JMcK-v-Department for Social Development (IS) [2010] NICom 09
Decision No:  C1/10-11(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 15 January 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

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

2.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

3.	The decision of the appeal tribunal dated 15 January 2008 is in error of law.  The error of law identified will be explained in more detail below.

4.	Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

5.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

6.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

7.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of whether there has been an overpayment of income support (IS), and whether any overpayment is recoverable from her remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background

8.	On 21 March 2007, a decision-maker of the Department decided that an overpayment of IS, amounting to £10797.45, for the period from 15 November 2001 to 9 August 2006, had been made which was recoverable from the applicant.  The basis for the overpayment was stated to be a failure to disclose a material fact.

9.	An appeal against the decision dated 21 March 2007 was received in the Department on 9 May 2007.

10.	The decision dated 21 March 2007 was reconsidered on 30 May 2007 but was not changed.  The decision dated 21 March 2007 was revised on 5 June 2007.  The applicant was notified of this decision on the same date and was also informed that the appeal would continue against the decision as revised.

11.	The decision dated 5 June 2007 was revised on 29 June 2007 when a decision- maker decided that an overpayment of IS, amounting to £10283.20, for the period from 15 November 2001 to 24 May 2006, had been made which was recoverable from the appellant.

12.	In the appeal papers before me, it is stated that the decision dated 29 June 2007 was notified to the applicant on 28 June 2007, when the applicant was also informed that her existing appeal would lapse.  I do not understand how a decision dated 29 June 2007 could be notified on the day before it was made, the 28 June 2007.

13.	On 16 August 2007 an appeal against the decision dated 29 June 2007 was received.

14.	The appeal tribunal hearing eventually took place on 15 January 2008.  The appellant was not present, in accordance with her previous instructions, and the instructions of her representative that she would not be present, but a presenting officer from the Department was present.  The appeal tribunal disallowed the appeal, and confirmed the decision dated 29 June 2007.

15.	On 29 February 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 13 October 2008, the application for leave to appeal was refused by a legally qualified panel member (LQPM).

16.	On 5 December 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.

17.	On 1 April 2009, observations were sought from Decision Making Services (DMS) and these were received on 20 April 2009.  DMS opposed the application.  Observations were shared with the appellant and her representative on 23 April 2009.  A further response was received from the appellant’s representative on 14 May 2009.  Following a request for additional information, further correspondence was received from DMS on 18 June 2009, which was shared with the appellant and her representative on 22 September 2009.  A further response was received from the appellant’s representative on 23 September 2009.

	Errors of law

18.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

19.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	The error of law in the instant case

20.	It is regrettable that the LQPM who served in the appeal tribunal which heard and determined the appeal now subject to an application for leave to appeal to the Social Security Commissioner has, since the date of the decision of the appeal tribunal, passed away.

21.	The statement of reasons for the decision of the appeal tribunal in the instant case is short and succinct and reads as follows:

‘I accept Section 4 of the Submission, facts of the case.  Appellant’s brother was receiving benefit at her address and in the absence of evidence to the contrary it was reasonable to believe that he lived there.  Appellant would have been aware of his residence.  It was reasonable to expect the Appellant to disclose this fact to the Department as she had received several copies of form INF4.  She failed to disclose this fact and as a consequence, an overpayment of £10,283.20 Income Support occurred for the period 15.11.2001 to 24.5.2006 which is recoverable.’

22.	The error which I have identified relates to the adequacy of these reasons and, more particularly, the adequacy of the reasons to explain how the appeal tribunal assessed the evidence which was before it.

23.	The reasons include the statement that the ‘Appellant’s brother was receiving benefit at her address and in the absence of evidence to the contrary it was reasonable to believe that he lived there.’  The emphasis to the latter part of this statement has been added by me.

24.	It may be that the LQPM’s conclusion on the absence of contrary evidence was based on the failure on the part of the appellant to attend the oral hearing of the appeal to give oral evidence in relation to the issues arising in the appeal.  Despite having given an initial indication, in the letter of appeal against the decision of the Department, that she wished to have an oral hearing of her appeal, she then indicated through correspondence issued by her representative, that she did not wish to have an oral hearing and wished for the appeal to proceed without an oral hearing.

25.	Despite the absence of the appellant from the subsequent oral hearing of the appeal, it was incumbent on the appeal tribunal to consider all of the evidence which was before it, and to undertake a rigorous and rational assessment of all of the evidence before it.  Further the appeal tribunal was under a duty to give a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal has to be clearly resolved and explained.

26.	In C8/08-09(IB), I stated, at paragraphs 60-61:

‘60.	The reason for my rejection of the DMS submission is that there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.

61.	In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

‘ … there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect.  It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason.  Indeed, it will sometimes be its duty to do so.  However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant.  It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short.  We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal.  That body must have regard to the whole of the evidence, including the medical evidence.  Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so.  Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.’’

27.	The conclusions of the Tribunal of Commissioners in R2/04(DLA) were set in the context of an appeal tribunal’s assessment of medical evidence but those comments are, in my view, equally applicable to all of the evidence which is before an appeal tribunal.

28.	In the instant case, the record of proceedings for the appeal tribunal hearing records that the appeal tribunal had before it the ‘Departmental submission’.  Within that submission, as document tabbed as No 1, is the appellant’s letter of appeal.  The letter of appeal reads as follows:

‘I have been disallowed income support on the basis that my brother Michael resided with me.  This is incorrect as he did not reside there during this period.’

29.	As was noted above, the decision under appeal was a decision of the Department, dated 21 March 2007, as revised on 5 and 29 June 2007 to the effect that an overpayment of IS, for the period from 15 November 2001 to 9 August 2006, had been made which was recoverable from the applicant.  The basis for the overpayment was stated to be a failure to disclose a material fact.  The material fact was stated to be that the appellant’s brother resided with her during the relevant period.

30.	It is clear, therefore, that the basis of the appellant’s appeal was that her brother did not, in fact, reside with her during the relevant period.  Accordingly, the appeal tribunal was, in my view, under a duty to give a sufficient explanation of its assessment of the evidence, explaining what it made of the relevant evidence, and why it took the particular view of the evidence which it did.  Far from there being an ‘absence of evidence to the contrary’, there was evidence, albeit in the form of a direct assertion, on paper alone, that the appellant wished the appeal tribunal to consider and which formed the basis of her case.

31.	In the instant case, it may well be the case that the appeal tribunal did not accept the appellant’s assertion or evidence that her brother resided with her during the relevant period, or that it took the view that the other evidence which was before the appeal tribunal outweighed the assertion by the appellant that he did not reside with her.  If that was the case, however, the appeal tribunal was under a duty to explain and resolve any conflict in the evidence which was before the appeal tribunal.

32.	It seems to me that the appeal tribunal concentrated on the issue of whether it was reasonable for the appellant to disclose a material fact to the Department rather than undertake an analysis of the basis of the appeal which was before it, namely that there was no material fact which required to be disclosed, in that her brother did not in fact reside with her during the material period.

33.	I have decided that the statement of reasons for the decision of the appeal tribunal is not adequate to explain why the appeal tribunal accepted and preferred the evidence which it did, and rejected other evidence available to it.  According to the principles in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), as accepted by the Tribunals of Commissioners in Great Britain in R(I) 2/06 and CSDLA/500/2007, that means that the decision of the appeal tribunal is in error of law.  The decision is set aside.

	Disposal

34.	The decision of the appeal tribunal dated 15 January 2008 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

35.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

36.	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.

37.	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

2 February 2010