Decision No: C9/03-04(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

	Appeal to a Social Security Commissioner
	on a question of law from a Tribunal's decision
	dated 18 June 2003

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the Department against a decision dated 18 June 2003 of an Appeal Tribunal sitting at Dungannon.  That Tribunal had allowed the claimant’s appeal against a decision maker’s decision to the effect that he was not entitled to income support (IS) from and including 30 January 2002.  This was because he was treated as possessing notional capital in excess of £12,000 of which he had deprived himself for the purpose of securing his entitlement to IS.  At the appeal to the Tribunal the fact that the claimant had deprived himself of capital was not disputed.  What was in dispute was whether he should be treated as possessing notional capital.  The claimant contended that he transferred the land to his nephew because he was unable to farm it himself due to ill health and wanted his nephew to have it.  His appeal letter made no mention of whether or not the obtaining of IS had formed any part of the purpose of the transfer.  The claimant did not attend the hearing.  The Tribunal allowed the appeal.

2.	In the appeal to me the Department has been represented by Mr Kirk of the Decision Making and Appeal Unit.  The claimant is represented by his nephew Mr C… N….    

3.	Mr Kirk’s grounds of appeal were set out in a letter received in the Commissioners’ Office on 17 October 2003.  The grounds were that the Tribunal had erred in law in that it had failed in its inquisitorial role to fully address the following questions put to it in the Department’s submission: -

(1)	Did the claimant possess a capital asset?

(2)	Did the claimant deprive himself of a resource in order to receive IS?

(3)	What knowledge did the claimant possess of the Capital Rules?

4.	Mr N…, by letter dated 28 January 2004 opposed leave to appeal.  In so doing he referred to the reasons why I had granted leave and it is necessary, in order that I make those reasons intelligible, that I indicate the background facts to the case.

5.	These background facts are that the claimant had up until 28 February 2000 been in receipt of IS.  Thereafter he was disallowed IS.  This was on the basis that he owned land with a value in excess of £8,000.  The claimant had originally been a farmer and had ceased to farm the land.  Upon him ceasing to do so the land could no longer be disregarded as a business asset and he was disallowed IS on the basis that the land, in December 1999, was valued at £130,000.  The claimant appealed the Department’s decision disallowing him IS from 28 February 2000 to an Appeal Tribunal.  He was unsuccessful in his appeal.  He was notified of the decision of that Tribunal on 31 July 2000.  On 3 August 2001 the claimant transferred the land to his nephew Mr N….  On 31 January 2002 he made a further claim to IS.  This led to the decision under appeal to the instant Tribunal.  At the hearing before the Tribunal Mr N… gave evidence that he had got married on 16 October 1999 and had requested his uncle to give him a site.  They went to see the Solicitor whereupon his uncle announced that it was his intention to transfer all the land to Mr N….  Mr N… stated that he had worked on the land in earlier life and this had been mentioned but never implemented.  

6.	When I granted leave I stated that my reason for so doing was that an arguable issue arose as to whether the Tribunal had failed in it inquisitorial role in not examining why the entirety of the land as opposed to the “site” requested by Mr N… were transferred to him.

7.	In his letter dated 28 January 2004 Mr N… opposed leave on the basis that the matters mentioned in my granting of leave were thoroughly dealt with at the hearing on 18 June 2003.

8.	I do not agree.  I consider that the Department’s grounds of appeal have merit. It does not appear to me that the Tribunal examined the claimant’s motives in transferring the entirety of the land to Mr N….  Indeed Mr N… stated that the decision to transfer the land to him in its entirety came as a surprise at the time and that “there was no discussion about how it would affect benefit entitlement”.  The claimant was unable to attend the Tribunal and no questions were addressed to him directly.  The Tribunal accepted Mr N…’s evidence finding him to be a credible and convincing witness and this of course it was entitled to do.  The Tribunal is entitled to accept and reject evidence as it sees fit.  However, Mr N… was not in a position to give evidence as to certain issues which were raised by the undisputed facts of the case  - the past disallowance and the transfer of land.

