MG-v-Department for Social Development (JSA) [2016] NICom 32

Decision No:  C7/15-16(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

JOBSEEKERS ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 12 September 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 12 September 2014 is in error of law.  The error of law identified will be explained in more detail below.  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.

	Background

2.	On 25 July 2013 a decision-maker of the Department decided that an overpayment of income-based jobseeker’s allowance (JSA), amounting to £1785.14, had occurred for the period from 3 October 2012 to 27 March 2013 which was recoverable from the appellant.  An appeal against the decision dated 25 July 2013 was received in the Appeals Service (TAS) on 22 May 2014.  The reason for the appeal arriving so long after the date of the decision was problems with notification of the decision to the appellant.  I will examine below the further decision-making process which took place after 25 July 2013.

3.	The appeal tribunal hearing took place on 12 September 2014.  The record of proceedings for the appeal tribunal hearing notes that the appellant had elected to have an oral hearing of her appeal.  On the morning of 12 September 2014 the clerk to the appeal tribunal received a telephone call from the appellant.  The appellant indicated that she was unable to attend the oral hearing as she had ‘a previous appointment.’  It is noted that the clerk to the appeal tribunal made enquiries from the appellant as to the nature of the previous appointment, the purpose of it and where it was.  The appellant gave no evidence on these questions.  The Legally Qualified Panel Member (LQPM) gave consideration to the application to adjourn but refused that application and proceeded in the appellant’s absence.  The appeal tribunal disallowed the appeal and confirmed the decision dated 25 July 2013.

4.	From the papers which are before me there is a computer database record that an application for leave to appeal to the Social Security Commissioner was received in TAS on 2 March 2015.  I am of the view that the date of ‘2 March 2015’ must be wrong.  The statement of reasons for the appeal tribunal’s decision was forwarded to the appellant on 2 March 2015 and there is correspondence dated 23 March 2015 to the appellant from the clerk to TAS acknowledging receipt of the application for leave to appeal.  In any event, on 8 April 2015 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

5.	On 8 June 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  The application to the Social Security Commissioner was received outside the time limit for making an application for leave to appeal to the Commissioner, as set out in Regulation 9(2) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended.

6.	On 8 September 2015 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations received on 7 October 2015, Mr Smith, for DMS, supported the application for leave to appeal.

7.	Written observations in reply were received from the appellant on 7 November 2015 and were shared with Mr Smith on 19 November 2015.  On 2 December 2015 further correspondence was received from Mr Smith which was shared with the appellant on 4 December 2015.  On 25 January 2016 I accepted the late application for special reasons and granted leave to appeal.  In granting leave to appeal I gave, as a reason, that it was arguable that the appeal tribunal had failed properly to apply paragraph 17A of Schedule 7 to the Jobseeker’s Allowance Regulations (Northern Ireland) 1996, as amended.  On the same date I also determined that having considered the circumstances of the case and any reasons put forward in the request for a hearing, I was satisfied that the appeal could properly be decided without a hearing.

	Errors of law

8.	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?

9.	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.”

	Why was the decision of the appeal tribunal in the instant case in error of law?

10.	Mr Smith, for DMS, has prepared written observations on the application for leave to appeal which are comprehensive, constructive, address the complex issues which arise in the appeal and make positive suggestions for a resolution of those issues.  Although they are lengthy, I have no hesitation in setting out the following extracts from the written observations:

‘It is noted in the appeal submission and the Record of Proceedings that the appeal in this case is against a recoverability decision of the Department dated 25.07.13.  This decision emanated from an entitlement decision dated 02.07.13.

The entitlement decision dated 02.07.13 which give rise to the recoverability decision was made on-line on the Department’s computer system and as a consequence a hard copy of the decision could not be included in the appeal submission.  Instead the appeal submission included a signed statement from an officer of the Department giving an explanation of the content of the decision.  The officer’s statement advised that:

“On 02.07.13 the decision maker decided to supersede the decision dated 22.08.12 because there was a relevant change of circumstances since that decision was given, namely that on 03.10.12, or as soon as practicable after, (the appellant) failed to disclose the material fact that she failed to provide details of her compensation claim settlement.

As a consequence, the decision maker decided that based on the available evidence, (the appellant) had capital exceeding the prescribed limit of £16,000 and therefore had an applicable amount of NIL from 02.10.12.”

