SMW-v-Department for Communities (IS) [2017] NICom 2

Decision No:  C3/16-17(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Application by the above-named claimant for
leave to appeal to a Social Security Commissioner
on a question of law from a tribunal's decision
dated 11 December 2012

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

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

2.	The decision of the appeal tribunal dated 11 December 2012 is in error of law.  The error of law identified will be explained in more detail below.

3.	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.

4.	I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.

5.	The decision of the Department dated 22 May 2009 as revised on 14 October 2010 is confirmed.  Accordingly, the periods in which it has been determined that the appellant is not entitled to Income Support (IS) and the periods in which it has been determined that IS is payable at a reduced rate, as set out in the revision decision of 14 October 2010, are confirmed.

6.	In accordance with the conclusions set out in paragraphs 89-90 below, the matter is referred back to the Department for the calculation of housing costs in the award of the appellant’s IS. If agreement cannot be reached on the calculation of housing costs when this is undertaken either party is at liberty to apply to me for determination of the matter.  It would be helpful, if agreement is reached, if that outcome is conveyed to the Office of the Social Security Commissioners.

7.	It is important that the appellant notes that invitation to apply to me is restricted to the issue of the calculation of housing costs and does not extend to my conclusions on the substantive issues arising in the appeal.  The correspondence which will attach to this decision when issued to the appellant will outline the mechanism for a challenge to the substantive decision if such a challenge is thought by him to be appropriate.

	Background

8.	In his Case Summary, prepared for the oral hearing of the application for leave to appeal, Mr Crilly prepared the following background to the decision which was under appeal to the appeal tribunal below:

‘Factual Background

(The appellant) claimed and was awarded income support from 27.03.01.

The Department’s Benefits Investigation Services became aware that (the appellant) appeared to be in possession of capital which he had not previously declared and began an enquiry in 2007 during which (the appellant) was invited to attend 2 interviews under caution.  (The appellant) declined to do so.

On 22.05.09 a decision maker disallowed income support in respect of the period 26.09.03 to 06.08.08.  This decision followed a previous decision dated 21.10.08 disallowing income from and including 07.08.08.  The decision dated 22.05.09 was revised on 14.10.10.  It is this decision which is the subject of this appeal.

There have been a number of decisions made in this case covering (the appellant’s) entitlement to income support from 27.03.01.  For conciseness and probity of the decision making process I have included the history of decision making in chronological order as an appendix to this case summary.  Ultimately, the substantive issue in this case is whether or not the tribunal was correct to uphold the decision dated 22.05.09, as revised on 14.10.10, that (the appellant) was not entitled to income support, or entitled at a reduced rate, in respect of the periods set out in the revision dated 14.10.10.

The decision under appeal

Under the decision dated 14.10.10, (the appellant) was not entitled to income support for the periods of 27.03.01 to 03.11.04, 23.02.05 to 03.10.06, 25.10.06 to 06.02.07, 28.02.07 to 03.07.07 and 15.07.09 to 08.12.09.  The reason for non-entitlement to benefit was due to a combination of capital in excess of the prescribed upper limit and also to the attribution of other income during these times.

The revision dated 14.10.10 went on to outline that the claimant was entitled to a reduced amount of income support for the periods 04.11.04 to 22.02.05, 04.10.06 to 24.10.06, 07.02.07 to 27.02.07, 04.07.07 to 14.07.09 and from and including 09.12.09.

The revision dated 14.10.10 also removed the payment of housing costs from 04.08.10 which had been put in place by the decision dated 30.09.10 as it was found that the claimant had taken out his mortgage during a relevant period.  The basis for this was the confirmation provided by (the appellant’s) lender that he had acquired his mortgage on 30.03.01 when he was already in receipt of benefit.’

9.	The history of decision making in chronological order which Mr Crilly had added as an appendix to his Case Summary was as follows:

‘The decision under appeal is the decision dated 22.05.09 as revised on 14.10.10.  The effect of this revision was to revise the decision awarding income support from 27.03.01 on the grounds that it was given in ignorance of a material fact, namely that (the appellant) had capital in excess of the prescribed amount for income support purposes.  The decision also revised all decisions made subsequent to 27.03.01 and determined that income support was either disallowed or payable at a reduced rate in respect of the following periods:

Disallowed in respect of periods:

27.03.01 – 03.11.04
23.02.05 – 03.10.06
25.10.06 – 06.02.07
28.02.07 – 03.07.07
15.07.09 – 08.12.09

Payable at a reduced rate in respect of periods:

04.11.04 – 22.02.05
04.10.06 – 24.10.06
07.02.07 – 27.02.07
04.07.07 – 14.07.09

From and including 09.12.09

The decisions made subsequent to the original decision awarding income support from 27.03.01and revised by the above decision are as follows:

21.10.08 – this decision disallowed income support from and including 07.08.08 on the grounds that (the appellant) had capital exceeding the prescribed limit.  (The appellant) appealed this decision but the appeal was lapsed before a tribunal was able to hear it as a result of the decision made 15.10.09 revising this decision.

22.05.09 – this is the decision under appeal, as revised on 14.10.10.  Its effect was to disallow income support from 26.09.03 to 06.08.08 on the grounds that (the appellant) had capital exceeding the prescribed limit.  It restricted the period to 06.08.08 because the earlier decision, 21.10.08, had disallowed income support from and including 07.08.08.

15.10.09 – this decision revised the decision dated 21.10.08 on the grounds that it was erroneous in law and entitlement was reinstated from 07.08.08, although payment was suspended pending further evidence requested from (the appellant).

03.08.10 – this decision revised the decision dated 21.10.08, as revised on 15.10.09, and reinstated the disallowance of income support from and including 06.08.08.

19.08.10 – this decision was a further revision of the decision dated 21.10.08, as revised on 15.10.09 and 03.08.10.  It determined that (the appellant) was entitled to reduced amounts of income support from 06.08.08 – 14.07.09, disallowed from 15.07.09 – 08.12.09, and entitled to a reduced amount from and including 09.12.09.

30.09.10. This decision awarded housing costs from and including 04.08.10.  The award of housing costs was subsequently removed by the revision dated 14.10.10, i.e. the decision which is the subject of this appeal.  It is the Department’s contention that the decision to remove the housing costs was erroneous for the reasons given in … the attached submission.’

10.	I accept and adopt all of this background as factual.

	Proceedings before the appeal tribunal

11.	Following four adjournments, the substantive appeal tribunal hearing took place on 11 December 2012.  One of the adjourned hearings took place on 12 June 2012.  The appellant was not present but a Departmental Presenting Officer was.  In the record of proceedings for the adjourned hearing the following is recorded:

‘Chair are the appellant’s explanations at Tab 39 accepted in relation to Incapacity Benefit received Tab 30 and Tab 31 and 35 for example £638 paid from [bank] account on 14.5.09 and credited to Halifax account on 18.5.09 - this does appear to be Incapacity Benefit and the decision maker does not appear to have treated it properly?

