Northern Ireland - Social Security and Child Support Commissioners' Decisions

MS-v-Department for Social Development (JSA) [2016] NICom 54

 

 

Decision No:  C2/15-16(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 5 February 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.         The decision of the appeal tribunal dated 5 February 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.

 

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

 

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

 

4.         It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to jobseeker’s allowance (JSA), for a particular period, remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal. 

 

5.         The errors in law which have been identified may be summarised as follows:

 

(i)        the failure by the appeal tribunal to take into account the circumstances relating to the appellant’s capital throughout the whole of the period from 17 January 2008 to 31 October 2012;

 

(ii)       the failure by the appeal tribunal to make findings of fact in connection with the expenditure or disposal of capital from the appellant’s bank accounts for the period from 17 January 2008 to 31 October 2012 and, accordingly, to determine, in accordance with the principles in R2/09 (IS), the issue of actual and notional capital;

 

(iii)      the failure by the appeal tribunal to consider the pattern of dissipation of funds in one of his bank accounts after 6 May 2008;

 

(iv)      the failure by the appeal tribunal to have clarified the period over which the appellant claimed to have incurred expenditure on home repairs and improvements and whether such claims, and a claim to have purchased a motor vehicle, were accepted. 

 

6.         In respect of the error at (iii) above, the Department has conceded that it was in possession of evidence which was relevant to this issue and which was not made available to the appeal tribunal. 

 

Background

 

7.         In his carefully-prepared and analytical written observations on the application for leave to appeal, Mr Crilly set out the following background:

 

‘With the exception of 2 brief periods in July 2011, (the appellant) was in receipt of jobseeker’s allowance continuously from 17.10.07 to 17.07.12 when his award ended.  (The appellant) then made a repeat claim for jobseeker’s allowance on 10.09.12, payments of which were made from that date up to an including 23.10.12.

 

(The appellant) was interviewed by a Compliance Officer from the Department on 22.03.12 at which time he declared that he had no savings or other money held in the Halifax Building Society.  He also stated that he had no changes to report in relation to his circumstances and he gave his permission to allow the Department to contact the Halifax.

 

The Department obtained copies of bank statements relating to 2 accounts that the claimant had opened with the Halifax.  The first of these, account 0022****, was a current account for which bank statements relating to the period of 01.10.07 to 29.08.12 were provided.  The second account, 0099****, was a savings account which was opened on 04.03.08 with a deposit of £40,000.  This account was closed on 12.09.11 with a nil balance.

 

The bank statements revealed that an amount of £103,439.29 was paid into account 0022**** on 17.01.08.  A figure of £50,000 was then withdrawn from this account on 23.01.08 with a further £40,000 being withdrawn on 04.03.08.  This latter amount was used to open account 0099**** on the same date.

 

On 31.10.12, a decision maker decided that (the appellant) was not entitled to jobseeker’s allowance from 16.01.08 as he possessed capital in excess of the prescribed amount of £16,000.

 

(The appellant’s) appeal against the decision dated 31.10.12 was received by the Department on 21.01.13. 

 

The claimant’s appeal was treated as a late appeal.  As a result, a letter dated 31.01.13 was issued to (the appellant) requesting his reasons for lateness to which he subsequently responded on 04.02.13.

 

The decision dated 31.10.12 was also reconsidered on 31.01.13 but was not changed.  As a consequence, after his reasons for lateness had been accepted by the Department, (the appellant’s) appeal continued.’

 

Proceedings before the appeal tribunal

 

8.         The appeal was listed for oral hearing on 9 July 2013. The appeal was adjourned to permit the appellant to seek representation.  The appeal was listed for oral hearing on two further occasions but each was postponed at the appellant’s request.

 

9.         The substantive oral hearing of the appeal took place on 5 February 2014. The appellant was present.  The appellant was present. There was a Departmental Presenting Officer present. The tribunal disallowed the appeal and confirmed the decision of 31 October 2012. 

 

10.       On 22 August 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 24 September 2014 the application for leave to appeal was refused by the Legally Qualified Panel member (LQPM).

