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Job Seekers Allowance: Deprivation of capital to obtain ESA is not treated as notional capital for a subsequent claim to JSA.

16th December, 2021

DB v. Department for Communities (JSA) [2021] NI Com 43

Background

The claimant had been awarded ESA from 2013. In 2016, the Department decided that she was not entitled to ESA from August 2015 because she held capital in excess of the statutory upper limit of £16,000.

The claimant claimed JSA from September 2017. In October 2017, the Department decided that she held actual capital in excess of £16,000 and was not entitled to JSA. This was notwithstanding evidence that she no longer held the capital. The claimant appealed. Her appeal was refused and she appealed to the Social Security Commissioner.

Legal issue

Contrary to the Department’s decision, the tribunal decided that the claimant held notional rather than actual capital in excess of the statutory upper limit. It found that the claimant had deprived herself of capital in 2016 and that she did so with the purpose of securing entitlement to JSA. The tribunal relied on regulation 113(1) Job Seeker’s Allowance (NI) Regulations 1996 which states:

‘113 – Notional capital
1. 
A claimant shall be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to a jobseeker’s allowance or increasing the amount of that allowance, or for the purpose of securing entitlement to or increasing the amount of income support…’

    The equivalent provision of the Employment Support Allowance Regulations (NI) 2008 which defines notional capital is regulation 115. Regulation 115 specifies that the definition of ‘notional capital’ will be satisfied for the purposes of a claim to ESA if a claimant has deprived themselves of capital in order to secure entitlement to, or a greater amount of, ESA, JSA or IS. This is in contrast to regulation 113, which only specifies JSA and IS as the relevant benefits.

    The effect of the difference is that a claimant who is found to have deprived themselves of capital for the purpose of securing entitlement to JSA, for example, may continue to have notional capital when making a subsequent claim for ESA. However, a similar claimant who has been found to have deprived themselves of capital in order to secure entitlement to ESA, will not be treated as having notional capital when a later claim is made to JSA.

    In 2016, when it is alleged that the claimant deprived herself of capital, she was in receipt of ESA. She did not make a claim for JSA until September 2017. The Department conceded that the tribunal could not reasonably have inferred that the claimant’s intent when depriving herself of capital in 2016 was to gain entitlement to JSA in 2017. The tribunal therefore erred in law by deciding that the claimant had notional capital when applying for JSA.

    Decision

    The Commissioner agreed that the tribunal had erred in law. He acknowledged that the tribunal was entitled to disagree with the Department by deciding that the claimant had notional rather than actual capital. However, when doing so, the tribunal must be rigorous in terms of the accuracy of the relevant test it employs and the evidential assessment purportedly justifying its use.

    The Commissioner said:

    ‘I repeat that if an appeal tribunal is intent on re-making a Departmental decision by applying alternative legislative provisions and undertaking an evidential assessment and fact-finding, all to the detriment of a claimant, then it has to be meticulous and precise in its approach.

    The Commissioner allowed the appeal and referred the case to a new tribunal.

    For a copy of the judgment: click here