Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1993] NISSCSC C1/93(SUPP BEN) (10 September 1992)

 


Decision No: C1/93(SUPP BEN)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

SUPPLEMENTARY BENEFIT

Application by the above-named claimant for

leave to appeal to the Social Security Commissioner

on a question of law from the decision of the

Downpatrick Social Security Appeal Tribunal

dated 10 September 1992

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal dated on 10 September 1992 and relates to whether or not claimant was entitled to the long-term scale rate or additional requirements for diet and heating under the old Supplementary Benefit Legislation.
2. Claimant was granted leave to appeal out of time on 14 February 1992 and the appeal was heard in September 1992.
3. Briefly the facts are that the claimant now seeks to apply for diet and heating supplements going back to January 1961. One of the problems is that the Department have no records dating back that far in relation to supplementary benefit. However claimant submitted an application for a review and also an application for leave to appeal out of time. The application for review was not considered by an Adjudication Officer because of the limitations imposed by section 104(3B) of the 1975 Act which would have restricted any payment of arrears to 12 months from the date of the application. However as leave to appeal out of time was granted then what was before the Tribunal was an appeal against the original decision.
4. Grounds for appeal as indicated by claimant's representative, Mr Les Allamby of Belfast Law Centre were that the Tribunal erred in law by misdirecting itself as to the meaning of the law in -

"(i) Late appeal is governed by Section 100 of the Social

Security (NI) Act 1975 (as now consolidated) and Regulation

3(3) of the Adjudication Regulations. Neither party raised

the question of this matter being a review nor did the

Tribunal suggest as such at the hearing. Late appeals are

not subject to Regulations 69 and 72 (as was) of the

Adjudication Regulations.

(ii) The Tribunal took account in their decision that the claimant

failed to provide medical evidence to substantiate the extent

of the medical condition and there was no evidence that the

claimant followed a special diet. The Tribunal is entitled to

accept or reject claimants' evidence, but must set out why

evidence rejected and not require medical corroboration (see

R(SB) 33/85 and CSB 1148/1986). A stomach ulcer is a medical

condition normally requiring a special diet. The evidence of

Mr C... at the Tribunal regarding dietary needs also went

beyond those recorded in findings of fact."

5. The Adjudication Officer having received the grounds of appeal considered same and made the following comments:-

"1. Thank you for the opportunity to comment on this application

for leave to appeal to the Social Security Commissioner.

2. I would agree with the views of Mr C...'s representative

that the Tribunal misdirected itself in law by considering

the requirements of Section 104 of the 1975 Act and Regulations

69 and 72 of the Adjudication Regulations. On 12 September 1991

Mr C... made an application for review and a late appeal

against the original and all subsequent decisions on his claim

for Supplementary Benefit. An extension of time for a late

appeal was granted by the Chairman on 14 February 1992. The

Adjudication Officer did not, therefore, consider the application

for review due to the limitations imposed by Section 104(3B) of

the 1975 Act. Accordingly, once the late appeal was accepted the

review question was sidelined and the Tribunal have erred in law

by reaching a decision based on review provisions.

3. The second point of law raised by Mr C...'s representative

is that, the Tribunal took account of the fact that no medical

evidence was provided to substantiate the extent of the medical

condition. In view of the following statement from para 16 of

R(SB) 33/85, I would submit that the Tribunal were entitled to

take this into account and that this in itself may be a reason

for rejecting a claimant's evidence:-

"... I should stress that whilst presence or absence

of medical evidence (or evidence at least of having

consulted a doctor), though the necessity for such is

not prescribed may in given circumstances be of

relevance in assessing the creditability of a claimant's

own evidence ..."

4. However, if the Tribunal were suggesting that corroborative medical evidence was required before Mr C...'s own evidence could be accepted, then this is obviously an error of law (para 14 R(SB) 33/85). Additionally, the Tribunal have erred in law by finding that there was no "evidence that claimant followed a special diet for medical reasons". Para 13 of Schedule 3 to the Requirements Regulations (NI) 1983 allowed an additional requirement to be paid for a special diet if the person was suffering from "a peptic, including stomach and duodenal, ulcer"; there was no requirement that the need should be attributable to "medical reasons". Accordingly, the Tribunal whilst accepting that Mr C... suffered from an ulcer, erred by imposing the requirement that the special diet should relate to "medical reasons" when this was not in the legislation.

5. Although the Tribunal has erred in law the main difficulty in this

case remains the lack of evidence. No documentary evidence is held

by the Department as the alleged supplementary benefit claim is said

to have ceased in 1972 and therefore any documents pertaining to

such a claim would have been destroyed by this stage. As such

destruction would have occurred in the normal course of events and

was not a deliberate attempt to conceal or remove evidence, it does

not raise any presumption against the Department (CIS 620/91).

Although corroboration of Mr C...'s own evidence is not required,

the onus of proof still rests with him and he must prove his case

on the 'balance of probabilities'. If the probabilities are equal

he will have failed to discharge that onus as he is not entitled

to the benefit of the doubt (R(I) 31/61, R2/85(II)).

6. The Tribunal found that the evidence was insufficient to reach the

conclusion that Mr C... had been in receipt of benefit throughout

the periods contended and, having considered the available evidence,

it was entitled to do so on the balance of probabilities.

Unfortunately, the Tribunal went on to relate this to review provisions

but I submit that the same principles in relation to evidence apply

to proving a case on appeal. Accordingly, if the probabilities are

equal, that is, it is just as likely that the facts were as contended

as it is that they were not, then the evidence would be insufficient

to enable the appeal to succeed.

7. The Adjudication Officer consents to the Commissioner treating the

application as an appeal and determining any question arising on

the application as if it arose on appeal."

6. Both parties having consented to me treating the application as an appeal and determining any question arising on the application as if it arose on appeal, I propose so to do.
7. I accept the concessions made by the Adjudication Officer. I accept that the Tribunal appeared to and in fact decided the matter as if it was an application to review and consequently misdirected itself when it considered that the claimant was obliged to show that the original decision was given in ignorance of or based on a mistake as to some material fact. For the reasons set out in the Adjudication Officer's letter I allow the appeal, set aside the decision of the Social Security Appeal Tribunal and refer the matter back to be reheard by a differently constituted Tribunal which shall take cognisance of the points made by the Adjudication Officer.

(Signed): C C G McNally

COMMISSIONER