TEXT OF OBSERVATIONS BY
MR MICHAEL DONNAN DATED
SEPTEMBER 23RD 2025
(RECEIVED AS AN ATTACHMENT TO EMAIL DATED OCTOBER 8TH 2025)
1-7 Bedford Street
The Registrar Belfast
Office of the Social Security and BT2 7EG
Tribunal Hearing Centre Tel: 02890 819141
2nd Floor
Royal Courts of Justice
Chichester Street
Belfast E-mail:michael.donnan@communities-ni.gov.uk
BT1 3JF
Our Reference: YH615974D
Your Reference: LA1/25-26(PC)
Dear Sir/Madam
RE: Mr William Finnerty - Flat 21, 30 Elgin Street, Belfast, BT7 3AG
Thank you for your invitation for observations to be made on Mr Finnerty’s application for leave to appeal against a Tribunal’s decision dated 28/07/23. These are as follows and I will from this point refer to Mr Finnerty as “the applicant”:
Relevant facts
1. There is a very helpful timeline set out by the Appeals Service in the bundle of papers – found at pages 3 to 5 of the bundle named “William Patrick Finnerty – PT1”. This, understandably, only starts from the point at which the applicant lodged his appeal on 12/09/19, so I will set out the facts in full as follows:
2. The applicant claimed State Pension Credit (SPC) from 18/07/15 and was awarded that benefit with effect from 20/07/15. On his claim form, he had reported that he owned another property in Ballinasloe, County Galway, Republic of Ireland.
3. On 27/10/15, the SPC decision maker awarded SPC taking the value of the property into account in his weekly SPC assessment by way of deemed income from capital. It was determined that the property in Ireland could not be disregarded under the SPC Regulations.
4. A reduction to his SPC entitlement was therefore calculated at £24.00 per week; based on the reported valuation of the property (supplied by the applicant – as valued by Vincent Costello & Associates, Ballinasloe, County Galway in September 2015) as accepted by the decision maker to be €35,000, converted to UK sterling as £24,363.10 less a 10% cost of sale, resulting in a deemed capital value of £21,926.79. The figure of £24.00 per week related to a deemed income of £1 for every £500 (but only above £10,000) held in capital.
5. The applicant did not dispute this decision at the time and his SPC award continued under an Assessed Income Period (AIP) set by the decision maker up to 28/04/18. During this period the applicant’s income was set by the Department so no further checks were appropriate. When the AIP was drawing to a close, a decision maker contacted the applicant (on 21/04/18). He completed the required PC2 questionnaire issued to him and returned it to the SPC office.
6. The applicant reported that he had taken out loans from his brother and sister to help with the property in Galway but despite trying through solicitors to get these loans secured against the property, he had so far been unsuccessful in that attempt. He still estimated the property to be worth €35,000.00.
7. On 19/07/18 the applicant's award of SPC was reinstated and payment was issued to him. Then on 07/08/18 the decision maker determined that the value of his property in Ballinasloe could be disregarded as the debt secured is more than the value.
8. However, on 09/08/18 the decision maker reassessed the applicant's award of SPC to include an increase in income from capital - as a result he was entitled to a reduced amount of SPC. Even though the value of the property was removed from his SPC assessment, his award was reduced when his actual money held in all bank accounts was taken into account.
9. On 07/09/18 the applicant asked for this decision to be looked at again but this later led to the situation where, on 26/02/19, the decision maker decided to request an official valuation of the property and this was done through the Department’s Valuation Office Agency. The latter appointed a professional valuer, Mr John Purkiss, who was located in Newcastle Upon Tyne in England and could therefore only carry out a valuation remotely. His valuation was assessed as being £60,000.00.
10. As a result, the SPC decision maker decided (on 03/04/19) that the applicant was not entitled to SPC from and including 30/04/18 (the decision of 03/04/19 was a revision of the previous decision dated 09/08/18 on the basis of official error, namely that the deemed income from capital had been removed from the SPC award when it should not have been).
11. The new decision was that, on the basis of other actual capital held by the applicant, and also the property value as determined by the Valuation Office Agency (less 10% for cost of sale), the applicant possessed overall capital totalling £87,809.86. This meant a deemed weekly income from capital of £156.00 per week as of 30/04/18, which together with his other income (State Pension), exceeded the weekly amount of his SPC entitlement. He was notified of this decision on 30/04/19.
12. On 03/05/19, the applicant asked for this decision to be looked at again. The SPC office wrote to him to request evidence from his brother and sister regarding the money loaned to him. This was to see whether the loans could be treated as an encumbrance on the property in Galway. The applicant replied to this enquiry on 18/07/19.
13. Despite this, on 12/08/19, a decision maker reconsidered the decision made on 03/04/19 but determined it could not be revised. This was notified on 14/08/19, and at this point the SPC office notified him of his right to appeal.
14. On 12/09/19 the applicant submitted an appeal. As stated at paragraph 1 above, the timeline provided by the Appeals Service commences from the lodgement of the appeal. It is very comprehensive in that it includes details of various emails and correspondences between the Appeals Service and applicant. My summary of the facts regarding the appeal itself are as follows:
15. On 14/02/20, the first appeal hearing was held. However, the Legally Qualified Member (LQM) adjourned the hearing asking for a further submission from the Department to clarify the actual amount of capital taken into account and also confirmation regarding the valuation of the Galway property.
