Decision No: C1/03-04(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

JOBSEEKER’S ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 31 October 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of the Legally Qualified Member of the Tribunal, against the decision of a Tribunal, affirming the decision of the decision maker, which was in the following terms: -

“Decision of the Appeal Tribunal is that there has been an overpayment of Jobseekers Allowance for the period 30/6/99 to 21/5/01 amounting to £9014.93.  This occurred because of the misrepresentation of a material fact by the claimant in completing his JSA claim form on 30/6/99.  In that form the claimant failed to declare that he had 7 acres of land.  Consequently, Jobseekers Allowance amounting to £9014.93 was paid for the period 30/6/99 to 21/5/01 which would not have been paid but for the misrepresentation.  Accordingly, this amount is recoverable from the claimant.  Appeal dismissed.”

2.	I held a hearing of this appeal at which the claimant was represented by Mr Joseph Aiken, of Counsel, instructed by King and Boyd, Solicitors, while the Department was represented by Mr Tony Gough of the Decision Making and Appeals Unit.

3.	The claimant claimed and was awarded income based Jobseeker’s Allowance (JSA) from 30 June 1999.  At that time he was living at … Road, Castlewellan.  In May 2001 he sold the dwelling house but retained seven acres of land.  JSA ceased to be paid from 22 May 2001 and the case was referred to a decision maker of the Department to consider entitlement from 30 June 1999 in light of the claimant’s land ownership.  After some correspondence between the Department and the claimant, the decision maker decided on 27 September 2001 that the claimant was not entitled to JSA from 30 June 1999 as the claimant had failed to provide requested information about land ownership so the decision maker ruled that the land in question was valued at over £8,000.00.  As a result an overpayment decision was made on 13 February 2002.  The claimant appealed this decision but the Appeal Tribunal disallowed the appeal.  The effect of the Tribunal’s decision was that the Tribunal upheld the decision of the Department made on 13 February 2002 that JSA amounting to £9,014.93 had been overpaid for the period 30 June 1999 to 21 May 2001, and, accordingly, the overpaid monies were recoverable because the claimant had misrepresented a material fact by failing to declare that he had seven acres of land, the value of which exceeded the prescribed amount of £8,000.

4.	The very full reasons of the Tribunal were set out at some length by the only member of the Tribunal, the Legally Qualified Member, as follows: -

“The appellant originally claimed Incapacity Benefit in 1990 by reason of low back pain, vertigo and depression.  He was later found fit for work and claimed Income Support while his appeal was pending.  His appeal was unsuccessful and he then claimed Job Seekers Allowance for himself on 30.6.1999.  He was living at […] Road, Castlewellan.  He stated on his claim form he had no income or property and that he had separated from his wife on 25.7.1997 and did not know her address.  Review forms were sent on 18.9.2000 and 16.5.2001 and again the appellant declared he had no income or property.

The appellant was interviewed on 1.8.2001.  He said that approximately 20 years earlier he  had purchased 81 acres of mountain land for £27,000.  He sold this 3 years later for what he paid for it and bought the land on which he built […] Road.  He also owned a farm which he sold 10 years ago and bought the property known as […] for £28,500 from the proceeds of the sale.  Four years ago he transferred this property to his wife.

The Benefit Agency had received an affidavit signed by the appellant and dated 18.5.2001.  The affidavit was used in support of an application to discharge an Order of the High Court restraining the appellant from disposing of assets.  In this affidavit he stated he had sold the house at […] Road (subject to the court Order).  He also indicated he had retained 7 acres of land beside the premises and he valued this land at £30,000 to £50,000.  The Order of the Court, on the balance of probabilities was varied or discharged as the appellant in his oral evidence said the sale went ahead in May 2001.  The appellant currently resides at […] Street, Newcastle.  He said he still has the land which he now values at £18,000.

In a letter dated 22 May 2002 (…) the appellant argues the 7 acres of land should not be taken into account as he could not sell it without selling the house built on the land.  As the Department’s addendum points out however the appellant did in fact sell the house in May 2001 and still retains 7 acres.