 

Proceedings before the Social Security Commissioner

 

11.       On 27 October 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 11 November 2014 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations received on 12 December 2014, Mr Crilly, for DMS, supported the application for leave to appeal.  Written observations were shared with the appellant and his representative on 12 December 2014.

 

12.       On 7 January 2015 written observations in reply were received from the appellant and these were shared with Mr Crilly on 14 January 2015.  Further observations were received from Mr Crilly on 23 January 2015 which were shared with the appellant and his representative on 4 February 2015.

 

13.       Following applications to that effect, the appellant’s representative was given two extensions of time to provide observations in reply to those provided by Mr Crilly.  In e-mail correspondence dated 21 May 2015, the appellant’s representative noted that the appellant was in agreement with Mr Crilly’s proposal that the appeal should be remitted to a differently-constituted appeal tribunal for re-determination.  In addition, the appellant’s representative submitted that she was not in a position to provide detailed comments on Mr Crilly’s observations as despite numerous requests to TAS she was not in receipt of a full set of papers.  The appellant’s representative requested that the TAS files be obtained by the Office of the Social Security Commissioners.

 

14.       Further written correspondence to the same effect was received in the office on 28 May 2015.  On 28 May 2015 correspondence was forwarded to the appellant’s representative in which it was explained that the Office of the Social Security Commissioners could not obtain a copy of the TAS files on the appellant’s behalf.

 

15.       On 1 July 2015 I granted leave to appeal.  In granting leave to appeal, I gave, as a reason, that an arguable issue arose as to the manner in which the appeal tribunal addressed the period under consideration.  The appellant’s representative was given the opportunity to provide an additional submission. Correspondence was received from the appellant’s representative on 27 August 2015 in which she indicated that she had received the appeal papers from TAS and indicating that the appellant had requested that Counsel be engaged on his behalf.  She sought an extension of four weeks for this purpose.

 

16.       On 7 September 2015 I directed that the appellant’s representative be informed that I was content to proceed without further observations from her and without the requirement for an oral hearing.  There followed further oral discussions between the Legal Officer to the Social Security Commissioners and the appellant’s representative.  Following these discussions, the appellant’s representative confirmed that she was content for the matter to be placed before the Social Security Commissioner to be dealt with on the papers.

 

17.       The appeal was then placed into my workload. Due to an increase in the volume of work which is before the Social Security Commissioners there has been a delay in the promulgation of this decision. Although unavoidable, apologies for that delay are extended to all of the parties to the proceedings.

 

 

 

 

Errors of law  

 

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

 

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

 

“(i)      making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

 

(ii)      failing to give reasons or any adequate reasons for findings on material matters;

 

(iii)     failing to take into account and/or resolve conflicts of fact or opinion on material matters;

 

(iv)     giving weight to immaterial matters;

 

(v)      making a material misdirection of law on any material matter;

 

(vi)     committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

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

 

Analysis

 

20.       In the application for leave to appeal the following submissions were made on behalf of the appellant:

 

‘The tribunal erred in the application and interpretation of the law – para 20 Sch 7 JSA Regulations (NI) 1996 – the surrender value of a life policy was not disregarded when assessing Appellant’s capital. Personal possessions namely a 60 inch Smart TV was not disregarded in accordance with para 15 of the Regulations.  The value of curtains purchased by the Appellant should be disregarded under para 8 of the Regulations.  The Tribunal had no evidence or not enough evidence to support its decision regarding a potential overpayment of benefit.  The Tribunal failed to address the Applicant’s entitlement decision from 2008. We submit that the Tribunal should have considered entitlement decisions (if any) in respect of the three alleged overpayment periods and not simply from 2008.’

 

21.       In his written observations on the application for leave to appeal, Mr Crilly made the following submissions:

 

‘I submit that, for the reasons outlined below, the tribunal erred in how it dealt with the issue of (the appellant’s) capital.

