VMcL-v-Department for Communities (IS) [2018] NICom 13

Decision No:  C2/17-18(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 5 October 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	As will be explained in greater detail below, both parties have expressed the view that the decision appealed against was erroneous in point of law.

2.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

3.	The Legally Qualified Panel Member (LQPM) should note that the Department has conceded that the appeal submissions did not address certain of the issues arising in the appeal in an adequate manner.  I am also conscious of the appeal tribunal’s careful and judicious management of the other aspects of the appeal, and I have noted its circumspectly prepared statement of reasons.

4.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to Income Support (IS), for a particular period, remains to be determined by another appeal tribunal. 

5.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the decision under appeal is a decision of the Department, dated 22 March 2016, which decided that the appellant was not entitled to IS from and including 23 October 2015;

(ii)	the Department is directed to provide details of any subsequent claims to IS and the outcome of any such claims to the appeal tribunal to which the appeal is being referred. The appeal tribunal is directed to take any evidence of subsequent claims to IS into account in line with the principles set out in C20/04-05(DLA);

(iii)	the Department is directed to prepare a further submission for the appeal before the differently constituted tribunal. The further submission should draw on the detailed analysis of the issues arising in the appeal undertaken by Mr Crilly, on behalf of the Department, and as set out below;

(iv)	The further submission is to be shared with the appellant and his representative in advance of the appeal in order to allow them to prepare their own submissions in connection with the issues arising in the appeal;

(v)	the appeal is to be listed as an oral hearing;

(vi)	a Presenting Officer from the Department is to attend the oral hearing;
   
(vii)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it. 

	Background

6.	On 22 March 2016 a decision maker of the Department decided that the appellant was not entitled to IS from and including 23 October 2015.  The decision dated 22 March 2016 was reconsidered on 13 April 2016 but was not changed.  An appeal against the decision dated 22 March 2016 was received in the Department on 4 April 2016. 

7.	On 10 August 2016 an LQPM determined that the appeal should proceed on the basis of the papers alone.  The appeal tribunal hearing took place on 4 October 2016.  The appeal tribunal disallowed the appeal and confirmed the decision dated 22 March 2016.

8.	On 8 February 2017 an application for leave to appeal to the Social Security Commissioners was received in the Appeals Service (TAS).  The appellant was represented in the application by Mr McGlade of the Citizens Advice organisation.  On 21 February 2017 the application for leave to appeal was refused by the LQPM. 

	Proceedings before the Social Security Commissioner

9.	On 23 March 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 12 April 2017 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 8 May 2017, Mr Crilly, for DMS, supported the application for leave to appeal on one of the grounds submitted on behalf of the appellant.  Written observations were shared with the appellant and Mr McGlade on 10 May 2017. 

10.	On 14 September 2017 I granted leave to appeal. In granting leave to appeal, I gave, as a reason that certain of the issues raised in the application were arguable.  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

11.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.  What is an error of law?

12.	In R(I)2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)	failing to give reasons or any adequate reasons for findings on material matters;

(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)	giving weight to immaterial matters;

(v)	making a material misdirection of law on any material matter;

(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.” 

Analysis

13.	In the application for leave to appeal, which was received in the Office of the Social Security Commissioners, Mr McGlade made the following submission on behalf of the appellant:

‘We respectfully submit that in the statement of reasons the Tribunal failed to explain why it believed that (the appellant) had deprived himself of capital with the intent of getting Income Support and upon the evidence it relied when coming to its conclusions in this matter.

…

In the statement of reasons at paragraph 3, it is stated:

‘There is ample evidence, not least in the letters from the Appellant’s solicitors at Tab 1 and Tab 5 that the conveyance to [RMcL] was for love and affection and no other consideration passed between the Appellant and [RMcL].’

We submit that the only reason specified in the statement of reasons as motivation for the transfer of … was “love and affection”. We submit, further, that if the Tribunal relied upon any other reason as justification for its decision, this reason was not specified in the statement of reasons.’

14.	Mr McGlade cited the decisions in C8/08-09(IB) and C28/00-01(IB)(T) in support of this submission.

15.	In his written observations on the application for leave to appeal, Mr Crilly has made the following submissions:

‘I do agree, however, with the second ground in the application for leave to appeal although not for the specific reason outlined by (the appellant’s) representative.