Presenting Officer agrees that submission appears to be defective in this regard ie Incapacity Benefit payments and how they have been treated and are the other credits to his account ie gifts we have treated as income but are they actually capital?

Presenting Officer agrees that a financial expert sitting on the Tribunal may be of assistance. 

Presenting Officer will look again at question of Incapacity benefit and how it was located and question of capital or increase in relation to other payments.’

12.	The appeal tribunal recorded the following reasons for adjournment:

‘Adjourn in order that a financial expert be appointed to sit on the Appeal panel and in order that respondent furnish an additional submission as per Record of Proceedings.’

13.	An addendum was subsequently prepared by the Departmental Presenting Officer who had been present at the adjourned hearing on 12 June 2012.  It is signed and dated by her on what appears to be 16 August 2012.  It is in the following terms:

‘Addendum to Appeal

1.	The addendum is submitted in response to the terms of adjournment issued on 27.06.12.

2.	The Department’s computer records show that (the appellant’s) Incapacity Benefit has been paid into his [bank] account number … from 20.10.03 to date.  It is noted that only payments of benefit are credited to this account. Tab 1.  (Tab 18E of original submission).  The record of the payments made of Incapacity Benefit is attached at Tab 2.

3.	In making the decision under appeal the decision maker has considered whether certain credits to (the appellant’s) [bank] account number … should be considered to be income attributable as laid out in Regs 29 and 32 of the Income Support (General) Regulations (NI) 1999.  App 1 In response to enquiries (the appellant) has given an account of some of the payments including a number which he states to be Incapacity benefit.  Tab 3 (Tab 30 of the initial submission)

4.	The dates of the transfer of Incapacity benefit to the appellant’s [bank] account are during the period August 08 to May 09.  Copies of the relevant pages of the bank statements are attached at Tab 4 except for the period in August 08 for which no statement for the [bank] account is available.  However the transfers of £500 on 06.08.08, £274 on 11.08.08 and £500 on 25.08.08 are accepted as transfers of incapacity benefit from the [bank] account.

5.	The decision dated 14.10.10 which is the decision under appeal states that income other than earnings is taken into account for the following periods – 15.10.03 – 10.02.04, 26.05.04 – 29.06.04, 11.08.04 – 12.10.04, 2.02.05 – 02.08.05, 10.08.05 – 29.11.05, 25.01.06 – 03.10.06, 25.10.06 – 06.02.07, 28.02.07 – 03.07.07 and 15.07.09 – 08.12.09, as no income is attributed during the period covered by payments accepted as Incapacity benefit then I submit therefore that no Incapacity benefit has been treated as income other than earnings.

6.	With regard to other credits I submit that they are properly treated as income other than earnings as laid out in the relevant legislation attached at app 1.

7.	If the tribunal do not agree that the credits are income other than earnings then I respectfully submit that the tribunal determine how these credits should be treated and make the appropriate outcome decision.’

14.	It is clear that the addendum of 16 August 2012 was received by the appellant.  In the file of papers which is before me is a copy of an undated submission from the appellant which is in the following terms:

‘In response to the submissions of the SSA dated 16.08.12 I wish to make the following additional submissions:

In respect of the relevant period of disqualification (15.07.09 to 08.12.09) under appeal, the deposits in question should not be treated as income other than earnings because:

1.	The money was merely transferred from one account to another (its original source is validated).

2.	Small cash lodgements made were deposits of my own money to prevent my [ ] current account going into the red.

I remind the Tribunal that during the period in question I had been without benefit for a considerable period of time (2 years) and was in fact forced to borrow money.

I submit that moving your own money from bank to bank is not ‘income’.  Disqualification on grounds of Chapter II of the 1987 IS Regs (at app 1) makes no sense as the DSS are not claiming I was in employment or self-employment and receiving income from an employer.’

15.	The appellant was not in attendance at the substantive appeal tribunal hearing that took place on 11 December 2012.  There was a Departmental Presenting Officer present – the same Departmental Presenting Officer who had been present at the adjourned oral hearing on 12 June 2012 and who had prepared the addendum consequent on the adjournment.  The appeal tribunal disallowed the appeal and issued a Decision Notice to the following effect:

‘Appeal disallowed.

The revised decision dated 14/10/2010 is upheld.’

16.	The appeal tribunal, following a request to that effect from the appellant, prepared a statement of reasons for its decision.  The statement of reasons was as follows:

‘Page 12 of the submission – questions posed.

5.14(a) Tribunal states yes to the question posed because it is reasonable and probable that the statements available from letter dated ie 2003 suggest that Appellant had capital in excess of the prescribed limits from 27/3/01 even when the prescribed limits changed.  The appellant could have resolved any doubts by production of relevant evidence will [sic] choose not to do so.  The tribunal finds that account … should have £500 added to its running balance from March 2001 to August 2008.

5.14 (b) Tribunal states yes because on balance of probabilities there are many unexplained lodgements and lodgements that while the Appellant gives explanations these are not credible (albeit that the Respondent accepted on many occasions).  The Tribunal would not necessarily accept the explanations that the Respondent did nevertheless the Respondent has made allowances and deducted income from benefits and has made other allowance.  The tribunal accepts the findings and calculations of the Respondent in this regard.

5.14 (c) The Tribunal finds that the effective date in relation to the mortgage loan is when the locum is actively received and not when it is was applied for. The appellant was in receipt of Income Support when he received the mortgage loan.’

17.	I am certain that the reference to ‘locum’ in the final paragraph of the statement of reasons should read ‘loan’.  The reference to ‘submission’ is to the appeal submission prepared for the appeal tribunal hearing by the Department.  It is clear that the appellant received a copy of that submission as he prepared a submission in response, a copy of which is in the file of papers which is before me.  The three questions on page 12 of the appeal submission which the appeal tribunal purported to answer in its statement of reasons are to be found in sub-paragraphs (a) to (c) of paragraph 5.14 on page 12 and are as follows:

‘(a)	Did (the appellant) have capital in excess of the prescribed limits during the period from 27.03.01?

(b)	Did (the appellant) have income to be treated as earnings during the period 15.10.03 to 08.12.09?

(c)	Did (the appellant) take out a loan during a relevant period to acquire an interest in a dwelling which he occupies?’

18.	On 2 August 2013 an application for leave to appeal was received in the Appeals Service (TAS).  On 8 August 2013 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

19.	On 8 October 2013 a further application for leave to appeal was received in the Office of the Social Security Commissioners.

20.	Following consideration by the Legal Officer to the Social Security Commissioners, on 14 January 2014, a request was made to Decision Making Services (‘DMS’) for observations on the application for leave to appeal.  In written observations dated 28 February 2014, Mr Rutledge, for DMS, opposed the application on the grounds advanced by the appellant but submitted that the decision of the appeal tribunal was in error of law on the basis of other identified grounds.

