Decision No: C11/96(IS)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
	(NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
	(NORTHERN IRELAND) ACT 1992

	INCOME SUPPORT

	Application by the claimant for leave to appeal
	and appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Omagh Social Security Appeal Tribunal
	dated 5 February 1996

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal which held that claimant was obliged to repay the sum of £1,843.25.

2.	Although the Tribunal does not say in its decision how that amount arises it is alleged to be an overpayment of income support between 11 April 1994 and 27 September 1994, during which time it was alleged claimant was gainfully employed.  There is an amount of £782.16 offset being the amount ordered by the Petty Sessions Court for claimant to repay.

3.	Briefly the facts are that the claimant is a 43 year old married man who has been in receipt of income support at least since September 1990 in respect of his wife and his daughter.  It would appear that information was received by the Department that claimant was working for T… P… and as a result a statement was taken from Mr P…and from Mrs P….  Claimant was prosecuted at the Magistrates' Court and he was convicted of three offenses of making a false statement, that he was unemployed on specific days from Friday, 12 August to Thursday, 22 September.  As a result of those prosecutions to which he pleaded guilty he was fined £40 on each Summons, ordered to pay £17.50 court costs in respect of three Summonses and ordered to make compensation payment of £782.16.

4.	The Adjudication Officer then revised his entitlement to income support and decided that there was an overpayment of income support for the period from 11 April 1994 to 27 September 1994 amounting to £2,861.13 and that this amount was recoverable.

5.	Claimant appealed against that decision to a Social Security Appeal Tribunal.  That Tribunal first met in October 1995 and adjourned the case as follows:-

		"Case adjourned to give opportunity to Department to have
		T... P... produce to us inspections all ledger cards
		and details of pay made to claimant from 11.4.1994 to 27.9.1994.
		If necessary Mr P... should make a statement stating the
		amount of cash paid to claimant for each week during that 
		period and stating how many hours work the cash represented
		in each week.  The P...'s should be asked to state if 
		the payments made were a nett figure taking into account claimant
		paying off the debt owed by him."

	The Tribunal reassembled on 29 November 1995 and as the Department did not produce T... P... nor the records which the Tribunal considered necessary the case was adjourned again and the second adjournment decided -

		"Case adjourned to have Independent Tribunal Service request
		attendance of Mr P... at next hearing and to bring with
		him all records in his possession regarding claimant's earnings
		hours of work for the period the subject matter of the appeal.
		Should Mr P... not come voluntarily then a written 
		summons should be issued and served on him."

6.	A Subpoena from the High Court of Justice was served upon T... P... on 15 January 1996 in which he was commanded to appear at the Omagh Social Security Appeal Tribunal.  The Subpoena Duces Tecum further read:-

		"We also command you to bring with you and produce at the time
		and place aforesaid all records in your possession regarding
		Mr A…'s earnings and hours of work for the period from
		11 April 1994 to 27 September 1994."

	The Tribunal then sat on 14 February 1996 and it would appear from the record that Mr P... did attend.  It would also appear that he did not comply with the High Court Subpoena to bring with him the documents and the information he was obliged to do under the Subpoena.  The Tribunal nevertheless proceeded to hear the appeal in the absence of the information which it had adjourned twice to obtain and made findings of fact as follows:-

		"Facts as in submission.

		Claimant stated he never worked for more than 16 hours per week
		for Mr P... and was only working to pay off a debt due to
		Mr P....

		Mr P... stated his wife was the person responsible for working
		out the hours employees worked.  Claimant was treated as a casual
		worker.  He stated he could not say exactly what hours claimant
		worked.

		Mr L... stated that the signed statement of Mr P... was
		prepared after discussions with Mrs P... and that Mr P...
		was aware of this when he signed the statement on 27 September 1994.
		Mr P... accepted what Mr L... stated.

		Claimant was convicted on 3 charges and ordered to pay compensation
		of £782.16.

		Claimant did not work 12th holiday fortnight.

		Amount sought to be recovered is £2861.13."

	It disallowed the appeal and held the sum of £1,843.25 was recoverable from the claimant and gave reasons for its decision as follows:-

		"The Tribunal does not accept claimant's evidence that he worked 
		less than 16 hours per week for the period 11 April 1994 to
		27 September 1994.  It does accept he did not work for the
		12th holiday fortnight and hence the sum of £235.72 has been
		deducted from the initial sum sought to be recovered.  The
		Tribunal also considers it reasonable to deduct from the sum
		sought to be recovered the amount of £782.16 being the compensation
		claimant was ordered to pay at Omagh Petty Sessions and if this 
		were not done claimant in effect would be paying the Department
		twice."

7.	Being dissatisfied with that decision the claimant sought leave to appeal on the grounds that the Chairman had accepted the sworn statement of T... P... but that Mr P...'s statement was concerning the evidence of his wife A… P... who did not attend and who did not give evidence and accordingly the Tribunal Chairman was wrong in law to accept Mr P...'s statement.  Mr P... admitted that he knew nothing about the Company's wages policy or payment and therefore his statement would have no bearing on the outcome of the case.