 

Relevant period under consideration – 17.01.08 to 31.10.12

 

The LQM noted the following in the statement of reasons:

 

“. . . . Ms Lavery for the Department confirmed at the commencement of the appeal that she had nothing further to add to this submission regarding dates and circumstances relating to the case.  As far as this particular aspect of the appeal is concerned the Department simply make the case that from 16 January 2008 the appellant had savings in excess of the prescribed limit of £16,000 and therefore he should not have been entitled to Job Seekers (sic) Allowance.  The recovery aspect will be dealt with in the related appeal.  The Department make no argument or presentation about diminishing notional capital in this case or any other issues but simply make the argument that at the relevant time the appellant was not entitled to Job Seekers (sic) Allowance because he had a sum in excess of the prescribed limit of £16,000.

 

The LQM went on to record:

 

Regarding the sums of money the appellant was asked on 2 occasions if he was aware that he had to declare this money and no direct answer was provided.  The Tribunal pursued this point and the appellant then informed the Tribunal that he did not know that he had to declare this.  All of these issues will be dealt with in the related appeal regarding recovery but as far as this particular aspect of the appeal is concerned the Tribunal just have to be simply satisfied that at the relevant date the appellant had in excess of £16,000, that being the prescribed amount at the relevant time within the legislation.

 

The appellant admitted this in open Tribunal and this of course is also supported by the relevant documentation.  It is therefore clear to the Tribunal that in or about 16 January 2008 the appellant exceeded the capital limit for Job Seekers (sic) Allowance Income based ie £16,000 and it therefore follows that the appellant was not and should not have been entitled to Job Seekers (sic) Allowance and therefore the appellant’s appeal in this regard must fail for the reasons given.”

 

I submit that the tribunal was correct to find that (the appellant) received the amount of £103,439.29 which was credited to his current account on 17.01.08. I further submit that the tribunal properly found that, as this amount was in excess of £16,000, the claimant was not entitled to jobseeker’s allowance at that time.  However, I respectfully submit that the tribunal erred in not proceeding to consider the claimant’s circumstances beyond January 2008.

 

The decision under appeal in this case was not made until 31.10.12.  With that in mind, I submit that the period under consideration in this instance was one which began on 17.01.08 and ended on 31.10.12.  As a result, it is my submission that the tribunal was obliged to take into account the circumstances concerning the claimant’s capital throughout the whole of this period.  Consequently, I respectfully submit that the tribunal erred when it concluded that it only had to be satisfied that (the appellant) was in possession of capital in excess of the prescribed amount at the relevant date in January 2008.

 

I submit that the tribunal should have taken into account and investigated any alleged expenditure or reduction of capital held in the claimant’s bank accounts during the period beginning on 17.01.08 and ending on 31.10.12 inclusive.  I further submit that it should have then gone on to make findings of fact in relation to claims surrounding the disposal of this money in order to determine if the sums concerned were actual capital or not for the purposes of jobseeker’s allowance.  In these circumstances, if the tribunal had been satisfied that some or all of the capital had been disposed of, then any issue of actual capital in relation to it would have ceased at that point.  The tribunal would then have been required to make findings of fact with regards to whether or not any issue of deprivation and notional capital would have been applicable to the capital that was no longer in the claimant’s possession. 

 

I submit that such an approach would have been in accordance with the process outlined in a series of questions posed by the former Northern Ireland Chief Commissioner of Northern Ireland in paragraph 17 of R2/09(IS).  I further submit that if the tribunal had adopted this approach then it would have been able to determine if the level of the claimant’s capital had fallen below that of £16,000 and / or £6,000, if appropriate, at any time during the relevant period beginning on 17.01.08 and ending on 31.10.12.

 

Bank statements – current account 0022**** and savings account 0099****

 

Leading on from the above comments, I submit that the Departmental appeal papers contained copies of the bank statements for the Halifax accounts 0022**** and 0099****.  However, whilst the statements for account 0099**** cover the life of that account from 04.03.08 to 12.09.11, the statements in the papers for account 0022**** only cover the period of 01.10.07 up to and including 06.05.08.  