16. On 10/03/20 the Department provided a supplementary submission in response to those two directions. Subsequently, some delays inevitably arose due to the Covid pandemic.
17. On 30/06/22 a second appeal hearing was postponed by the LQM on receipt of a request by the applicant in an email dated 28/06/22, where he stated he was awaiting responses to five letters he had issued to various parties.
18. On 31/08/22 a third hearing was adjourned by the LQM to enable the appellant to attend and for the Department to provide a further addendum submission.
19. On 15/11/22 the Department provided a further supplementary submission as directed – namely, to confirm the Department’s reasons why the loans could not be treated as encumbrances. It also set out that the Department was unable to get a different valuation on the Galway property – the valuation from Mr Purkiss was the best available evidence.
20. On 13/01/23 the fourth hearing was adjourned to enable the applicant to seek advice/representation and to provide further evidence, especially in relation to an independent valuation of his Galway property which he was trying to arrange himself (it transpired he was not able to achieve this).
21. On 28/07/23, at the fifth hearing, the LQM decided the appeal. He upheld the decision of the Department, finding that: “The weight of the evidence leads the Tribunal to find that the Appellant is not entitled to State Pension Credit because his income exceeded the applicable amount. The Department’s decision awarding State Pension Credit was correctly revised on 03.04.2019”.
22. On 15/08/23 the applicant requested a Statement of Reasons for the Tribunal’s decision. This was provided by the Appeals Service on 26/03/24.
23. On 19/04/24 the applicant informed the Appeals Service that he intended to seek leave to appeal but he was trying to obtain advice. He restated his intention to seek leave again on 24/06/24.
24. On 22/04/25, his application for leave to appeal was received by the Appeals Service. It was made late, but still within the absolute time limit and the LQM subsequently determined that he accepted the late application, but on 15/05/25 he refused leave to appeal.
25. The applicant now applies to the Social Security Commissioner in his OSSC1 application dated 26/08/25 which was received in the Commissioner’s office on 28/08/25.
26. In accordance with regulation 9 – sub paragraphs (2) and (3) to the Social Security Commissioners (Procedure) Regulations (NI) 1999, the applicant’s application to the Commissioner is made outside the time limit of one month, but the Commissioner may accept the application if he/she accepts there are special reasons for lateness:
(2) Subject to paragraph (3), an application to a Commissioner shall be made within one month of notice of the refusal or rejection being sent to the applicant by the appeal tribunal.
(3) A Commissioner may for special reasons accept a late application or an application where the applicant failed to seek leave from the chairman within the specified time, but did so on or before the final date.
27. I note that the applicant was unaware of the appeals process and was considering making an application to the Courts under a Judicial Review. He only realised the proper appeals route open to him (i.e. through the Commissioner’s office) once he had corresponded further with the Office of the President of Appeal Tribunals.
28. He also highlights that his application is late because of his ongoing problems in trying to find legal advice and/or representation.
29. It could be that special reasons exist, but this is of course for the Commissioner’s consideration and determination.
Grounds for application for leave to appeal
30. The applicant’s grounds for seeking leave to appeal the Tribunal’s decision are extensive, so I will set them out in full below, so that I omit nothing that he has raised:
1. Introduction
I respectfully submit this appeal to the Social Security Commissioner on the grounds of procedural unfairness, failure to consider material evidence, and systemic disregard for correspondence and legal and medical concerns. My case reflects a broader pattern of institutional impunity, where key documents, registered letters, and legal arguments have been excluded from consideration, resulting in decisions that lack transparency and violate principles of natural justice.
2. Failure to Consider Registered Correspondence
Throughout the course of this matter, I submitted multiple registered letters to the relevant authorities, including formal requests for rescheduling due to my inability to secure legal representation. These letters were sent in good faith and in accordance with procedural expectations. However, many of these letters were not acknowledged, referenced, or considered in the tribunal's decision-making process.
The failure to engage with this registered correspondence constitutes a breach of procedural fairness. Registered letters are legally significant and serve as documented attempts to assert one's rights. Their exclusion from the record undermines the integrity of the process and raises serious concerns about institutional accountability.
3. Denial of Representation and Eviction in Absentia
Due to the lack of available professional representation, I was unable to attend the original eviction Court Hearing. Despite notifying the Court Service in advance and requesting a rescheduling, the hearing proceeded in my absence, resulting in an eviction notice. This decision was made without my participation and without consideration of the circumstances that prevented my attendance.
Issuing an eviction order under these conditions—where the appellant has made documented efforts, through the registered post, to engage and participate—violates the principles of fairness and proportionality. It reflects a punitive approach that disregards the realities faced by individuals navigating complex legal systems without support.
4. Failure to Engage with Legal Concerns During Tribunal Proceedings
During the Tribunal hearing, I raised a direct and legally pertinent question to the Legally Qualified Member (LQM) regarding the lawfulness of the eviction notice issued against me. This notice was granted in my absence, despite my prior written request—sent via registered post—for a rescheduling due to my inability to secure professional representation.
