RC-v-Department for Social Development (IS) [2013] NICom 30 (15 May 2013)

RC-v-Department for Social Development (IS) [2013] NICom 30

Decision No: C1/13-14(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 12 June 2009

DECISION 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. The decision of the appeal tribunal dated 12 June 2009 is not in error of law. Accordingly the decision of the appeal tribunal that an overpayment of income support (IS) amounting to £53,504.00 for the period from 3 April 2001 to 25 October 2004 had been made and which was recoverable from the appellant is upheld.

Background

2. This appeal is linked to two other appeals before the Social Security Commissioners with the references C2/13-14(IS) and C3/13-14(IS).

3. The appellant claimed and was awarded, by way of a decision of the Department dated 21 March 2001, IS in respect of herself and her six children from 18 February 2001. On 30 November 2004 a decision, described as an ‘on-line’ decision, was made in the Department. The effect of this decision was to supersede the decision dated 21 March 2001 and removed entitlement to IS from and including 24 August 2004. On 8 February 2005 a decision was made that an overpayment of IS amounting to £54,997.35 for the period from 3 April 2001 to 25 October 2004 had been made which was recoverable from the appellant. The appellant was notified of the decision dated 8 February 2005 on 15 April 2005. An appeal against the decision dated 8 February 2005 was received on 15 April 2005.

4. On 18 June 2005 the decision dated 30 November 2004 was reconsidered and was revised. The new decision superseded the decision dated 21 March 2001 and removed entitlement from and including 3 April 2001. On 19 June 2005 the decision dated 8 February 2005 was reconsidered and was revised. A further decision was made that an overpayment of IS amounting to £53,504.00 for the period from 3 April 2001 to 25 October 2004 had been made which was recoverable from the appellant. An appeal against the decision dated 19 June 2005 was received in the Department on 28 June 2005. A further reconsideration of the decision took place on 29 June 2005 but the decision dated 19 June 2005 was not changed.

5. Following a series of postponements and adjournments, the substantive oral hearing of the appeal took place on 12 June 2009. The appeal was heard at the same time as two other appeals relating to this appellant. The appellant was present, was represented and her sister and ex-husband are recorded as attending as witnesses. The Department was represented by a Departmental presenting officer.

6. The appeal tribunal disallowed the appeal and issued a decision in the following form:

‘Appeal Disallowed. (The claimant) failed to disclose and misrepresented a material fact which resulted in an overpayment of Income Support for the period 3 April 2001 to 25 October 2004 amounting to £53504.00 which is recoverable from her.’

7. On 3 September 2009 an application for leave to appeal was received in the Appeals Service. On 21 September 2009 the application for leave to appeal was refused by the legally qualified panel member.

8. It should be noted that the appeal tribunal which heard the appeal which is the subject of the present proceedings also disallowed the two other appeals relating to this appellant which were also heard on 12 June 2009.

Proceedings before the Social Security Commissioner

9. On 20 October 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners from the appellant’s representative. This application was one of three separate applications for leave to appeal arising from the decisions of the appeal tribunal of 12 June 2009 in respect of three separate appeals.

10. On 9 December 2009 written observations on the application for leave to appeal were requested from Decision Making Services (DMS). Initial written observations were received from DMS on 25 January 2010. In these initial written observations, Mr McGrath, for DMS, opposed the application on the grounds submitted by the appellant’s representative. Written observations were shared with the appellant and her representative, Mr Tiernan, of Tiernans Solicitors, on 2 February 2010. On 17 May 2010 the then Chief Commissioner directed that no oral hearing of the application for leave to appeal would be required. On 21 June 2010 written observations in reply were received from Mr Tiernan which were shared with McGrath on 23 June 2010.

11. On 28 June 2010 Mr McGrath was requested to provide an additional submission on the following question - ‘To what extent does the statement of reasons for the appeal tribunal’s decision comply with the requirements set out in C6/08-09(IS) and C4/10-11(IS)? A further submission was received from Mr McGrath on 16 July 2010. The further submission was shared with the appellant and Mr Tiernan on 27 July 2010.

