Northern Ireland - Social Security and Child Support Commissioners' Decisions

Application Nos:  A7&A8/11-12(IS)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INCOME SUPPORT

 

 

Applications by the above-named claimant for

leave to appeal to a Social Security Commissioner

on a question of law from tribunal decisions

dated 2 February 2011

 

 

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

 

 

         These are applications for leave to appeal from two decisions of an appeal tribunal which sat at Newry on 2 February 2011.  The two applications arise from the same set of circumstances and two related decisions made in respect of those circumstances.  It is expedient to consider them together.

 

         An oral hearing of the applications has not been requested.  I do not consider that it is necessary for the proper determination of the application to hold an oral hearing.

 

         I refuse leave to appeal.  My reasons for this are set out below.

 

 

REASONS

 

         Background

 

         The applicant was awarded income support (IS) following a claim on 11 March 1998.  He had claimed on his own behalf and for his wife and three children as dependants.  The applicant’s twin sons had previously been awarded disability living allowance (DLA) on the basis of learning disability.  The applicant and his wife each then became entitled to invalid care allowance (ICA) in respect of each caring for one of their sons.

 

         On 10 March 2009 the applicant’s IS was suspended following two interviews under caution.  On 17 December 2009 the Department decided that the applicant was entitled to IS at a reduced rate due to tariff income from capital for a period from 18 April 2000 to 29 May 2000 and that from 30 May 2000 he was not entitled to IS as his capital was in excess of the prescribed limit (“the entitlement decision”).  He appealed the entitlement decision.

 

         On 3 March 2010 the Department decided that IS paid to the applicant from 18 April 2000 to 9 March 2009 was recoverable from the applicant on the basis that he had failed to disclose the possession of capital exceeding prescribed limits (“the overpayment decision”).  The overpayment amounted to a sum of £26,765.42.  The applicant then appealed the overpayment decision.

 

         The appeal tribunal consisting of a single legally qualified member (LQM) heard the appeals together at Newry on 2 February 2011.  The tribunal disallowed each appeal.  The applicant sought statements of reasons for the tribunal decisions.  These were issued on 7 October 2011.  The applicant sought leave to appeal to a Social Security Commissioner from the LQM.  She refused leave to appeal on 9 December 2011.  The LQM’s determinations were issued to the applicant on 13 February 2012.

 

         By applications received on 17 February 2012 the applicant applied to a Social Security Commissioner for leave to appeal.

 

         Grounds

 

         In relation to each application, the applicant submits that the tribunal has erred in law since the capital he was found to possess in excess of prescribed capital limits consisted of savings from the weekly DLA paid in respect of his sons which he had put away for their future use.

 

         On 15 May 2012 the Department was invited to make observations in respect of the applications for leave to appeal.  Mr Woods responded in respect of the entitlement decision.  He submits that the tribunal has followed the correct legal approach to the assessment of capital as set out in C7/10-11(IS) and R2/09(IS).  Mr Woods indicated that he did not support the application in respect of the entitlement decision.

 

         Mr McGrath responded in respect of the overpayment decision.  He addresses the requirements of the relevant legislation and submits that these are met in the case.  Mr McGrath did not support the application in respect of the overpayment decision.

 

         The legislation

 

         The relevant legislation appears in the Social Security Administration (NI) Act 1992 (“the Administration Act”).  Section 69 is of particular relevance and specifically the following:

 

‘69.—(1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure—

 

(a)          a payment has been made in respect of a benefit to which this section applies; or

 

(b)          any sum recoverable by or on behalf of the Department in connection with any such payment has not been recovered, the Department shall be entitled to recover the amount of any payment which the Department would not have made or any sum which the Department would have received but for the misrepresentation or failure to disclose.

 

(2)       Where any such determination as is referred to in subsection (1) above is made, the person making the determination shall in the case of the Department or a tribunal, and may in the case of a Commissioner or a court —

 

(a)          determine whether any, and if so what, amount is recoverable under that subsection by the Department; and

 

(b)          specify the period during which that amount was paid to the person concerned.

 

(3)       An amount recoverable under subsection (1) above is in all cases recoverable from the person who misrepresented the fact or failed to disclose it.

 

(4)…

 

(5)...

 

(5A)     Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above or under regulations under subsection (4) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under Article 10 or superseded under Article 11 of the Social Security (Northern Ireland) Order 1998.’

 

         The tribunal’s decisions

 

         In the course of the tribunal hearing, the Department provided evidence of bank accounts showing capital held by the applicant or his wife in excess of the prescribed capital limits for the relevant periods of the applicant’s IS claim.  The applicant’s response was that the capital was not owned by his wife or himself but represented savings built up from the DLA paid to their twin disabled sons, put aside for their sons’ future use.  The applicant and his wife were appointees for their sons and the applicant submitted that each had a learning disability which meant that they were not able to manage money themselves.

 

         The approach taken by the tribunal to the entitlement decision was to accept in principle that DLA saved on behalf of the applicant’s sons could represent money legally owned, but not beneficially owned by the applicant and his wife.  The tribunal then investigated the circumstances of the savings accounts in order to assess if the financial transactions were consistent with the applicant’s account.

 

         The tribunal concluded on the basis of the evidence that there was no direct link between the payment of DLA in respect of the applicant’s sons and the lodgements paid into various accounts in the names of the applicant and his wife.  The tribunal similarly looked at the pattern of withdrawal from the accounts and sought explanation for items of expenditure.  The tribunal found that the use of the accounts did not suggest that they were being used to save money for the two sons.