8.	Having received a note of the grounds of appeal the Adjudication Officer made written comments as follows:-

		"After carefully considering the record of the proceedings I submit 
		that the tribunal have erred in law on a number of aspects.  In the
		first instance they have failed to make proper findings of fact
		material to the decision as required by regulation 25(2)(b) of the
		Social Security (Adjudication) Regulations (NI) 1987 in that they
		failed to make a finding of fact as to whether or not Mr A...
		was in remunerative work from 11 April 1994 to 27 September 1994.
		Furthermore a record of what was stated by Mr A..., 
		Mr P..., his employer, and an officer of the Department is not
		a finding of fact (75/83(Supp Ben)).  In addition on examining the
		findings of fact, it is not usually satisfactory for a tribunal
		to adopt an adjudication officer's submission or statement of
		facts as its own finding of facts, as that is bound to give the
		impression to the appellant that the tribunal is rubber stamping
		the adjudication officer's submission in its totality (CSSB/851/1985).

		Although the tribunal made a finding that Mr A... did not work
		during the 12th holiday fortnight in July and accordingly reduced
		the amount of benefit overpaid, they erred in not considering
		whether or not Mr A... was to be treated as being in
		remunerative work in accordance with regulation 5(3) of the Income
		Support (General) Regulations (NI) 1987 for that period.  
		Regulation 5(3) provides that a person shall be treated as engaged
		in remunerative work during any period for which he is absent from
		work if the absence is either without good cause, or by reason of a
		recognised or customary or other holiday.  The Tribunal therefore
		should have addressed the issue of whether or not Mr A...
		was on holiday (R(SB) 7/84).  If he was, then the amount of the
		overpayment for the period would be recoverable in accordance
		with section 69 of the Social Security Administration (Northern
		Ireland) Act 1992 (the "Administration Act").

		I would further submit that the tribunal also erred in law in 
		deciding that it was reasonable to deduct £782.16 from the sum
		overpaid as this amount was in respect of compensation that
		Mr A... was ordered to pay at Omagh Petty Sessions.  This
		amount is also recoverable under section 69 of the Administration
		Act.  it is purely a matter for the Department to decide whether
		or not to pursue recovery of this amount, and as such does not
		fall under the tribunal's jurisdiction (R 12/82 (Supp Ben, para 5).

		In Mr A...'s application for leave to appeal his representative
		has stated that the tribunal were wrong in law to accept Mr
		P...'s statement.  He added that Mr P... admitted that he
		knew nothing about the Company's wages, policy or payments and 
		therefore his statement should have no bearing on the outcome of
		the case.  I would disagree with this contention.

		On examining the record of evidence it is clear that the evidence
		contained in Mr P...'s signed and oral statements were based
		both on his own and his wife's knowledge.  Although Mr P...
		stated that his wife could give better evidence he also stated 
		that his "statement went as told by the wife to me".

		Although this evidence from the wife may be considered hearsay
		evidence I submit that the tribunal were correct in listening
		to the evidence as stated by Mr P... in both his written
		statement and his oral statement at the hearing (R(IS) 5/93,
		para 19)."

9.	I arranged an oral hearing at which claimant was represented by P… L…, Solicitor of P… & Company, Omagh.   The Adjudication Officer was represented by Mr Lennon.

10.	At the hearing Mr L… explained that claimant had been prosecuted in respect of 3 charges only and that 9 charges against him were dropped and that the amount which he was ordered to pay back was the amount of income support which he had received during the 6 weeks mentioned in the 3 Summonses.  He said that the Tribunal of February 1996 was the first time that Mr P... appeared but that previously he had produced figures as a result of the Tribunal requesting note of claimant's earnings and hours of work etc.  He merely produced figures showing the amount which was deducted from a debt which claimant owed Mr P....  Mr L… stressed that all along claimant said he was only working for Mr P... to pay off a debt.

11.	The Adjudication Officer said he was unaware of the fact that a Subpoena had been served on Mr P....  He reiterated the remarks in the written comments in that the Tribunal failed to make proper findings of fact.  He said it was most undesirable for a Tribunal to adopt an Adjudication Officer's submissions or statements of fact as its own findings.

12.	I am surprised that the Tribunal, having arranged or asked for a Subpoena Duces Tecum to be issued, went ahead without getting the precise information which it previously considered it needed.  It is quite clear that the Tribunal did not make proper findings of fact and it did not consider whether there was proper or sufficient evidence relating to the number of hours that claimant worked and if it was rejecting the evidence of the claimant, as it did, it should have given reasons why it was rejecting that evidence, because the evidence of Mr P... was that he really knew very little about it and that his wife was the person who had the information.

13.	At the hearing I granted leave to appeal and with the consent of both parties I treated the application as the appeal.  I therefore allow the appeal, set aside the decision of the Tribunal and refer it back to be reheard by a differently constituted Social Security Appeal Tribunal.

(Signed):  C C G McNally

COMMISSIONER

5 August 1996