Northern Ireland - Social Security and Child Support Commissioners' Decisions

JE v Department for Social Development (IS) [2016] NICom 45

 

Decision Nos: C1/16-17(IS) & C2/16-17(IS)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INCOME SUPPORT

 

 

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 12 January 2015

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. These are a claimant's applications for leave to appeal from the decisions of an appeal tribunal sitting at Omagh on 12 January 2015. As the applications arise from the same facts and have been heard together before the tribunal, I consider that it is appropriate that the two applications should be determined together.

 

2. For the reasons I give below, I grant leave to appeal. However, I disallow the appeal and uphold the decision of the appeal tribunal.

 

REASONS

 

Background

 

3. The applicant claimed income support (IS) from the Department for Social Development (the Department) from 17 November 2009 on the basis that she was a lone parent. She stated that she had separated from her husband on 27 February 2009. She was awarded IS from 17 November 2009. However, following an allegation that the applicant had a partner living with her, the Department carried out surveillance of the applicant between 12 June 2013 and 7 August 2013. The applicant was interviewed under caution on 2 October 2013. The Department obtained documentary evidence connecting the applicant's husband which was put to the applicant for comment in the course of interview. The applicant declined to comment. On 4 December 2013 the Department decided that the applicant was living together as husband and wife with her husband from 17 November 2009, and that she was not entitled to IS from 17 November 2009 to 27 November 2013 (the entitlement decision). The applicant appealed.

 

4. The Department calculated that an overpayment of £14,269.06 had been made to the applicant during the period from 17 November 2009 to 27 November 2013, and that this would not have been paid had she not failed to disclose that she had a partner living with her. On 19 December 2013 the Department notified the applicant that the sum of £14,269.06 was recoverable from her (the overpayment decision). She appealed.

 

5. The appeals were considered together by a tribunal consisting of a single legally qualified member (LQM). After a hearing on 12 January 2015 the tribunal disallowed the appeals. The applicant then requested statements of reasons for the tribunal's decisions and these were issued on 26 March 2015. The applicant applied to the LQM for leave to appeal from the decisions of the appeal tribunal on 27 April 2015. The applications were one day out of time. On 1 June 2015 the LQM rejected the applications. On 30 June 2015 the applicant applied to a Social Security Commissioner for leave to appeal.

 

Grounds

 

6. The applicant, represented by Oliver Roche and Co, solicitors, submits that the tribunal has erred in law on the basis that:

 

(i)             there was insufficient evidence to ground a criminal prosecution;

 

(ii)           even on the civil standard of proof the evidence was insufficient for the tribunal to uphold the Department's decision.

 

7. The Department was invited to make observations on the applicant's grounds. Mr Kirk of Decision Making Services (DMS) responded on behalf of the Department. Mr Kirk submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.

 

The tribunal's decision

 

8. The tribunal dealt with the two appeals together. The first was an appeal against a decision removing entitlement to IS for the period from 17 November 2009 to 27 November 2011 and the second an appeal from the related decision that IS amounting to £14,269.06 had been overpaid to the applicant for this period. The main issue before the appeal tribunal was whether the applicant was a lone parent throughout the relevant period. The question was whether she was genuinely separated from her husband or continued to live with him as a member of a couple. If the account advanced by the applicant was accepted, she would be entitled to IS throughout the period in question and no issue of overpayment would therefore arise.

 

9. The tribunal heard oral evidence at an adjourned hearing dated 22 October 2014 and the parties agreed that this could be adopted at the second hearing on 12 January 2015. Among the documentary evidence before the tribunal was a record of surveillance by investigators working for the Social Security Agency and a record of an interview under caution held with the applicant in the presence of her solicitor. Other documents presented to the tribunal by the Department included a screen print extracted from the electoral register, car registration details, car finance details, loan details, bank and building society evidence and statements from individuals.

 

10. The tribunal found that the surveillance evidence provided by the Department failed to formally identify any individual. Nevertheless, it found that it merited consideration on the basis of identifying vehicles at the applicant's house, the time of observations and general activity. It found that untested written statements from six persons, who did not attend the tribunal, did not outweigh the weight of other evidence. The tribunal found that the medical evidence submitted established that the applicant "had health issues", but not at a level which rendered the applicant mentally incompetent. It indicated that she was well able to understand and answer questions at the tribunal hearings. The tribunal noted that the applicant had initially given a "no comment" interview when questioned by the Department about the allegations against her.