12. In connection with one of the two further applications for leave to appeal which were received at the same time as the application in this case, a further submission was received from Mrs Doran of DMS on 20 July 2010 which was shared with the appellant and Mr Tiernan on 29 July 2010. On 15 August 2010 a further submission was received from Mr Tiernan which was shared with Mr McGrath on 20 August 2010. Mr McGrath replied on 9 September 2010 making reference to another submission in connection with the parallel application for leave to appeal which was received from Mrs Doran on 9 September 2010.

13. In connection with appeal reference C2/13-14(IS), Mrs Doran was requested, on 18 August 2011, to provide a further submission on certain specific issues. A further submission was received from Mrs Doran on 23 September 2011 which was shared with the appellant and Mr Tiernan on 27 September 2011.

14. As was noted above, this appeal is linked to two other appeals which are presently before the Social Security Commissioners. The proceedings in one of the two other appeals were stayed as certain of the issues arising in that other appeal were the subject of consideration before another Social Security Commissioner in a separate case. That has, inevitably, led to a delay in the decisions in this and the related appeals being issued.

Errors of law

15. 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.

16. 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.”

Was the decision of the appeal tribunal in the instant case in error of law?

What did the Department decide?

17. As was noted above, the decision of the Department which was under appeal to the appeal tribunal was a decision dated 19 June 2005, which had revised the decision dated 8 February 2005, and decided that an overpayment of IS amounting to £53,504.00 for the period from 3 April 2001 to 25 October 2004 had been made which was recoverable from the appellant.

18. The basis on which the overpayment was raised was described in the original appeal submission as follows:

‘On 3^rd April 2001, or as soon as possible afterwards, (the claimant) failed to disclose the material fact that she had income in excess of her Income Support applicable amount.

Furthermore, (the claimant) also misrepresented this material fact when she signed the declaration on her order book each week that she had correctly reported any facts which could affect the amount of her payment, and that she was entitled to the said payment’

What did the appeal tribunal decide?

19. In the record of proceedings for the appeal tribunal decision, the appeal tribunal noted that it had before it the original appeal submission and further correspondence including a letter from the appellant’s former husband, dated 3 June 2009, and a letter from the Abbey National dated 18 March 2009. The appeal tribunal also heard submissions from the appellant’s representative which included reference to an opinion from senior counsel which had been submitted at the adjourned oral hearing held on 12 December 2008. The appeal tribunal also heard oral evidence from the appellant, her sister and her ex-husband.

20. The statement of reasons for the appeal tribunal’s decision is as follows:

‘This appeal is against an overpayment decision dated 19 June 2005 that (the claimant) was overpaid Income Support amounting to £53,504 for the period 3 April 2001 to 25 October 2004. This decision was in consequence [of] the supersession decision of 30 November 2004 which was revised on 18 June 2005.

The facts of this case are as set out in decision C3/13-14(IS).

On the basis of the evidence set out in that decision, the Tribunal found that (the claimant) was in receipt of income that exceeded her weekly applicable amount for Income Support purposes.

(The claimant) was paid her Income Support by Order Book which set out which facts she was required to disclose. The bank account was in her sole name and she was in receipt of bank statements and was therefore aware of the amounts of money going through the account. The account was also used by her.

(The claimant) failed to disclose the contents of this account to the department.

(The claimant) also misrepresented a material fact when she signed order book foils because she did not disclose the contents of this account.

As a result of both failure to disclose and misrepresentation there is an overpayment of Income Support for the period 3 April 2001-25 October 2004 amounting to £53,504 which is recoverable from her.

At the outset of the case it was confirmed by (the claimant’s) representative that no appeal was being made in respect of the amount of the overpayment. The dispute was solely that (the claimant) had no ownership of the monies in the account.’

21. In the statement of reasons for the decision in C3/13-14(IS) the appeal tribunal had set out the background to the appeal and the submissions made on behalf of the appellant. Thereafter the appeal tribunal concluded that:

‘The Tribunal took into account all the evidence presented and the opinion of Mr Orr QC. The argument presented was that the funds in the account were not (the claimant’s) but were held in trust by her for her husband. The account was in her sole name and she signed all the cheques and received the bank statements. Her Income Support was paid by her into this account and the account was used by her for the benefit of her children and to buy groceries. The Tribunal found that the bank account belonged to (the claimant) alone, that her husband did use the account both to lodge and pay out monies by way of her signing cheques. However the evidence established that (the claimant) also used this account both to lodge money and pay out cheques for general family expenditure.

