Byrom v Social Security Commissioner

For work to be remunerative, it must have been done in a realistic expectation of payment. The question is assessed at the time the work was performed. Later payment is relevant and may be a strong indicator, but it is not conclusive. The tribunal may draw reasonable inferences from the evidence and the surrounding commercial reality. An appellate tribunal should not interfere merely because the fact-finding tribunal gave succinct reasons, omitted detailed reference to authorities, or might have reached a different conclusion. The question is whether the correct legal test was applied to facts capable of supporting the decision.

The appellant challenged overpayment decisions concerning income support. An adjudication officer decided that benefits had been overpaid during two periods in 1995 and 1996. The Social Security Appeal Tribunal dismissed his appeals, and the Social Security Commissioner dismissed a further appeal, holding that there was no error of law.

The appellant sought permission to appeal to the Court of Appeal. He argued that work undertaken before payment was received had not been done in expectation of payment and that the tribunal had inadequately addressed the evidence and applicable law. The central issue was whether the tribunal had applied the correct legal test and was entitled to infer an expectation of payment from the available materials.

1. Permission refused. The application had no real prospect of success.
2. Under regulation 5 of the Income Support (General) Regulations 1987, the relevant question was whether the work was done in expectation of payment. That question had to be determined by reference to the time when the work was performed, not merely by reference to the later outcome.
3. The receipt of payment for past work did not necessarily prove that payment had been expected when the work was done. It was nevertheless a relevant pointer, and could properly be treated as evidence supporting an inference of expectation.
4. The tribunal was entitled to assess the evidence on the balance of probabilities and to draw inferences from the direct evidence, the circumstances of the enterprise and a common-sense and realistic appreciation of the situation. The fact that the payment came from proceeds of share sales did not make the payment capital in character where it was paid to the appellant as wages or salary for work performed.
5. Although the tribunal’s reasoning was succinct and it did not expressly cite the relevant authorities, it had applied the correct legal principles to materials capable of supporting its conclusion. A possible criticism of the extent of the reasoning did not establish an error of law or Wednesbury unreasonableness.

Order: application for permission to appeal refused.

• Social Security Appeal Tribunal, Wrexham: dismissed appeals against the adjudication officer’s overpayment decisions.
• Social Security Commissioner: dismissed the further appeal and held that the tribunal had made no error of law.
• Court of Appeal (Civil Division): refused permission to appeal.