Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1993] NISSCSC A2/93(SB) (25 May 1993)

 


A2/93(SB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

SICKNESS BENEFIT

Application made out of time by the Appointee named above

for leave to appeal to the Social Security Commissioner

on a question of law from the decision of

Belfast Social Security Appeal Tribunal

dated 17 September 1992

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1. In this case Mrs B... M..., the widow and appointee of the claimant, T( M... deceased, seeks leave to appeal out of time against the decision of Belfast Social Security Appeal Tribunal, whereby it was held that sickness benefit was not payable to the claimant from and including 12 February 1992 to 26 September 1992. In my view there are special reasons for the delay which has occurred, and I accordingly accept the application and proceed to consider and determine it.
2. From 8 April 1991 the claimant, a self-employed taxi driver then aged 48, claimed and was paid sickness benefit for intermittent periods, in respect of which supporting doctor's statements referred to "muscular chest pain" and "back pain". On 5 February 1992 the claimant was examined by a Medical Officer of the Department who expressed the opinion that he was capable of his usual occupation, and thereafter the Adjudication Officer disallowed the claim from 12 February 1992 on "not incapable" grounds. The claimant appealed and by the time of the hearing of the appeal there had been a further examination on 9 June 1992 by a different Medical Officer of the Department who also advised that the claimant was capable of his usual occupation.
3. In disallowing the appeal the Tribunal Chairman noted in some detail the evidence relied upon by the claimant and his representative and recorded the Tribunal's reasons for decision in the following terms:-

"Tribunal finds on the basis of all of the evidence both medical and

otherwise that claimant is capable of his normal occupation - we accept

that claimant suffers some pain in his back and chest but this we

believe would not be sufficient to prevent claimant from working as

a taxi driver."

4. The grounds of the application for leave to appeal to the Commissioner are stated as follows:-

"See attached letter.

R1/76(IVB) para 6, 7 in claimant's favour.

In addition extra medical evidence was physically presented to the

Tribunal as indeed was new medical evidence, none of which was

reflected in the Tribunal's decision."

The "attached letter" was a letter dated 20 October 1992 to the Appeal Tribunal from Mrs M...'s representative, Counsellor Michael Ferguson, in which it was stated that unspecified Commissioners' decisions were wrongly interpreted by the Tribunal. The Tribunal were also informed of the claimant's death since the hearing and this information had been "highlighted" by the application of a yellow dye. In a handwritten addendum to the letter dated 9.11.93, Counsellor Ferguson suggested that this highlighting had been carried out by the Chairperson, who had thereby indicated that the death of the claimant was considered to be "grounds sufficient for denying his permission to pursue this matter."

5. The decision in R1/76(IVB) upon which reliance has been placed, was given at a time when appeals were available on questions of fact as well as law. The Chief Commissioner who dealt with the appeal accordingly did not have to decide whether the Tribunal had erred in point of law. He could, and did, reverse their decision on the basis that, in his opinion, the claimant was, throughout the relevant period, capable of his usual occupation. In reaching this conclusion he also pointed out that there is no rule of law that, where there is a conflict of opinion between the claimant's doctor and a Medical Officer of the Department, the view of the former must prevail.

Since April 1987 an appeal to the Commissioner lies only on the ground that the decision of the Appeal Tribunal was erroneous in point of law, and there is in my view nothing to suggest that the Tribunal in this case wrongly interpreted the decision in R1/76(IVB) or any other Commissioners' decisions.

6. So far as the highlighting of the information regarding the claimant's death is concerned, I have no way of knowing who was responsible for it. However, even if it was carried out by the Tribunal Chairman, I do not accept that it has the significance except suggested by Counsellor Ferguson, and most certainly it does not indicate to me that the claimant's death since the hearing was regarded as sufficient reason for refusing leave to appeal.
7. Having studied the record of the Tribunal's decision I am unable to accept that it does not reflect the evidence tendered at the hearing.
8. For the reasons set out in paragraphs 5, 6 and 7 above I reject the grounds relied upon in support of this application for leave to appeal. I have further considered whether there is any other ground for holding that the decision of the Appeal Tribunal is or may be erroneous in point of law, and have reached the conclusion that there is not. Leave to appeal will accordingly be refused.
9. The appointee has requested an oral hearing of her application; but having considered the circumstances of the case and the reasons put forward for the request, I am satisfied that the application can properly be determined without a hearing. The request has therefore been refused.

(Signed): R. R. Chambers

CHIEF COMMISSIONER

25 May 1993