The LQM responded that it was "not his job" to answer such a question. This exchange was not recorded in the Tribunal Hearing Report, despite its relevance to the fairness and legality of the proceedings. The omission is significant: it reflects a broader pattern of institutional disregard for procedural justice and the exclusion of material concerns from the official record.
I submit that this failure to engage with a legitimate legal challenge—and to document it—undermines the transparency and integrity of the tribunal process. It exemplifies the systemic barriers I have faced throughout this case, where key correspondence and legal arguments have been repeatedly ignored or dismissed.
5. Pattern of Institutional Impunity
The issues outlined above are not isolated incidents. They form part of a consistent pattern in which authorities and tribunals have failed to respond to correspondence, omitted key facts from official records, and dismissed legitimate legal concerns without explanation.
This pattern reflects a culture of impunity, where procedural safeguards are bypassed and individuals are denied meaningful access to justice. I believe this case warrants scrutiny not only for its individual failings but for what it reveals about broader systemic dysfunction.
6. Conclusion and Request
In light of the above, I respectfully request that the Social Security Commissioner:
· Review the procedural handling of my case, including the failure to consider registered correspondence and the denial of representation.
· Investigate the omission of material exchanges from the Tribunal Hearing Report.
· Consider the cumulative impact of these failures on the fairness and legality of the original decision.
I submit this appeal not only in pursuit of personal redress but in the hope that it may contribute to greater accountability and reform within the system.
Observations
31. I would like to highlight at the outset that the grounds of the application before the Commissioner largely focus on whether the Tribunal has applied the rules of natural justice with regard to the way it has considered the applicant’s appeal and made its final decision. The applicant had, during certain correspondences with the Appeals Service (in the period leading up to his initial application to the LQM for leave to appeal) referenced Human Rights legislation such as:
· In the appeals bundle – the document entitled “leave to appeal application 19.04.24” see page 5 point 10 where he raises his right to an effective remedy under Article 8 of the UN Universal Declaration of Human Rights;
· In the document entitled “leave to appeal application 22.04.25” – see page 2 where he again references Article 8 as above but also Articles 6 and 13 of the European Convention on Human Rights (ECHR) and Article 47 of the Charter of Fundamental Human Rights of the European Union
32. The applicant has not stated such grounds in his latest application to the Commissioner. So, I will touch briefly on a person’s rights (to a fair hearing) under the ECHR, but in the main, my observations will focus on the rules of natural justice. Should the Commissioner wish to have more detailed focus on the ECHR, I would respectfully request that he/she issue a direction to that effect and I can arrange for such observations to be submitted.
Human Rights observations
33. In a Tribunal of Commissioners decision in RGS v Department for Social Development (ESA) [2016] NICom 39 (C12/14-15(ESA)(T)) the Commissioners held (at paragraph 31):
“It is not disputed that Article 6(1) of the ECHR has application to social security appeals, as conceded by the Great Britain Secretary of State for Work and Pensions in Wood v Secretary of State for Work and Pensions [2003] EWCA Civ 53.”
34. The “Wood” decision is the reported Great Britain (GB) Commissioner decision in R(IB) 2-04 and I would highlight paragraph 194:
“In addition, the appeal tribunal must be satisfied that there has been compliance with the requirements of Article 6 of the European Convention on Human Rights and of natural justice (paragraphs 88–97).”
35. I have enclosed both decisions with my observations.
36. Article 6 is identical in both the Human Rights Act 1998 and the European Convention on Human Rights. Article 6 states:
Article 6
Right to a fair trial
1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
37. In the case of Schuler-Zgraggen v Switzerland the European Court of Human Rights (the ECHR) considered the applicability of Article 6(1) of the Convention to social insurance including welfare assistance. It was accepted by the ECHR that Article 6(1) applied to a dispute between an individual and the State regarding a pension based on a compulsory insurance scheme. The ECHR further held that Article 6(1) equally applied to welfare benefits and entitlements. It is respectfully submitted therefore that the Tribunal proceedings in the applicant’s appeal were subject to the provisions of Article 6(1).
38. Further to this it is submitted that the main elements of a right to a fair hearing are:
(i) that there must be a judicial process, which requires each side to have knowledge of and comment on the observations filed or evidence adduced by the opposing party;
(ii) that there is a reasoned decision;
(iii) that there is a right to appearance in person, and
(iv) equality of arms i.e. that each party has broadly equal opportunity to present a case in circumstances which do not place one of the parties at a substantial disadvantage as regards the opposing party.
39. I respectfully submit that the Tribunal that determined the applicant’s appeal was independent, impartial and established by law, in particular by Articles 5 and 13 of the Social Security (NI) Order 1998. The applicant exercised his right to appear in person and had sight of the Department’s submissions and had the opportunity at the hearing to comment on same and advise the Tribunal of any additional evidence that he wished to supply, thereby satisfying the requirement of a judicial process.