The Tribunal was not satisfied that (the claimant) had no beneficial entitlement to monies in the account because of her continued use of the account herself. The Tribunal did not therefore find that the account was held in trust for her estranged husband. She may not have used monies relating to farming business but not all the money in the account went to her husband exclusively.

The Tribunal therefore found that the Decision Maker was entitled to take into account the monies in the bank account when deciding (the claimant’s) name [sic] for the purposes of calculating her entitlement to Income Support.

(The claimant) is therefore not entitled to Income Support from 23 November 2004 as the income exceeded her applicable amount.’

The submissions of the parties

22. In the application for leave to appeal which was received in the Office of the Social Security Commissioners, Mr Tiernan, on behalf of the appellant, submitted that the decision of the appeal tribunal was in error of law on the basis that:

‘It was put forward at the hearing that I did not own monies in my account. It was argued that the monies belonged to my husband, whom I am separated from, and he gave evidence at the hearing verifying his ownership of monies in my account. The Tribunal failed to accept this.’

23. These grounds were the same grounds which had been advanced by Mr Tiernan in each of the other applications for leave to appeal which were before the Social Security Commissioners. Although not specifically stated, I assume that the argument being advanced by Mr Tiernan was as follows. The appeal tribunal agreed with the Department that (i) the appellant failed to disclose the material fact that she had income in excess of her IS applicable amount and (ii) that the appellant also misrepresented this material fact when she signed the declaration on her order book each week that she had correctly reported any facts which could affect the amount of her payment and that she was entitled to the relevant payment. The argument on the part of the appellant was that the monies in the relevant bank account did not belong to the appellant but, rather, belonged to her ex-husband. Accordingly, there was no relevant fact which required to be disclosed to the Department and no material fact was misrepresented when signing the declaration on the relevant order book.

24. In his initial written observations on the application for leave to appeal, Mr McGrath submitted that attached to the appeal submission were copies of the order book instructions which were relevant for the period of the overpayment. Mr McGrath set out the details of these instructions in his written observations and submitted that the appellant was informed, as the appeal tribunal had found, of the changes which she should notify and where notification should be made. Mr McGrath also set out the details of the declaration which the appellant signed after she cashed an IS order:

‘The declaration contained on the counterfoil states,

I declare that I have read and understand all the instructions in this order book, that I have correctly reported any facts which could affect the amount of my payment and that I am entitled to the above sum.

I acknowledge receipt of the above sum.

I would submit that (the claimant) failed to disclose the material fact that she had income in the form of the money in her bank account and that each order book foil declaration she signed was a misrepresentation of the fact that she had reported this change in her circumstances as was instructed to do so.’

25. As the grounds set out in the application for leave to appeal in the instant case are the same as those in the two parallel appeals before the Social Security Commissioners, it is important to set out the further submissions of the parties in connection with those appeals.

26. In her initial written observations on the other applications for leave to appeal, Mrs Doran, for DMS, began by making reference to the opinion of senior counsel which was submitted to the appeal tribunal at the adjourned oral hearing on 12 December 2008. That opinion had included the following:

‘In this matter, therefore, in equity there is a clear presumption that the monies in the bank account belonged to (the claimant) and the onus would be on her to establish that it was merely held upon trust for her husband. The documentation before me contains only bank accounts and statements of (the claimant) and does not show, for example, the destination of sums withdrawn from the account. If (the claimant) can establish on a satisfactory basis that all of the monies going out of the account went to her husband or were cheques used to pay his debts, it may be possible for her to establish that she held the account upon trust for her husband and that she had no beneficial entitlement to it.’

27. As Mrs Doran has noted, the purpose of the adjournment of the oral hearing held on 12 December 2008 was to permit the appellant and her representative to have the opportunity to ‘… provide additional information relating to the use of the Appellant’s bank account to the Appeals Service within 8 weeks.’