Firstly, I would like to point out that I am not sure how (the appellant) can fail to disclose the material fact that she failed to provide details of her compensation settlement.  Whatever the phrase is supposed to mean, receipt of the compensation payment does not, contrary to what the Departmental officer has said, constitute a “relevant change of circumstances” for the purposes of superseding the award of JSA.  This is because paragraph 17A of Schedule 7 to the Jobseeker’s Allowance Regulations (NI) 1996 provides that a payment made in consequence of a personal injury is disregarded as capital for a period of up to a maximum of 52 weeks from the date of receipt.

Secondly, the Departmental officer has explained that “as a consequence” of the failure to disclose and based on the evidence, (the appellant) had capital exceeding £16,000 and therefore had “an applicable amount of NIL”.  If the evidence showed that (the appellant) had capital in excess of the prescribed amount, (and that it could not be disregarded) she would not have had an applicable amount of “NIL”, she would have had no entitlement to JSA at all pursuant to regulation 107 of the Jobseeker’s Allowance Regulations (NI) 1996.

The excess capital which the Department attributed to (the appellant) was monies she received as a result of a compensation payment in respect of personal injuries she suffered.  As rightly pointed out by (the appellant) to the Department, this compensation payment should have been disregarded as capital pursuant to paragraph 17A of Schedule 7 to the Jobseeker’s Allowance Regulations (NI) 1996.  Paragraph 17A of Schedule 7 provides:

Capital to be Disregarded

17A.—(1) Any payment made to the claimant or the claimant’s partner in consequence of any personal injury to the claimant or, as the case may be, the claimant’s partner.

(2) But sub-paragraph (1)— 

(a) applies only for the period of 52 weeks beginning with the day on which the claimant first receives any payment in consequence of that personal injury;

(b) does not apply to any subsequent payment made to him in consequence of that injury (whether it is made by the same person or another);

(c) ceases to apply to the payment or any part of the payment from the day on which the claimant no longer possesses it;

(d) does not apply to any payment from a trust where the funds of the trust are derived from a payment made in consequence of any personal injury to the claimant.

(3) For the purposes of sub-paragraph (2)(c), the circumstances in which a claimant no longer possesses a payment or a part of it include where the claimant has used a payment or part of it to purchase an asset.

(4) References in sub-paragraphs (2) and (3) to the claimant are to be construed as including references to his partner (where applicable).

Paragraph 17A(1) of Schedule 7 refers to “any payment” made in consequence of a personal injury.  Accordingly there is no upper limit to the amount that can be disregarded for JSA purposes and for this reason the compensation payment which (the appellant) received should not have been treated as capital until the prescribed time had elapsed.

I should add that (the appellant) has not helped in this matter.  If she had supplied the relevant information requested by the Department i.e. the amount of compensation received, the decision to disallow JSA from 03.10.12 may not have been made and payment of benefit could have continued providing that all the other conditions of entitlement were satisfied.

The evidence clearly indicates that the DM, when making the decision dated 02.07.13, was aware that the payment (the appellant) received was compensation for injuries she suffered.  The compensation payment, which was received on 02.10.12, should not have been treated as capital until October 2013 pursuant to paragraph 17A of Schedule 7.  Therefore I submit the decision dated 02.07.13 is erroneous in law.’

11.	I accept the detailed analysis set out by Mr Smith and, for the reasons which have been set out by him, agree that the decision of the appeal tribunal is in error of law.  I also accept the comments which have been made by him concerning the failure by the appellant to provide, when requested, to the Department certain information.  As has been pointed out by Mr Smith, receipt of that information by the Department may have obviated the negative decision to disallow entitlement to JSA.

12.	In this regard I am reminded of the comments of Baroness Hale of Richmond in the seminal case of Kerr v Department for Social Development ([2004] UKHL, 23; [2004] 1 W.L.R. 1372, also reported as an appendix to R1/04 (SF)).  At paragraphs 61 to 63 she stated:

‘61.	Ever since the decision of the Divisional Court in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble [1958] 2 QB 228, it has been accepted that the process of benefits adjudication is inquisitorial rather than adversarial.  Diplock J as he then was said this of an industrial injury benefit claim at p 240:

“A claim by an insured person to benefit under the Act is not truly analogous to a lis inter partes.  A claim to benefit is a claim to receive money out of the insurance funds . . .  Any such claim requires investigation to determine whether any, and if so, what amount of benefit is payable out of the fund.  In such an investigation, the minister or the insurance officer is not a party adverse to the claimant.  If analogy be sought in the other branches of the law, it is to be found in an inquest rather than in an action.”

62.	What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part.  The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met.  The claimant is the one who generally speaking can and must supply that information.  But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.