 

Notwithstanding the withdrawals from account 0022**** of £50,000 and £40,000 on 23.01.08 and 04.03.08 respectively, the limited number of bank statements for this account that were contained in the appeal papers reveal a pattern involving sums of money  being taken out by the claimant on a regular basis.  The statements show that many of these withdrawals were for lesser amounts which were used to pay bills and to cover daily expenses.  Other cash withdrawals were made on a regular basis for amounts ranging from £100 to £300 as well as for some larger amounts such as £4,617.68 that was withdrawn on 23.01.08.

 

I submit that the tribunal had evidence that the money in account 0022**** was being reduced on a daily basis from 17.01.08 to 06.05.08, the last date for the statements that was held in the appeal papers.  I further submit that this should have prompted the tribunal to consider if this pattern continued after 06.05.08 and, after doing so, it should have directed that more information and evidence be provided in relation to this.  Again, I submit that the tribunal’s failure to do so represents an error in law.

 

Whilst I am submitting that the tribunal erred in this respect, I also submit that it was not helped by the Department in this regard.  Indeed, this is made clear by the fact that the Department had in its possession further statements for account 0022**** for the period immediately leading on from 06.05.08 and ending on 19.03.12 which were not included in the appeal papers which were before the tribunal.  The Department also had statements for this account pertaining to a further period of 14.08.12 to 29.08.12 which, I submit, were also pertinent to the claimant’s appeal and were not included as evidence in the appeal papers.  I submit that the tribunal followed the Department’s lead in determining that the only matter to be taken into account in this instance was (the appellant’s) circumstances on 17.01.08 alone.  That said, however, I also submit that this does not vitiate the tribunal’s error in how it ultimately disposed of the claimant’s appeal.

 

A copy of all of the bank statements in respect of the claimant’s current account, 0022****, is included at the end of these observations. 

 

I submit that an examination of all of the bank statements for the 2 bank accounts, 0022**** and 0099****, would have shown the tribunal that the claimant’s pattern of spending as outlined in paragraph 44 continued after 06.05.08.  I submit that this is made clear by the fact that the claimant’s funds in account 0022**** had reduced to £54.91 on 18.09.08.  The statements for 0099**** show that £2,000 was withdrawn by (the appellant) from that account on 23.09.08 leaving a remaining balance of £38,000.  The amount of £2,000 was transferred into 0022**** on the same date leaving him with a new balance of £2,054.91 in that account.  In the ensuing period up to and including 10.12.09, the amount of £8,424.68 was transferred from savings account 0099**** into 0022**** and then quickly withdrawn at intervals from the latter account.  During the same time, withdrawals of £900 on 07.01.09, £3,600 on 06.04.09 and £500 on 10.08.09 were made by the claimant from his savings account which were not transferred into 0022**** and, as yet, have not been accounted for by (the appellant).

 

The statements for account 0099**** on 10.12.09 show that the claimant withdrew 2 amounts of £15,760 and £240 leaving a remainder of £10,500 in that account.  The claimant has stated that the former amount of £15,760 was used to buy a car and he has provided evidence to support this.  The latter amount of £240 was transferred into account 0022**** on the same date to increase the balance of that account to £318.74.  With this in mind, I submit that, on paper at least, the claimant’s capital in both accounts on 10.12.09 amounted to £10,818.74 which fell below the prescribed upper limit of £16,000.  This accords with the claimant’s assertion in his application to the LQM for leave in which he stated:

 

“On the 10/12/09 my money went below the £16,000 mark.”

 

Consequently, there is a possibility that, from 10.12.09, the claimant may have been entitled to jobseeker’s allowance at a reduced level due to the application of a tariff income from 10.12.09. 

 

The evidence appears to suggest that the claimant’s pattern of spending continued.  After 10.12.09, the claimant continued to make withdrawals from account 0099**** on various dates from 18.12.09 to 07.04.10, the sums of which were immediately transferred into account 0022****.  It seems that the claimant made these transfers in order to top up the balance in 0022****.  The statements for the latter reveal that the claimant continued to draw upon this account on a daily basis during this time.