The appellant had been asked for an ordinance survey map of the land but the appellant failed to provide this.  At his interview on 1.8.2001 the appellant had said he could not sell the 7 acres because of a legal constraint.  He was asked for further information on 10.8.2001 and he said he and his estranged wife had an agreement that when the land was sold the proceeds would be divided equally between them.  Further details of any constraints were sought in a letter from the Department dated 24.8.2001.  A further letter was sent on 12.9.2001.  As no response was forthcoming the Decision Maker valued the 7 acres in access of £8,000 and referred to his affidavit valuation of £30,000-£50,000.  Consequently there was no entitlement to Job Seekers Allowance under the capital rules and an overpayment of £9,014.93 was raised in respect of the period 30.6.1999-21.5.2001.  Recovery was sought on the basis of misrepresentation.  The appellant also did not mention the fact he was receiving an occupational pension for the past 10 years, currently at or about £220 per month.  This may be relevant to the question of income but does not feature in the present appealed decision.

I am satisfied that throughout the period 30.6.1999 to 21.5.2001 the appellant was the beneficial owner of 7 acres of land.  This land was severable from what was his then dwelling house as subsequently occurred.  There is considerable difference between the law of Great Britain and Northern Ireland in relation to capital disregards (see Regulation 1, JSA (Northern Ireland) Regulations 1996, and Regulation 1 of the Great Britain JSA Regulations 1996) and R1/02(7C)(T)).  The Great Britain legislation defines ‘dwelling occupied as the home’ as ‘the dwelling together with any garage, garden and outbuildings normally occupied by the claimant as his home including any premises not so occupied which it is impracticable or unreasonable to sell separately’.  The Northern Ireland legislation states ‘the dwelling including any garage garden and outbuildings normally occupied by the claimant as the home together with any agricultural land adjoining that dwelling and any land not adjourning (sic) that dwelling which it is impracticable or unreasonable to sell separately’.  This means I must consider whether the 7 acres is agricultural land adjourning (sic) the dwelling.  The appellant said he bought the land and then built a house upon it.  I do not believe it realistic to treat the land as the garden to the house given its size and usage. The distinction is what would be reasonable to the main in the street (See R. (SB)IB/84 and page 206, Volume II Social Security Benefit).

I must determine if the 7 acres ‘adjoins’ the dwelling house.  The appellant failed to produce maps though he was asked to do so on various occasions in the past.  He said the house and land were originally for sale as one lot.  He said the house was ultimately sold with only one field.  He said the public road ran past the dwelling house and was on two sides of the field.  At paragraph 8 of his affidavit he said the land was beside the building.  It is for the claimant to show the disregards are applicable.  He has not shown that the 7 acres at issue adjoin his dwelling house.

On the basis the land does not adjoin the dwelling house I must then consider if it is unreasonable or impracticable to sell it separately.  The appellant said in his oral evidence that the fact someone bought the house without the 7 acres was essentially a fluke.  On the face of it the sale indicates it was reasonable or practicable to sell the land.  I have no evidence before me which shows the sale of the land would be unreasonable or impracticable.

I have considered the representations made on the Job Seekers Allowance claim form and review forms.  The crucial question in each form is ‘Apart from your house, do you … own any other property or land in the United Kingdom …’.  The appellant indicated he did not.  The representation made was that apart from his home he owned no other property or land.  No misrepresentation can have occurred if the 7 acres adjoin the appellant’s home.  I have found they did not adjoin and consequently there was a misrepresentation.  It is well established that innocent acts are covered – if a statement has been made which is actually untrue it is still a misrepresentation even if the maker believed it true.