9.	There was, in my view, a failure of the Tribunal’s inquisitorial role.  There was no dispute that the claimant had transferred the land to his nephew.   There was equally no dispute that the claimant was previously involved in an appeal against the decision whereby he was refused IS as a result of being the owner of land valued in excess of the capital cut-off point for IS.  As the Tribunal stated: -

“The central issue in this appeal, therefore, was [the claimant’s] purpose in transferring the land to his nephew.”

10.	That being so it appears to me that the issue springs immediately to mind as to whether the securing of IS was a purpose in transferring the land.  It does not appear that Mr N… was in a position to give any evidence in that respect.  He stated that it came as a complete surprise to him when his uncle announced his intention to transfer the land.  There was no indication that the claimant was other than of sound mind and in a position to make the transfer.  In light of the earlier case the question of knowledge that ownership of the land took him outside the capital limits for IS also arises.  That being so it appears to me that there is an obvious issue arising as to the motivation for making the transfer of the land and particularly as to why the entirety of the land as opposed to the site requested by Mr N… was transferred.  Mr N… did express the view that land passed from generation to generation by tradition and that the time was opportune but he was not in a position to give evidence as to his uncle’s motivation in making the transfer.

11.	This is a case where the burden of proof lies on the Department.  However, the claimant’s past experience of the operation of the capital limits and the fact that a voluntary transfer of the entire asset was made do, in my view, raise such questions as to the claimant’s motivation that evidence should have been sought from him concerning the matter.  The claimant was apparently too unwell to attend the hearing.  The Tribunal could have adjourned until he felt well enough to attend.  It could have considered a domiciliary hearing. It could have addressed questions to the claimant in written form which he could have answered in written form.  It would then be a matter for the Tribunal whether or not it accepted the claimant’s answers.  

12.	The claimant could, of course, have declined to answer any of the questions.  In that case the Tribunal would have to decide as to the primary facts of the case and whether an inference should be drawn as to purpose.  As the Great Britain Commissioner stated at paragraph 9 of decision R(SB)40/85: -

“It is not normally possible to ascertain a person’s purpose from direct evidence, as of contemporary letters written by him.  Ordinarily the purpose is a matter of inference from primary facts found.  The present case is one where there are facts which if they stood alone might lead to the legitimate conclusion that the claimant had deprived himself of cash resources for the purpose of securing, or increasing the amount of, supplementary benefit.  But there are other facts which may be taken as pointing the other way.  And it will be for the tribunal to indicate all the relevant facts (including both admitted facts and facts as to which findings need to be made) that they have taken into account in reaching their conclusion on the purpose of any transaction.  Facts should be included whether they tell for or against the conclusion reached and some indication should be given of those to which weight has been attached.”

13.	At paragraph 10 the Commissioner stated: -

“It is not necessary that the purpose of securing, or increasing the amount of, supplementary benefit shall be the sole purpose, though it must be a significant operative purpose.”

14.	It does not even have to be the predominant purpose (R(SB)38/85 paragraph 22, R(SB)9/91 paragraph 14).

15.	In this case there are obvious issues raised as to the knowledge of the capital limits and as to why the entirety of the land was transferred.  The Tribunal did not explore those matters which are very relevant to purpose.  I consider that it failed in its inquisitorial role in not so doing.  I set its decision aside as in error of law for that reason.

16.	I do not consider that this is a case where I can give the decision which the Tribunal should have given.  I remit this matter to a differently constituted Tribunal.  That Tribunal should give consideration to the issues mentioned above.  It is entitled to make inferences from findings of primary fact.  It must, however, take on board factors tending towards and against its eventual conclusion and it should give some indication of factors to which it has attached weight.

17.	The Legally Qualified Panel Member may wish to consider giving directions under regulation 38(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 as to the obtaining of information from any party.  That is, of course, a matter for the Legally Qualified Panel Member and it is most likely to be relevant if the claimant does not feel that he can attend the hearing.

18.	The Department’s appeal is allowed for the reasons set out above.

(Signed):  M F Brown

COMMISSIONER

24 March 2004