28. Mrs Doran, in her written observations on the application for leave to appeal, noted that correspondence dated 18 March 2009, from the Abbey National, had been submitted by the appellant’s representative at the substantive oral hearing of the appeal. That correspondence confirmed that all cheques written before March 2003 had not been retained in line with the company’s retention policy. Mrs Doran submitted, however, that the record of proceedings for the appeal tribunal hearing demonstrate that evidence was submitted in the form of cheque ‘stubs’. In connection with this evidence, Mrs Doran submitted that:

‘… The Tribunal concluded that, on the basis of the evidence presented (the claimant) used the account both to lodge money and pay out cheques for general family expenditure. The Tribunal found that (the claimant) had continued use of the account herself indicating that whilst she may not have used all the money withdrawn for her own use, not all of the money withdrawn was used by her husband exclusively.

I respectfully submit that the Tribunal has shown that it gave the evidence of the cheque stubs due consideration. I further submit that the decision reached by the Tribunal was based on this consideration and its findings were presented in a well-reasoned manner. For these reasons I do not support (the claimant’s) appeal on the grounds that the Tribunal failed to accept the contention that the money in the account was not hers.

I submit that whilst (the claimant) was prevented from obtaining copies of all cheques written prior to March 2003, the cheque stubs that she did provide did not prove conclusively that the bank account was being used by her ex-husband alone. (The claimant) contended that despite the account being in her name, all transactions were carried out by her ex-husband for the purpose of running his business. As her own counsel pointed out, the burden of proving this lay with (the claimant). It is my submission that (the claimant) has failed to discharge this burden of proof and the evidence presented by her suggests that both her and her husband used the account and had access to the money therein.’

29. Mrs Doran then provided observations on the evidence provided by the appellant’s ex-husband, both in the correspondence dated 3 June 2009 and in his oral evidence to the appeal tribunal. Mrs Doran submitted that:

‘… there is no doubt that (the claimant’s ex-husband) had access to the account and this is verified by the cheque stubs which were made out to the cattle marts. However I further submit that the contention that (the claimant’s ex-husband) owned the money in the account and that (the claimant) did not have any ownership of the money within the account, is not supported by the available cheque stubs or indeed statements from (the claimant) where she admits to using the account for herself for the purchase of goods and requirements of her children.

I respectfully submit that the Tribunal considered the evidence from (the claimant’s ex-husband) and did agree that some of the money and expenditure from the account was that of the claimant’s ex-husband. However without a complete list of the deposits and the withdrawals to and from the account, I submit that it would be impossible for a distinction to be made between what money belonged to the appellant and how much belonged to her ex-husband.’

30. In relation to the appeal tribunal’s overall assessment of the evidence which was before it, Mrs Doran submitted that:

‘The appellant’s main ground of appeal is that despite the evidence presented the Tribunal failed to accept the contention that the money in the account was her husband’s. I respectfully submit that the opposite is in fact the case. The transcript of the reasons for the decision and the record of proceedings show that the Tribunal had given all the evidence presented due consideration. I respectfully submit that the Tribunal reached the decision it did on the basis of its consideration of the evidence and was entitled to reach the conclusion it did because it did so in a well informed and reasoned manner.’

31. In written observations in reply to those from Mrs Doran, dated 18 June 2010, Mr Tiernan submitted that the Department had arrived at its decision to refuse entitlement to IS on the basis that the appellant’s income exceeded her applicable amount. Mr Tiernan submitted that the evidential basis for the decision was that the Department had concluded that all payments into the appellant’s bank account must be income. Mr Tiernan submitted that the appellant’s only source of income was child benefit (CB). All of the additional lodgements which were made to the appellant’s bank account by her ex-husband. The appellant’s ex-husband was a farmer, residing in the Republic of Ireland, who, because he was in the midst of bankruptcy proceedings, was unable to open a bank account in Northern Ireland. Mr Tiernan submitted that the appellant’s ex-husband utilised the appellant’s bank account to make payments to suppliers and businesses by paying monies into the account and forcing the appellant to pay the monies out again to the relevant recipient. The appellant had reluctantly agreed to that arrangement due to a history of harassment, abuse and domestic violence in the relationship.