I have been handicapped by the absence of a map of the land in question.  The Decision Maker can engage the services of the District Values but needs the co-operation of the appellant.  The appellant said he did try to contact the Decision Maker on several occasions.  However, he does not appear to have co-operated with regard to the provision of a map whilst a decision was pending.  The appellant said he lodged a complaint about a member of staff discussing his affairs.  He is entitled to expect confidentiality but the Department would be wary of engaging the District Valuer without his co-operation.  There is evidence that the 7 acres is unencumbered.  The appellant was asked for details of any prohibition on sale but failed to produce any.  The land has a value in access of £8,000.  The Department have satisfied this.  The burden of proof is on the claimant to show the disregards apply which he has not discharged (CIS 246/1992).  Consequently, I find his answer on the forms in respect of ownership of land constitute misrepresentations.  Thus the Department have shown grounds to revise the decision and are entitled under Section 69 to recover the overpayment.”

5.	The claimant appealed to a Commissioner on the following grounds: -

(i)	The Tribunal erred in finding that the agricultural land in question did not adjoin the dwelling.  Accordingly it fell to be disregarded in accordance with the legislation.

(ii)	There was no misrepresentation on the claimant’s part as it was reasonable for him to declare that the lands adjoined the dwelling.

(iii)	The Tribunal erred in referring to and relying on a privileged document produced for entirely separate proceedings to which neither it, nor the Department, was a party.

6.	As Mr Gough pointed out, in order to determine if an overpayment is recoverable, it is necessary to consider whether or not the benefit has been overpaid.  In this case the crucial question is whether or not the claimant possessed a capital asset in excess of the prescribed amount (£8,000) during the period 30 June 1999 to 21 May 2001.  The relevant legislation is set out in the Jobseeker’s Allowance Regulations (Northern Ireland) 1996 where, at Schedule 7, paragraph 1, it is provided that: -

“The dwelling occupied as the home but, not withstanding regulation 88, (calculation of income and capital of members of a claimant’s family and of a polygamous marriage), only one dwelling shall be disregarded under this paragraph.”

“The dwelling occupied as the home” is defined in regulation 1(2) of the Regulations as: -

“the dwelling together with any garage, garden and outbuildings, normally occupied by the claimant as his home together with –

(a)	any agricultural land adjoining that dwelling, and
(b)	any land not adjoining that dwelling which it is impracticable or unreasonable to sell separately;”.

7.	The third ground of appeal can be dealt with shortly.  It seems that the decision maker and the Tribunal were in possession of an affidavit prepared for other court proceedings.  This affidavit had been made available to the Department by some anonymous source.  This affidavit may have resulted in the claimant’s eligibility for JSA being put in question.  However, it is clear from the decision of Mrs Commissioner Brown in C53/98(DLA), and in particular paragraph 13, that not only ought the Tribunal to have had regard to the evidence, it would have erred in not taking it into account.  Moreover, Mr Aiken did not pursue this submission.  In any event, the contents of the affidavit had no part to play in the decision making process of either the decision maker (other than, perhaps, to initiate the original investigation) or the Tribunal.

8.	There is substantial agreement between the parties in relation to other aspects of this appeal.  In relation to the first ground of appeal, the claimant’s case is that the Tribunal erred in finding that the agricultural land in question did not adjoin the dwelling.  It is clear from the Tribunal’s reasons for its decision – see the sixth and seventh paragraph of the reasons – that the Tribunal found that the land was agricultural and it therefore was required to determine the real issue, namely whether or not it adjoined the dwelling house.  The Tribunal has noted that there was evidence that the land was “beside” the building but it seems to have distinguished the word “beside” from the word “adjoin”.

9.	It is noteworthy that the claimant in the proceedings before the Tribunal was somewhat remiss in not adducing all the evidence that might have been available to show that the land was adjoining his home.  To some extent it may be that he has been the author of his own misfortune and, for this reason, these proceedings before a Commissioner have proved necessary.  I have been shown various photographs and maps which probably would convince a Tribunal that the land was adjoining but the Tribunal did not have the advantage of such evidence.  

