Northern Ireland - Social Security and Child Support Commissioners' Decisions

FMcC-v-Department for Social Development (IB) [2012] NICom 265

Decision No:  C6/11-12(IB)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INCAPACITY BENEFIT

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 22 March 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

       The appeal is allowed.  The decision of the tribunal held at Belfast on 22 March 2011 is set aside.  The case is remitted to a freshly constituted tribunal for a rehearing.

 

 

REASONS

 

 

1.    The claimant has appealed against the decision of the tribunal held on 22 March 2011 at Belfast in relation to their decision in respect of their entitlement to incapacity benefit.  The Department of Social Development made a submission on the claimant’s application for leave to appeal.  In that submission the Department was not supportive of the claimant’s grounds of appeal but the Department did identify an error in law on the basis set out therein where it is said under reference to the principles laid down by the Commissioner in C12/08–09 (DLA)

 

“Therefore I would contend it is obvious the supersession issue was not addressed by the tribunal either in the decision notice or the statement of reasons.  Consequently the principles laid down in C12/08-09(DLA) have not been adhered to by the tribunal.  Therefore its failure to make explicit its determination, findings and conclusions on the supersession issue renders its decision erroneous in law.”

 

2.    Having granted leave to appeal I directed the Department to make a further submission as to how it submits the appeal should be disposed of in light of its submission that the tribunal have erred in law.

 

3.    The Department in response in a letter dated 8 December 2011 said:

 

“It is clear that the tribunal did not give explicit consideration to the issue of supersession regarding grounds, entitlement and effective date either in the decision notice or the statement of reasons.  Therefore I would respectfully ask the Commissioner to address the issue of supersession and give the  decision which the tribunal should have given: namely to state that the Department had grounds on 18 November 2005 to supersede the decision dated 5 March 1994 awarding incapacity benefit from 8 April 2002 to 24 October 2005.  I would then ask the Commissioner to state the effective date of supersession and the entitlement period.”

 

4.    The claimant was given the opportunity of responding to that submission and she said:

 

“I would suggest the Department must be questioned on the withholding of vital information to the panel i.e.

 

a)       Information and communication from Inland Revenue which indicated the business was running at a loss.

 

b)       Information contained in press releases by DHSS and SOCA, “Business was haemorrhaging at 12K per month”; and

 

c)       Information from email between Incapacity Benefit and BIS which indicated that there was doubt by Incapacity Benefit that their decision to disallow was incorrect.

 

Given that I proved very clearly that agents ran business and therefore any involvement would be negligible under the De Minimus Rule.  The Department has admitted the admission of this evidence in last letter but has given no reason to you for this action.

 

This information was available to the Department since 2005 although it was only made available to me after the last appeal.  I obtained this information directly from Department under the F.O.I. act.  The admission by the Department that this information was not produced to Tribunal makes me challenge the veracity of the Department’s case.

 

Previous Commissioner’s ruling to the Panel was simply did I work?  I would contest that I did not work in accordance with the regulations and this has been proved by both written and oral testimonies.  The issue of F.Q.M. and accounts of 2003-2004 produced irrelevant information and bias against me by both panel and Department who have now admitted non-disclosure of vital information that would have proved without a doubt that I did not work.  The whole issue puts the Department guilty of non-disclosure.  The department’s admission that the Panel erred in Law with regards supersession and the responsibility of misleading the panel in this case makes the case totally unacceptable and the Commissioner must bring this to the attention of the Department.  In conclusion given the admissions by the Department with which I concur that the Appeal panel erred in Law.

 

I respectfully request that the Commissioner make his own ruling in this case and set aside the decision of the tribunal and award benefit for the total period.”

 

5.    It is clear that both parties consider that I should set the decision of the tribunal aside for reasons of error in law.  However the submission as to the disposal of the appeal is very different.

 

6.    I agree with both parties that the decision of the tribunal is erroneous in law and should be set aside.  The error in law identified is that set out in paragraph 1 above.  That is sufficient for the purposes of setting the decision of the tribunal aside.  In respect of disposal it is quite clear that the claimant is both contesting that there were grounds to supersede the awarding decision and on the merits in relation to her entitlement.  In these circumstances I have reached the conclusion that the only appropriate disposal is to remit the case to a freshly constituted tribunal for a rehearing.

 

7.    The starting point for the freshly constituted tribunal’s consideration is that they are required to follow what was said by the now Chief Commissioner for Northern Ireland in C12/08-09(DLA), as quoted in the Department’s submission.  It is only if grounds for supersession are established that the tribunal is entitled to consider the merits of entitlement during the period in question.  As the freshly constituted tribunal will require to make findings in fact on the evidence which is presented to them it is I consider undesirable to go into the arguments relating to the findings of the tribunal whose decision I have set aside.  It is however clear that before the tribunal whose decision I have set aside the issue as to whether any work carried out by the claimant was de minimus was in issue.  If that issue was raised before the freshly constituted tribunal, that tribunal will be required to follow what was said by the now Chief Commissioner for Northern Ireland in C8/09-10(IB) paragraph 28 as quoted in the Department’s submission appended hereto at Appendix A.  If the tribunal are addressed on the issue raised in the Department’s submission as set out at Appendix B they must have regard and follow the authorities referred to in that Appendix.  I specifically direct the tribunal that if they are constituted to include a financially qualified member they are properly constituted in accordance with the legislation set out in the Department’s submission at Appendix C.  Otherwise the matter is at large before the freshly constituted tribunal and I do not consider that it is wise for me at this stage to make an incursion into areas which will be the subject of evidence and submission on the merits if grounds for supersession are established.