32. Mr Tiernan submitted that any money paid into the appellant’s bank account under this arrangement was not for the benefit of the appellant and she received no such benefit. Evidence from the cheque ‘stubs’, certain of which were specified by Mr Tiernan, confirmed the payment in and out of the bank account in connection with the business of the appellant’s ex-husband. It was Mr Tiernan’s submission that any lodgements to the bank account over and above the appellant’s CB could not be considered to be income. The Department had erred by classifying such payments as income when calculating entitlement to IS. The only source of income should have been the appellant’s CB.

33. In a further written submission, Mrs Doran noted the list of cheque ‘stubs’ and payees referred to in those ‘stubs’ which had been referred to by Mr Tiernan in his written observations in reply dated 18 June 2010. Mrs Doran noted that the Department had access to the appellant’s bank statements for the period from February 2002 to April 2002. She submitted that:

‘… The cheque stubs listed above outline 3 cheques written in February 2002 yet the bank statements list 20 cheques cashed during February 2002. The list above shows one cheque stub written during March 2002 yet the bank statements show 16 cheques cashed during March 2002. The list above also shows 2 cheques written during April yet the bank statements show 22 cheques were cashed during April 2002.

I submit that the evidence provided by (the claimant) to substantiate her claims is limited and does not adequately explain every transaction detailed on the bank statements. With this in mind I do not agree with (the claimant’s) representative’s statement at paragraph 13 of the further comments;

“It is therefore submitted that these cheques prove that any lodgements over and above (the claimant’s) Child Benefit into her bank account cannot be considered income.”

I respectfully submit that whilst the cheque stubs listed above prove (the claimant’s ex-husband) was using the account to run his business they do not prove that he was the only one using the account. The bank statements show that this account was very active and there were many transactions carried out every month. Despite this, however, I submit that only a few selective cheque stubs have been provided. It is my understanding that cheque stubs are held in a cheque book in numerical order however there has been no explanation as to why only specific stubs have been made available. It is my submission that the fact that so few cheque stubs have been presented in relation to the large number of cheques written during the period February 2002 to April 2002 supports the contention that whilst (the claimant) had use of this account for his business requirements, he was not the only person who had use of this account. In support of this view are the more recent bank statements which cover the period from October 2003 to September 2004. These statements contain more information on specific transactions and show the account being used to pay direct debits, to make payments to various organisations including “Sky Digital”, “O2”, “A Beautiful Figure”, to “New Images” “McAnerney Bros Ltd” and to the “Bike Centre”

For the reasons outlined above I do not accept (the claimant’s) representative’s claims that the cheque stubs prove that any lodgements over and above £60.70 child benefit payments cannot be considered as the income of (the claimant).’

34. Mrs Doran also submitted that there appeared to be a contradiction in the evidence concerning the ownership of the monies in the relevant bank account in that in his correspondence of 3 June 2009 the appellant’s ex-husband had stated that the appellant ‘… had no ownership of the monies in the account’ while the appellant’s own oral evidence to the appeal tribunal, as recorded in the record of proceedings for the appeal tribunal hearing, was that she did lodge and withdraw monies from the account.

35. In a further written submission, dated 15 August 2010, Mr Tiernan submitted that:

(i) any money in the appellant’s bank account could not be regarded as income for the purpose of entitlement to IS but had to be regarded as capital and, in turn, had to be capital which belonged to the appellant’s ex-husband;

(ii) the appellant had provided sufficient evidence to support her case;

(iii) the appellant had been unable to obtain copies of all cheques from her account. The appellant did put forward three cheque books which showed that the appellant’s husband had use of the account;

(iv) any payments made into the account, over and above those relating to CB, could not be considered to be income;

(v) the appellant’s ex-husband did utilise the bank account between 2001 and 2005 but for the purposes of business transactions of an agricultural nature.

36. In response to this submission, Mr McGrath made reference to the comments made by Mrs Doran, dated 9 September 2010 in connection with the appeals in C2/13-14(IS) and C3/13-14(IS).