Natural Justice
40. I would start by referring to a reported decision of a GB Commissioner in R(IS)5/93 – paragraphs 16 and 17 where Commissioner Hallett held that:
“16. Secondly, the common law requires persons exercising quasi-judicial functions to observe the rules of natural justice, and accordingly these rules apply to social security appeal tribunals: see the judgment of Lord Justice Diplock in R v. Deputy Industrial Injuries Commissioner Ex parte Moore [1965] 1 QB 456 at page 486 et seq.
17. In Moore’s case, Lord Justice Diplock stated that the rules of natural justice applied to local tribunals (as they then were) and to the Commissioner and Deputy Commissioners (as they then were). The decision of a Deputy Commissioner was then in issue. Lord Justice Diplock stated that, in the absence of personal bias or mala fides, the rules of natural justice could be reduced to two, first, an obligation to base his decision on evidence, whether a hearing was requested or not; and secondly, where a hearing was requested, fairly to listen to the contentions of all persons who were entitled to be represented at the hearing.”
41. I have read through the papers and note the number of adjournments and postponements made by the LQM over a prolonged period of around 4 years since the appeal was first made (although I acknowledge some delays were due to Covid). Some of these were to direct the Department to make addendum submissions but often it was also to permit the applicant to attend and also for him to try to gain further evidence he required and to establish legal representation and advice – the latter being something he has strived to do for a very long time.
42. As such I would observe (even taking the Covid pandemic into account) that the LQM had exercised a great deal of understanding to the applicant’s position by delaying making his decision for such a protracted period. In doing so he afforded the applicant the opportunity to provide as much evidence as he could obtain to support his case and also to try to obtain the legal assistance he sought.
43. Furthermore, I feel the LQM demonstrated his understanding of the applicant’s health issues throughout the entire appeal process and made particular record to show how this was taken into consideration. The following extracts from the Tribunal’s Record of Proceedings/Statement of Reasons are evidence of this:
“…to assure the parties the Tribunal was aware the Appellant has a confirmed diagnosis of Complex PTSD, and that that diagnosis was factored into the Tribunal's endeavours to provide the Appellant with a fair and facilitative hearing. Dr McCavert's letter dated 28 October 2005 exhorted "...sympathetic handling by the officials with whom [the Appellant] comes in contact".
---
“Conscious of Dr McCavert's letter from 2005, the Tribunal was satisfied it had, throughout, extended to the Appellant every necessary measure to accommodate and facilitate him, and that it had complied with the ancient and overarching requirements of natural justice. The Tribunal adjourned the hearing on a number of occasions to facilitate the Appellant. This fact was acknowledged by the Appellant in his closing remark to the Tribunal on 28 July 2023.”
---
“In applying natural justice, the Tribunal must extend this principle to both parties to the appeal. Justice also means bringing finality to proceedings. The Tribunal is entirely satisfied it was just to all parties throughout the long course of this appeal, and extended to the Appellant at all times a fair and facilitative hearing that was compliant with Article 6 of the European Convention on Human Rights as provided by Schedule 1 to the Human Rights Act 1998.”
44. I feel these extracts show that the LQM clearly had in mind the need to treat the applicant with care and consideration as per the letter written by Dr McCavert in support of the applicant’s symptoms and behaviours caused by traumas and stresses suffered by him over many years (the LQM pointed out he was taking particular care with the applicant in light of this letter). Dr McCavert had concluded in his letter that:
“William has been through enough and needs support and understanding for PTSD (Post Traumatic Stress Disorder) and I hope he can be given sympathetic handling by the officials with whom he comes in contact”.
45. I would observe that, whilst it can happen that a Tribunal can sometimes take some years in reaching a decision due to various factors and challenges, it would tend to happen only infrequently; and the length of time allowed by the LQM in this case, to permit the applicant sufficient time to make his case, supply evidence and seek legal assistance; (albeit some delays were due to Covid) illustrates how the LQM wished to conduct a hearing that was fair and met the requirements of natural justice.
46. The adjournments and postponements show two important aspects. Firstly, that the LQM wished to ensure he had full understanding of the Department’s decision making at various stages through the applicant’s SPC award (by directing further submissions).
47. In addition, by postponing, he was also extending the time permitted to the applicant to obtain any evidence he needed in support and giving him full opportunity to acquire legal assistance. In the end, he set out that he could not postpone further and justice required him to make a decision. I feel his decision meets the requirements of natural justice accordingly.
48. The LQM referred a number of times to the Northern Ireland Court of Appeal decision in Galo v Bombardier Aerospace (which held that a tribunal ought to make adjustments to its procedures in the light of the appellant’s mental health, in order to enable their participation in its hearing). He set out each time that he wished to follow the principles outlined in that decision for the present appeal.
[Note for Commissioner: The LQM records that:
“By the time the Tribunal made its decision on 28 July 2023, judgement had been handed down by HM Court of Appeal in Northern Ireland in Galo v Bombardier Aerospace UK [2023] NICA 50 (the judgement of the Court of Appeal having been handed down on 3 July 2023) and the Tribunal was careful at all times to apply this binding dictum, and equally to apply the provisions of the Equal Treatment Bench Book to the Appellant's Complex PTSD”.
