LS-v-Department for Social Development (IS) [2010] NICom 78
Decision No:  C11/10-11(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

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 21 July 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against a decision of an appeal tribunal, dated 21 July 2009, to the effect that the applicant was not entitled to income support (IS) from and including 7 August 2008.

2.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the application can properly be determined without a hearing.

3.	Leave to appeal is granted.

4.	By virtue of regulation 11(3) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, I treat and determine this application as an appeal as both parties have given their consent.

5.	The applicant has submitted that the appeal tribunal erred in law in that:

(i)	the decision of the appeal tribunal was Wednesbury unreasonable;

(ii)	the appeal tribunal failed to take account of the applicant’s disability, which resulted in her reckless disregard for money and  as evidenced through evidence from her community psychiatric nurse; and

(iii)	the applicant’s human rights have been infringed as a result of the failure to take account of, or give proper consideration to her disability.

6.	The Department, through Mr McKendry of Decision Making Services, has submitted that the tribunal erred in law on the basis that:

(i)	the appeal tribunal, as a result of an omission to consider the principles in R2/09(IS), has failed to distinguish between ‘actual’ and ‘notional’ capital;

(ii)	the appeal tribunal failed in its inquisitorial role to establish all the details with regard to capital expenditure, and did not afford the claimant the opportunity to provide a satisfactory account of the capital expenditure; and

(iii)	the appeal tribunal has not explained what consideration it gave to the claimant’s medical condition in arriving at a figure for notional capital.

7.	Therefore, it is clear that both parties have expressed the view that the decision appealed against was erroneous in point of law.

8.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

9.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to IS, for a particular period, remains to be determined by another appeal tribunal.

10.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the decision under appeal is a decision of the Department, dated 26 January 2009 as revised on 5 June 2009, which decided that the applicant was not entitled to IS from and including 7 August 2008;

(ii)	the Department is to prepare an additional submission for the appeal before the differently constituted appeal tribunal which:

(a)	provides details of the decision-making process giving rise to the appeal,

(b)	provides details of any further decisions in connection with entitlement to IS, which may have been made subsequent to the date of the decision under appeal,

(c)	sets out the factual background to the issues arising in the appeal, supported by relevant evidence,

(d)	sets out the legal basis for the decision under appeal, and provides details as to how the principles arising in R2/09(IS) apply to the issues arising in the appeal,

(e)	comments on the submissions made by the applicant, in her letter of appeal,

(iii)	on receipt of the further submission prepared by the Department, the applicant and/or her representative may wish to prepare a further submission for the appeal tribunal hearing.  In that further submission, the applicant, and/or her representative, may wish to make further submissions on the questions raised in the application for leave to appeal to the Social Security Commissioner, concerning the effect of her medical condition on the disposal of capital;

(iv)	at the oral hearing, it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

(v)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed)  K Mullan

Commissioner

24 August 2010