 

11. The tribunal found the applicant's evidence to be unreliable - referring specifically to issues around vehicles registered to her husband at her address. In particular, it found discrepancies in evidence about ownership and financing of an Audi car. It found that discrepancies in documentary evidence indicated that the evidence about vehicle financing advanced by the applicant was not reliable. The applicant admitted at hearing that the documentary evidence she had submitted in relation to the Audi car in fact referred to a previous car. The account she gave about vehicle ownership was inconsistent with her account at interview.

 

12. The tribunal noted that the applicant stated that her husband was living in a caravan from 2009. However, she did not know where it was, or how far away from his work or her home. No other evidence to substantiate the account of the caravan was advanced and the tribunal found it unreliable. The tribunal found that record of occupancy history and the electoral register relating to the applicant's home suggested that her husband was living there. It found that the husband continued to use the applicant's address as his own for employment purposes, when registering a motorcycle and applying for a loan extension.

 

13. The applicant had given evidence that her husband had a key to the house and sometimes stayed there to help with the children, that he sometimes had his dinner there, that she sometimes washed his clothes, that they would go on daytrips with the children and had been to a wedding together and that both the applicant and the husband drove the car registered to the husband. She submitted that this was not inconsistent with her account that they were separated from 2009.

14. The tribunal found that "pieces of evidence singly may not amount to much or be of much consequence but Tribunal looks at all the evidence as a whole when determining the issues and what weight should be given to the evidence". The tribunal considered that the weight of evidence supported the Department's contention that the appellant and her husband were living together as members of the same household. It found the appellant's self-serving statements to be highly improbable and unreliable, disallowing her appeal.

 

Legislation

 

15. The legislative background does not play any role in the discussion which follows. However, the case centres on whether the applicant falls within a "prescribed category of person" for the purposes of section 123(1)(e) of the Social Security Contributions and Benefits (NI) Act 1992. Section 123 provides:

 

 

Income support

 

123.—(1) A person in Northern Ireland is entitled to income support if—

 

(a) ...;

 

(e) he falls within a prescribed category of person; ...

 

Provision is made for definition of prescribed categories of persons at regulation 4ZA of and Schedule 1B to the Income Support (General) Regulations (NI) 1987 (the IS Regulations). These provide:

 

4ZA.—

 

(1) Subject to paragraphs (2) and (3), a person to whom any paragraph of Schedule 1B applies falls within a prescribed category of person for the purposes of section 123(1)(e) of the Contributions and Benefits Act (entitlement to income support).

 

SCHEDULE 1B

 

Regulation 4ZA Prescribed Categories of Person

 

Lone Parents

 

1. A person who is a lone parent and responsible for—

 

(a) a single child aged under 7, or

 

(b) more than one child where the youngest is aged under 7, who is a member of that person's household.

 

By regulation 2(1) of the IS Regulations, "lone parent" means "a person who has no partner and who is responsible for , and a member of the same household as, a child or young person".

 

Hearing

 

16. I held an oral hearing of the applications. The applicant was present and was represented by Mr Martin McCann of counsel, instructed by Oliver Roche & Co, solicitors. The Department was represented by Mr Kirk of DMS. I am grateful to each of the representatives for their assistance.

 

17. Mr McCann's principal submission was that there had been an insufficient evidential basis on which the conclusions of the tribunal had been reached. He highlighted six areas of evidence which were inadequate and which, he submitted, led to an unsustainable conclusion overall. These were the issues of the appellant's car, the evidence of the electoral register, the surveillance evidence, the interview of the appellant under the Police and Criminal Evidence Order (PACE), the demeanour of the appellant and the connections between the appellant's husband and her address.

 

18. Mr McCann submitted that the appellant's solicitor had adopted a forceful and controlling approach to the PACE interview. He submitted that the appellant was vulnerable and influenced by her solicitor to the extent that her "no comment" answers should have been excluded. They tainted the evidence before the tribunal to the extent that no weight should have been given to the interview. While acknowledging that there were two parts to the interview - one where the answers consisted of "no comment" responses and a second part where the answers were given more freely - he submitted that the tribunal was unduly influenced by the "no comment" section, referring to the tribunal's statement of reasons where it was said that "Appellant declined to answer even the most basic of questions".