I note that this Galo decision is cited as “[2023] NICA 50” and there had also been a decision of the NI Court of Appeal in Galo from 2016 cited as “[2016] NICA 25”. The two decisions are dealing with the same appellant and I would submit, also deal with the same issues (adjustments to be made for an appellant with a disability appearing before a Tribunal). The latest decision of the Court of Appeal in 2023 deals with two later Industrial Tribunal decisions for Mr Galo dated 18/02/22 and 27/06/22. I should highlight the case law I rely upon below relates to the 2016 ruling of the NI Court of Appeal but overall, the principles are much the same].
49. The LQM also highlighted that he was following the provisions under the Equal Treatment Bench Book (ETBB). In the Galo decision (which, as stated, was a decision of an Industrial Tribunal appearing before the NI Court of Appeal) the Court considered whether the Tribunal had made appropriate adjustments for the appellant - a man with Asperger’s Syndrome.
50. At paragraph 61 of Galo [2016] NICA 25, the Court of Appeal judges considered the ETBB and expressed their concerns that:
“…we find it a matter of great concern that no reference appears to have been made to the ETBB by the Industrial Tribunal. The Secretary to the Vice President of the Office of the Industrial Tribunals and Fair Employment Tribunal has indicated by e-mail to the court that, whilst the Tribunal has the 2004 edition of the ETBB, the up to-date 2013 version does not appear to have been forwarded to the Tribunal. That is an unsatisfactory state of affairs. We have formed the clear impression that the ETBB does not appear to be part of the culture of these hearings. That is a circumstance which must fundamentally change with a structural correction to ensure that this situation does not recur. Had there been proper cognisance of the contents of the ETBB, we are satisfied that a different approach would have been adopted to this case.”
51. With the Galo decision and the ETBB in mind, I am conscious of the decision made by a NI Tribunal of Commissioners; Chief Commissioner Mullan and Commissioner Stockman (together with the President of the Appeals Service assisting as an interested party) in SA-v-Department for Communities (DLA) [2020] NICom 38, otherwise known as C6/18-19(DLA). I have included this decision with my observations.
52. The Commissioners considered the Court of Appeal’s decision in Galo (i.e. the 2016 ruling of the NI Court of Appeal) and also the Equal Treatment Bench Book used by Social Security Tribunals. I would quote various extracts from their decision as follows:
[p. 14 – President’s responses to the Commissioners’ questions on whether the decision of an Industrial Tribunal in Galo applies to Social Security Tribunals]
“I am satisfied that that the principles set out in Galo
-v- Bombardier Aerospace [2016] NICA 25,
as regards procedural fairness in courts and tribunals,
have a direct application to tribunals determining Social
Security appeals in Northern Ireland…
…I believe that the starting point in all cases should be
that mentioned by Gillen LJ at paragraph 53(1), namely
that
‘It is a fundamental right of a person with a disability to enjoy a fair hearing and to have been able to participate effectively in the hearing’…
… The Equal Treatment Bench Book has been adopted by me for use by the judiciary within the appeal tribunal. Training in respect of the implications of the Galo decision and the Equal Treatment Bench Book has been provided to all members. Members are aware of and have been trained in the need to secure ‘effective participation’ of the type envisaged in Galo.”
[p. 31 and 32 – the Commissioners held that]
“31. Paragraph (vi) of the President’s response makes clear that measures to address any disability affecting ability to participate in hearings are in place, that tribunal members are trained to adjust their approach to ensure that ‘effective participation’ is afforded in all cases and that the ETBB has been adopted by him for use by the judiciary within the appeal tribunal. Training to secure ‘effective participation’ of the type envisaged in Galo and the ETBB had been provided to all members.
32. It is common case that guidance of the kind articulated in the ETBB is not binding on tribunals. However, it is illustrative of good practice and we consider that, in general, tribunals should have regard to it when addressing the common law requirement, or the requirement under Article 6 of the ECHR, that the proceedings before them are fair.”
[p.35]
35. Once the particular appellant is before the tribunal, however, the tribunal should assume responsibility for the fairness of the hearing. Galo reminds tribunals of the obligation to act fairly in the particular context of appellants who may have a recognised disability, such as Asperger’s syndrome. However, it is not necessary to demonstrate any particular disability for the requirements of fairness to be engaged. They apply equally to all appellants. Where it is clear that a disability is involved which affects the ability of an appellant to participate in a hearing, a heightened level of attention to fairness may be required on the part of a tribunal. However, any appellant who cannot deal with the stress of attending a tribunal hearing, or who has difficulty articulating or presenting evidence, is no less entitled to consideration.
[p. 37]
“37. It appears to us that the procedures adopted by the President with reference to the ETBB and Galo represent a model which addresses the risk of unfairness through pragmatic and proportionate steps. Among these are mechanisms for pre-hearing directions and for adjustments in the course of hearings to enable effective participation. It is also evident that appropriate training has been provided to tribunal members.”
53. I would highlight especially paragraph 35 above which sets out that the requirement for a tribunal to act fairly extends to all appellants and not just those with a registered disability. The applicant in this case has a confirmed diagnosis of Complex Post Traumatic Stress Disorder, which the Tribunal took into consideration; but even with or without any confirmed diagnosis he nevertheless still fell under the consideration set out by the Commissioners where “…any appellant who cannot deal with the stress of attending a tribunal hearing, or who has difficulty articulating or presenting evidence, is no less entitled to consideration”.
