Northern Ireland - Social Security and Child Support Commissioners' Decisions

JS-v-Department for Communities (IS) [2016] NICom 74

 

Decision Nos:   C3/15-16(IS)

C4/15-16(JSA)

C5/15-16(JSA)

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INCOME SUPPORT & JOBSEEKERS ALLOWANCE

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 20 October 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     These are a claimant’s appeals from three decisions of an appeal tribunal sitting at Belfast on 20 October 2014.  Although two distinct benefits are involved, because each of the appeals involves common issues of fact and law, I consider that it is expedient to determine the appeals together.

 

2.     An oral hearing of the appeals has been requested.  However, I consider that the proceedings can properly be determined without an oral hearing.

 

3.     For the reasons I give below, I allow the appeals.  I set aside the decisions of the appeal tribunal under Article 15(8)(b) of the Social Security Order (NI) 1998 and I direct that the appeals shall be determined by a newly constituted tribunal in accordance with the directions I have given.

 

         REASONS

 

         Background

 

4.     The appellant had claimed jobseekers allowance (JSA) from the Department for Social Development (the Department) from 29 March 2010 to 24 June 2010. On the basis of investigations and evidence, on 4 March 2013 the Department decided that the appellant did not satisfy the conditions of entitlement to JSA and revised the decision on entitlement for that period.  The Department further decided on 11 April 2013 that the appellant had been overpaid JSA in the amount of £792.61 and that this was recoverable from him.  The appellant appealed.  The appeal (under reference BE/21331/13/73/L) was considered by a tribunal consisting of a legally qualified member (LQM) sitting alone on 20 October 2014.  The tribunal disallowed the appeal.

 

5.     The appellant had also claimed JSA from 8 November 2010 to 2 August 2011.  Again, on the basis of investigations and evidence, on 16 December 2013 the Department decided that the appellant did not satisfy the conditions of entitlement to JSA and revised the decision on entitlement for that period.  The Department further decided on 19 December 2013 that the appellant had been overpaid JSA in the amount of £2,510.55 and that this was recoverable from him. The appellant appealed.  The appeal (under reference BE/21330/13/73/L) was considered by the same LQM on the same date.  Again, the tribunal disallowed the appeal.

 

6.     The appellant claimed and was awarded income support (IS) from 29 July 2011 to 18 October 2012 by the Department on the basis that he was a carer.  On the basis of investigations and evidence, on 14 March 2013 the Department decided that the appellant did not satisfy the conditions of entitlement to IS and revised the decision on entitlement for that period.  The Department further decided on 3 April 2013 that the appellant had been overpaid IS in the amount of £2,807.51 and that this was recoverable from him.  The appellant appealed.  The appeal (under reference BE/21324/13/61/L) was considered by the same LQM on the same date.  Again, the tribunal disallowed the appeal.

 

7.     The issue common to all the appeals was the question of whether the appellant had an income such as to affect his entitlement to JSA and IS during the relevant periods.

 

8.     The appellant requested statements of reasons for the tribunal’s decisions and these were issued on 19 March 2015.  The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal.  The LQM granted leave to appeal by a determination issued on 11 September 2015.  However, the LQM does not state his reasons for granting leave or specify the point of law which he accepted as arguable. On 7 October 2015 the appeal was lodged in the Office of the Social Security Commissioners. (The Department was renamed the Department for Communities from 8 May 2016).

 

Grounds

 

9.     The grounds of appeal submitted on the appellant’s behalf by Donnelly & Wall, Solicitors, are that the tribunal has erred in law on the basis that:

 

                  (i) The tribunal erred in its application of the burden of proof;

                  (ii)The tribunal used inadmissible evidence in reaching its decision.

 

10.   The Department was directed to make observations on the appellant’s grounds. Mr McGrath of Decision Making Services (DMS) responded on behalf of the Department.  He submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the appeal on the grounds submitted.

 

11.   Nevertheless, he pointed out that the tribunal had not apparently satisfied itself (in C5/15-16(JSA)) that section 69(5A) of the Social Security Administration (NI) Act 1992 had been applied and that its decision contained an error of law for that reason.  He further pointed out that in C3/15-16(IS) and C4/15-16(JA) there were errors concerning dates of decision – although not sufficient to vitiate the tribunal’s decision - but also that the tribunal had not formally determined the appeal on the entitlement decision in that part of the case. 

