raised between the disallowance of the claim and the appeal to the appeal tribunal. The appeal tribunal also found the appellant’s claim that the withdrawal of the relevant capital resource was pursuant to advice to that effect from an officer of the Department to be inconsistent with the evidence from the appellant’s mother concerning the requirement to utilise the funds for other purposes. I find nothing inherently wrong with the appeal tribunal’s conclusions in this respect. The appellant challenges the appeal tribunal’s finding of inconsistency as his mother had not given any evidence concerning the time when the funds had been spent. In my view, the latter challenge is not relevant in that in the record of proceedings for the appeal tribunal hearing evidence is noted from the appellant’s mother concerning the requirement to meet unpaid bills.
(iii) Should the appeal tribunal have ignored the evidence set out at Tab No 3 of the original appeal submission?
24. The appeal tribunal, in the statement of reasons for its decision, made reference to the fact that the appellant had made an earlier claim to JSA, albeit contribution based JSA. Further, and more significantly, the appeal tribunal had before it a copy of the claim form in connection with that earlier claim, which had been attached to the appeal submission as Tab No 3. The appeal tribunal had noted that the appellant, at page 8 of the earlier claim form, had declared his capital assets in full and that the declaration was unqualified in that he did not state that any or part of his capital resources belonged to his mother. Finally, the appeal tribunal stated that it did not believe the appellant’s evidence that he did not understand the questions on page 8 of the relevant form or read them properly.
25. In all of the documentation which is before me the appellant comes across as an intelligent and articulate individual. The questions at page 8 of the claim form at Tab 3 of the original appeal submission are straightforward. At page 8, a claimant is advised that:
‘We need to know about any money, savings, investments and property in the United Kingdom or abroad which belong to you …
Do you have any of the following?’
26. There then follows a list of typical assets which would amount to a capital asset. It is clear what information the Department requires of a claimant. It is difficult to see how the questions could be misunderstood.
27. Further, I see no difficulty in the appeal tribunal making a cross-reference to the earlier claim to JSA, to seek corroboration or further proof that the relevant capital asset was in the legal and beneficial ownership of the appellant, and was not the subject of a separate contract between the appellant and his mother. The appeal tribunal’s conclusions in this respect are rational and coherent.
(iv) Should the appeal tribunal have ignored the decision-making process at Departmental level?
28. The appellant submits that there were inaccuracies in the decision-making process at Departmental level, and that an officer of the Department had been disciplined following a complaint which had been made against her. In the papers which are before me is a letter dated 30 September 2009 from the Unit Manager of the Jobs and Benefits Office in Magherafelt to the appellant. The correspondence refers to the appellant’s complaints concerning the handling of his claim to JSA made on 25 June 2009. In that correspondence there is reference to the Unit Manager having spoken with a member of staff concerned with handling the relevant claim and that ‘appropriate action’ had been taken. It is unclear to me that this amounted to ‘disciplinary’ action as submitted by the appellant. More importantly, however, the appellant had appealed the decision of the Department dated 13 September 2009 to the appeal tribunal. The duty of the appeal tribunal was to determine whether the decision which had been made by the Department was correct – see the comments of the Tribunal of Social Security Commissioners in Great Britain at paragraph 55(2) of their decision in R(IB) 2/04. The appeal tribunal had no discretion to decline to consider the decision under appeal because of perceived inaccuracies in the decision-making process. The duty was to explore the decision-making process in its entirety and to decide whether the decision under appeal was correct. Accordingly, I find no error in law on the basis of this submitted ground.
(v) Miscellaneous errors associated with the appeal tribunal hearing process and its aftermath
29. The appellant has submitted that there were a number of procedural difficulties associated with the appeal tribunal hearing and its aftermath. The first of these related to the independence of the appeal tribunal from the Department. The LQPM gave his own response to that issue in the first paragraph of the statement of reasons for its decision. I have no doubt that the appeal tribunal was wholly independent of the Department and its decision and statement of reasons for its decision is representative of objectivity and neutrality.
30. The second procedural difficulty relates to the manner in which the presence of the appellant’s mother is recorded in the record of proceedings for the appeal tribunal hearing. In the record of proceedings which is before me, it is recorded that the appellant’s mother attended in the category of ‘witness’. The appellant submits that throughout all of the documentation relating to his appeal he had indicated, in clear and unequivocal terms, that his mother was to act as his representative. I have looked at the appellant’s appeal document, which was attached to the original appeal submission as Tab No 1. There is no doubt that within that document the appellant specifies his mother to be someone whom he wishes to help him with his appeal. In language of appeals, this means that he wished to have his mother as his representative. Further, the appellant submits that there is no reference to the clerk to the appeal tribunal being present at the oral hearing of the appeal.