Analysis

37. As was noted above, 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. An application to the Social Security Commissioner for leave to appeal requires the appellant to identify the grounds or basis on which it is submitted the decision of the appeal tribunal is in error of law. Having considered the application made by the applicant, and the grounds set out in the application, I am satisfied that no error of law can be identified.

38. The challenge which Mr Tiernan makes to the decision of the appeal tribunal centres on the manner in which the appeal tribunal assessed the evidence concerning the ownership, organisation and management of the bank account with the Abbey National. As was noted above, although not specifically stated, the argument being advanced on behalf of the appellant was that the monies in the relevant bank account did not belong to the appellant but, rather, belonged to her ex-husband. Accordingly, there was no relevant fact which required to be disclosed to the Department and no material fact was misrepresented when signing the declaration on the relevant order book.

39. In Quinn v Department for Social Development ([2004] NICA 22), the Court of Appeal emphasised that assessment of evidence and fact-finding role is one for the appeal tribunal. At paragraph 29, the Court stated:

‘It is clear that the Tribunal considered Dr M’s report since they refer to it in their findings and describe it as being less than helpful. The challenge to the Tribunal’s attitude to the report cannot proceed on the basis that they ignored it; rather it must be either that they misconstrued it or they failed to give it sufficient weight. As to the latter of these two possibilities it is of course to be remembered that a view of the facts reached by a tribunal can only be interfered with by the Court of Appeal in limited and well-defined circumstances.

Carswell LCJ described those circumstances in Chief Constable of the RUC v Sergeant A [2000] NI 261 at 273f as follows: -

“A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless-

(a) there is no or no sufficient evidence to found them, which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR 697 at 699, per Lord Sutherland); or

(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, per Viscount Simonds at 29 and Lord Radcliffe at 36.”’

40. At paragraph 4 of R(DLA) 3/04, Mrs Commissioner Brown had made similar remarks:

‘I should state at the outset that the weight to be given to any evidence is completely a matter for the Tribunal. The weight to be given to an item of evidence is a matter of fact. That means that I can disturb it only if that conclusion as to weight is one which no reasonable Tribunal could have reached. Having examined Dr M...’s report I do not consider that the Tribunal’s conclusions as to the weight to be given to it are such as no reasonable Tribunal could have reached.’

41. Having considered the record of proceedings for the appeal tribunal’s decision and the statement of reasons for the appeal tribunal’s decision, I am wholly satisfied that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it. The appeal tribunal gave 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 been clearly resolved and explained. The appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence. None of the appeal tribunal’s findings are irrational, perverse or immaterial. Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.

42. In many ways, the appellant’s application for leave to appeal to the Social Security Commissioner amounts to a further submission on factual issues rather than questions of law. It is clear that an appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence, when that assessment has already been fully and thoroughly undertaken.

43. It has been submitted on behalf of the appellant that her involvement with the relevant bank account in the Abbey National was extremely limited and that such involvement related to the deposit of sums equating to her entitlement to social security benefits and the withdrawal of equivalent sums for her benefit and that of her children. Further it was submitted that the principal controlling influence over the relevant bank account lay with her ex-husband who, being unable to open a bank account in Northern Ireland due to his participation in bankruptcy proceedings and requiring a bank account to further his agricultural business interests in Northern Ireland, forced the appellant to manage and organise the relevant bank account on his behalf.

44. It is important to note that the appeal tribunal accepted that the appellant’s ex-husband had an involvement with the relevant bank account. What the appeal tribunal did not accept was that the appellant’s own involvement was as limited as she was claiming. I cannot find any fault with the appeal tribunal’s conclusions in that regard. I have had access to details of the relevant bank account from the date on which it was opened on 3 April 2001 to October 2004. It is clear that the account was busy and active and that there were numerous monthly transactions relating to the account during that period. The Department has confirmed that over £180,000 went through this account in the three and a half year period from 3 April 2001 to 1 October 2004. While I accept that certain of those transactions were driven by and for the exclusive benefit of the appellant’s ex-husband and related to transactions in connection with his agricultural business, I am wholly satisfied that the appellant had an equal and active involvement in the organisation and management of the account and was free to utilise the account for her benefit.