63.	If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof.  The first question will be whether each partner in the process has played their part.  If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it.  As Mr Commissioner Henty put it in decision CIS/5321/1998, “a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn.”  The same should apply to information which the department can reasonably be expected to discover for itself.’

13.	Mr Smith went on to identify another error by the appeal tribunal, as follows:

‘(The appellant) did not appeal against the entitlement decision which led to the recoverability decision however the Tribunal is entitled, pursuant to GB Commissioners’ decisions CIS/1330/2002 and CIS/4423/2006, to examine the entitlement decision to ensure that the recoverability decision was correctly made.  That said, the Tribunal dealing with the overpayment appeal is not bound by the findings of fact in relation to the entitlement decision which led to that recoverability decision.  Rather, the overpayment Tribunal is entitled to make its own findings of fact in relation to the entitlement question but only so far as the recoverability question is concerned: it cannot interfere with or revise the entitlement decision in these circumstances because, as outlined by the Commissioner in CIS/4423/2006, it has no jurisdiction to allow it do so.

In his Reasons for Decision the LQM recorded “After perusing the papers in detail and taking into account the available evidence the panel noted that as a result of the decision of 2 July 2013 made by the Department, an overpayment of Job Seekers Allowance: Income based, had been made from 3 October 2012 to 27 March 2013 (both dates inclusive)”.  Continuing, the LQM recorded “I am satisfied that there were adequate grounds for a supersession decision and this supersession was properly carried out and notified to (the appellant) on 2 July 2013”.

It would appear then that the Tribunal did examine the entitlement decision dated 02.07.13 accepting that the payment was made as a result of a compensation award.  Regrettably, it failed to appreciate that the payment should have been disregarded as capital for JSA purposes.  The Tribunal then upheld the decision which sought recovery of £1,785.14 for the period 03.10.12 to 27.03.13 but the LQM inexplicably noted in the decision notice dated 12.09.14 that an overpayment of £1,075.14 for the period 03.10.12 to 16.01.13 was recoverable from (the appellant).  The Tribunal never mentioned the overpayment of £1075.14 in its Record of Proceedings or its Reasons For Decision.  Therefore I submit that the Tribunal has erred in law by failing to explain how it reached this conclusion.’

14.	Once again I accept and adopt Mr Smith’s analysis.  I would ask the LQPM of the appeal tribunal to note the following comments from Mr Smith:

‘The Tribunal was not helped in this matter by the Department.  In her written submission the Appeal writer gave an explanation of the decision under appeal at Section 3 as follows:

“The decision under appeal is the decision dated 25-Jul-2013 in which the decision maker decided that (the appellant) was overpaid £1,785.14 Jobseeker’s Allowance, which is recoverable.

As a result of the decision dated 02-Jul-2013 an overpayment of Jobseeker’s Allowance: Income Based has been made from 03-Oct-2012 to 27-Mar-2013 (both dates included) amounting to £1,785.14.  On 03-Oct-2012, or as soon as practicable after, (the appellant) failed to disclose the material fact that she failed to provide details of her compensation claim settlement.  As a consequence, Jobseeker’s Allowance: Income Based amounting to £1,785.14 from 03-Oct-2012 to 27-Mar-2013 (both dates included) was paid which would not have been paid but for the failure to disclose.  Accordingly that amount is recoverable from (the appellant).

(The appellant) appealed the overpayment decision.  The overpayment was reconsidered.  The decision maker decided that based on a disclosure date of 16-Jan-2013, the new recoverable period is 03-Oct-2012 to 16-Jan-203 and the recoverable amount is £1,075.14.

As (the appellant’s) grounds of appeal were not satisfied in the reconsideration, the reduced overpayment did not lapse the appeal.”

In her explanation the Appeal writer declared that the decision under appeal is the decision of the Department dated 25.07.13.  She also stated that the overpayment was reconsidered, explaining that this was because the DM accepted that disclosure had been made on 16.01.13.  It is further recorded that the DM determined a new recoverable period as 03.10.12 to 16.01.13 and the new amount to be recovered as £1075.14.  It is this amount that the Tribunal has noted in its written notice of decision is recoverable from (the appellant).  The Appeal writer has inferred that the decision of 25.07.13 was revised by the Department, however, on examination of the papers, it is evident that the decision dated 25.07.13 was never revised (see below) and this has led to confusion for the Tribunal.

At paragraph 18 of Section 4, the Appeal writer stated “The decision of 25-Jul-2013 was reconsidered on 05-Jun-2014 and was revised.”

