Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1993] NISSCSC C69-91(IS) (20 January 1993)

 


Decision No: C69/91(IS)

Decision No: C4/92(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 INCOME SUPPORT Appeals to the Social Security Commissioner on questions of law from the decision of the Lisburn Social Security Appeal Tribunal dated 9 September 1991 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. These are applications by the claimant and the Adjudication Officer for leave to appeal against the decision of a Social Security Appeal Tribunal and relates to claimant's entitlement to additional need payments and whether or not the Adjudication Officer was right in refusing to review an earlier decision.
2. I arranged an oral hearing at which claimant was represented by Mr Gavin of Belfast Law Centre and the Adjudication Officer was represented by Mr Philip Gunn, Solicitor of the Department of Health & Social Services.
3. The facts can be stated very briefly, in that the claimant is now a 30 year old single man who because of his psychiatric condition was incapable of work and was in receipt of a disability premium in addition to income support and previously supplementary benefit. In December 1987 he claimed extra additions for laundry because of excessive washing of clothes and this was granted to him and back-dated for 12 months to 21 December 1986. On 28 January 1988 he requested an extra addition for clothing because of excessive wear and tear and this was granted and back-dated to 28 December 1986. This appeal arose originally by him claiming that as he was awarded supplementary benefit from 1978 that additional requirements should have been back-dated to when he was initially entitled to supplementary benefit and seeking to have a previous decision of the Adjudication Officer reviewed which he refused to do. The case then proceeded to a Social Security Appeal Tribunal at which point the question arose as to what original claim was to be reviewed if at all and to what additional payments claimant would have been entitled. Evidence was given that because of his condition he had additional needs, namely for laundry, special wear and tear on clothes, baths, heating at the lower rate and after 12 months long-term rate of supplementary benefit.
4. Before one could decide any of these questions a decision had to be made as to what Adjudication Officer's decision was to be reviewed and there appeared to have been much argument at the Tribunal concerning the date of the initial claim and what information was given to the Adjudication Officer at that time.
5. However, the Tribunal having heard the evidence made certain findings of fact which it recorded as follows:-

"Appellant is a 29 year old single man. We accept his evidence that

he claimed Supplementary Benefit at ... Social Security Office in

June 1979.

His date of birth is 15 June 1962. The earliest date he could have

claimed was 15 June 1978 but at that time he was still at school

repeating "O" levels. Subsequently he went to ... technical College

part time to do "A" levels. He left school at 17 and got Supplementary

Benefit in June 1979.

He has been on benefit ever since, apart from a year in D…

Hospital.

Since he was a schoolboy he has had periods of sickness. At around the

age of 16 he saw Dr M... and a psychologist at N... Hospital.

After that he was referred to a psychologist in the Belfast City Hospital.

When he claimed Supplementary Benefit in June 1979 we accept he explained the problems that his illness was causing at home.

He suffers not from any physical illness but from an obsessional neurosis

which involves his washing himself and his clothes abnormally frequently;

running up electricity and other bills for heat and hot water. He is

obsessed with his own and his clothes' cleanliness. He would wash his

clothes frequently. He would bath or shower three times a day. He would frequently wash his hands.

Due to his illness, he would spend long periods at home when he felt

unable to go out and required extra heating which he could not afford."

6. The Tribunal found that he made an initial claim in June 1979, that he suffered from an obsessional neurosis which involved him washing himself and his clothes abnormally frequently, running up electricity and other bills for heat and hot water and that he would have baths or showers 3 times a day. There was much discussion and argument at the Tribunal as to the date of the original claim and as no documentary evidence was forthcoming, because the records of that time had been destroyed, whether or not there was a presumption against the Adjudication Officer in relation to the destroyed documents. The Tribunal however considered that the presumption would only be relevant where the contents of the documents were in dispute and that the presumption that everything was presumed against the destroyer did not apply in this case because the point was whether there ever was a document. The Tribunal found as a fact that there was.
7. Having done so the Tribunal then went on to consider what claimant would have been entitled to from 1979, the date of the original claim and set out very fully the various additions which were due to a person in his condition.
8. The Tribunal went to great trouble to analyze each particular item and decided that:-

"However, we do accept that if the appellant told the Benefit Officer

in 1979, which we accept he did, that he suffered from an illness of a

psychiatric nature, such as an obsessional neurosis, the officer was

under a duty to ask the appropriate questions about how this affected

him. If the officer did so, he erred in not awarding at least those

Additional Requirements which were awarded in 1987. If he did not do

so, he erred in this respect and there then arose the mistakes as to

material facts of which the appellant now complains.