 

         The tribunal’s decisions

 

12.   The tribunal heard three appeals together.  It has prepared a common record of proceedings and statement of reasons for the three decisions, except to the extent that BE/21331/13/73/L can be identified as the lead case.  The parties acknowledge in BE/21330/13/73/L and BE/21324/13/61/L that they have nothing to add to the evidence and submissions in that appeal.

 

13.   The tribunal identified the decisions under appeal as those dated 6 October 2014 (being revised versions of the decisions of 3 April 2013, 11 April 2013 and 19 December 2013).  The first decision was that an overpayment of JSA amounting to £792.61 from 1 April 2010 to 24 June 2010 had been made to the appellant and was recoverable from him. The second decision was that an overpayment of JSA amounting to £2,510.55 from 11 November 2010 to 2 August 2011 had been made to the appellant and was recoverable from him.  The third decision was that the appellant was in remunerative work for the period from 29 July 2011 to 18 October 2012 and that an overpayment of IS amounting to £2,807.51 had been made to him for the period 29 July 2011 to 23 October 2012.

 

14.   The Department made the submission to the tribunal that the appellant was the proprietor of a security company.  It produced evidence in the form of a bank account in the name ‘person 1’ with an account number ending in “1641”.  It provided a VAT registration certificate naming ‘person 1’ as the sole proprietor of the security company.  A printout from the company’s website included an address and a telephone number said to be used by the appellant.  The Department submitted that the appellant was ‘person 1’.

 

15.   The appellant disputed this. He stated that he had his SIA security licence taken from him in 2009 and that it was revoked in 2010.  He stated that he gave his company to somebody else, ‘person 2’.  He denied that he was living at the address associated with the bank statement, saying that he had been in prison for two and a half years at the time. 

 

16.   The Department provided evidence that the appellant had changed his name a number of times by deed poll and that in November 2009 he was living at the address associated with the bank statement and using the telephone number associated with the security company.  The appellant denied having a bank account in 2010.  He said that he could get evidence that he had transferred the company to ‘person 2’ from his accountant.  The tribunal adjourned from 12 noon to 2pm. At 2pm the appellant produced a handwritten note to the tribunal which purported to witness the transfer of the company to ‘person 2’  on 31 March 2010.

 

17.   In its statement of reasons the tribunal referred to documentary evidence before it, including the record of interviews of the appellant under caution.  In these the appellant declined to give his telephone number, refused to confirm or comment on the various aliases he was alleged to have used or on the bank statements.  The tribunal rejected the credibility of the appellant and found that he had used a number of aliases. It found that a bank account in the name of ‘person 1’ was used by the appellant.  It found that the bank account had previously been registered at former addresses of the appellant, including one where the security company was registered.  The tribunal found that the company’s website used the appellant’s mobile telephone as a contact number some two years after he had claimed to have transferred ownership of the company.  The bank statements in a name used by the appellant showed that the appellant was credited with some £9,579.40 during the period from 7 April 2010 to 29 February 2012, leading the tribunal to conclude that he was in remunerative work in the relevant period.  The tribunal found that Western Union transfers amounting to £24,274.77 were made to the appellant between 12 September 2011 and 18 June 2012. The tribunal observed that in his evidence the appellant did not attempt to rebut the implication that these transfers were for remunerative work.

 

18.   It found that the appellant had failed to disclose the material fact that he had sources of monetary income during the relevant periods and disallowed the appeals.

 

         Relevant legislation

 

19.   The main provision enabling recovery of overpaid benefit is section 69 of the Social Security Administration (NI) Act 1992. This provides:

 

                  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.

 

         Submissions

 

20.   The appellant, represented by Donnelly & Wall (solicitors), makes two succinct submissions.  Firstly, he submits that the tribunal erred in its application of the burden of proof.  The appellant points to the tribunal’s apparent reliance on Kerr v Department for Social Development [2004] UKHL 23, where Lord Hope, discussing a situation where the “information which is needed to resolve the issues bearing on the question of entitlement is not available”, said “in this situation there is no formal burden of proof on either side”.