54. I respectfully submit that the LQM in the present case has demonstrated his intention to follow the principles set out by Galo and the ETBB. In so doing he has been aware of the need to provide a fair hearing under the principles of natural justice and Article 6 of the ECHR. It is evident that he has been well trained in that regard and that he continually set out his desire to abide by those principles which is supported by the actions he took as to how to address the applicant’s particular circumstances and mental health issues.
55. As such I cannot support the applicant’s case that the hearing was procedurally unfair or was decided contrary to the rules of natural justice.
56. The applicant raises a particular point where he feels the LQM did not act fairly. Namely, that:
“During the Tribunal hearing, I raised a direct and legally pertinent question to the Legally Qualified Member (LQM) regarding the lawfulness of the eviction notice issued against me. This notice was granted in my absence, despite my prior written request—sent via registered post—for a rescheduling due to my inability to secure professional representation.
The LQM responded that it was "not his job" to answer such a question. This exchange was not recorded in the Tribunal Hearing Report, despite its relevance to the fairness and legality of the proceedings.”
57. I would observe in response that the decision before the LQM was a social security matter i.e. whether the SPC decision to take the applicant’s actual capital into account alongside deemed income from capital by way of his Galway property was correct. I do not see how the legality or otherwise of the applicant’s eviction notice is relevant to the question of determining his capital for SPC purposes.
58. I feel that is why the LQM’s answer was to the effect that the legality of his eviction notice was not a relevant issue for the Tribunal to determine. I would observe his reply appears to be curtly worded, which is regrettable if so; but in essence it appears he was informing the applicant that such legal questions are for another court to decide and do not fall within his remit. I therefore feel that this issue does not point to an error of law in the Tribunal’s decision.
59. In relation to the other issues that the applicant raises, such as failure of the Tribunal to acknowledge certain letters sent to it by registered post, I feel the LQM has set out a comprehensive decision taking care to address anything relevant to the decision before him.
60. I respectfully submit that a Tribunal is not required to make explicit findings of fact in relation to every piece of evidence or correspondence before it. Not all documents and evidence before a Tribunal will have relevance to the issue under appeal. So the Tribunal should be entitled to select the evidence it feels relevant to the decision under appeal and be allowed to disregard anything that is irrelevant. Such sifting of evidence is especially understandable when there is a large amount of evidence before it. I feel the LQM has taken care to set out his findings in relation to the core points of the appeal.
61. This is demonstrated in the Record of Proceedings/Statement of Reasons, where the LQM stated the following:
“The facts and issues set out in sections 1-2 of this Statement of Reasons should readily reveal the Tribunal was seized of the core points engaged in this appeal. The Tribunal was provided with large swathes of information of issues that it considered irrelevant to the appeal, but lest there be any lurking doubt in the mind of either party to the appeal — it has endeavoured to provide a comprehensive resume of all the information before it when it made its decision on 28 July 2023. This resume is not merely self-serving to the Tribunal. It has been catalogued to provide every assurance to the parties that the Tribunal was aware at all times that the Appellant feels very passionately about right legal rights and the proper and just application of those rights to his appeal.”
62. Case law holds that a Tribunal need not deal with every piece of evidence before it – the minimum requirement however is that the appellant should be able to follow how the Tribunal has reached its decision in light of the evidence.
63. In a reported decision R(A) 1/72 (also enclosed) the GB Commissioner held at paragraph 8 (with my underlining for emphasis):
“The obligation to give reasons for the decision in such a case imports a requirement to do more than only to state the conclusion, and for the determining authority to state that on the evidence the authority is not satisfied that the statutory conditions are met, does no more than this. It affords no guide to the selective process by which the evidence has been accepted, rejected, weighed or considered, or the reasons for any of these things. It is not, of course, obligatory thus to deal with every piece of evidence or to over elaborate, but in an administrative quasi-judicial decision the minimum requirement must at least be that the claimant, looking at the decision should be able to discern on the face of it the reasons why the evidence has failed to satisfy the authority. For the purpose of the regulation which requires the reasons for the review decision to be set out, a decision based, and only based, on a conclusion that the total effect of the evidence fails to satisfy, without reasons given for reaching that conclusion, will in many cases be no adequate decision at all.”
The outcome decision itself
64. Finally, I would just make some brief observations on the actual decision before the Tribunal and how it has decided the entitlement aspect. I feel this is best summarised in setting out further extracts from the Statement of Reasons:
“…the appeal was adjourned on a number of occasions… It adjourned again on 13 January 2023 to facilitate the Appellant in his attempts to get independent advice and assistance, and — crucially — because at that time he stated that he was considering getting an up-to-date valuation on the property. In applying natural justice, the Tribunal must extend this principle to both parties to the appeal…
…The core issue in this appeal is the application of Regulation 20 of the 2003. That was the provision relied on by the Department when it made its decision on 3 April 2019. Regulation 14 of the 2003 Regulation provides for the calculation of income and capital for the purposes of SPC. In particular, in that calculus, Regulation 20 of the 2003 Regulations provides for the scenario where a claimant possesses capital in a country outside the UK. Such a property is to be valued in accordance with Regulations 20(a)-(b) minus 10% for the costs of any sale of that property "and the amount of any encumbrance secured on it".