We think the appellant probably did say enough in 1979 to put the Benefit

Officer on notice and under an obligation to enquire further, though the

appellant may not have given the officer as graphic an account of the

effects of his condition as he has given us today but we must remember

he was only about 17 years old at the time and more likely than an adult

perhaps to be reticent about talking about his condition and more likely

to rely on the Officer's ability to deal properly and fully with his claim.

We bear in mind that he was not complaining about a physical illness. We have little doubt that had that been his case, the ... Office would

have dealt with it fully. He was complaining in effect about a mental

illness, an obsessional neurosis and it is possible that that office had

no or little experience of dealing with such matters and that it simply

never occurred to anyone there that a mental illness could give rise to

issues like extra baths, extra laundry, etc at least in the absence of eg

incontinence, the application of oils, ointments, creams, etc.

We accept that errors of fact were made and the Additional Requirements can be considered from 1979, each in turn."

Having got this far the Tribunal then considered the various additions as follows:-

Lower Rate Heating Addition

Rejected this claim on the grounds that they did not accept because of his chronic ill health he needed extra warmth in the direct way that suffers from eg bronchitis or arthritis did and his need arose indirectly because of his neurosis.

Baths

This claim was also dismissed on the grounds that his neurosis which made him feel that he required baths frequently was not for a physical reason and decided that his need for baths did not arise on medical grounds and that there was no objectively verifiable reason for this and the Tribunal felt that the objective approach was the correct one, or else any claimant could say that he felt the need for a bath or shower several times in a day.

Wear and Tear on clothes

The Tribunal awarded him this addition back-dated and set out a particular amount but did not set out the period during which it considered he was entitled to this benefit, although the amount which it accepted was the amount which claimant's representative had submitted as applying from 28 June 1981.

Laundry

This claim was also dismissed by the Tribunal on the grounds that the regulations required that the quantity of laundry be substantially greater than the amount which would normally be generated by an assessment unit of the same composition, for example because of incontinency and the Tribunal considered that as the only example given was incontinency which was a physical condition that Parliament had intended to restrict the laundry additions to cases were the extra laundry was due to a physical illness and as the applicant did not have a physical illness and was not incontinent then he was not entitled to the additional laundry supplement.

Long Term Scale Rates

The Tribunal considered that claimant's circumstances were analogous to those in regulation 6 of the Conditions of Entitlement Regulations and awarded him long-term rate and set out an amount but did not specify a time and in its decision merely said that the appeal was allowed.

9. I will deal firstly with claimant's appeal on wear and tear. While the Tribunal allowed his appeal in respect of wear and tear it did not specify dates but adopted figures which were submitted to the Tribunal on behalf of the claimant and which ran from 28 June 1981 to 11 April 1988 and the Tribunal adopted those dates but made a reduction for the period when he was an in-patient. The claimant's appeal now is on the grounds that the Tribunal did not go far enough back, that it only went back to 28 June 1981 and should in fact have gone back to 1979.
10. The Tribunal went into this matter very thoroughly but were clearly misled by figures which were presented to it on behalf of the claimant, because they started in 1981 and the reason given for that was that it was considered that it was not possible for claimant at that time to prove that he had made his first claim in 1979. However the Tribunal found as a fact that he had made a claim in 1979 and I am satisfied that there was sufficient evidence upon which the Tribunal could have made that finding. The first date on which he could have made a claim was when he left school at 17 and got supplementary benefit and the Tribunal accepted that additional requirements could be considered from 1979 and I think it is only then a question of arriving at a date in 1979. The Tribunal found that he claimed in June 1979 after he left school; that being so it is likely that he stayed in school until the last week in June so I would consider that a proper date for calculation of this and other benefits would be the nearest payment date to 1 July 1979. That being so I am satisfied that the Tribunal arrived at the correct decision relating to claimant's entitlement to wear and tear on clothing but that the actual amount which it awarded was wrong and that a recalculation should be made going back to July 1979.
11. Baths - The Tribunal was of the opinion that there was no physical or objectively verifiable reason for him to do so and considered that as the need must be on medical grounds that there was no medical reason for the applicant to wash, he did not have a skin condition and that it was significant that the hospital tried to persuade him to bath less frequently.

I am satisfied that the Tribunal was wrong in this approach. It is not disputed that the claimant's illness entitles him to benefits and that his illness is such that he considers it necessary to take baths frequently and if it is caused by his illness then I am satisfied that it is on medical grounds. I am not happy about the objective approach that was adopted by the Tribunal nor the argument which supported its approach on the grounds that a claimant could say he needed baths several times a day, but here the evidence is not in any way contradicted, it is not in any way doubted that claimant does in fact take and feels a need to take baths several times a day. In fact this is one of the routes of his medical condition, so I am satisfied that the Tribunal erred in that regard and that claimant is entitled to an addition in respect of baths back-dated to 1 July 1979.