21.	Written observations were shared with the appellant on 28 February 2014.  On 11 March 2014 written observations in reply were received from the appellant attached to which were various items of documentation.  The file of papers was first forwarded to me on 8 April 2014.  On 10 April 2014 I directed the Legal Officer to undertake additional work on the background to the application for leave to appeal.

22.	On 28 July 2014 the Legal Officer observed that the appellant’s written observations in reply had not been shared with Mr Rutledge.  Accordingly he undertook this action on 29 July 2014.  On 15 August 2014 a further submission was received from Mr Rutledge which was shared with the appellant on 19 August 2014.

23.	The file then remained with the Legal Officer until it was returned to me on 15 April 2015.  On 29 April 2015 I directed the Legal Officer to invite Mr Rutledge to expand on certain of the submissions which he had made in his written observations on the application for leave to appeal.  The direction was issued to Mr Rutledge on 13 May 2015.  On 3 June 2015 a response was received from Mr Rutledge which was shared with the appellant on 9 June 2015.  On 6 July 2015 a further submission was received from the appellant which was shared with Mr Rutledge on 8 July 2015.  In turn, further correspondence was received from Mr Rutledge on 21 July 2015 which were shared with the appellant on the same date.

24.	The file of papers was returned to me on 24 November 2015.  On 1 December 2015 I requested an additional response from the Legal Officer concerning the benefit of conducting an oral hearing of the application.  Following receipt of the Legal Officer’s response I indicated that I was minded to direct an oral hearing of the application and requested that the appellant be directed, in the interests of justice, to appropriate sources of representation.  An e-mail to that effect was forwarded to the appellant on 27 January 2016.  On 16 February 2016 a reply was received from the appellant in which he indicated that he had made enquiries concerning representation but had been unable to secure same.  The appellant also made further submissions concerning the substantive issues arising in the appeal.

25.	I directed an oral hearing of the application.  The oral hearing took place on 21 June 2016.  The appellant was not present.  The Department was represented by Mr Gough.  I am grateful to Mr Gough for his cogent and constructive comments and submissions.

26.	There then followed a delay in the promulgation of this decision occasioned by the volume of work in the Office of the Social Security Commissioners.  While this latter delay was unavoidable, apologies are extended to the parties to the proceedings, particularly, the appellant, for the inconvenience caused.

	Errors of law

27.	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.  What is an error of law?

28.	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 submissions of the parties

29.	In his original application for leave to appeal, the appellant set out a number of grounds, as follows:

‘1.	The appellant did not consent to only two members of a tribunal panel hearing the appeal.  The record of the ‘paper appeal’ held on 11 December 2012 indicates only two Tribunal members heard the case.

2.	The record of proceedings does not indicate any time being spent on the case.  Given the complexity of the case this would seem a necessity.

3.	The Tribunal failed to have any regard to the written submissions made by the claimant.  The tribunal is obliged in law to have regard to submissions made.

4.	The Tribunal failed to have any regard to the Income Support Regulations throughout the hearing.

PART 3 THE TRIBUNAL’S REASONS

5.	The tribunal erred in law in believing they were entitled to consider the issue of overpayments.  This issue was dealt with in a previous tribunal decision (dates and ref not available at time of writing).  The tribunal failed to have regard to the applicant’s previous written submissions on jurisdiction or the record of those earlier Tribunal proceedings.  The Tribunal failed to have regard to the point that the Department failed to disclose financial documents to the applicant despite repeated applications, who was denied the right to respond to those documents and the claims of overpayments being made in respect of them.

6.	The instant Tribunal was restricted in its jurisdiction to 2008 onwards by virtue of the previous Tribunal decision on questions of overpayment and the Department’s failure to appeal that decision.  The tribunal erred in law by having regard to matters prior to 2008.

7.	The Tribunal misdirected itself in supplanting its own calculation in place of the Department’s calculations in respect of an amount of £500 without explanation.  Note: The Tribunal adjourned previously on 12 June 2012 so the Tribunal could have a financial expert.

8.	In respect of the disqualification for the period 15.07.09 to 08.12.09 (circa £800 of deduction) – point two in reasons – the Presenting Officer stated that the Department ‘did not accept explanation of gift for son’.  She does not state why this is not accepted, nor the legal ground which would result in a deduction/disqualification of benefit.  The Tribunal failed in its task to scrutinise the grounds for deduction/disqualification for the period 15.07.09 to 08.12.09 both as a question of fact and as a question of law.

9.	The Tribunal acted irrationally in concluding “that there were many unexplained lodgements and lodgements that while the Appellant gives explanations these are not credible (albeit that the Respondent accepted on many occasions) …”.  The Tribunal is obliged to state which specific explanations it did not find credible with reasons, particularly in circumstances where the Department accepted these explanations.  This constitutes a breach of procedural justice and the Tribunal’s obligation to provide a reasoned decision.

10.	In respect of the Tribunal’s conclusions ‘that lodgements are not credible’ there was a failure by the Tribunal (Mr S in particular) to understand that transferring money from one account (where benefit was paid in) to another account (where bills were paid from) does not constitute income, nor a breach of the capital or income rules.  The Tribunal further failed in its task of understanding that lodgements into a bank account is a normal everyday matter, not indicative of unrelated income.

11.	Mortgage loan date.  The tribunal failed to carefully examine the applicant’s case: namely that the deposit, contract to purchase property and completed mortgage agreement all occurred while the applicant was in work, and that the completed Conveyance agreement and mortgage occurred a few days after the applicant had claimed benefit.  The applicant was bound to the contract before it was perfected.  The tribunal failed to have regard to or cite any regulation and/or case law on this particular point.

	Note: the applicant was advised by SSA staff in 2001 that he was not entitled to claim mortgage interest relief and consequently indicated in application forms that he did not wish to complete lengthy mortgage details when he had been advised he had no entitlement.  It was only post 2008 that Ms McC stated he should do so as he may have an entitlement.’

30.	As was noted above, in his initial written observations on the application for leave to appeal, Mr Rutledge, for DMS, opposed the application for leave to leave on the majority of the grounds set out by the appellant.  In paragraphs 25 to 28 of those observations Mr Rutledge did state the following:

‘25.	The claimant submits that the Tribunal failed to examine his case regarding the mortgage loan date.  The claimant’s case is that the deposit, contract and mortgage agreement were all completed while he was in work. The Tribunal failed to have regard to or to cite any regulation or case law to this issue.  The claimant also submits he was advised by the Department that he was not entitled to claim mortgage relief in 2001.