 

On 20.04.09, the balance of the claimant’s savings account 0099**** stood at £5,030.35.  The amount in his current account on the same date stood at £827.90.  Again, just taking into account these figures, (the appellant’s) capital in both accounts amounted to £5,858.25 which fell below the tariff income threshold of £6,000.  As a result, subject to the outcome of an investigation into (the appellant’s) disposal of the money concerned, I submit that there is a possibility that he may have been entitled to an award of jobseeker’s allowance at the full rate from 20.04.09 onwards.

 

Home improvements, repairs and purchase of car

 

I submit that the rationale as outlined above in paragraphs 39 and 42 should have been applied to expenditure which was specifically referred to by the tribunal.  The LQM noted in the statement of reasons:

 

At the appeal the appellant did not deny this.  He confirmed that he received a sum of £103,439.29 after the death of his parents and that this was lodged in his account on 17 January 2008.  He extracted £50,000 of this on 23 January 2008 and informed the Tribunal that he used this to upgrade his house and he also bought a second-hand Mercedes car in the sum of £16,000.

 

 

I submit the tribunal was aware of (the appellant’s) claims that he had spent £50,000 of the original amount of £103,439.29 carrying out repairs and improvements to his home over a 12 month period.  Evidence from (the appellant) in relation to the disposal of this money was contained in the appeal papers in the form of a statement dated 01.03.13 which, according to him, replicated information that had been provided during a meeting with an officer of the Department on 11.09.12.  In this statement, the claimant gave a breakdown of the repairs and improvements that he had undertaken in his home along with the individual cost of each as well as additional associated expenditure.  I submit that the tribunal should have clarified the period over which this expenditure allegedly took place.  I further submit that the tribunal then should have outlined if it accepted the claimant’s explanation as to how this money had been spent in order to determine if the sums involved should have continued to be taken into account as actual or notional capital or be disregarded for jobseeker’s purposes.  I submit that its failure to do so represents an error in law

 

The tribunal also knew of the claimant’s assertions relating to the purchase of the car.  Again, I submit that the tribunal should have indicated if it accepted the explanation as to the disposal of this capital by the claimant in order to clarify its nature or status – i.e. was it actual or notional or did it fall to be disregarded for benefit purposes?   Once again, I submit that by not doing so, the tribunal erred.

 

If the Commissioner agrees that the tribunal erred in this instance, I submit that the case should be remitted back to a new tribunal for determination.  I submit that there is further evidence to be considered and further findings of fact are required in relation to the claimant’s disposal of the capital concerned during the relevant period beginning on 17.01.08 and ending on 31.10.12, the date of the decision under appeal.  In these circumstances, I submit that it will be up to the new tribunal to determine if the claimant did dispose of the capital and,  if it finds that this was the case, to then proceed to determine if all or some of this disposal involved deprivation and considerations of notional income.’

 

22.       Mr Crilly’s written observations have been prepared with care and precision. His analysis of the Departmental decision-making in this and a related appeal has been methodical and detailed. In respect of the appeal tribunal’s failure to consider the pattern of dissipation of funds in one of his bank accounts after 6 May 2008, Mr Crilly has conceded that the Department was in possession of evidence which was relevant to this issue and which was not made available to the appeal tribunal.

 

23.       I agree with Mr Crilly, for the reasons which have been outlined by him, that each of the identified errors amounts to a material error of law and that the cumulative effect of those errors most certainly renders the decision of the appeal tribunal as being in error of law.  The decision of the appeal tribunal is, therefore, set aside.

 

24.       In his written observations Mr Crilly made the following additional submissions:

 

‘In the interests of completeness, there are 2 further issues in the claimant’s appeal which I would like to address in turn.

 

Life Assurance Policy?

 

(The appellant) had taken out a life assurance policy with Phoenix Life.  It appears from the bank statements for account 0022**** that the sum of £55.37 was paid to Phoenix Life in respect of this by way of a monthly direct debit on the 5^th of each month.  The statements show that this was being paid from 05.10.07 at least.

 

As outlined in paragraph 31 of these observations, the off-line decision dated 31.10.12 referred to the claimant’s life assurance policy.  However, the decision did not further elaborate on this matter. 