 

         On this basis the tribunal held that the applicant and his wife were the legal owners of the capital held in the various accounts, and that as this exceeded the prescribed capital threshold for applying the IS tariff income rule and, subsequently, for entitlement to IS, that the Department’s decision was upheld.

 

         In relation to the overpayment decision, the tribunal considered various forms completed by the applicant and held, on the basis of form A2 completed on 29 April 2005, that the applicant had failed to disclose the material fact that he had savings.

 

         The tribunal further accepted that he had been issued with form INF on a number of occasions including 15 March 2004 and 14 March 2005.  This form had advised the applicant to disclose any savings of more than £3,000 and he had not done so.  This again demonstrated a failure to disclose a material fact.

 

         The tribunal further noted that the payment of IS to the applicant until 15 September 2003 was by order book.  The order book contained instructions advising the applicant to notify the Department if his savings increased to more than £3,000.  He did not do so, and this further amounted to a failure to disclose a material fact.

 

         On this basis the tribunal held that the applicant had failed to disclose a material fact that he had savings in excess of the capital limits for IS and that the IS overpaid to him as a result was recoverable by the Department.

 

         Assessment

 

A.        Entitlement

 

         The key issue in the appeal relates to the tribunal’s findings that the capital held by the applicant and his wife was beneficially owned by the couple rather than by their sons.  The present application is essentially a challenge to that finding of fact.  However, in order to succeed in an appeal to the Commissioner, it is not enough that the Commissioner might disagree with the tribunal’s findings and take a different view of the evidence.  Rather, it must be established that the tribunal has made irrational findings on the evidence before it, or has based its decision upon insufficient evidence.  I consider that the applicant does not make out an arguable case that the tribunal’s decision is irrational or unsustainable.

 

         It is clear from the statement of reasons that the tribunal was open to be persuaded by evidence that the sums in the applicant and his wife’s bank accounts were made up from payments of DLA and held on behalf of their sons.  However, the tribunal did not accept that the bank accounts in question contained the payments made to the applicant’s sons by way of DLA.  This was based on evidence of irregular and surprising patterns of lodgement and withdrawal, the presence of standing orders for regular domestic purposes, and a lack of explanation for unusual individual transactions.

 

         I consider that the tribunal was entitled to reach the conclusion on the evidence that the capital in question was not held in trust for the applicant’s two sons, but rather that the applicant and his wife were the legal and beneficial owners of the money.  Accordingly, I do not consider that the applicant has made out an arguable case that the tribunal has erred in law in reaching these conclusions.

 

         However, there are some technical matters which require further consideration.  In particular, section 69(5A) of the Administration Act has been described as a threshold to the operation of section 69.  The first question in any overpayment appeal is whether there were grounds to supersede or revise the original decision on which an award of benefit was based, or whether that decision has been reversed or varied on appeal.

 

         In the present case the tribunal addressed the facts of the case and assessed that the applicant and his wife possessed capital in excess of the prescribed threshold.  The tribunal ascertained that the Department was unaware of this fact as the applicant had not disclosed it.  However, the tribunal did not expressly address the issue of grounds for supersession.  I consider that the tribunal decision is technically deficient in that it did not address and identify grounds for supersession.  I do not consider that this amounted to a material error of law.  I will substitute the decision which the tribunal ought to have made.

 

         One difficulty is that the Department cannot, and therefore I cannot, identify the date of the decision awarding IS which requires to be superseded.  It can be said with certainty that from 18 April 2000 to 29 May 2000 the applicant’s possession of capital altered his IS entitlement to the effect that he was entitled to the weekly rate of £80.45.  It is clear that from 30 May 2000 to 17 December 2009 he was not entitled to IS on the basis that he had capital in excess of the prescribed limits.  His accumulation of capital to an amount in excess of the prescribed limits was a relevant change of circumstances.  The decision awarding IS prior to 18 April 2000 was therefore liable to be superseded on the ground that there had been a relevant change in circumstances.  While the date of that decision cannot be identified with certainty, I consider that it is enough to identify it as the decision awarding IS to the applicant pursuant to his claim of 11 March 1998.

 

         I substitute the following decision:

 

         There were grounds to supersede the decision awarding IS to the applicant pursuant to his claim of 11 March 1998 on the basis that there had been a relevant change of circumstances, namely that his capital had increased to a figure in excess of the prescribed limits.  As a result the applicant was entitled to a weekly amount of IS of £80.45 from 18 April 2000 to 29 May 2000 and the applicant was not entitled to IS from 30 May 2000 to 17 December 2009.

 

B.        Overpayment recoverability

 

         The applicant’s grounds do not direct a specific challenge to the decision on overpayment recoverability, except to the extent that he submits that the Department had no basis to supersede the existing award and therefore that he had entitlement to IS for the period in question.

 

         The tribunal considered the question of whether the applicant had failed to disclose the material fact that he possessed capital in excess of the prescribed limits.  The tribunal considered that information was given by the Department to the applicant over the course of his claim specifying his obligation to notify relevant changes in circumstances.  The tribunal found that the applicant did not notify the Department when his savings increased to a figure over the prescribed limits.  The tribunal found as a result that the applicant had failed to disclose the material fact that his capital exceeded prescribed limits.  On this basis the Department was entitled to recover the resulting overpayment.

 

         I see no error of law arising from the tribunal’s approach to the question of overpayment recoverability.

 

         The applicant has not established an arguable case that the tribunal has erred in law and I refuse leave to appeal accordingly.

 

 

(Signed):  O Stockman

 

Commissioner

 

 

 

(Dated):  9 October 2012