DMcC-v-Department for Social Development (IS) [2012] NICom 326 (12 September 2012)

DMcC-v-Department for Social Development (IS) [2012] NICom 326 (12 September 2012)

The appeal tribunal erred in law by failing to properly distinguish between actual and notional capital, did not adequately examine the evidence regarding the appellant's capital as of the relevant date, and did not apply the correct legal tests under regulation 51 for notional capital, including the elements of deprivation and purpose. The tribunal also misapplied the burden of proof.

Citation
[2012] NICom 326
Parties
Appellant: DMcC; Respondent: Department for Social Development
Jurisdiction
Northern Ireland
Judgment Date
12 September 2012
Procedural Posture
Social Security Appeal / Application for Leave to Appeal and Appeal to Social Security Commissioner From Tribunal Decision
Outcome
Appeal allowed; tribunal decision set aside; case remitted for rehearing
Legal Topics
Income Support, Capital Limits, Notional Capital, Burden of Proof, Tribunal Error of Law
Social Security Law Income Support Capital Limits Notional Capital Burden of Proof Tribunal Error of Law

Case Brief

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Parties

DMcC

Appellant

Department for Social Development

Respondent

Procedural Posture

Social Security Appeal / Application for Leave to Appeal and Appeal to Social Security Commissioner From Tribunal Decision

Legal Issues

  1. 1 Whether the appeal tribunal erred in law in its assessment of the appellant's capital for income support entitlement
  2. 2 Whether the tribunal properly applied the actual and notional capital rules under the Income Support (General) Regulations (Northern Ireland) 1987

Ratio Decidendi

The appeal tribunal erred in law by failing to properly distinguish between actual and notional capital, did not adequately examine the evidence regarding the appellant's capital as of the relevant date, and did not apply the correct legal tests under regulation 51 for notional capital, including the elements of deprivation and purpose. The tribunal also misapplied the burden of proof.

Court Disposition

Appeal allowed; tribunal decision set aside; case remitted for rehearing

Orders

  • The decision of the appeal tribunal dated 22 July 2011 is set aside for error of law.
  • The case is remitted to a differently constituted appeal tribunal for re-determination in accordance with the guidance provided.