Northern Ireland - Social Security and Child Support Commissioners' Decisions

JD-v-Department for Social Development (JSA) [2013] NICom 66

Decision No:  C6/13-14(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 13 August 2012

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Newry on 13 August 2012.

 

For the reasons given below, I consider that I should exercise my power under Article 15(7) of the Social Security (NI) Order 1998 to set aside the tribunal’s decision.  I direct that the appeal should be re-determined by a newly constituted tribunal on accordance with the principles set out below.

 

REASONS

 

Background

 

The applicant and her husband claimed jobseekers allowance (JSA) from 16 January 2012.  She declared that they had no capital or savings.  The couple had previously received income support (IS) between 28 February 2006 and 31 March 2009, when the claim was disallowed on the basis that the couple possessed capital in excess of the prescribed limit of £16,000.  The background to this was that the couple had sold the house they owned, receiving net proceeds of over £87,000, and had rented it back from the purchaser.  On 27 February 2012, the Department decided that the couple should be treated as still possessing capital of £37,378.54 at 16 January 2012 and disallowed the claim.  The applicant appealed.

 

The appeal was considered by a tribunal consisting of a single legally qualified member on 13 August 2012.  The tribunal disallowed the appeal.  The applicant requested a statement of reasons, which was issued on 10 December 2012.  Represented by Ian Mallon, Solicitors, the applicant requested leave to appeal to the Social Security Commissioner.  By a determination issued on 22 January 2013 the LQM refused leave to appeal.  By an application made on 21 February 2013, the applicant applied to a Social Security Commissioner for leave to appeal.

 

As is normal practice, the Office of the Social Security Commissioner (OSSC) requested a copy of the tribunal file from the Appeals Service on 22 February 2013.  Following six separate requests, the applicant’s file was received by OSSC on 1 July 2013.  I have no explanation for this untoward delay.

 

Grounds

 

The applicant submits that the tribunal has erred in law as:

 

(i)        the tribunal did not have proper regard to the evidence;

 

(ii)       the tribunal did not have proper regard to the gambling addiction of the applicant’s husband in assessing whether he continued to possess capital from the proceeds of the sale of the couple’s home.

 

On 1 August 2013, the Department was invited to make observations on the applicant’s grounds.  Mrs Rush replied for the Department on 28 August 2013.  In detailed submissions, she indicated that she supported the application for leave to appeal.

 

In response, the applicant’s representative submitted further evidence concerning the applicant’s current financial position.

 

The tribunal’s decision

 

The tribunal found that the applicant had possessed the sum of £81,403.60 received as proceeds from the sale of her house on 31 January 2008.  This led to disallowance of her IS claim, which was not appealed.  A fresh claim for IS was disallowed on 5 January 2010, with the disallowance upheld by a tribunal on 15 December 2010.  A further claim was disallowed on 14 April 2011, which was not appealed.  Another claim by the applicant’s husband was disallowed on 11 January 2012, which was not appealed.  The reason for each disallowance was that the applicant did not satisfy the capital rules.

 

The present claim was made on 16 January 2012.  In assessing the issue of whether the applicant possessed capital in excess of the prescribed limit, the tribunal undertook a careful accounting exercise.  It considered bank statements and made allowance for reasonable living expenses in seeking to account for expenditure from the capital sum of £81,403.61 from 31 January 2008 to the date of claim.  On the basis of the Department’s submissions, the tribunal determined that the applicant had not accounted for £30,159.34 of the £80,043.60 at the date of decision and disallowed the appeal.

 

The tribunal noted that the applicant submitted that her husband had spent money by gambling, and evidence was adduced that he was being treated for a gambling addiction for three years.  The tribunal made reference to the findings of the previous tribunal of 15 December 2010, which had also been told of the gambling issue.  However, it found that there was no evidence such as receipts to substantiate that the capital was spent gambling.  It found that the applicant possessed unaccounted for capital amounting to £30,159.34 at the date of decision and disallowed the appeal.

 

Assessment

 

The case submitted by the applicant’s representatives is essentially that the gambling addiction of the applicant’s husband was not properly addressed.  Mrs Rush for the Department shares the view that the tribunal, while it had regard to previous decisions of the Department and of a tribunal on gambling, did not investigate the effect of such an addiction on the applicant’s husband.  Mrs Rush further points out that there was evidence of debt and rent arrears in the papers which was relevant to the question of whether the applicant actually possessed capital.  She referred to a decision of Chief Commissioner Mullan on file C7/12-13(IS) as authority to submit that evidence that the claimant was experiencing financial difficulty had to be considered by the tribunal.

 

In identifying the nature of the appeal before it in the first line of the statement of reasons, the tribunal states that “this appeal is in respect of a Department decision dated 27 February 2012 that the appellant was not entitled to income-based jobseekers allowance from 16 January 2012 because she is treated as having capital in excess of the prescribed limit of £16,000”.

 

In fact, this is not a correct characterisation of the Department’s decision.  The Department’s decision of 27 February 2012 makes clear that it does not consider that the applicant disposed of capital for the purpose of her latest claim for JSA.  In other words the Department’s decision was not treating the applicant as possessing capital, which she did not actually have, under the notional capital rule.  Rather the Department considered that the applicant had not given sufficient explanation for the expenditure of the capital she received on 30 January 2008, and therefore considered that she still possessed the capital.  The issue was therefore not whether the applicant should be treated as possessing capital, but whether she actually possessed it.

 

Notwithstanding the above observation, it does appear to me that the tribunal nevertheless considered the case as one of possession of capital and whether the applicant still possessed capital with particular focus on unaccounted for capital.  It carefully analysed receipted and estimated expenditure by the applicant over the period prior to the date of claim.  On this basis it found that certain elements of expenditure were accounted for, while others were not.  However, it appears to me arguable that the tribunal has erred in law by conflating the question of unaccounted for capital and the question of actual possession of capital.

 

In case C7/11-12(IS) I considered the relevant principles in “unaccounted for capital” cases.  I will not repeat them here, but the relevant passages are at paragraphs 37 to 43.  In the present case the tribunal found that the applicant “had unaccounted for capital at 16/01/12 of £32,725.54 and at 27/02/12 unaccounted for capital of £30,159.34”.  With respect, the issue is not whether she had unaccounted for capital, but whether she had capital.  It appears from the statement of reasons that the tribunal considered that the fact that certain capital was unaccounted for meant that it had to be treated as if the applicant still possessed it.  That is not the correct approach in law.  A tribunal might be entitled to infer from claimed circumstances of disposal that a claimant still possessed capital, but it is not obliged to do so.

 

In order to make the decision it did, the tribunal needed to be satisfied that the applicant still possessed the capital sums in question.  In order to find that this was the case, it was necessary for the tribunal to make its own independent findings in relation to whether the applicant’s husband spent some or all of the capital gambling, and to weigh the evidence of the applicant’s current indebtedness in assessing whether she still possessed capital.

 

I consider that there is merit in the applicant’s submissions and I note that the Department agrees that the tribunal has erred in point of law.  Therefore, I grant leave to appeal.  However, I consider that this case is most appropriately dealt with by under Article 15(7) of the Social Security (NI) Order 1998.

 

On the basis that the parties are agreed that the tribunal has erred in point of law I set aside the tribunal decision without deciding the case myself.  I remit the appeal to a newly constituted tribunal for re-determination.  That tribunal should have regard to the decisions in LS v Department for Social Development [2012] NI Com 327 and PMcC v Department for Social Development [2012] NI Com 326.

 

 

(signed):  O Stockman

 

Commissioner

 

 

 

(Dated):  14 October 2013