 

The claimant’s life assurance policy was revisited in the Department’s submission to the appeal tribunal.  The appeals officer noted in paragraph 4 of Section 4 of that document:

 

“. . . The Tribunal should also note that the policy that (the appellant) declared only at the time of submitting his appeal has a maturity value of £19,300 (at the lower rate) as at 05/01/12; this alone exceeds the prescribed capital limit.  (The appellant) states in his appeal letter that this policy can be surrendered before maturity; but at a greatly reduced rate.”

 

The record of proceedings outlines that the Departmental Presenting Officer also referred to the claimant’s insurance policy taking him over the limit for capital purposes. 

 

It appears that the policy referred to above is actually an endowment policy which is linked to the claimant’s mortgage.  This is made clear in a letter dated 25.06.13 from Phoenix Life to (the appellant).  The claimant has also stated that this policy contains an element of life insurance and that his sons would receive money from it in the event of his death.  This point was raised in correspondence from Law Centre when that body was representing (the appellant) prior to the hearing of his appeal in 2013. 

 

There is nothing in the statement of reasons to suggest that the tribunal took the surrender value of the amount of the endowment policy into account when arriving at its decision in this case.  However, to avoid any doubt in the event of (the appellant’s) appeal being remitted to a new tribunal, I submit that the surrender value of the claimant’s endowment policy should be disregarded as capital in accordance with paragraph 20 of Schedule 7 to the JSA Regulations.

 

Date that claimant’s inheritance of £103,439.29 is taken into account

 

In the decision dated 31.10.12, the decision maker decided that (the appellant) was not entitled to jobseeker’s allowance from 16.01.08.  The tribunal referred to a date that was “. . . in or about 16 January 2008.”

 

Paragraphs 7 and 8(a) of Schedule 2A to the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 provide:

 

7. Subject to paragraphs 8 to 11, where a decision in respect of a claim for a jobseeker’s allowance is superseded on the ground that there has been, or there is expected to be, a relevant change of circumstances, the supersession shall take effect from the first day of the benefit week (as defined in regulation 1(2) of the Jobseeker’s Allowance Regulations in which that relevant change of circumstances occurs or is expected to occur.

 

8. Where the relevant change of circumstances giving rise to the supersession is that—

 

(a) entitlement to a jobseeker’s allowance ends, or is expected to end, for a reason other than that the claimant no longer satisfies the provisions of Article 5(1)(a) or 5A(1)(a) of the Jobseekers Order;

 

the supersession shall take effect from the date on which the relevant change of circumstances occurs or is expected to occur.

 

Article 5(1)(a) of the Jobseekers (Northern Ireland) Order 1995 relates to a claimant’s income exceeding his applicable amount and is not concerned with capital.  That being the case, I submit that the claimant’s acquisition of the amount of £103,439.29 falls to be taken into account from the date that this occurred on 17.01.08.  Consequently, notwithstanding my comments that the tribunal should have considered the claimant’s circumstances throughout the whole of the period from 17.01.08 to 31.10.12, I submit that the claimant was not entitled to jobseeker’s allowance from 17.01.08 and not 16.01.08 as stated in the decision dated 31.10.12.’

 

25.       The emphasis in these quoted paragraphs is my own. It is axiomatic, however, that Mr Crilly’s analysis and proposal should be addressed in the further submission which is to be prepared for the hearing of the appeal before the differently constituted appeal tribunal.

 

26.       I would add that I have considered the written observations in reply to those of Mr Crilly which were provided by the appellant. In these observations, the appellant comments on Mr Crilly’s written observations but does not seek to challenge their substance.

 

Disposal

 

27.       The decision of the appeal tribunal dated 5 February 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.

 

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

 

29.       I direct the Department to prepare a new submission for this and a related appeal which is also being remitted to a differently constituted appeal tribunal. The new submission must draw on the detailed analysis set out in the written observations prepared by Mr Crilly. On receipt of the new appeal submission the appellant’s representative should prepare a submission in response. 

 

30.       It is appropriate the two appeals which are being remitted to a differently constituted appeal tribunal are listed for oral hearing together. The President of Appeal Tribunals or the Full-Time LQPM may wish to give case management directions in advance of the listing of the appeals.        

 

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

4 August 2016