 

21.   In advancing this argument, the appellant relied upon an extract quoted by Lord Hope (at paragraph 13 of Kerr v DSD) from Irving v Minister of Pensions [1945] SC 31, where Lord Justice Clerk Cooper had said, “in every issue of disputed facts between two parties, the onus of proof must inevitably be either on the one hand or the other, and the result of the provisions I have quoted is that the onus of proof is on the Minister”.

 

22.   However, in the passages cited by the appellant, Lord Hope was clearly distinguishing the position under social security law from the position under the war pension scheme concerning claims for death or disablement, in which the “benefit of the doubt” was to be given to the serviceman.  Under this scheme, once death or disablement was established, the onus was placed on the Minister to show that the death or disablement was not attributable to service.  This principle can be seen to continue in Articles 40(3) and 41(5) of the current Naval, Military and Air Forces, Etc. (Disablement and Death) Service Pensions Order 2006 (see also Royston v Minister of Pensions [1948] 1 All ER 778). Therefore, I consider that reliance on the dictum of Lord Justice Clerk Cooper is misplaced in the current context.

 

23.   The point made by Lord Hope in Kerr v DSD was that the process of determining entitlement to a benefit was essentially inquisitorial. It was a fact-gathering exercise to which both the claimant and the Department must contribute.  Nevertheless, it was stated by Lord Hope that “the general rule is that it is for the party who alleges an affirmative to make good his allegation”.  Therefore, while I reject the premise that the appellant can find support on the basis of Lord Justice Clerk Cooper’s dictum, I accept the general submission of the appellant that “he who alleges must prove”. 

 

24.   Mr McGrath for the Department accepts this general principle but submits that the tribunal was satisfied that the Department had discharged the burden of proof.

 

25.   The appellant further submits that the tribunal, in reaching its decision, relied upon inadmissible evidence.  The submission advanced is that information obtained during an interview when the appellant was under caution in relation to a criminal investigation should have been inadmissible.  No authority is cited for this proposition.

 

26.   In submitting that there was no relevant basis for rejecting interview evidence, Mr McGrath relied on C53/98(DLA) - a decision of Mrs Commissioner Brown – where she said at paragraph 13 that:

 

“In my view neither section 30(4) nor section 31(6) has anything to say about the admissibility or otherwise of evidence.  The admissibility of evidence must therefore be dealt with on much more fundamental legal principles.  The rules of evidence are relaxed before Tribunals.  However, even in a situation of a civil action in a court, evidence is not inadmissible merely because it was improperly obtained.  As stated in paragraph 12 of Volume 17 of the Fourth Edition of Halsbury's Laws of England "Relevant evidence may be improperly or illegally obtained, but that does not render it inadmissible".  I can see no rule of evidence which means, at least in non-criminal matters, that evidence improperly or illegally obtained is not, for that reason, admissible”.

 

27.   Mr McGrath therefore submitted that there was no basis for submitting that the tribunal should not have relied upon the record of benefit investigation interviews.

 

28.   Nevertheless, Mr McGrath pointed to certain failings in the Department’s approach to the case, which could potentially taint the tribunal’s decision. For ease of understanding, it should be remembered that there were originally six decisions in this case, consisting of three pairs of entitlement and overpayment decisions, as follows:

 

·                     On 4 March 2013 the Department decided that the appellant did not satisfy the conditions of entitlement to JSA and revised the decision on entitlement for the period from 29 March 2010 to 24 June 2010;

 

·                     On 11 April 2013 the Department decided that the appellant had been overpaid JSA in the amount of £792.61 in respect of that period and that this was recoverable from him;

 

·                     On 16 December 2013 the Department purported to decide that the appellant did not satisfy the conditions of entitlement to JSA and revised the decision on entitlement for the period from 8 November 2010 to 2 August 2011;

 

·                     On 19 December 2013 the Department decided that the appellant had been overpaid JSA in the amount of £2,510.55 in respect of that period and that this was recoverable from him;

 

·                     On 14 March 2013 the Department decided that the appellant did not satisfy the conditions of entitlement to IS and revised the decision on entitlement for the period from 29 July 2011 to 18 October 2012;

 

·                     On 3 April 2013 the Department decided that the appellant had been overpaid IS in the amount of £2,807.51 in respect of that period and that this was recoverable from him.