45. I am equally not convinced that there was the degree of coercion by the appellant’s ex-husband that has been suggested. The range and variety of transactions in connection to the account are such that the appellant has had free rein to utilise the account to her advantage. Within the papers which are before me are four used cheque books relating to the appellant’s Abbey National bank account. Within those cheque books remain the cheque ‘stubs’ which have been completed with details of the payee and amount of the cheque. The cheque books cover the periods of April 2002, May 2002, July 2002 and August 2003. It is clear from the details of the completed cheque ‘stubs’ that during the relevant periods, cheques for various amounts were made payable to:

· Northern Ireland Electricity

· BT

· Boots

· Next

· ‘Phone’

· ‘Tickets’

· ‘Fixed Penalty’

· ‘MWear’

· JJB Sports

· La Redoute

· Harry Corry

· Wardrobe

46. I have considered the submission made by Mr Tiernan that the payments made into the relevant bank account should not be considered to be income for the purposes of entitlement to IS but, rather, should be considered to be capital which belonged to the appellant’s ex-husband. In connection with this submission, Mrs Doran, for DMS, submitted that:

‘Income

(The claimant’s) representative has submitted that the money passing through (the claimant’s) account cannot be taken as income because the money is not payments, it cannot form part of a series of payments and therefore does not fall within the definition of “Income” out lined in the Decisions Makers Guide (DMG) at paragraph 28002 as quoted in my letter dated 20 July 2010. For this reason it has been submitted that this money is capital rather than income. I disagree with (the claimant’s) representative’s contention for the following reasons.

This account was opened on 03 April 2001 and, in the first three months transactions, there were 18 lodgements made into (the claimant’s) account. I respectfully submit that although these payments are not made on the same date every month or at regular weekly or monthly intervals they are sufficiently recurring to be treated as a series of payments. This list of payments is typical of the pattern of lodgements paid into (the claimant’s) account as illustrated by the bank statements. In my view each of these payments are part of a series of payments and as such they fit within the definition outlined in the DMG at paragraph 28002.

Capital

It is further submitted by (the claimant’s) representative that the money in her account is capital. “Capital” is defined in the DMG at paragraph 29020 as consisting of savings, lump sums, investments, property or a beneficial interest in the capital of a trust. With regard to individual payments the DMG states;

29021 A payment is capital if it is

1. not made or due to be made regularly and

2. made without reference to a period.

The payment is income if this does not apply.

The definition above refers to “a payment” and correctly directs a decision maker to treat a one off payment that is not expected to be repeated on a regular basis, as capital. This cannot apply to (the claimant’s) case because as I have illustrated above, the payments into her account are numerous and form a series of payments and correspond fully with the definition of “Income” as previously outlined. For this reason I disagree that the money in (the claimant’s) account is capital. Regarding the ownership of the money in the account, this issue is the subject of this appeal and the Department’s position has been outlined in previous submissions.’

47. I am in broad agreement with the submission made by Mrs Doran on both income and capital and accept that her general analysis, based on the contents of the Decision Makers’ Guide, reflects the accepted definitions of income and capital for the purposes of entitlement to social security benefits. I also accept the application of those definitions to the facts of the present appeal. Accordingly, and with respect to Mr Tiernan’s submission, I cannot accept it. I am satisfied that the appeal tribunal’s application of the applicable legal rules and principles with respect to income was wholly accurate.

48. The decision of the appeal tribunal was to confirm the decision of the Department that (i) the appellant failed to disclose the material fact that she had income in excess of her IS applicable amount and (ii) that the appellant also misrepresented this material fact when she signed the declaration on her order book each week that she had correctly reported any facts which could affect the amount of her payment and that she was entitled to the relevant payment. The appeal tribunal also concluded that the appellant was aware of the duties to disclose material facts and the specific instructions on what and how to disclose. Further the appellant was aware of the nature of the declaration on the relevant order book.

49. I do not agree that the decision of the appeal tribunal was in error of law on the basis of the grounds cited in the application for leave to appeal and in the accompanying submissions. The appeal tribunal’s conclusion that the appellant had no entitlement to IS because her income exceeded her applicable amount; that she had failed to disclose the material fact that she had income in excess of the applicable amount for IS; and she had also misrepresented that material fact when she signed the declaration on her order book each week is upheld.