 

19. Mr McCann submitted that the tribunal had medical evidence before it concerning the appellant's mental health. He submitted that the tribunal should have had regard to the medical evidence when considering the demeanour of the appellant and her vulnerability. He submitted that evasiveness in itself was not sufficient of itself to enable the tribunal to arrive at a factual conclusion. He cited a number of instances of the tribunal finding the appellant's evidence to be "evasive and unreliable" - which suggested that too much weight was applied to the general demeanour of the appellant at the hearing.

 

20. Mr McCann accepted that the tribunal was allowed to rely on documentary evidence, including the electoral roll, and that weight could properly be attached to it. However, he submitted that the tribunal erred in the weight attached to that evidence. He submitted that any connection established between the appellant's address and her husband was important but not decisive. The case was consistently made that there had been ongoing contact, but that the husband was not living in the household.

 

21. The applicant gave evidence that her husband was in contact with her "for the sake of the children" and that he sometimes stayed at her house on an ad hoc basis. This answered the questions arising from the surveillance evidence. Mr McCann accepted that a car with registration details connected to the husband was parked at the appellant's address. He submitted that there might be a variety of explanations for that, and not just that someone was living in a particular household. He accepted that there was a reference to the car given at interview which appeared to contradict the account later given that the applicant owned the car registered in her husband's name.

 

22. Mr McCann submitted that the surveillance evidence was not inconsistent with the account given by the applicant. A negative approach had been taken by the tribunal and each piece of evidence was seen through a negative view of the evidence of the applicant.

 

23. Mr Kirk responded to the case made by Mr McCann. He submitted that the tribunal had not relied on the interview under caution to make its decision, but on a variety of evidence. He noted that the tribunal did not rely on the surveillance evidence. He submitted that the appellant attended the hearing and that nothing indicated any problem with her demeanour. He submitted that the tribunal had carried out a thorough analysis of the evidence and that it was entitled to reach the conclusions that it did. He submitted that the tribunal was entitled to decide that the applicant's evidence was not credible. It had reached a logical decision on the basis of all the evidence that the appellant was not a lone parent on the balance of probabilities.

 

Assessment

 

24. An appeal lies to a Commissioner from any decision of an appeal tribunal on the ground that the decision of the tribunal was erroneous in point of law. However, the party who wishes to bring an appeal must first obtain leave to appeal.

 

25. Leave to appeal is a filter mechanism. It ensures that only applicants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner.

 

26. An error of law might be that the appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that the appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach.

 

27. The initial grounds of application advance the submission that the fact that there was insufficient evidence to mount a criminal prosecution was relevant to the tribunal's decision. However, the standard of proof in a criminal trial is considerably higher than that in a tribunal. A decision not to prosecute can have no bearing on the decision of a tribunal giving independent consideration to the evidence before it. The sole issue for determination in this application is whether the tribunal erred in law in its approach to the evidence or by holding that the applicant was not a lone parent on the balance of probabilities. The possible alternative case that the applicant was not entitled to IS, but had not misrepresented or failed to disclose a material fact, was not advanced by the applicant.

 

28. Mr McCann, in careful and measured arguments, submitted that the evidence was flawed in a number of respects. He took me through aspects of the evidence, challenging the approach adopted by the tribunal in each. He submitted that the weakness of the separate pieces of evidence meant that they were not reliable in arriving at an overall conclusion and that the Department's case was not established on the balance of probabilities.

 

29. Mr McCann firstly submitted that the tribunal took an unduly negative view of the applicant's failure to answer questions initially at interview. I accept that the applicant would have been influenced by her solicitor in her approach to interview questions at the outset. However, once the evidence against her was better understood, she had been encouraged to answer questions and had done so. The tribunal remarks upon the initial "no comment" part of the interview. I accept that it may have taken an unfavourable view of the applicant's approach to the interview. However, it appears to me that this factor carried little weight in its overall conclusions.