12. Laundry - I think the same argument applies to the Tribunal's refusal to award a laundry addition because the only example given in the regulations is a physical condition of incontinency. However that is merely an example, if one reads the regulation leaving out the example it is quite clear that claimant would be entitled because no one has argued that his laundry is not substantially greater than normal and it is obviously due to his medical condition. I can see the argument which the Tribunal accepted that the example given was due to a physical illness and consequently as the applicant did not have a physical illness he was not entitled but I am satisfied this is wrong. His medical condition necessitates that his laundry is substantially greater than normal and consequently he is entitled under the regulations.

The figures given on behalf of the claimant and submitted to the Tribunal which were not disputed began on 28 June 1981. I am satisfied that it should be back-dated to 1 July 1979.

13. Heating Allowance - Here the regulations require that extra warmth needs to be provided because a claimant suffers from chronic ill health and gives examples of bronchitis, rheumatism, arthritis etc, and the Tribunal accepts that he suffers from chronic ill health but that his illness was not one of those listed in the example nor similar and then went on to hold that it did not accept that because of his chronic ill health he needed extra warmth but that this need arose indirectly because of his neurosis, he was unable or reluctant to go out and so the need to heat his house more than someone who was not at home so often.

I am satisfied that the Tribunal came to a correct decision as far as the heating addition is concerned. I think that while claimant suffered from chronic ill health and required baths because of his condition and additional laundry because of his condition, nevertheless the heating is an entirely different matter and although one accepts that he spends long periods of time at home I feel that the regulations do not cover that situation and the Appeal Tribunal was correct in deciding that he was not entitled to the heating allowance.

14. Long-term Scale - As far as the long-term scale is concerned the Tribunal allowed the appeal and considered that his circumstances were analogous to those in regulation 6 and while again the Tribunal did not specify a date adopted the figures which were given on behalf of the claimant began in June 1981.

I am satisfied again that the Tribunal was perfectly correct in deciding that claimant was entitled to the long-term scale rate because it accepted in several instances in its decision that he suffered from chronic ie long continued ill health and again the figures did not go far enough back, because if the Tribunal considered that he made a claim in June 1979 and his condition subsisted from then, then a readjustment of the amount awarded must be made. Also a further re-adjustment must be made in connection with this long-term rate because having awarded the long-term rate and an additional requirement the Tribunal failed to make the adjustment necessary under regulation 11(2A) of the Requirement Regulations. But this again is only a matter of arithmetic.