	I submit that if the Commissioner agrees that the claimant was not entitled to Income Support on 27th March 2001 as he had capital in excess of the prescribed amount, then the claim for the mortgage loan would have to be considered from the date that he first applied for help with the loan.  The loan was taken out on 30th March 2001, therefore if it is accepted that the claimant was not entitled to Income Support on 30th March 2011, then the loan was not taken out in a relevant period.  The relevant period is defined in paragraph 4(4) of Schedule 3 to the Income Support (General) Regulations (NI) 1987 as:

‘(4) The “relevant period” for the purposes of this paragraph is any period during which the person to whom the loan was made—

(a) is entitled to income support or income-related employment and support allowance; or

(b) is living as a member of a family one of whom is entitled to income support or income-related employment and support allowance,

together with any linked period, that is to say a period falling between two such periods of entitlement to income support or income-related employment and support allowance separated by not more than 26 weeks.’

	When the Department revised the decision effective from 27th March 2001, they should also have revised the housing cost determination.  If the claimant was not entitled to Income Support on this date then he was no longer in the relevant period.  I submit the Department did not help the Tribunal in this matter The Tribunal has not recognised that the revision should have had an effect on the housing costs.  I submit the Tribunal’s failure to recognise this is an error in law.

	Further Observations

26.	I submit that the Tribunal has misdirected itself in upholding on one hand the Department’s decision that the claimant was entitled to Income Support from 4th November 2004 to 22nd February 2005 at £14.80 per week and on the other hand finding that the claimant had excess capital to 2006.

27.	I submit that the Tribunal has also misdirected itself in upholding on one hand the Department’s decision on the amounts of capital and on the other hand finding that the capital figure in bank account number … was incorrect by £500 up to the 5th August 2008.

28.	Therefore I submit that the tribunal have erred in law for the reasons stated above.

Conclusion

29.	To conclude, although I do not support (the appellant’s) grounds of appeal, I submit that the Tribunal erred in law for the reasons outlined above in paragraphs 25 to 27.’

31.	I have highlighted the date of ’30 March 2011’ as I am certain that there is a typographical error and that it should read ’30 March 2001’ but nothing turns on that.

32.	In his written observations in response to those provided by Mr Rutledge, the appellant began by clarifying the reason why his initial entitlement to IS was backdated and challenged the accuracy of Mr Rutledge’s comment that the initial hearing of the appeal was adjourned because he was unable to attend.  He stated that at all times his preference was to have the appeal determined on the papers.

33.	More specifically, the appellant challenged Mr Rutledge’s assertion that there had been no previous decisions of an appeal tribunal.  He stated:

‘… This was the substantive case before the first Tribunal which the Department lost and declined to appeal.  The President directed that benefit be reinstated and recalculated for the suspended period (then at about 18 months).  It is submitted that from 2009 the Department and the second Tribunal had no jurisdiction to raise the issue of alleged overpayments, the Department having failed to appeal to 2009 Tribunal decision.’

34.	The appellant submitted that there was correspondence which supported his assertion that there had been a previous decision of an appeal tribunal, that all of the paperwork or electronic records relating to this appeal tribunal hearing were not available and that, as such, no evidence of that hearing was before the appeal tribunal in the instant case.

35.	The appellant challenged the assertions which had been made by Mr Rutledge in paragraphs 5 and 13 of his written observations and stated:

‘It is submitted that the Tribunal of 2011 failed to properly scrutinise the factual basis for the Department’s case for undeclared capital and overpayments and have simply accepted the Department at their word.  This is an error of law.  They further failed to examine my case in respect of the first Tribunal …’

36.	The appellant also submitted that the Department had:

‘… attempted to break the case for overpayments into two separate cases and claim that only one is before the Commissioner …  At all material times there has only ever been one case in existence.  It is submitted that during the 2011 Tribunal the Department told the Tribunal they were revising the claim in such a manner …  No reasons were offered for this revised approach but it appears to be an attempt to inveigle the claimant’s right of appeal and restart the clock which started life in 2008.’

37.	The appellant asserted that my office should ‘… direct the SSA and/or SSAT service to put all the records of the first Tribunal before it.’

38.	The appellant challenged Mr Rutledge’s conclusions on the manner in which the appeal tribunal had assessed the evidence which was before it including his own credibility.  He also challenged whether the question of:

‘… whether a particular payment into a bank account from a series of bank accounts falls into a category of … ‘affecting benefit and resulting in loss or reduction’.  This is a question of law; examining regulations and categorising each payment and the reason offered for it.’

39.	The appellant submitted that Mr Rutledge had failed ‘… to establish the case for excess capital.  He provides no dates and no amounts.’

40.	Finally the appellant noted that Mr Rutledge had appeared to accept in principle that the Department had failed to properly calculate an amount in relation to mortgage interest relief/housing costs.  He submitted that the Department should provide a calculation in respect of this.

41.	In his further submission made in response, Mr Rutledge stated that he was not in disagreement with the two very general submissions made by the appellant.  He then set out the following:

‘Under the heading “Overpayments” (the appellant) refers to a previous Tribunal’s decision.  (I should, at this point, clarify that the decision before the tribunal, and now the Commissioner, is an entitlement decision.  Although that decision has resulted in an overpayment of income support, the overpayment decision is not subject to this appeal).

There was indeed a previous decision, before a tribunal but that decision was revised in (the appellant’s) favour, resulting in the appeal being lapsed before a tribunal could decide it.  The decision in question was made on 21.11.08, disallowing income support from and including 06.08.08 on the grounds that (the appellant) had failed to comply with an information request.  The decision to disallow was revised on 15.10.09 in (the appellant’s) favour.  However, the suspension was re-imposed and benefit subsequently disallowed, resulting in the current decision in dispute.

(The appellant) also alleges that the Department refused to provide him with the information it held in relation to his financial circumstances.  It may well be the case that Benefit Investigation Services would not divulge this information in the course of its investigations but all the evidence used by the decision maker to make his decision was included in the submission to the tribunal which was also received by (the appellant).

Other issues raised by (the appellant) under the heading “Overpayments” would appear to refer the overpayment decision.  As that decision is not subject to this appeal I have no comment to make.

(The appellant) further submits that the tribunal failed to properly scrutinise the factual basis for the Department’s case and simply accepted the Department’s decision.  I do not support this ground of appeal for the reasons given in my previous submission.

(The appellant) has raised an “Additional Issue” concerning the overpayment.  As previously submitted, the decision under appeal in this case relates to entitlement only.

Under a heading “Payment for the period 15.07.09 to 08.12.09” (the appellant) raises further issues that the tribunal was misleading in its record that (the appellant) chose not to produce relevant evidence to support his appeal.  I submit that the tribunal found that (the appellant) had the opportunity to produce evidence to clarify any doubts regarding the capital and income and chose not to do so.  I do not support this ground of appeal.

(The appellant) submits that a financially qualified member did not sit on the Tribunal.  It can be seen from the Record of Proceedings that there were two tribunal members, the Legally Qualified Member, (LQM), and Mr B S.  There is no reason to doubt that Mr S was not a financially qualified member, given the reason for the previous adjournment.

(The appellant) further submits that the tribunal was under ”an obligation to provide full clear and complete reasons for lack of credibility”.  I refer to paragraph 23 of my previous submission and do not support this ground of appeal.