 

29.   However, on 6 October 2014, the Department made further decisions revising the decisions of 11 April 2013, 19 December 2013 and 3 April 2013 respectively.  The common factor was that these were overpayment decisions.

 

30.   Mr McGrath pointed out that the appellant had presented an appeal to the tribunal on 24 June 2013. He submitted that the appellant did not state whether he was requesting an appeal against the entitlement decision or the overpayment decision or both decisions.  “In consequence”, he said, “the Department has only presented an appeal to the tribunal against the overpayment decision”. He submitted that there were still outstanding appeals against the entitlement decisions. He said that “while having no direct bearing on this instant appeal it remains to be decided by another tribunal”.

 

         Assessment

 

31.   The first ground raised by the appellant is that the tribunal has incorrectly applied the burden of proof in the present appeals.

 

32.   The issue in an entitlement appeal is whether the tribunal is satisfied on the balance of probabilities that the appellant met the conditions of entitlement to JSA and IS for the relevant periods.  The issue in an overpayment appeal is whether the tribunal was satisfied on the balance of probabilities that the appellant had failed to disclose or misrepresented a material fact and benefit was paid to him in consequence.  

 

33.   The tribunal examined the evidence before it. It clearly considered that it was for the Department to establish its case that the appellant had been in remunerative employment and, where evidence was sufficient to tend to establish this, that it was for the appellant to rebut that evidence.  Thus, for example, in the IS appeal, the tribunal was satisfied that the Department had demonstrated that there were Western Union transfers to the appellant amounting to some £24,274.77.  However, the tribunal noted that the appellant had not sought to rebut the allegation that he had received this money in his oral evidence.

 

34.   The tribunal stressed that the appellant was lacking in credibility. For example, the appellant had stated that he had transferred his company, the security company, to a third party, ‘person 2’, in 2010.  The tribunal found that there was no credible explanation as to why the invoice at Tab 6 of the papers should be made out to the security company at the appellant’s address and showing his mobile telephone number on 5 September 2011, 18 months after the date when he asserted that he had given his company away to ‘person 2’.

 

35.   The tribunal found on the basis of the evidence that the appellant was in remunerative work, that it was reasonable to disclose this fact to the Department, that he did not disclose it to the Department and that benefit overpaid to him was recoverable from him.

 

36.   In its statement of reasons, the tribunal has referred to case law on the burden of proof in benefit claims generally.  I consider that the extracts it quoted may have led to some misunderstanding on the part of those representing the appellant, as I have tried to explain above. However, at the end of the day, the precise application of the burden of proof is really only relevant in the most finely balanced of cases.  The proper question for the tribunal was whether, on the evidence, it was more likely than not that the appellant was engaged in remunerative work when claiming benefit and had failed to disclose this to the Department.  I consider that the tribunal approached the question in an acceptable manner in accordance with Kerr v DSD, has made proper findings of fact and has reached a rational conclusion.  It has not erred in its application of the burden of proof.  

 

37.   The appellant, by his second ground, submits that the tribunal has erred in law in admitting the evidence of his interviews under caution. However, he points to no authority for a rule of civil evidence which would render such evidence inadmissible in the context of tribunal proceedings.  I agree with Mrs Commissioner Brown in C53/98(DLA) and I consider that there is no impediment to the tribunal considering the evidence of interviews in this particular case.

 

38.   It follows that I do not allow the appeal on either of the grounds submitted by the appellant.

 

39.   Nevertheless, Mr McGrath has pointed out defects in the Department’s decision making and in its submission to the tribunal.  The Department has presented the appeal in terms of the overpayment decisions only, following on from the Department’s revised decisions of 6 October 2014. The result of this is that the tribunal has made decisions in relation to the overpayment decision appeals but not the entitlement decision appeals.

 

40.   The appellant’s letter of appeal stated: “I would like to appeal the following decisions JSA effected 29.3.10-24.6.10, 18.11.10-2.08.2011 and income support effected 29.08.2011-18.10.12”.  It appears clear from this that the appellant intended to appeal all decisions which affected his JSA and IS.  This would include both entitlement and overpayment decisions. In any event, it appears to me that the letter of appeal gives no warrant for narrowing the appeal to the overpayment issue alone. Nevertheless, the Department, in its submissions to the tribunal, has evidently failed to address the appeals on the question of entitlement.