I respectfully submit, however, that, in considering the issue of the claimant’s significant operative purpose in transferring the property, the tribunal was required to address the issue of his knowledge of the capital rules for the purposes of income support.  This matter was referred to very briefly in both the Department’s reconsideration decision dated 13.04.16 and its appeal submission in the following terms:

“(The applleant) has been claiming benefits for some time and has been notified of the capital limit above which income support is not payable”.

The LQM did not refer to this issue at all in the reasons for the tribunal’s decision.  

Paragraph 15 of R(SB) 12/91 states:

“In particular, they must be satisfied, if regulation 4(1) is to apply, that the claimant realised that there was a capital limit, which his capital resources could not exceed without depriving him of entitlement to benefit. In deciding whether the claimant knew of the limit, the fact that, as in the present case he was in receipt of form B3, which in turn refers to form UBL18 and SB9, will be a material consideration.  A further factor to be taken into account in the present instance will be that the claimant is an accountant, with a corresponding educational standing. If at the end of the day the new tribunal are satisfied that the claimant did know of the capital limit, then they must determine, making appropriate findings of fact and giving adequate reasons, whether a significant operative purpose for his action, over and above the advancement of his daughters, was the securing of supplementary benefit.  They will have to look at all the surrounding circumstances, and make appropriate inferences”.

I submit that this outlines the necessity of establishing that a person or claimant has knowledge of the capital limit rule.  If it is the case that a claimant was not aware of the rule then the necessary intention to secure entitlement to benefit cannot have been present when the capital in question was disposed of.

I submit that this matter was not adequately addressed by the Department.  No evidence was provided to support the assertion that (the appellant) had such knowledge of the capital limit rules or that he had been advised of the same in the past.  I further submit that the tribunal failed entirely to address this issue and, as a consequence, there is no positive finding of fact in the statement of reasons that (the appellant) was aware of this rule and that the principle outlined in R(SB) 12/91 was not followed.  I submit that this resulted in the tribunal not being in a position to properly determine the issue of a significant operative purpose and, as a consequence, it erred in law.

I submit that the tribunal also erred for another reason.  This relates to the passage in the statement of reasons that I referred to in paragraph 19 of these observations and which I reproduce here for convenience:

“Had the Appellant appeared at the hearing on 5 October 2016, the Tribunal would have inquired into this point.  However, the Appellant elected not to appear, not to adduce witnesses, and not to be represented.  (My emphasis)

This excerpt appears in the statement of reasons after the LQM made several points concerning the circumstances around the transferral of the ownership of the property by (the appellant) to his son.  I submit that it suggests that the LQM believed that these matters could not be further explored given that (the appellant) was not present due to him having consented to his appeal proceeding on the basis of a paper hearing.

I respectfully disagree that this was the only option that was open to the tribunal.  If the LQM was of the opinion that questions needed to be answered and that clarification was required in relation to certain issues then he should have adjourned the hearing.  In doing so, I further submit that arrangements should have then been made to proceed with an oral hearing which (the appellant) could have attended to give evidence in order to clear up any doubts and to resolve outstanding issues.  I submit that the claimant consenting to having his appeal heard on a paper basis did not remove the responsibility from the tribunal to exercise its inquisitorial role in full.  I respectfully submit its failure to do so in this instance is an error in law.

Finally, I submit that the tribunal erred for a third reason when it determined that (the appellant) was to be treated as possessing capital with effect from 23.10.15.  Whilst it is true that the ownership of the property at … was transferred on this date, it is also the case that it continued to act as his home up to 30.11.15.  I submit that, because of this, the property should have been disregarded as capital under paragraph 1 of Schedule 10 to the IS Regulations up to this date.  Accordingly, whilst (the appellant) may have deprived himself of capital from 23.10.15 onwards, this would not have served to disentitle him until he left his former home at … on 30.11.15.’

16.	It is clear, therefore, that both parties have expressed the view that the decision appealed against was erroneous in point of law.

17.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

	(signed) K Mullan

	Chief Commissioner

	20 April 2018