(The appellant) further submits that the tribunal misdirected in law by treating payments into his bank account as payments that would effect benefit.  The tribunal clearly found that the said payments were either capital or income and in the absence of an explanation could not have determined that they fell within prescribed categories that could not be taken into account.

Mortgage Interest payment Premium

(The appellant) makes points in relation to my previous submission on housing costs.  For clarity I will reiterate that, when the decision maker decided that (the appellant) was not entitled to income support from and including 27.03.01, the loan that was taken out on 30.03.01 no longer fell within the “relevant period” and an award of housing costs should have been considered for any subsequent periods of entitlement.  However, the decision maker and subsequently the tribunal, failed to do this and as such it is an error in law.’

42.	As was noted above, Mr Rutledge was requested, at my direction, to expand on the submissions which he had made in paragraphs 26 and 27 of his initial written observations, identify the implications of the submitted errors on the decision-making process and to specify the remedial action which he was submitting that the Social Security Commissioner should take.  In response Mr Rutledge submitted the following:

‘In paragraph 26 of my observations. I submitted that the Tribunal misdirected itself in upholding the Department’s decision that the claimant was entitled to Income Support but finding the claimant had excess capital.  On reflection I wish to withdraw my comments.  The Tribunal answered the question put to it by the Department asking “a) Did Mr Waters have capital in excess of the prescribed limits during the period from 27.03.01” and answered in the affirmative.  I no longer submit that the tribunal erred in law because I now submit that it is clear what the tribunal had decided.

In paragraph 27 of my original observations I submitted that the Tribunal misdirected itself in upholding the Department’s decision on the amount of capital that the claimant had, and yet finding that the claimant had £500 more.  Again, I would like to withdraw this comment.  The tribunal recorded that it accepted the Department’s calculations and findings but that £500 was to be added to the running balances from 27.03.01 to 06.08.08.  I now submit that it clear what the tribunal had determined and that there is no error in law in this instance.’

43.	In response, the appellant submitted that:

‘…. The Department has not offered any reasons why it has withdrawn their previous submissions.

…

The applicant reminds the Commissioner that the Department have claimed in written submissions that no previous tribunal existed, whereas the applicant has stated that such a Tribunal did exist, that it made a determination in favour of the applicant, rejecting the Department’s claim of an overpayment, and that the Office of the Social Security Tribunal have confirmed the existence of such a hearing (save that original documentation cannot be found in storage).  The import is that the instant Tribunal (apparently unaware of the previous Tribunal) erred in jurisdiction attempting to re-hear a point previously determined in the claimant’s favour.’

44.	As was noted above, the appellant was given the opportunity to seek representation in advance of the oral hearing of the application.  In the e-mail to him it was noted that it was unusual for the Commissioner to direct that an appellant be permitted an additional opportunity to seek representation but that the opportunity had been afforded to the appellant in the interest of justice given (i) the complexity of the issues arising in the case and (ii) the fact that the Department had withdrawn aspects of their support for the application for leave to appeal.

45.	As was again noted above, the appellant replied to indicate that he had made enquiries concerning representation but had been able to secure same.  In addition he added the following:

‘The Commissioner will know from the submissions that one of the issues on the papers is whether there was a previous Tribunal which sat and dealt with the issues now before the Commissioner.  I previously submitted that a Tribunal did in fact sit (making Orders on two occasions) and ruled against the Department on the question of over payment and suspension of benefit and directed a recalculation for the 'suspended' period.  The issue of disqualification for certain parts of that 'suspended' period (amounting to approximately £800) and the question an additional sum in respect of mortgage interest relief (not calculated) are properly before the Commissioner.  The Departments representative has previously submitted that there was no decision.  I submitted that there was, Ref: BE/5189/09/61/L, and that both the Department and Tribunal had destroyed their records of this decision.

In furtherance of this point I have found records of historical correspondence to the Tribunal on an old hard drive, which should corroborate the existence of such a Tribunal that dealt with a case.

I continue to submit that the Tribunal who's decision is before the Commissioner had no power to consider a decision already made by a previous Tribunal (in my favour).’

46.	To his e-mail the appellant added two items of correspondence which, I am assuming, amount to the ‘records of historical correspondence’ referred to by him in his e-mail of 16 February 2016.

47.	The first is dated 20 November 2008 and is addressed to the ‘President of the Social Security Appeals Tribunal’ (more properly the President of Appeal Tribunals but nothing turns on that).  In this correspondence the appellant submits that he wishes to appeal against a decision of the Social Security Agency (‘SSA’) to disallow his claim for IS.  He asserts that he has been told that there is no appeal against the factual and legal basis of the decision and the denial to him of a right of appeal.  The appellant requested that the President direct the SSA to forward certain correspondence, details of which he set out in his correspondence.

48.	The second item of correspondence was a letter dated 29 October 2009 addressed to ‘Mr President’.  I am assuming that this correspondence was also meant for the President of Appeal Tribunals.  The appellant indicates that he had been informed that the Department had made an application to the President for the appeal to be lapsed.  The appellant submitted that he had received no notification from the Department or the appeal tribunal of any application for a direction for the appeal to be lapsed.  He stated that following an adjournment of his appeal he had received correspondence from the Department.  He asserted that this correspondence provided no legal authority for making an application, set out no grounds for such an application and:

‘… simply attempts to remake the decision (to deny me benefit) on effectively the same grounds as before.  Substantially the Department are on unlawful grounds, having denied me the right to see the evidence they used to take the decision (see earlier written submissions).  The Department appear to have acknowledged this at the hearing (ref hearing record).  The letter dated 15 October 2009 does not alter this refusal.  It simply requires me to provide them with banking records and does not address the point of my earlier submissions.’

49.	The appellant asserted that acceding to the application would deny his right to an independent appeal and adjudication and require him to go through a decision, review and appeal stage, ending up in the same position, while having suffered continuing financial loss.  He asserted bad faith on the part of the Department and opposed the application, submitting that the only lawful and fair decision was that his benefit should be reinstated.

50.	In the Case Summary prepared by Mr Crilly of DMS for the oral hearing of the application, he submitted:

‘I submit that the tribunal erred in law in respect of its conclusions concerning (the appellant’s) housing costs.  The tribunal found that he had acquired his mortgage on 30.03.01.  If it is accepted that (the appellant) was not entitled to income support at this time then he cannot be said to have acquired his mortgage during a relevant period and an award in respect of housing costs should have been considered during any subsequent periods of entitlement …

…

In view of the foregoing reasons, I submit that the Commissioner should set aside the tribunal’s decision, give the decision that the tribunal should have given and refer the case back to the Department for the calculation of housing costs in the award of (the appellant’s) income support.’

51.	At the oral hearing of the application, Mr Crilly summarised the submissions which had been made on behalf of the Department.

	Analysis

52.	I begin with the appellant’s submissions in connection with the appeal tribunal’s conclusions with respect to the disallowance of entitlement to IS for the discrete period from 15 July 2009 to 8 December 2009.