 

41.   The relevant legislation requires at section 69(5A) that, before any amount of benefit can be recoverable, the decision awarding benefit must be reversed or varied on appeal or revised under Article 10 or superseded under Article 11 of the Social Security (Northern Ireland) Order 1998.  Therefore, there is a logical and procedural connection between the issues of entitlement and overpayment.  In this connection, Mr McGrath points to different issues in each of the three decisions.

 

42.   In C4/15-16(JSA), Mr McGrath points out that the Department has never forwarded the appeal on entitlement to the tribunal.  His submission is that the entitlement appeal remains outstanding and must still be considered by another tribunal. I will discuss this below.  

 

43.   In C5/15-16(JSA), Mr McGrath accepts that there is a flaw in the Department’s decision making whereby the original decision awarding JSA has never been validly revised or superseded.  This is in addition to the failure to forward the appeal on entitlement to the tribunal.  As there was no valid decision to remove entitlement from the appellant for the period from 8 November 2010 to 2 August 2011 by either the Department or the tribunal, as required by section 69(5A), the implication is that the tribunal had no jurisdiction to decide the issue of overpayment.

 

44.   I accept that this submission is correct.  Whereas a tribunal considering the appeal on entitlement would have had jurisdiction to correct any procedural flaws in the entitlement decision (see R(IB)2/04), the fact that the Department presented only the overpayment appeal to the tribunal had the effect that this could not be done.  The tribunal could not find a recoverable overpayment where the appellant remained technically entitled to JSA. 

 

45.   In C3/15-16(IS), Mr McGrath points to certain irregularities in decision making and in particular that a number of errors were made in relation to the dates of decisions. He also points out that the tribunal dealt only with the overpayment appeal.

 

46.   He states that the appellant’s original letter of appeal “did not specify if he was requesting an appeal against the entitlement decision of the overpayment decision or both decisions”.  I consider that this is a somewhat disingenuous submission in the light of the wording of the appeal letter.  If there was ambiguity in the scope of what the appellant wished to challenge, the Department could have made further enquiries of him.  However, I note that Mr McGrath accepts that, since the Department carried out a reconsideration of both entitlement and overpayment decisions after the receipt of the appeal, the implication is that it had accepted that both decisions were under appeal. He again submits that the entitlement appeal is still to be decided by another tribunal.

 

47.   Therefore the Department concedes that an error of law arises in one appeal from the circumstance that the tribunal decided the overpayment appeal while there was no valid decision removing entitlement for the period in issue.  I do not consider that the tribunal can be faulted in all the circumstances, but in the absence of a section 69(5A) decision removing entitlement, it decided the overpayment appeal in the absence of jurisdiction.  I accept that it has erred in law and consider that I must set aside the decision made under the Appeals Service reference BE/21330/13/73/L (OSSC reference C5/15-16(JSA).

 

48.   In relation to the two other appeals, Mr McGrath submits that the entitlement appeal aspects still need to be considered, but that the tribunal had not erred in law by proceeding to determine the overpayment aspects.  However, it appears to me that the fact that the entitlement appeals still need to be considered leads to a possible consequence whereby a newly constituted tribunal could allow the entitlement appeals, when the overpayment appeals had been decided against the appellant. That would have the effect that the overpayment was found be recoverable while the underlying entitlement was still extant.  That would be logically and legally questionable.

 

49.   There is ample case law to support the proposition that a tribunal considering an overpayment appeal is not bound by the finding of fact of a tribunal deciding entitlement (see Secretary of State for Work and Pensions v IM [2010] UKUT 428 and KJ v Secretary of State for Work and Pensions [2010] UKUT 452). In the latter case, Upper Tribunal Judge Turnbull had said:

 

“16. This demonstrates, yet again, the unsatisfactory consequences which can ensue if entitlement and overpayment appeals are not heard together.  In effect, the decision of the First Tribunal in this case was a complete waste of time.  The claimant was entitled to reargue in the overpayment appeal the issues of fact decided by the First Tribunal”.

