[2007] NISSCSC C9_06_07(IS) (11 January 2007) 

Decision No:  C9/06-07(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

SOCIAL SECURITY COMMISSIONERS PROCEDURE REGULATIONS (NORTHERN IRELAND) 1999

INCOME SUPPORT

Late 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 5 January 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	This case begins as an application for leave to appeal against a decision dated 5 January 2006 of an appeal tribunal sitting at Belfast.  The application for leave to appeal against the said decision was made late to the legally qualified panel member.  She, however, accepted the application though refusing leave.  Because of the lateness at the initial stage, the application to a Commissioner can only be accepted for special reasons.  I do accept it.  The application having been accepted by a legally qualified panel member, it is not for a Commissioner to non-suit the claimant.  I also took into consideration the merits of the application.

2.	I grant leave.  Both Messrs Bogue and McNulty, Solicitors, acting for the claimant and Mr Gough of Decision Making Services branch have expressed the view that the said decision was in error of law.  My decision is given in the final paragraph.

3.	The tribunal’s decision dismissed the claimant’s appeal against a departmental decision dated 14 May 2004, as revised by a decision wrongly described as a supersession decision dated 13 October 2005.  The decision as revised was the decision under appeal to the tribunal.

4.	I am particularly grateful to Mr Gough for his helpful submission in this case.  Both he and the claimant’s solicitors have alluded to the claimant’s contention that capital which had been held by the Court since June 2001 under Order 44 of the County Court Rules (Northern Ireland) had been released (having reduced due to investment by the Court) to his sister as he was “mentally unwell”.  It does not appear to have been in dispute that the claimant was awarded compensation of £125,000 in 2001 and that the money was held by the Court office for some time as the claimant was unable to manage his own affairs.  The tribunal rejected the claimant’s assertion that the money paid out of Court was under the control of his sister and that she gave him money when he needed it.  I do not say that the tribunal was not entitled to reject this assertion.  However, there was, as Mr Gough submits, a failure of the inquisitorial role in the tribunal not making inquiries as to the terms of the release of the monies and as to whether the Court was satisfied that the claimant was not, at the time of the payment out, capable of managing his own affairs.  The tribunal was of course entitled to reach its own conclusion on the motivation of the claimant.  However, given the accepted background of the funds being held in Court, the tribunal should have made further inquiries in relation to the matter. It failed in its inquisitorial role in not so doing and I set its decision aside for that reason.

5.	Mr Gough has also indicated that the Department’s decision as revised is flawed in that the decision-maker did not deal with the entirety of the capital.  He determined that expenditure of £81,044.53 was not to be treated as part of the claimant’s capital.  It appears this was because this expenditure was considered reasonable and not for purposes of obtaining or increasing the amount of benefit.  This left a balance of £23,415.08 to be treated as capital. Of this sum expenditure of £10,040.63 was considered to be for purposes of securing entitlement to income support (IS).  There appears to have been no indication to the tribunal as to whether the remaining sum of £13,374.95 (£23,415.08 - £10,040.63) was considered to be still in the claimant’s possession or whether, if the claimant had deprived himself of it, this was done for purposes of securing entitlement to IS.  I am in agreement with Mr Gough that the tribunal erred in failing to investigate this matter also.

6.	The tribunal was not assisted, as it should have been, by the Department’s submission in this case.  Firstly the submission does not set out fully the adjudication history of the case.  It is not clear from the submission precisely what was the legal basis of the decision of 14 May 2004.  Was it a supersession decision?  If so from what date did it take effect (applying regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999)?  

7.	Secondly the submission does not cover the application, if any, of the diminishing notional capital rule in regulation 51A of the Income Support (General) Regulations (Northern Ireland) 1987.  

8.	I set the tribunal’s decision aside as in error of law for the above-mentioned failures of the inquisitorial role.  I do not consider that this is a case where I can give the decision which the tribunal should have given.  I therefore remit the matter to a differently constituted tribunal for re-hearing and re-determination.

9.	I direct the Department to prepare for that hearing a submission setting out the legal basis for the decision of 14 May 2004, setting out its contentions with relation to all the capital, dealing with the application, if any, of the diminishing notional capital rule up to 14 May 2004 and dealing also with the claimant’s contentions as to his mental state.  In this last connection it may be that the claimant would have medical evidence produced to the Court as to his mental state at the time of the payment out of Court or can inform the tribunal as to the evidence upon which the payment was released.

10.	I direct the tribunal to deal with the issues mentioned above.

11.	The claimant wins his appeal.

(signed):  M F Brown

Commissioner

11 January 2007