53.	The appellant has been consistent in the arguments which he has made with respect to this issue.  As was noted above, he raised this issue in the written submission which he made to the appeal tribunal.  At that stage, he asserted that the deposits made to his account during that period should not be treated as income other than earnings because (i) the money was merely transferred from one of his accounts to another and (ii) that any small cash lodgements which were made were deposits of his own money to prevent his current account going into the red.

54.	In his original application for leave to appeal, the appellant argued that the appeal tribunal failed in its duty to investigate the grounds for deduction/disqualification for this specific period both as a question of fact and as a question of law.  He noted that in the record of proceedings for the appeal tribunal hearing the Presenting Officer had stated that the Department ‘did not accept explanation of gift for son’.  He asserted that the Presenting Officer did not state why the explanation was not accepted and had not set out the legal ground which would result in a deduction/disqualification of benefit.

55.	I would add, at this stage, that the appellant has also been consistent in asserting that the appeal tribunal had failed in its duty to consider written submissions made by him.  In this regard, he made mention of written submissions in respect of the appeal tribunal’s jurisdiction to consider periods prior to 2008.  I have no doubt, however, that this ground covers the written submission which he made in response to the appeal submissions prepared by the Department and which, as was noted above, made a specific reference to the period of disqualification from 15 July 2009 to 8 December 2009.  I return to that aspect of this first issue below.

56.	The appellant has also challenged the appeal tribunal’s conclusions on credibility and has asserted that its conclusions in this respect were irrational.  Further, he submitted that the appeal tribunal failed to understand that the mere transfer of money from one account (where benefit was paid in) to another account (where bills were paid from) did not constitute income, nor a breach of the capital or income rules.  As the appellant is asserting that the transfers during the period from 15 July 2009 to 8 December 2009 fell into the category of simple inter-account transmissions then the issue of credibility forms part of the appellant’s first ground of appeal.

57.	I have noted that on 24 June 2010 correspondence was forwarded to the appellant from his local Jobs and Benefits Office.  In this correspondence the appellant was asked, amongst other things, to provide the source of certain cash lodgements which were made to one of his bank accounts on a series of dates between 20 September 2008 and 3 December 2009.  The appellant replied to the correspondence dated 24 June 2010 in correspondence of his own dated 28 June 2010.  That latter correspondence is addressed to the person who forwarded the correspondence dated 24 June 2010 and it begins with the phrase ‘Your letter dated 24th June 2010 refers’.

58.	In his reply, the appellant sets his answer to the various questions which he was asked. In relation to the cash lodgements which were made between 30 September 2008 and 3 December 2009 he stated that the source of a lodgement of £500 on 30 September 2008 was the ‘sale of my car’.  In relation to the source of lodgements of £300 on 15 July 2009, £320 on 11 August 2009, £300 on 19 October 2009, £200 on 21 October 2009, £240 on 27 October 2009 and £500 on 3 December 2009, he stated that these were ‘a series of family gifts in respects [sic] of costs of baby.’

59.	It is clear that the Department’s view of the effect of the cash lodgements between 15 July 2009 and 3 December 2009 differed from that of the appellant.  In correspondence dated 18 August 2010 to the appellant, it was noted that:

‘The cash gifts you refer to were credits made to your account which were then used for daily expenses.  The income does not carry any disregard and as such, is taken into account.’

60.	It was immediately after this that the appellant began his challenge to the Department’s interpretation of the cash lodgements, as he was perfectly entitled to do.  In correspondence dated 22 August 2010, he stated:

‘This leaves the period 15.07.2009 to 08.12.2009 which you have disallowed.  Your most recent letter did not add anything new to the reasoning.  I wish to seek a review of this decision and appeal further to a Tribunal if necessary.

My reasons are:

1.	You have failed to indicate a legal authority (SI, Commissioner’s decision or other rule) for this decision to disallow because of cash deposits into my bank account – in circumstances where I clearly pay money in to avoid being overdrawn on my account.

2.	Gifts to support the expenses of a child, in circumstances where you have wrongly failed to pay me IS for over a year and I am suffering financial hardship should not be treated as ‘income’ for the purposes of this calculation.’

61.	As was noted above, the appeal tribunal hearing was arranged for 12 June 2012 with the LQPM raising questions concerning the treatment by the Department of the explanations given by the appellant for certain transactions in his bank accounts.  In response, at the hearing itself, the Presenting Officer agreed that the appeal submission was ‘defective’ and that, amongst other things, a question arose as to whether ‘… the other credits to his account ie gifts we have treated as income but are they actually capital?’

62.	In the addendum which was prepared in response to the adjourned oral hearing, the Presenting Officer, after dealing with other matters submitted that:

‘With regard to other credits I submit that they are properly treated as income other than earnings as laid out in the relevant legislation attached at app 1.

If the tribunal do not agree that the credits are income other than earnings then I respectfully submit that the tribunal determine how these credits should be treated and make the appropriate outcome decision.’

63.	As was noted above, in his own response to the addendum, the appellant stated that the deposits made to his account during that period should not be treated as income other than earnings because (i) the money was merely transferred from one of his accounts to another and (ii) that any small cash lodgements which were made were deposits of his own money to prevent his current account going into the red.  I would note, at this stage, that this response from the appellant did not allude to the source of the lodgements being gifts from his family to support the child costs.

64.	The record of proceedings for the appeal tribunal hearing reflects that there was interaction between the members of the appeal tribunal and the Presenting Officer.  Amongst many other things, the Presenting Officer is recorded as stating:

‘We have accepted explanation as to where some of the money came from but have not accepted explanations of gifts for son.’

65.	I have no hesitation in accepting that the Presenting Officer, on behalf of the Department, was making a submission to the appeal tribunal that the Department did not accept the appellant’s explanation that the source of a series of lodgements to one of his bank accounts between 15 July 2009 and 8 December 2009 was a series of gifts from his family in connection with child costs.  I also accept that by implication the Department was submitting that the credits to his account should, accordingly, be treated as income other than earnings.

66.	So how did the appeal tribunal deal with the evidence in respect of the period from 15 July 2009 to 8 December 2009 and were its conclusions with respect to this period in error of law?

67.	As was noted above, the statement of reasons for the appeal tribunal’s decision is in the form of answers to three questions which had been raised in the appeal submission.  The question which is most pertinent to the issue which I am presently considering is whether the appellant had income to be treated as earnings during the period from 15 October 2003 to 8 December 2009.  The appeal tribunal answered that question in the affirmative.  Its reasoning was that there were unexplained lodgements during the relevant period and lodgements which, while accepted by the Department, the appeal tribunal did not accept as credible.  By that, I am accepting that the appeal tribunal did not find the appellant’s explanation as to the source of the lodgements to be credible.  Finally, and most significantly, the appeal tribunal noted that it accepted ‘… the findings and calculations of the Respondent in this regard.’  It is axiomatic, therefore, that the appeal tribunal was accepting all of the Departmental submissions in respect of the issues arising in the appeal including, for the purposes of the present issue, the submission that the Department did not accept the appellant’s explanation that the source of the lodgements to one of his bank accounts between 15 July 2009 and 3 December 2009 was a series of gifts from his family in connection with child costs.