31. In AF-v-Department for Social Development (CS) ([2011] NICom 218 (CSC3/11-12), I said the following about the preparation of a record of proceedings, at paragraphs 67 to 69:
‘67. The usual manner in which a record of proceedings is made is that it is recorded, in writing, by the LQPM of the appeal tribunal, on a form especially created for that purpose. The task of completion of a record of proceedings, as part of the general conduct and procedure for the oral hearing, is not an easy one for the LQPM, particularly where the oral hearing is lengthy; where there is considerable oral evidence to be taken; where the questioning of the appellant and any other witnesses is undertaken by other members of the appeal tribunal; where detailed submissions are made on behalf of the appellant by a representative; and where there is cross-referencing to other documentation contained in the appeal papers or provided as part of the appeal hearing. The recording difficulties are exacerbated where the LQPM is also asking relevant questions of a witness, or where the LQPM is the sole member of the appeal tribunal.
68. Nonetheless, the LQPM should endeavour to ensure that the record in writing is as accurate as possible, in line with the principles outlined in C48/99-00(DLA), and R(DLA) 3/08. As far as possible, the process should not be rushed, and clarification of particular evidence, in relation to medical treatments and medication regimes, for example, should be sought. Fundamental errors, such as the inaccurate recording of marital status, should be avoided. The record should contain details of submissions made, applications sought, and their outcome, and other interventions, both planned and untoward. The latter could include, for example, episodes of distress on the part of the appellant or other witness, or brief adjournments.
69. In this jurisdiction, where a request for a copy of the record of proceedings is made, under regulation 55(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, the usual procedure is that the hand-written copy, as recorded on the day of the appeal tribunal hearing, is typed up and checked for inaccuracies by the LQPM. The provision of a typed-up copy of the record of proceedings is of considerable advantage to the party to the proceedings seeking the same, and avoids problems associated with legibility of hand-writing. It is possible that some factual inaccuracies are the result of the misinterpretation of hand-writing during the typing-up process. Once again, LQPMs should endeavour to ensure that the final version which is to be forwarded to a party to the proceedings is accurate and in conformity with what was actually recorded on the day.’
32. I accept that the LQPM, in the instant case, should have recorded, in a more accurate manner, that the appellant’s mother was his representative rather than a witness. That error, however, much as it caused natural upset to the appellant and his mother, is not an error of law. I would add that there is nothing unusual in the record of proceedings for an appeal tribunal hearing omitting to mention the presence of a clerk to an appeal tribunal. A clerk is assigned to each appeal tribunal – see regulation 37 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.
33. The appellant also challenges, by way of procedural irregularity, the dynamic of the appeal tribunal and the contrasting manner in which his and the Department’s submissions were addressed and considered. In short, the appellant is of the view that the Departmental representative was permitted to make submissions without interruption while his own submissions were the subject of such disruption. Further he was not permitted to ask questions of the Departmental presenting officer. I was not present at the oral hearing of the appeal and, therefore, cannot comment in detail on this allegation. As was noted above, the duty of the appeal tribunal is inquisitorial and to explore all of the issues arising in a particular appeal. That duty might include the requirement to seek clarification or explore submissions which may have been made. Looking at the record of proceedings for the appeal tribunal’s decision, it seems to me that the appellant was given the opportunity to present his case in full. Accordingly, I find no error on the basis of this submission.
34. The appellant submits that the fact that he received the written decision notice of the appeal tribunal the day after the oral hearing of his appeal means that the appeal tribunal could not have considered all of the issues arising in a complete and comprehensive manner. Depending on the issues which arise in an appeal, it is not unusual for an appeal tribunal to make a decision in connection with an individual appeal on the day of the oral hearing itself, and to prepare and issue the decision notice of the appeal tribunal on the same day. The statement of reasons for the appeal tribunal’s decision indicates to me that the appeal tribunal did address, in a comprehensive manner, all of the issues which arose in the appeal. Accordingly I do not find that the decision of the appeal tribunal is in error of law on the basis of this submitted ground.
35. The appellant has also submitted that on the day of the oral hearing of the appeal the clerk to the appeal tribunal had indicated to the Departmental presenting officer that the appeal had been determined in the Department’s favour. As I was not present at the oral hearing of the appeal, I cannot comment on this submission. I would repeat, however, that I am satisfied that the proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to, such principles.
36. Finally I would address the appellant’s concerns about the written observations on the application for leave to appeal, which had been supplied to him as part of the proceedings before the Social Security Commissioners. As was noted above, in the written observations on the application for leave to appeal, Mrs Rush, for DMS, opposed the application for leave to appeal on all of the grounds submitted by the appellant, and set out in some detail the legal and evidential basis for her opposition. These written observations were supplied to the appellant who makes a further query regarding the independence of the appeal tribunal from the Department when the Department appeared to be ‘justifying’ the decision of the appeal tribunal.
37. Under regulation 18 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, the Department, as a respondent in a case, may provide written observations in response. In those written observations, the Department may indicate whether there is support for the case being made by an appellant or whether the Department opposes that case. In that way, the Department is setting out its view on the matter, a view which the Social Security Commissioner, as a judicial office-holder independent of the Department, is free to accept or reject. In the instant case, and as was noted above, the Department opposed the application on all of the cited grounds. That opposition does not affect, in any way, the independence of the original appeal tribunal, or indeed the Social Security Commissioners, from the Department.
Disposal
38. The decision of the appeal tribunal dated 1 March 2010 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the appellant is not entitled to JSA from and including 25 June 2009 is confirmed.
(signed): K Mullan
Chief Commissioner
1 November 2011