The Appeal writer declared that the recoverability decision dated 25.07.13 was revised on 05.06.14 and adduced Tab 21 as evidence.  However, Tab 21 is a copy print-out of an e-mail sent from an officer of the Debt Centre (NI) to the Appeal writer in which he clearly states “As the appeal is going to continue no revised decision can be made at this stage.”  The Appeal writer has adduced misleading information to the Tribunal by stating that the decision dated 25.07.13 was revised.

At paragraph 18 of Section 5, the Appeal writer requests that the Tribunal “confirms the decision dated 25-Jul-2013, as revised on 05-06-2014, that (the appellant) has been overpaid £1075.14 which is recoverable.”

Again the Appeal writer has misled the Tribunal by inferring that the recoverability decision dated 25.07.13 was revised on 05.06.14.’

15.	Mr Smith summarised as follows:

‘In the Reasons for Decision the LQM, whilst noting, “I am satisfied that there were adequate grounds for a supersession decision and this supersession decision was properly carried out and notified to (the appellant) on 2 July 2013” accepted that the entitlement decision dated 02.07.13 was correct and properly made.  In doing so, the Tribunal agreed with the Department that the compensation payment should be treated as capital from 03.10.12.

At paragraph 27 above, I asserted that the DM erred in law when making the entitlement decision dated 02.07.13 because the compensation payment should not have been treated as capital until October 2013.  I submit that the Tribunal has also erred in law in coming to the same conclusion.

The LQM has not referred to paragraph 17A of Schedule 7 to the Jobseeker’s Allowance Regulations (NI) 1996 in the Record of Proceedings or Reasons For Decision and I can only conclude that the Tribunal failed to consider or totally ignored paragraph 17A.  Had the Tribunal considered paragraph 17A I have no doubt it would have concluded that the compensation payment should have been disregarded for a period of 52 weeks from the date of its receipt.  As a consequence of its failure to consider regulation 17A to Schedule 7,  … I submit the Tribunal has erred in law by failing in its inquisitorial role to ensure that the entitlement decision was properly made.’

	Disposal

16.	The decision of the appeal tribunal dated 12 September 2014 is in error of law.  The error of law identified will be explained in more detail below.  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.

17.	In his written observations, Mr Smith has set out the following proposals for the resolution of the outstanding issues:

‘Should the Commissioner accept my submission and agree to set the decision aside, the matter will be referred back to the Department to revise the entitlement decision dated 02.07.13 (on grounds of official error) and reinstate JSA from 03.10.12.  If the Department revises its entitlement decision and treats the compensation payment as capital from October 2013 there will no longer be an overpayment of Jobseeker’s Allowance for the period 03.10.12 to 27.03.13., (the appellant’s) appeal against the recoverability decision will lapse negating the need for a further Tribunal hearing.

However, to enable the Department to make an informed decision on her entitlement to Jobseeker’s Allowance, (the appellant) must provide the Department with details of the compensation payment, particularly that part of the payment that was in her possession at 03.10.13 or the date on which it is determined that she disposed of the payment, if earlier.  For this reason I would ask the Commissioner to direct (the appellant) to supply the required information to the Department as soon as possible.  Failure to supply this information may result in an adverse decision for (the appellant).’

18.	I refer the matter back to the Department to reconsider the entitlement decision dated 2 July 2013.  In order for the reconsideration process to be as thorough as possible, I direct the appellant to provide the Department with details of the compensation payment, particularly that part of the payment that was in her possession at 3 October 2013 or the date on which it is determined that she disposed of the payment, if earlier.  The appellant should note Mr Smith’s comments that consequent on receipt of the relevant information by the Department, the reconsideration of the entitlement decision might result in the Department treating the compensation payment as capital, from a relevant date.  In turn that might result in entitlement to JSA for the period for which it has presently been determined that JSA has been overpaid.

19.	I have noted that on 19 November 2015 the Legal Officer to the Social Security Commissioners wrote to the appellant pointing her to the two paragraphs from Mr Smith’s written observations, which I have set out above, and which relate to her failure to provide the Department with the relevant information.  The appellant was invited to provide the information to the Office of the Social Security Commissioners.  There was no reply to the Legal Officer’s correspondence.  The appellant should note that the direction which I have made above requires her now to provide the relevant information to the Department.  The appellant has been seeking a common-sense solution to a matter which has been troubling and upsetting for her.  As a result of the disposal of this appeal she is being given the opportunity to achieve that resolution without further recourse to the appellate jurisdictions.

(signed):  K Mullan

Chief Commissioner

12 May 2016