68.	The appellant challenges the appeal tribunal’s conclusions concerning the period from 15 July 2009 to 8 December 2009 in two ways.  The first is that the appeal tribunal did not address the written submissions which had been made by him in connection with this issue.  I have noted that the appellant’s assertions concerning written submissions included an allusion to written submissions in respect of the appeal tribunal’s jurisdiction to consider periods prior to 2008.  I address that issue below.  There is no doubt that the appellant did provide a written submission in connection with the discrete issue of the period from 15 July 2009 to 8 December 2009 found specifically in his written reply to the addendum and more generally in his other written submissions.

69.	There is no doubt that in its very general statement of reasons the appeal tribunal has not made a specific reference to the appellant’s distinct written submission on the treatment of lodgements for the period from 15 July 2009 to 8 December 2009.  In its record of proceedings the appeal tribunal noted that it had before it the ‘appeal papers’.  I have no doubt that the papers included all of the appellant’s written submissions.  I say that because the papers which were before the appeal tribunal have been copied into the voluminous file of papers which is before me.  I accept that the appeal tribunal did weigh and assess the submissions which the appellant had made in connection with the issues arising in the appeal including the specific issue of the treatment of lodgements for the period from 15 July 2009 to 8 December 2009 as part of its overall conclusions.  Its acceptance of both the Departmental findings and calculations is, in my view, sufficient to indicate agreement with the findings and calculations in respect of the period from 15 July 2009 to 8 December 2009.  Implicit within that is an acceptance of the Department’s assertion that it did not accept the appellant’s explanation that the source of the lodgements for the relevant period was a series of gifts from his family in connection with child costs.

70.	The second way in which the appellant has challenged the appeal tribunal’s conclusions concerning the period from 15 July 2009 to 8 December 2009 is in relation to the appeal tribunal’s (and, indeed, the Department’s) specific conclusion on credibility.  More specifically, the appellant has asserted that the appeal tribunal was obliged to provide, with reasons, a precise explanation, with reasons, as to why it did not find the appellant’s account to be credible.  I do not accept this argument, for the following reasons.

71.	In C14/02-03(DLA), Commissioner Brown, at paragraph 11, stated:

‘ … there is no universal rule that a Tribunal must always explain its assessment of credibility.  It will usually be enough for a Tribunal to say that it does not believe a witness.’

72.	Additionally, in R3-01(IB)(T), a Tribunal of Commissioners, at paragraph 22 repeated what the duty is:

‘We do not consider that there is any universal obligation on a Tribunal to explain its assessment of credibility.  We disagree with CSIB/459/97 in that respect.  There may of course be occasions when this is necessary but it is not an absolute rule that this must always be done.  If a Tribunal makes clear that it does not believe a claimant’s evidence or that it considers him to be exaggerating this will usually be sufficient.  The Tribunal is not required to give reasons for its reasons.  There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision.  It will, however, normally be a sufficient explanation for rejecting an item of evidence, including evidence of a party to an appeal, to say that the witness is not believed or is exaggerating.’

73.	In addition, I have noted that the appellant’s initial explanation to the Department concerning the lodgements made during the relevant period was that their source was gifts from his family in relation to the care of his child.  In his reply to the Department’s addendum there is no mention of this as a source but a replacement with a more general statement that the lodgements represented his own money with the intention of preventing his account from ‘going into the red.’  I can understand how this goes to his credibility.

74.	Accordingly, I do not accept this ground of appeal and do not agree that the appeal tribunal’s conclusions with respect to the period of the period from 15 July 2009 to 8 December 2009 were in error of law.

75.	I turn to the appellant’s second ground which was that the appeal tribunal had no jurisdiction in connection with his benefit entitlement prior to 2008.  His stated reason for this assertion was that another appeal tribunal had already adjudicated on benefit entitlement for the period up to 2008.  I have no hesitation in rejecting this ground of appeal.  My principal reason for that is that I have no doubt that if the Department was the subject of an appeal tribunal decision in connection with an appeal against one of its decisions then it would have no hesitation in exercising its duty to implement that decision whether that decision was adverse to it or not.  In 18 years of service as a judicial office-holder in the social security jurisdiction I recall no instance in which the Department has failed to implement, or otherwise ignored, a decision of an appeal tribunal.

76.	I have no doubt that the appellant appealed against a decision of the Department dated 21 November 2008.  A copy of the correspondence notifying the appellant of that decision is in the file of papers which is before me.  I have also a copy of correspondence dated 27 November 2008 from the appellant to the Department.  In this correspondence the appellant states:

‘Your letter dated 21 November 2008 refers.

I wish to appeal in accordance with your letter.  No GL24 form accompanied your letter so please treat this as my appeal.

My grounds for appeal are …’

77.	I have no doubt that the appeal was registered by TAS as ‘BE/5189/09/61/L’.  I have no reservation that the appeal proceedings advanced to the stage where the appellant made a written submission in connection with the issues then arising.  There is a copy of that written submission in the file of papers which is before me.  What is equally obvious though is that the decision dated 21 November 2008 was revised on 15 October 2009.  I have a copy of that decision before me.  It is clear to me that what has transpired is that following the revision of the decision dated 21 November 2008 by the decision of 15 October 2009, the appeal against the decision dated 21 November 2008 lapsed.  The narrative above makes reference to correspondence dated 29 October 2009 from the appellant to the President of the Appeal Tribunals in connection with an ‘application’ for his appeal to be lapsed and opposing that application.

78.	Although there is no record of any determination by the President of Appeal Tribunals on an application for the appeal against the decision dated 21 November 2008 to be lapsed, I accept that on the balance of probabilities such a determination was made.  Regulation 10(6) of the Social Security (Northern Ireland) order 1998, as amended, provides that:

‘Except in prescribed circumstances, an appeal against a decision of the Department shall lapse if the decision is revised under this Article before the appeal is determined.’

79.	None of the circumstances which have been prescribed for the purposes of Article 10(6) apply in the instant case.  The language of the legislation - ‘shall’ – is mandatory.  The appellant alludes to the previous ‘appeal tribunal’ having made determinations in respect of ‘questions of overpayment’ which were binding on the appeal tribunal in the instant case.  He also refers to a ‘direction’ from the President to ‘reinstate and recalculate his IS from 5 August 2008’.  There is no legal basis on which the President could make such a direction.  I am unsure whether, in making a determination that the appeal against the decision dated 21 November 2009 had lapsed following the revision decision dated 15 October 2009, the President made some comment on the decision-making process.  It is the case, however, that the appeal lapsed and the decision-making process from that date reverted to the Department.  The appellant is within his rights to argue that the frustrating consequence of the lapsing of his appeal meant a further round of decision-making, review and appeal but that is what the procedural rules provide.  In summary, therefore, I am satisfied that there was no decision of an appeal tribunal which limited the jurisdiction of the Department and, subsequently, the appeal tribunal in the instant case.  The appellant could have challenged the determination which had the effect of lapsing his appeal through the judicial review process but did not do so.