 

50.   However, I think that it is a different matter altogether if a subsequent tribunal were to conclude the issue of entitlement in favour of the appellant.  A decision on entitlement reversing or varying the determination in pursuance of which benefit has been paid is a requirement for recoverability.  I do not accept that the present situation can be remedied quite as simply as Mr McGrath suggests, by simply leaving the outstanding entitlement appeals to be decided by another tribunal. If that other tribunal allowed the entitlement appeals, by what process would the resulting clash of outcomes be resolved?  A tribunal could only be overturned on appeal on grounds of error of law, or have its decision superseded on grounds that it was made in ignorance or based on a mistake as to a material fact.  The implication would be that a sum of benefit would be recoverable where the decision on entitlement was still in place.  That is not permissible under section 69(5A). It seems to me that where a tribunal decides an overpayment appeal when an entitlement appeal remains outstanding and undecided, the conditions of section 69(5A) cannot be met, and error of law must result.

 

51.   It appears to me that the Department, in the course of preparing its submissions to the tribunal in this complex appeal, has unintentionally uncoupled the entitlement and overpayment appeals.  The consequence is that all three of the tribunal decisions are flawed for lack of jurisdiction. I consider that I must set aside the decisions of the tribunal. I do this without enthusiasm, as the tribunal has applied itself diligently to understanding a voluminous case, has taken in hand the confusing submissions of the Department and has worked to unravel a complex evidential trail.  It has strayed into error through no fault of its own.

 

52.   Nevertheless, I must allow the appeals.  I set aside the decisions of the appeal tribunal and I remit the appeal to a newly constituted tribunal with the following directions.

 

         DIRECTIONS

 

53.   In addition to the obvious flaw that they do not address the entitlement question, the tribunal submissions in the present appeals are among the most confusing I have seen.  It appears to me that that there are instances of accidental error in the dates given in decisions which add to the confusion.

 

54.   Whereas the Department’s convention in remitted appeals appears to be to attach the entirety of past submissions to a new submission along with the Commissioner’s decision, I do not consider that this would be a helpful exercise in the light of the poor quality of the present submissions.

 

55.   Moreover, in relation to each of the entitlement decisions under appeal, a Departmental decision maker has purported to revise decisions awarding benefit (see the entitlement decisions dated 4 March 2013, 16 December 2013 and 14 March 2013 respectively).

 

56.   The power to revise decisions under Article 10 of the Social Security (NI) Order 1998 and regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations NI 1999 is not unrestricted. In the particular cases, it is not immediately obvious to me that the power to revise has been validly exercised (see RH v Secretary of State for Work and Pensions [2015] UKUT 453 on this issue).

 

57.   Accordingly, I direct the Department as follows:

 

                  i. The Department is to examine the decisions made hitherto in the case to assess whether they have been properly made under the power of revision, and to consider whether, as part of any fresh appeal submission, the new tribunal should be asked to substitute alternative decisions based, for example, on the power of supersession.

 

                  ii. The Department is to produce a new submission in each case addressed to both of the issues in the each of the three sets of appeals, namely, entitlement and recovery of overpayment.

 

                  iii The Department shall not seek to place any of the existing submissions before the newly constituted tribunal but shall prepare an entirely new submission for each of the three sets of entitlement and overpayment appeals.

 

                  iv. In each new submission, the Department shall summarise all contentions of fact which it makes in relation to the entitlement question and to the overpayment question in a clear and coherent way.

 

                  v. The Department shall make reference to all evidence exhibited in the submission which is advanced in support of each of its contentions of fact, identifying the contention, the evidence and the submission it makes on the basis of that evidence.

 

                  vi. The three new submissions shall exhibit all relevant evidential material (whether or not that material was exhibited to the past submissions), including copies of all past decisions. 

 

                  vii. The Department is to produce a common chronology for the three sets of appeals which shall refer to the relevant dates of claim and subsequent decisions and the dates of key evidence relied upon, including evidence of bank lodgements, Western Union transfers and dates on which his various aliases were adopted by the appellant by Deed Poll.

 

 

(signed) O Stockman

 

Commissioner

 

 

 

15 November 2016