50. As was noted above, Mr McGrath was asked to provide an additional submission on the issue of the extent to which the statement of reasons for the appeal tribunal’s decision complied with the requirements set out in C6/08-09(IS) and C4/10-11(IS). In response, Mr McGrath submitted that the statement of reasons for the appeal tribunal’s decision read in conjunction with the statement of reasons in the cross-referred decision in C3/13-14(IS), there was compliance with the requirements set out in the decisions above. I agree with Mr McGrath’s conclusions in respect of this issue.

51. I have also noted that the appeal tribunal, in its cross-referred statement of reasons in C3/13-14(IS) considered the opinion from senior counsel which was submitted on behalf of the appellant. As was noted above, in that opinion senior counsel had submitted that:

‘… in equity there is a clear presumption that the monies in the bank account belonged to (the claimant) and the onus would be on her to establish that it was merely held upon trust for her husband. The documentation before me contains only bank accounts and statements of (the claimant) and does not show, for example, the destination of sums withdrawn from the account. If (the claimant) can establish on a satisfactory basis that all of the monies going out of the account went to her husband or were cheques used to pay his debts, it may be possible for her to establish that she held the account upon trust for her husband and that she had no beneficial entitlement to it.’

52. The appellant was given a lengthy adjournment for the purpose of adducing evidence which might satisfy senior counsel’s requirement that all of the monies going out of the account went to the appellant’s ex-husband or were used to pay his debts. It is clear that the appeal tribunal was not satisfied that the appellant could establish on a satisfactory basis that the monies going out of the account were for her ex-husband’s benefit and, accordingly, was not satisfied that she held the bank account on trust for him and had no beneficial entitlement to it. I can find no fault with the appeal tribunal’s conclusions in this regard.

53. As was noted above, Mrs Doran, in the two related appeals which are before the Social Security Commissioners, was requested to provide an addition submission on the decision-making process which gave rise to the three decisions which were the subject of the conjoined appeals to the appeal tribunal below, and which were the subject of the three related appeals before the Social Security Commissioners. Mrs Doran provided a response to that request through the provision of a further submission dated 23 September 2011. I accept that submission in its entirety and, for the reasons set out therein, I am wholly satisfied that the decision-making process was correct and accurate.

54. The Department was also asked to provide a further submission on the applicability of the decision of the Court of Appeal in Hamilton v Department for Social Development ([2010] NICA 46) on the issues arising in the related appeals. In response to this request, a further submission was provided by Mr McGrath from DMS. For the reasons set out by Mr McGrath in his further submission, I agree that the duties set out by the Court of Appeal in Hamilton, have been complied with.

55. Finally, I have noted the submission made by Mrs Doran in her initial written observations on the application for leave to appeal in C2/13-14(IS) that the Department in its decisions dated 30 November 2004 and 18 June 2005 had specified specific amounts by which the appellant’s income had exceeded her applicable amount. Mrs Doran submitted that it would not be possible to specify that the appellant’s income did exceed her applicable amount by these exact figures on each week during the relevant period. That was because (i) it was clear that the appellant’s income, as evidenced by the transactions in the bank account, varied from week to week and (ii) the rate of entitlement to IS would also have varied. Mrs Doran submitted, however, that it was clear that for each and every week during the relevant period the appellant’s income did exceed her applicable amount. I agree with Mrs Doran’s conclusions on this specific issue and, for the reasons set out by her, also agree that the Departmental decisions were not in error.

Disposal

56. The decision of the appeal tribunal dated 12 June 2009 is not in error of law. Accordingly the decision of the appeal tribunal that an overpayment of IS amounting to £53,504.00 for the period from 3 April 2001 to 25 October 2004 had been made and which was recoverable from the appellant is upheld.

(signed): K Mullan

Chief Commissioner

23 April 2013

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	Northern Ireland - Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> RC-v-Department for Social Development (IS) [2013] NICom 30 (15 May 2013) URL: http://www.bailii.org/nie/cases/NISSCSC/2013/30.html Cite as: [2013] NICom 30

Northern Ireland - Social Security and Child Support Commissioners' Decisions