80.	The appellant’s submission in connection with the appeal tribunal’s jurisdiction made reference to decisions on ‘overpayments.’  In another ground the appellant has referred to the denial of a right to respond to documents which the Department had failed to disclose to him and the ‘… claims of overpayments being made in respect of them’.  The decision which was under appeal was a decision which determined the appellant’s entitlement to IS for various periods.  There was no overpayment issue before the appeal tribunal and the appellant cannot challenge the decision of the appeal tribunal for failing to consider issues which were not within its jurisdiction.  It may be the case that there are other decisions of the Department which raise overpayments of benefit against the appellant.  There are appropriate appeal mechanisms for challenging such decisions.

81.	I now address several other matters which have been raised by the appellant.  The first of these concerned the composition of the appeal tribunal.  The appellant has argued, variously, that there were only two members of a ‘tribunal’ and questioned the inclusion of a Financially Qualified Panel Member (FQPM) on the appeal tribunal when he had not consented to this.  I have noted that in his observations in reply to those of Mr Rutledge, the appellant has also asserted that despite an adjournment for the inclusion of a FQPM no such member did, in fact, sit.  That latter point can be dealt with readily.  One of the two members who sat on the appeal tribunal hearing and determining the substantive appeal was a FQPM.

82.	Articles 7 and 8 of the Social Security (Northern Ireland) Order 1998, as amended, and regulation 36 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provide for the constitution/composition of appeal tribunals.  Article 7 provides for a panel for appointment to appeal tribunals.  Article 8(1) provides that ‘… an appeal tribunal shall consist of one, two or three members drawn from the panel constituted under Article 7.

83.	Regulation 36(3) permits the composition of an appeal tribunal with a LQPM and a FQPM.  In the instant case, the direction for the inclusion of an FQPM on the panel was made by the LQPM.  The LQPM has a residual power to determine the procedure at an oral hearing of an appeal under regulation 49(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  I find no fault with the manner in which the appeal tribunal panel was composed.  The inclusion of a FQPM was entirely appropriate.

84.	The appellant has asserted that the record of proceedings for the appeal tribunal hearing does not indicate the length of time which was devoted to the hearing and that given the complexity of the issues arising in the appeal such a record would be necessary.  In the template form which is used for the record of proceedings in appeal tribunal hearings there are sections where the LQPM may record the start and finish time of the hearing.  In the instant case, those sections are not completed.  That does not render the decision of the appeal tribunal as being in error of law.  It is of, course, best practice to complete all sections of the relevant form.  It is clear, however, from the detail of the remainder of the record of proceedings that the appeal tribunal gave due consideration to the issues arising in the appeal and took sufficient time to do so.  I have noted, in addition, that it was the appellant’s choice not to attend the oral hearing.

85.	The appellant has submitted that the appeal tribunal ‘failed to have regard to the Income Support Regulations throughout the hearing.’  I cannot, with respect, accept this ground of appeal.  With one exception, which is set out below, I am wholly satisfied that the appeal tribunal’s application of the applicable legal rules and principles was wholly accurate.  I have also noted that in his reply to the Department’s addendum the appellant had submitted that:

‘Disqualification on grounds of Chapter II of the 1987 IS Regs ( at app 1) makes no sense as the DSS are not claiming I was in employment or self employment and receiving income from an employer.’

86.	With respect to him, this involves a misunderstanding of the legal basis on which his entitlement to IS was considered.

87.	The appellant has challenged the appeal tribunal’s substitution of the calculation of the running balance of one of the appellant’s bank accounts.  I find no fault with the appeal tribunal’s conclusions in this respect which were based on the exploration of the issue as set out in the record of proceedings for the appeal tribunal hearing.

88.	The appellant has noted that the Department had resiled from an earlier concession that there were two bases on which the appeal tribunal had erred in law.  The role of the Department in proceedings before the Social Security Commissioner is to serve as amicus curiae.  That role involves making submissions in connection with all of the issues arising in the proceedings and, where necessary, making concessions in favour of the applicant or appellant where such are appropriate.  There is no reason, however, why the Departmental officer with responsibility for the conduct of proceedings in an individual case should not be permitted to resile from such a concession where, on reflection, the officer concludes that it was no longer appropriate.  The Social Security Commissioner, while always welcoming the submissions made by the Department, is not bound by them.

89.	Finally, I turn to the one issue where there is a measure of agreement between the parties.  This is summed up in paragraph 25 of the written observations on the application for leave to appeal prepared by Mr Rutledge and in paragraph 22 of Mr Crilly’s Case Summary which I replicate again:

‘‘I submit that the tribunal erred in law in respect of its conclusions concerning (the appellant’s) housing costs.  The tribunal found that he had acquired his mortgage on 30.03.01.  If it is accepted that (the appellant) was not entitled to income support at this time then he cannot be said to have acquired his mortgage during a relevant period and an award in respect of housing costs should have been considered during any subsequent periods of entitlement …

…

In view of the foregoing reasons, I submit that the Commissioner should set aside the tribunal’s decision, give the decision that the tribunal should have given and refer the case back to the Department for the calculation of housing costs in the award of (the appellant’s) income support.’

90.	I accept and adopt the concession made by Mr Crilly and, for the reasons which he has set out and, I emphasise, for those reasons alone, I have concluded that the decision of the appeal tribunal is in error of law.

	Disposal

91.	The decision of the appeal tribunal dated 11 December 2012 is in error of law. 

92.	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.

93.	I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.

94.	The decision of the Department dated 22 May 2009 as revised on 14 October 2010 is confirmed.  Accordingly, the periods in which it has been determined that the appellant is not entitled to IS and the periods in which it has been determined that IS is payable at a reduced rate, as set out in the revision decision of 14 October 2010, are confirmed.

95.	In accordance with the conclusions set out in paragraphs 89-90 above, the matter is referred back to the Department for the calculation of housing costs in the award of the appellant’s IS.  If agreement cannot be reached on the calculation of housing costs when this is undertaken either party is at liberty to apply to me for determination of the matter.  It would be helpful, if agreement is reached, if that outcome is conveyed to the Office of the Social Security Commissioners.

96.	It is important that the appellant notes that invitation to apply to me is restricted to the issue of the calculation of housing costs and does not extend to my conclusions on the substantive issues arising in the appeal.  The correspondence which will attach to this decision when issued to the appellant will outline the mechanism for a challenge to the substantive decision if such a challenge is thought by him to be appropriate.

(signed):  K Mullan

Chief Commissioner

18 January 2017