10.	Mr Gough has accepted that the issue, namely whether or not the land adjoining the dwelling, is crucial in determining whether or not the claimant was entitled to JSA for the period in question. He also has submitted that the Tribunal should have adjourned to enable clarifying evidence to be obtained on this point.  In the circumstances, with some reluctance, he has accepted that the Tribunal failed in its inquisitorial role and accordingly erred in law.

11.	In any event Mr Gough also has drawn my attention to the decision of Mrs Commissioner Brown in C16/02-03(IS) where, at paragraph 23, she stated: -

“It appears to me that in considering whether or not land adjoins the dwelling the distance of that part of the land from the dwelling, the existence of physical boundaries such as roads, laneways, hedges, etc are all factors which may be taken into consideration.  Depending on the positioning of the dwelling and other factors – width of land or road, boundary hedges, etc, they may be relevant to whether land does or does not adjoin the dwelling.”

This decision, which post-dated the present proceedings, would have assisted the Tribunal, as it makes clear that the fact that the land was “beside” the relevant building does not exclude it from “adjoining” the relevant building.  Accordingly, I conclude that the Tribunal erred in law by holding that the relevant land did not “adjoin” the building because it was “beside” the building.

12.	The second ground of appeal – whether or not there actually was a misrepresentation – can be dealt with fairly shortly.  If the adjudicating authorities had found that the land adjoined the dwelling, the claimant would not have been capable of making a misrepresentation of a material fact by failing to disclose that he had seven acres of land of a value over the prescribed limit, as the claimant was entitled not to have this land taken into account if it adjoined the dwelling.  Accordingly this second ground elides into the first ground of appeal and the Tribunal, if it had found that the land adjoined the dwelling, of course could not have gone on to find that there was a misrepresentation.
 
13.	A related matter has arisen.  The Tribunal was aware that the claimant had a potentially relevant pension.  The existence of the pension came to light after an interview with a Departmental Official on 1 August 2001 when the claimant also informed the Department about his land holdings.  However, the Tribunal did not make any specific finding in relation to the pension.  There is an obvious reason for this, as the issue was not relevant because the Tribunal had found that the capital asset of the claimant was over the relevant limit for receipt of JSA.  It would have been helpful if the Department had specifically reminded the Tribunal that the pension issue might become relevant if the issue in relation to the land holding had been decided in favour of the claimant.  Nevertheless, the Tribunal did not deal with this matter which is still a potentially unresolved issue in this case.

14.	I conclude that the Tribunal has erred in law for the reasons set out in paragraphs 7 to 13.  I therefore allow the appeal.  

15.	Mr Aiken has urged me to decide the factual issues in relation to ownership of the land and, under the powers set out in Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998, give the decision which the Tribunal should have given as he considers that the Department is, in effect, getting a second chance to make submissions on a point that it should have put more directly in issue at the earlier hearing.

16.	i have given Mr Aiken’s submission its full weight but I conclude that the finding of the Tribunal must be considered in the round in light of my conclusion that it has erred in law in considering the issue of land ownership and, also, potentially erred in law in failing to consider the effect of the claimant’s occupational pension on the claimant’s eligibility for JSA.  These outstanding issues remain contentious and I take the view that I am not the appropriate forum to decide such matters, especially in light of the fact of the very restricted powers of a Commissioner – as set out in Article 15(8)(a) – to give the decision that the Tribunal should have given.  I also remind myself that it is the responsibility of the adjudicating authorities to endeavour to decide any relevant issues between the claimant and the State, and to decide them correctly in light of the available evidence.  It is not appropriate for me to decide a case in such a way that a claimant might obtain a potential windfall of JSA because a Tribunal, wrongly, fails to deal with an issue – the pension issue – that it considered to be irrelevant in light of its other findings on what it considered to be the main issue – the land issue.  Therefore, under Article 15(8)(b), I refer the case back to a freshly constituted Tribunal which should bear in mind what I have stated in this decision.

(Signed):  J A H Martin

CHIEF COMMISSIONER

26 August 2004

Edited