When the Tribunal came to consider the valuation of the property in question in this appeal, it could discern no applicable provision of Schedule 5 to the 2003 that applied to the Appellant on 3 April 2019. Therefore, it determined it must apply Regulation 20 of the 2003 Regulations as it found it.
At hearing on 31 August 2022, the Tribunal was concerned that the property may have an encumbrance on it. On 28 July 2023, the Tribunal could not be satisfied, on balance of probabilities, that on 3 April 2019 the St. Alban's property had an encumbrance on it. There was no documentary proof of same. There was no independent proof that any Solicitors for the Appellant's siblings held the deeds of the property as security for the loans that his siblings had advanced him over the years. Having considered, forensically, the joint statement from the Appellant's siblings dated 25 December 2019, that document states that the deeds of the property have been lodged "for safekeeping" with Patrick Hogan & Co since the 1980s. It is standard practice to have deeds of properties lodged in a secure location. The Tribunal considered the siblings' statement contains the sentence, "The loans were given to William Finnerty against his home" but considered that nothing in that statement could property be considered to create an actionable lien, encumbrance or security against the loans he had benefitted from. In fact, at all relevant times prior to 3 April 2019, the Appellant asserted there was no lien or security on the loans by way of his absolute interest in the property.
The Appellant's independent valuation on the property is dated 2015. The Department's valuation on the property is more focused on the property's valuation as at 29 April 2018. The Tribunal considered it was ultimately self-evident the Department's valuation was more probative as it valued the property temporally closer to the decision appealed against. The Tribunal should have preferred an actual valuation of the property by a suitably-qualified and credentialled valuer going out and seeing the property in situ in 2018-2019, or indeed thereafter and placing a valuation on it as it stood in April 2019. That evidence wasn't before the Tribunal. The Department's stance on this is that such a valuation is not available to it, that it has followed the procedure open to it and obtained Mr Purkiss' valuation (which, inter alia, considered the property was vacant) and that the Tribunal should not seek a counsel of perfection — R(JSA) 1/02 applied. The Appellant could have trumped the Purkiss valuation had he adduced before the Tribunal his own probative valuation of the property as it was on 3 April 2019. This was the way forwarded the Appellant postulated when the Tribunal sat on 13 January 2023. Ultimately, no such more probative valuation was produced by the Appellant. As the Appellant conceded at the hearing on 28 July 2023, "I have not got the required corroborative proof of the true value of my property in Ballinasloe... I accept that that is a fact”.
When the parties' evidence and submissions came to be weighed in the round on 28 July 2023, the more probative evidence came in the form of the Department's valuation of the property as authored by Mr Purkiss. Accordingly, the Tribunal considered that the best and most probative evidence before it, on balance of probabilities, of the valuation of the Appellant's capital (the property) on 3 April 2019 was that of the Department. In determining the appeal, the Tribunal accepted this better evidence and was more persuaded by the submissions synthesized in paragraphs 24 - 25 of the Department's Supplementary Submission dated 15 November 2023.
That being the case, and there being no other apparent argument before the Tribunal as to the Appellant's other capital, if any - indeed, the Tribunal noted the apparent eviction proceedings by Radius Housing against the Appellant, and the fact that on 28 July 2023 the Appellant stated he was virtually without funds — the Tribunal reached the decision it did, when Regulation 20 of the 2003 Regulations was applied. This decision was made not without reluctance and after a thorough review of all the evidence and submissions. But the Tribunal considered its determination to be correct and rational, when it weighed the evidence and arguments before it. This decision was recorded on the AT3 form. That summary decision states that the weight of the evidence led the Tribunal to find the Appellant is not entitled to SPC because his income exceeded the applicable amount, and that the Department's decision awarding SPC was correctly revised on 3 April 2019.”
65. I feel the above extracts confirm the Tribunal’s forensic approach to considering the applicant’s entitlement or otherwise under the SPC Regulations. It is evident the Tribunal would have preferred the Department to have been able to appoint a valuer who could visit the property in situ for a more precise valuation to be determined – but he accepted Mr Purkiss’ valuation was the best evidence the Department could obtain.
66. Consequently, the LQM would also have preferred that the applicant obtained his own valuation to trump the Department’s (as he was trying to do) but his failure to secure this meant that the Department’s evidence was more probative.
67. Also it was clear to the LQM that the loans obtained from the applicant’s siblings could not be treated as encumbrances on the Galway property – he had pursued that line of enquiry to its fullest, affording the applicant sufficient opportunity to try to get a solicitor to draw up an agreement securing those loans to the property – but such attempts proved fruitless.
68. I can therefore not identify any error in law as to how the Tribunal carried out its examination of the evidence and arrived at the outcome that it did in light of the SPC legislation regarding the treatment of capital/property abroad. I respectfully submit it has not made an unreasonable decision in the circumstances (i.e. one that no other tribunal in the circumstances would have reached).