 

 

(Signed):  D J May QC

 

Deputy Social Security Commissioner

 

 

 

16 March 2012

APPENDIX A

 

 

“From this analysis of the decision in CIB/6777/1999, which, in turn, has reviewed the other case-law relevant to the application of the de minimis principle to Great Britain equivalents of regulations 16 and 17 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, I have derived the following principles:

 

(i)       the de minimis principle applies to any exercise of statutory interpretation or application unless it is clear from the context that a stricter approach is to be applied;

 

(ii)      there is no indication in regulation 16 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, that a stricter approach is to be applied and, accordingly, the de minimis principle is to be applied to its interpretation;

 

(iii)     in exceptional circumstances a claimant may be regarded as involved in work of such a trivial nature that it should be disregarded in determining whether he or she is entitled to IB;

 

(iv)     the question of whether a claimant is involved in work which of such a trivial or negligible nature that it should be disregarded is a question of fact and degree;

 

(v)      factors to be taken into account in determining the question as to whether work is of such a trivial or negligible nature include:

 

(a)      the proportion of work to the normal working hours, the type of work and the effort required in relation to full normal duties;

 

(b)      the context in which the work in question is done;

 

(c)      the extent to which the activity in question is analogous to those which are the subject of specific exemptions in regulations 16 and 17 may also be a material consideration;

 

(d)      the level of remuneration (if any);

 

(e)      it is important to bear in mind all relevant factors and the underlying policy of the legislation when considering whether or not a claimant’s activity constitutes “work” for the purposes of the legislation applying to incapacity benefit.”

 

 

       APPENDIX B

 

 

       The evidence submitted by Mr Vernon refers to information submitted on 4 November 2005 in response to a number of queries by the Department.  Mr Vernon stated that (the claimant’s) involvement took no more than 16 hours per week including 1 hour per day spent on administrative duties from Monday to Friday.  I would point to regulation 17(4) of the 1995 Incapacity for Work Regulations which states that exempt work is work done for “less than 16 hours a week”.  I would contend therefore that in (the claimant’s) case this was not satisfied.  I have also referred to regulation 17(4) in more detail at point 8 of this submission and emphasised that the hours of work per week was not the only test for exempt work; the level of remuneration had also to be within the statutory limit.  I pointed out that in (the claimant’s) case her level of remuneration exceeded the statutory test.

 

       (The claimant) also stated that she wasn’t aware she had to notify the Department of her involvement quoting case law CIS/4348/2003 in support of this.  However this decision, which was later reported as R(IS)9/06, stated that if a claimant was aware of a matter which he was required to disclose, there was a breach of duty if he failed to do so.  The Department also pointed out in its submission that when (the claimant) first claimed invalidity benefit, she would have been advised on the claim from it was her duty to notify the Department of any change in circumstances.

 

       Regarding (the claimant’s) contentions that the amount of work she undertook fell into the de minimus category and thereby satisfied regulation 17, …that the tribunal applied sound logic in refuting this contention.  Therefore I would contend no error in law has occurred with regards to this issue.

 

 

       APPENDIX C

 

       The composition of appeal tribunals is set out in the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999.  Regulations 36(3)(a) and (b) state:

 

“(3)     An appeal tribunal shall consist of a financially qualified panel member and a legally qualified panel member where -

 

(a)            The issue or one of the issues, raised on the appeal or referral, relates to child support or a relevant benefit.

 

(b)            The appeal or referral may require consideration by members of the appeal tribunal of issues which are, in the opinion of the president, difficult and which relate to -

 

(i)              Profit and loss accounts, revenue accounts or balance sheets relating to any enterprise,

 

(ii)            ....

 

(iii)           ....”

 

       Article 9 (3) of the Social Security (NI) Order 1998 (as applied by article 39(1)) sets out the large range of benefits included.  Parts II to V of the Social Security Contributions and Benefits (NI) Act 1992 account for seventeen benefits of which incapacity benefit is one.

 

       In line with the above I would contend that the tribunal was properly constituted.  I would contend that owing to the nature and scope of (the claimant’s) work it was rational to include a financially qualified member to peruse accounts and other financial records.  I would also make the point however that the decision of the tribunal was not solely based on the financially qualified member’s analytical assessment of the profit and loss accounts.  The tribunal’s decision was a balanced one, taking into account all the substantial documentary evidence submitted.

 

       (The claimant) claimed she was at a disadvantage because she was unable to have an accountant present to represent her.  However, on perusing the information held in the record of proceedings, there is no indication that (the clamant) sought an adjournment in order to obtain financial representation.  There is a note in the proceedings stating that the Assets Recovery Agency would not approve the cost of an accountant to attend the hearing.  However there is no evidence that this was elaborated on by (the claimant) to the extent that she wanted the hearing adjourned.  I also note that the record of proceedings concludes with the chairman asking if the parties wished to give any further evidence or make any additional submissions.  None of them did so.  Therefore I would contend that (the claimant) was afforded every opportunity of seeking an adjournment if she felt at a disadvantage because of a lack of financial representation.  She did not do so and I would contend that the tribunal was entitled to proceed with the appeal.  Consequently no error in law has occurred.