15. Turning now to the appeal by the Department. The Department considered that the Tribunal erred in law in several aspects. Grounds 2 and 3 are that the Tribunal failed to record how the various amounts it awarded were arrived at. It is quite clear that the Tribunal adopted the figures which were submitted on behalf of the claimant, all beginning in 28 June 1981, so I find no substance in those grounds of appeal. Also Ground 4 were the Department objected that the Tribunal failed to specify when the entitlement to additional requirements on the long-term scale commenced and ended. However the figures which the Tribunal used showed clearly when the term began and ended, although I am satisfied that the term should not begin on 28 June 1981 but in July 1979. The Department also argued that the Tribunal failed to record sufficient findings relating to the analogous situation under regulation 6 of the Conditions of Entitlement Regulations where it required a finding that after 12 months the long-term scale was applicable if he was not required to be available for employment. I am satisfied that the Tribunal went into this matter thoroughly and considered whether he had a mental disability, no prospect of employment and that his situation was analogous to those detailed in the regulations and that from the whole tenor of the decision it was clear that they considered he suffered from long-term illness.
16. I now turn to the two main complaints of the Department, namely that the Tribunal failed to identify the decision under review and failed to have regard to regulation 69 of the Adjudication Regulations which restricted arrears of payments to 12 months. These two points are inter-related, in other words one must first of all identify what the Tribunal was doing; was it considering an appeal by the claimant against a decision of the Adjudication Officer refusing to review a previous decision or was it considering a reviewed decision? The submission of the Adjudication Officer made to the Tribunal (which is completely unsatisfactory and was of no help at all to the Tribunal) records that this is an appeal against the decision of an Adjudication Officer issued on 4 September 1990 and gave the decision as: "The request for review is refused because the claimant has not shown that there are grounds for review." Now that decision of 4 December 1990 was a decision by an Adjudication Officer that the claimant did not show that there were any grounds for back-dating the extra additions more than 52 weeks from the date they were applied for and that is related to laundry and clothing, because in December 1987 claimant requested an extra addition for laundry which was awarded and back-dated to 21 December 1986. In January 1988 he requested an addition for clothing because of excessive wear and tear, again this was awarded and back-dated to 28 December 1986. He then on 26 February requested that his additional requirements awarded in respect of laundry and clothing be back-dated to 1977 and the Tribunal records that claimant's representative said that this appeal is against the refusal to review earlier decisions on entitlement.
17. The Tribunal found that he made a claim in 1979 and considered that at that time the benefit officer was on notice and was under an obligation to investigate every aspect of the claim but only if the applicant said something or produced some evidence which would put a reasonable officer on notice that there was some issue to be investigated. The Tribunal found that that was so. In that event then it must be considered whether or not regulation 69 is applicable to this case or whether or not the benefit of regulation 72 can be claimed on behalf of the claimant because the error was an error or mistake by the Adjudication Officer. It is not clear from the recorded decision that the Tribunal directed its mind to either regulation 69 or the relief granted by regulation 72,but the Chairman recorded a submission by claimant's representative that regulation 72 lifted this limit where the decision was erroneous by reason of a mistake by the Adjudication Officer and argued that the Adjudication Officer had made a mistake as to the extent of his additional needs, and as the Tribunal then went on to consider the additional needs and to make an award dating back to 1981 it is clear that though they did not actually record that they were giving claimant the benefit of regulation 72 that they in fact were applying that regulation due to a mistake by the Adjudication Officer and in the reasons for the decision the Tribunal records that the officer erred either in not asking the proper question or in not making a proper award. So I am satisfied that while the Tribunal did not actually record the fact that claimant was entitled to the benefit of regulation 72, nevertheless it did in fact apply it and knew that it was applying it.
18. The only remaining question is to decide what claim was being considered and what did the Adjudication Officer refuse to review. Clearly claimant's representative was uncertain as to whether he could prove that claimant could go back to 1979 and he had more confidence in the argument that he could go back to 1981 because that was when he worked out the schedule of additional payments. However as the Tribunal has decided that the Adjudication Officer erred in not awarding or considering these additions in 1979 then one must assume that it was the 1979 decision that was being considered. It is clear from all the records made of the Tribunal's decision that it was the 1979 decision which they were considering and although the amounts which it awarded were only from 1981 that was because I think they were misled by the schedules handed in on behalf of the claimant.
19. If one accepts what the Tribunal was considering was a review of the Adjudication Officer's decision of 1979 it is surprising that an appeal was not lodged against that decision, even a late appeal which would have saved any argument about regulation 69, however I must take the matter as I find it and this is an appeal against the refusal of an Adjudication Officer to review a previous decision. Mr Gunn argued that in fact the decision which claimant sought to challenge only related to clothing, laundry and heating, nothing else and that is so, until the appeal hearing where everything was opened on the table, which is right I think, if one is seeking a review of a supplementary benefit claim and a decision by an Adjudication Officer then everything is open and with the facts in the possession of the Tribunal it was entitled to consider all additional payments to which claimant might have been entitled. So I am satisfied therefore that what was being considered was the 1979 claim and that the Tribunal was correct in so doing. It was open to the Tribunal to consider all relevant additional amounts to which claimant might have been entitled.
20. I therefore dismiss the appeal by the Adjudication Officer. I allow the appeal by the claimant against the Tribunal's decisions in respect of the baths addition back-dated to first pay day of July 1979, I allow the appeal in respect of the wear and tear of clothing only because the amount awarded was wrongly calculated in that it used wrong figures because although the Tribunal actually decided that claimant was entitled from 1979 it merely made a miscalculation as to the figures, so I allow the appeal in respect of wear and tear in respect of amount. I also allow the appeal in respect of the long-term scale rate back to 12 months after the first pay day in July 1979 which will bring that up to a date beginning on the first pay day in July 1980 so that the Adjudication Officer must make the adjustment necessary under regulation 11(2A) of the Requirements Regulations. I allow the appeal in respect of laundry addition from July 1979 but I dismiss the appeal in respect of the heating addition.
21. If there is any difficulty between the Adjudication Officer and the claimant's representative in agreeing the amounts they are at liberty to come back to me.
22. I would just like to thank both Mr Gunn and Mr Gavin for their assistance in this matter. While I found it necessary to set aside some of the decisions of the Tribunal I would like to pay a compliment to it for the amount of work which it obviously put into this very difficult and complicated matter.

(Signed): C G McNally

COMMISSIONER

20 January 1993