Decision No: C3/91(IS)

	SOCIAL SECURITY (NORTHERN IRELAND) ACTS 1975 TO 1991

	INCOME SUPPORT

	Appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Armagh Social Security Appeal Tribunal
	dated 15 January 1991

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal and brought by leave of the Chairman of that Tribunal.  I arranged an oral hearing at which claimant was represented by Mr M..., Solicitor of the firm of Messrs M..., B… and M… and the Adjudication Officer was represented by Mr Honeyford.

2.	Briefly, the facts are that the claimant, a married man aged 64 years of age, claimed supplementary benefit for himself and his wife and two children in November 1978; prior to that date he was in receipt of sickness benefit.  His claim form indicated that he had no income except child benefit and that he had no savings.  He stated that he owned a house in Keady and a five and three-quarter acre farm on which he grazed livestock.  Supplementary benefit was paid to him from 25 November 1978.  In January 1987 it came to the notice of the Department that the claimant was claiming unemployment benefit in Castleblaney in County Monaghan and that on his claim form he indicated that he owned a farm in Castleblaney and that he was living there.   At that point payment of supplementary benefit was suspended pending investigations by the Department.  These investigations disclosed a farm in Castleblaney was registered in the name of the claimant and this farm was valued at approximately £22,000.  In that event claimant was not nor would ever have been entitled to the supplementary benefit which was paid to him from 1978.  At the time of the investigation claimant said that the farm, although in his name, was held in trust for his son, also known as J… M....

3.	After further investigation the Adjudication Officer decided that the claimant had misrepresented the material fact that he owned a farm at Castleblaney valued at £22,000 and decided that this was a material fact because had it been known claimant would not have been paid supplementary benefit from 15 April 1979 to 1 February 1987 and accordingly the Adjudication Officer decided that the amount of benefit paid as a consequence of claimant's misrepresentation of a material fact was recoverable and the total amount recoverable was £21,938.06.

4.	Against that decision claimant appealed to a Social Security Appeal Tribunal.  That Tribunal gave a decision which is both long and carefully considered in January 1991.  The sole argument before the Tribunal was whether or not the lands which were in the joint names of claimant and his wife were owned by them beneficially or were held in trust for their son.  Various written evidence was submitted and both the claimant and his son gave evidence to the Tribunal.  The Tribunal upheld the decision of the Adjudication Officer although it came to the conclusion that it was not a misrepresentation but a failure to disclose, but the Department was in any event entitled to the recovery of the amount of our payment which had not been disputed.

5.	In an appeal before me Mr M... argued that the Tribunal failed to have regard to the initial purchase of the land in trust because as was explained that at that time claimant's son was under age because he was only 19 and the farm could not be held in his name in the Republic of Ireland, consequently it was put into the joint names of his father and mother.  He said the money was provided half by an aunt and half by a loan from the bank which was paid off by the son.  Mr M... said this evidence was before the Tribunal and was supported by letters from a solicitor, an Auctioneer and a Plant Hire firm and that the Tribunal wrongly disregarded this evidence and that in equity they should have held that there was sufficient evidence to justify the proposition that the farm was owned by the son and held in trust by the father for the son.  He said that there was the documentary evidence and that the Tribunal was wrong in not believing the evidence of the father and son despite the corroboration.  He said Tribunal unfairly accepted evidence in support of the Adjudication Officer's contention and unfairly rejected the evidence which supported the claimant's contention.

6.	Mr Honeyford said that the decision was more than usually detailed and obviously the Tribunal had given the matter very full and careful consideration.  It had gone into the evidence in length, it had given long and detailed reasons for its decision, it had rejected the evidence of the father and the son and the documentary evidence and it gave reasons for doing so.  It then fell back on the primary evidence of the land certificate which was in the name of the claimant and his wife, and Mr Honeyford said that the Tribunal was entitled to come to the decision to which it came.

7.	I am indebted to both Mr M... and Mr Honeyford for their arguments in this case.  It is clear that the Tribunal went into the matter at length and in great detail and I think that I can do no better than quote two paragraphs from the reasons for the decision, namely:-

		"When we came to review the evidence we were unable
		to avoid the conclusion that neither Claimant nor
		his son were reliable witnesses.  In so far as 
		Mr M... Junior is concerned when it suited him
		not to have an interest in the farm because of his
		matrimonial problems he was happy to have it 
		belonging to his father but when he wishes to assist
		his father he is just as happy to claim that it belongs
		to him.  In so far as Claimant is concerned when he
		wishes to claim benefit in Northern Ireland he says 
		that the farm belongs to his son but when he wishes 
		to claim benefit in the Republic of Ireland he says 
		that the farm belongs to him.

		Since we regard the oral evidence as being unreliable
		and since we are not convinced by the documentary 
		evidence produced to us by claimant we are thrown 
		back on the primary documentary fact that the farm is registered in the names of Claimant and his wife and 
		we have come to the conclusion that on the balance of probabilities, the Claimant and his wife hold the farm as beneficial owners although it may have been in Claimant's mind that some day the farm would pass to his son."

8.	The Tribunal clearly considered all the evidence.  It accepted some and rejected others.  It was entitled to do so, that was its function.  I can see no error in law in its decision.  I can see no error in law in the fact that it rejected certain evidence or that it found the claimant and his son unsatisfactory witnesses.  That again was its function, it having seen and heard the witnesses was entitled to come to that decision and it cannot be faulted for it.

9.	I think the Tribunal was correct in deciding that this was not a case of misrepresentation but a case of failure to disclose.  I am satisfied that the Tribunal's decision cannot be attacked on any ground and I therefore dismiss the appeal.

	(Signed):  C C G McNally
	
	COMMISSIONER

	15 April 1992