Potential for new SPC claim
69. I would just like to bring a final point to the Commissioner’s (and applicant’s) attention. It relates to circumstances falling after the present disallowance decision, so is not an issue the Tribunal (or the Commissioner) could address. It is whether the applicant would be entitled to SPC now if he submitted a new claim.
70. There is no obligation on the Department to invite any person to claim a benefit (see paragraph 7 of a NI Commissioner’s decision in C4/82(RP) enclosed). However, I have noticed something from the appeal papers and it would be remiss of me not to raise the potential for reclaiming SPC.
71. I noticed an email from Mr Finnerty dated 10/02/20 (sent by him to the Appeals Service – see page 67 of “William Patrick Finnerty PT3”) where he says he was awarded Attendance Allowance (AA) as from 14/11/19. I am aware that a person who lives alone and is in receipt of AA, qualifies for an additional premium in their SPC entitlement. This is called the “Additional amount for the severely disabled”.
72. So I contacted the SPC benefit office and an officer there assisted me by providing some additional information. Firstly, she informed me that the applicant had submitted a new claim via a telephone application on 14/01/20 and his claim was considered from 11/11/19. She says this claim may have been initiated by the SPC office having been made aware of the recent award of AA.
73. On 14/01/20 an enquiry form was issued to the applicant requesting verification of capital held in all accounts and another questionnaire was issued for completion in relation to the property in Galway. Reply was required by 14/02/20. However, he did not supply the requested information, and his claim was disallowed due to failure to supply necessary evidence. This decision was not disputed at the time.
74. Secondly, I asked the SPC officer to try to calculate whether the applicant may now be entitled with the extra premium for the severely disabled included. She provided the following as an illustration of potential entitlement (I will reprint her reply to me in full):
“If Mr Finnerty were to make a new claim his claim could be considered for backdating for 3 months.
His applicable amount £227.10
Plus EASD (AA in payment lives alone no carer) £82.90
Total £310.00
less incomes
State Pension £115.00
This leaves £195 possible entitlement.
From this deemed income will be applicable for the property in Galway (depending on the valuation) and then any other capital that can’t be disregarded and held in all accounts by Mr Finnerty would be included. 10% for cost of sale would be allowed for the valuation. The first £10,000 of capital is disregarded and then deemed income of £1 is taken into account for every £500.
The property in Galway had been valued at £60,000 as of 29/04/2018.
If he had any less than £107,000 in total capital, he would have entitlement to guarantee credit and if any less than £129,000 he would only have some savings credit.
So basically, entitlement would be dependent on the amount of deemed income from capital that would be taken into account.
I’m sorry I can’t give a definite amount for entitlement as it would be dependent on deemed income from capital.”
75. I appreciate that the last opportunity the SPC office had to ascertain the amount of the applicant’s capital was at the date of disallowance on 03/04/19. So much would depend on the level of capital he possesses now, taken into account with the deemed income from capital (which, six years on, would likely require a more up to date valuation of the Galway property).
76. The last overall figure determined by a decision maker as at 03/04/19 was £87,809.86, which again I must highlight is a figure assessed over six years ago and needs fresh determination. However, the potential for the applicant being entitled to SPC again is evident from the above forecast, even taking his capital and Galway property into account.
77. I am aware of another email in the papers (see page 168 of “William Patrick Finnerty PT2”) where the applicant has said:
“…as far as I am aware unless the loans against my home in the Republic of Ireland, which I have been provided with by my brother (Mr Gerald Finnerty) and his half-sister (Ms Marjorie Dolan) since 2007 (or so), can be legally secured against my home in the Republic of Ireland, there is no point in I ever applying again for Pension Credits payments, or for Housing Benefit payments, in any part of the United Kingdom of Great Britain and Northern Ireland; and, that this is because the value of my home in the Republic of Ireland exceeds the limits which permit such payments; and that this situation will persist (as far as I know) for as long as the loans in question (now in the region of €107,000) remain legally unsecured against his home in the Republic of Ireland.”
78. The applicant is of the opinion that he will not be entitled to SPC so long as the value of his home (whilst the loans remain unsecured against it) is taken into account. I just wanted to alert him to the possibility that he could be entitled to SPC again, even with the Galway property assessed as income from capital. The exact weekly entitlement figure cannot be accurately predicted as it will all depend on the amount of overall capital determined.
79. I would just extend an invitation to him to apply for SPC again. If he does do so, then I would also advise him to provide the decision maker with copies of his bank accounts and complete any other questionnaires they require as supporting evidence. Hopefully he could now secure extra weekly benefit if SPC entitlement conditions are met.
Conclusion
80. However, returning to the present application, I would submit that, for the reasons set out above, I cannot support the application. I respectfully submit the applicant had a fair hearing conducted under the rules of natural justice.
81. Should the Commissioner decide that the decision is erroneous in law, I consent to the Commissioner treating the application as an appeal and determining any question arising on the application as if it arose on appeal.
82. Furthermore I consent to my observations being treated as observations under Regulation 18(1) of the Social Security Commissioners (Procedure) Regulations (NI) 1999.
Yours faithfully
MICHAEL DONNAN
For the Department