Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                           Appeal No.  CIS/1311/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

I substitute my own decision for that of the tribunal which heard the appeal on 28 November 08 under reference 236/08/00159. 

The appellant is not entitled to Income Support from 28/2/03.

REASONS FOR DECISION

1       The appellant appeals the decision of the Sunderland First-tier tribunal with my permission.  The First-tier Tribunal’s confirmed a decision by the Secretary of State that the appellant was not entitled to Income Support because he had capital in excess of the prescribed amount.  It did not, however, identify the date from which the appellant’s disentitlement ran, though it could and should have done so.  The tribunal may have been misled by the form of the decision given in section 2 of the Submission, which does not specify the date of disentitlement.  The operative dates are, however, contained in a series of supersession decisions by the Secretary of State to which the tribunal did not advert.  Under Rule 12(4)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Upper Tribunal is entitled to make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision.  I have decided to make the decision that the First-tier Tribunal should have made.  

2       The facts are that the appellant, who had been awarded Income Support in 1999, acquired substantial capital from at least 28 February 2003 onwards.  He did not disclose the existence of this capital at any time.  His actual and/or notional capital from 28 February 2003 exceeded the prescribed limits (which changed from £8000 to £16,000 in April 2006:  On 28/2/03, he opened an account with £8,250.05.  By May 2003, his capital had increased to £14,616.51.  On 31/5/04 his capital increased to over £22,000.  In May 2006, he held an account with over £41,000.  In late September 2006, the appellant withdrew £35,000, but the whereabouts of this money was never explained to the satisfaction of the decision maker or tribunal.  The decision maker calculates that from 28/09/06, the appellant had actual capital of £2505 in his accounts (listed at page 24/25) and £35,000 notional capital.

3       On 24/10/07 the Secretary of State superseded the appellant’s pre-existing award of Income Support made on 27/8/99 from and including 11/9/07, on the basis that he had actual capital in excess of the prescribed limits. This terminated the appellant’s entitlement to benefit for the future.  I will refer to this as the first supersession.  This supersession decision is missing from the Submission apart from a screen print, but since the appellant appealed that decision on 31/10/07, there can be no real doubt that the decision was made and sent to him. 

4       The appellant thereupon produced a number of bank statements.  On 7/1/08, the decision maker carried out a second supersession (‘the second supersession) of the original award made in 1999 by which he held that the appellant was not entitled to Income Support from 28/2/03.  I had initially thought that there was a procedural error in this supersession, to which the Secretary of State agreed.  But having considered the matter further, I have come to the conclusion that the decision of 7/1/08 was correct.  The first supersession only affected the original award from and including 11/9/07.  It therefore remained valid for the period from 27/8/99 to 10/9/07 so that the decision maker could supersede it, as it was made in ignorance of the material fact that the appellant had capital in excess of the prescribed amount.  Regulation 6(2)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 was applicable.  The effective date of that supersession was the date of the ‘disadvantageous’ change of circumstances since the original decision was made:  regulation 7(2)(c)(v).  Of course, the acquisition of capital was only disadvantageous in the sense that it affected the appellant’s benefit entitlement.

5       The second supersession refers not only the appellant’s entitlement to benefit for the period from 28/2/03, but also appears to be a rudimentary overpayment decision for the whole period from 28/2/03.  The terms in which the issue of overpayment are addressed are so sketchy that they would probably not meet the requirements for recovery under section 71(5A) of the Social Security Administration Act 1992.  The overpayment decision will need to be revisited, if it is to be pursued. 

6       There was then another decision on 8/1/08 by which a decision maker reconsidered the decision of 24/10/07 and refused to revise it.  This decision appears to be correct.  It is a specific reconsideration of the first supersession decision. 

7       Had there been any errors in the decision making process in the circumstances of this appeal, they would have been correctable, as explained by the Tribunal of Commissioners in R(IB)2/04 paragraph [192].  I do not consider that the process would have been so fatally flawed that it could not be retrieved.  The Secretary of State’s decisions were plainly referable to the exercise of superseding the appellant’s award and could have been corrected by correcting any errors under the powers given under sections 9 and 10 of the Social Security Act 1998 and regulations 3 – 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

8       The main ground of appeal made by the appellant and his representatives was that there had been a breach of natural justice at the hearing.  The appellant claims that, because he did not receive a further Submission prepared by the Secretary of State for the appeal until the day of the hearing, he did not have an opportunity to provide an adequate response to the DWP’s submission and that that facts used in the submission are erroneous.  His current representative submits that the Submission, which extended to 6 pages, was not straightforward.  In particular, the appellant might have wished to deal with whether he had any obligation to disclose that certain amounts of money which he claimed to have come from loans to him and from re-mortgaging his house.  The representative refers to the INF4 that the Secretary of State included with would the further Submission.

9       I am unable to accept these submissions.  I am prepared to accept for the purposes of this appeal that the appellant did not receive the Submission until the day of the hearing.  However, I do not consider that this made, or could have made, any difference to the outcome.  Any breach of natural justice was, in the circumstances, immaterial.

10   The matters which the appellant puts forward as showing the breach of natural justice were his inability to dispute facts in the new Submission.  I do not accept that this was the case.  The further Submission contains one sentence summarising the appellant’s evidence that the money was gifted, inherited, or borrowed from his sister, friends or banks.  The main Submission, on the other hand, contains detailed evidence of interviews with the appellant and the DWP in which he discusses loans from various sources and the remortgage, but states repeatedly that he is unable to provide any evidence of these.  The tribunal took similar oral evidence and had the interviews before them.  The appellant repeated that he was unable to provide evidence to show how his accounts were cleared (p367).  The appellant was given a full opportunity to put his case.  The tribunal plainly felt unable to accept the appellant’s evidence, and though it does not go through each and every item asserted by him, it is apparent from paragraph 5 that it found no adequate explanation of how the money was acquired or where it went.  That conclusion must be seen in the light of all the evidence before it, including the appellant’s lack of any documentation.  The further Submission did not affect the appellant’s ability to make his case on the facts.

11   I am also unable to accept that the further matters put forward by the representative constituted a breach of natural justice.  Although the further Submission runs to 6 pages, it consists of a re-hash of the facts and the law.  There was nothing which would have taken the appellant by surprise.  The submission that the appellant may have wished to deal with the question of how his obligation to disclose his capital arose is also immaterial.  The question of disclosure is relevant to a decision by the Secretary of State to recover an overpayment, and not to the issue of entitlement which was before the tribunal.  The issue of whether the appellant was truly the owner of the money was relevant, but was answered by the tribunal’s rejection of the appellant’s explanation of how he came by the money.  It followed from this that the money belonged to the appellant in law and equity.  The tribunal might have gone further and pointed out that, on the evidence before them, the appellant was at liberty to do with the money as he pleased and had no immediate obligation to repay the loans. It would have been perverse to find that the appellant was not the legal and equitable owner of the capital.  There was accordingly no breach of natural justice arising on the grounds put forward.

12   I have, finally, stood back and asked whether there was anything else in the proceedings that might suggest a breach of natural justice or unfair hearing.  I am unable to find anything which would suggest that this is the case.

[Signed on original]                                                                               S M Lane

Judge of the Upper Tribunal

10 December 2009