 

30. Mr McCann pointed to the condition of the applicant's mental health and submitted that the tribunal had failed to take proper account of it when assessing her demeanour and credibility. I observe that the tribunal took note of the medical evidence, but made the express finding that it had no reason, having taken oral evidence, to doubt the Appellant's capacity to understand questions and answer accordingly. I accept that there may have been greater force in Mr McCann's submissions had the tribunal assessed the credibility of the applicant in isolation of any other evidence. However, it appears to me that the tribunal primarily rejected the reliability of the applicant's evidence due to its inconsistency with other documentary proofs.

 

31. A major issue in the appeal was the surveillance evidence. This observed an Audi car, which had been registered in October 2012 to the applicant's husband at the applicant's address, to be regularly parked at the applicant's house in the early morning at various dates from June to August 2013. At interview in October 2013 the applicant had stated that she drove her husband's car and was named on the insurance. She stated that her husband might stay over for up to three nights each week to look after the children. However, she subsequently gave an account that she owned the car, although it had been registered in her husband's name. The car had been financed by a loan taken out in her father's name, because she had been declared bankrupt. Documentary evidence was submitted by her of her father paying a finance company for a vehicle of the same make and model. The tribunal observed, however, that the car for which finance had allegedly been obtained by the applicant's father had been purchased at a slightly earlier date than the specific vehicle in the observations and carried a different registration number. The applicant then said that this arrangement was for a different car purchased a few years earlier. However, her bankruptcy was around 12 months prior and therefore would not have explained her father's involvement in purchasing an earlier car. This inconsistency damaged the credibility of the applicant. Mr McCann hinted that perhaps other irregular reasons would explain the nature of the transactions involved. However, I will not speculate on these and the tribunal would not have been entitled to speculate on these. I consider that the tribunal was entitled to doubt the applicant's credibility arising from this evidence.

 

32. Mr McCann challenged the reliance on documentary links between the applicant's husband and the applicant's address. These had little probative value in isolation, in his submission. However, while I accept that submission, the documents would have to be considered as part of a totality of evidence, and could serve in supporting aspects of that evidence. The applicant's husband was registered to vote at the applicant's address, had registered a car and a motorbike there, extended a loan from that address and gave the address to his employer, rather than any other current address. The applicant had referred to the husband living in a caravan. However, she could not indicate the location of the caravan. The husband gave a written statement in which he did not refer to the caravan or indicate where he lived. In the absence of evidence that he in fact lived somewhere else, I consider that weight could properly be placed on the documentary evidence linking the husband to the applicant's address.

 

33. Mr McCann submitted that the observations of the Department officers carrying out surveillance were not inconsistent with the applicant's account that the husband stayed at her address fairly often for child care reasons. He criticised the tribunal for adopting a negative view of the evidence. However, while there is some force in this submission, the tribunal was entitled to consider the surveillance evidence as it did. Ultimately, the question for the Commissioner is not whether he agrees with the tribunal's decision, but whether the tribunal has erred in law in reaching its decision. In order to be erroneous in law in the view that it took of the evidence, it would need to be shown that its decision was based on findings which were irrational. This could be because there was insufficient evidence to enable the tribunal to arrive at the conclusion that it did, or because the evidence was so strong in the other direction that it compelled a different conclusion, rendering the tribunal's decision perverse.

 

34. Mr McCann's submissions are to the effect that the individual strands of evidence are so thin in themselves that they could not be relied upon to support the tribunal's conclusion. A major weakness in the Department's evidence was the lack of formal identification of the applicant's husband at her house. However, a car registered to him was identified. In the evidence given by the applicant to distance her husband from that car, the tribunal was entitled to find that inconsistency, irregularity and unreliability was present. While this did not mean that everything she said to the tribunal was unreliable, it was entitled to weigh her evidence in the light of that assessment.

 

35. The tribunal had to decide the appeal on the balance of probabilities. The question was whether it was more likely than not that the husband was living at the applicant's address as a member of her household. It had sufficient evidence to determine the question. On all the evidence before it, I consider that it was entitled to reach that conclusion, and that it did not reach an irrational conclusion.

 

36. I accept that Mr McCann demonstrates an arguable case for submitting that the tribunal has erred in law. Therefore I grant leave to appeal. I have proceeded to determine the appeal. Having considered the submissions of the parties, I do not accept that the applicant has established that the tribunal has erred in law. I disallow the appeal.

 

 

(signed): O Stockman

 

Commissioner

 

 

 

 

22 June 2016