Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1994] NISSCSC A1/94(AA) (10 December 1993)

 


A1/94(AA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 ATTENDANCE ALLOWANCE
Application by the claimant for leave to appeal to the Social Security Commissioner on a question of law from the decision of Newcastle Social Security Appeal Tribunal given on 10 December 1993
DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER
1. In this case the claimant seeks leave to appeal against the decision of Newcastle Social Security Appeal Tribunal, whereby it was held that she was not entitled to attendance allowance earlier than 28 January 1991.
2. The claim for attendance allowance submitted by the claimant was received in the Department of Health & Social Services on 28 January 1991. However, the claimant has all along contended that previous applications by her for supplementary benefit and income support should be treated as claims for attendance allowance, so as to enable her to receive the allowance in respect of periods prior to that date. The power to treat a claim for one type of benefit as a claim for another is to be found in regulation 9(1) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, which reads as follows:-

"Interchange with claims for other benefits

9.-(1) Where it appears that a person who has made a claim for benefit

specified in column (1) of Part 1 of Schedule 1 may be entitled to the

benefit specified opposite to it in column (2) of that Part, any such

claim may be treated by the Department as a claim alternatively, or in

addition, to the benefit specified opposite to it in that column."

At the material time "supplementary benefit, attendance allowance or an invalid care allowance" appeared in column 2 of Schedule 1 to the Regulations, opposite to "income support" in column 1.

3. In reaching their decision as set out in paragraph 1 above the Appeal Tribunal's findings of fact included the following:-

"In addition we find that the Department has decided not to exercise

its discretion to accept any of Claimant's applications for benefit

prior to 28 January 1991 as being an application for Attendance

Allowance."

Their reasons for decision were:-

"Regulation 9(1) of the Social Security (Claims and Payments) Regulations

(Northern Ireland) 1987 gives the Department a discretion. The word

used is 'may' and not 'shall'. The Department has refused to exercise

its discretion in this case and the Tribunal has no jurisdiction to

reverse that decision."

4. In her application for leave to appeal to the Commissioner the claimant again asserts that her earlier claims for supplementary benefit should have been accepted as claims for attendance allowance. Nowhere is it suggested that there was ever any such acceptance; but it is said that the Department has breached the rules of natural justice, made a decision supported by insufficient evidence and wrongly interpreted the legislation. It is also alleged that the Department has behaved improperly in a number of respects, which are set out in considerable detail. The application for leave to appeal has been followed up by a letter from the claimant's son stating that the Department is using a bureaucratic veto which is a misuse of power and prerogative, unfair and unlawful.
5. It is clear that the claimant is firmly of the opinion that she has been badly treated by the Department in this matter. However, having studied the case file I am unable to find anything to suggest that the Appeal Tribunal erred in law. In my view the decision which they reached was the only one open to them in the circumstances. It was for the Department to decide whether a claim for benefit of one kind was to be treated as a claim for another, and the Appeal Tribunal had no power to override that decision, even if they were of the opinion that it was unfair. There being, in my opinion, no grounds for holding that the decision of the Appeal Tribunal is or may be erroneous in point of law, this application for leave to appeal is refused.
6. Claimant 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 could properly be determined without a hearing. The request has accordingly been refused.

(Signed): R R Chambers

CHIEF COMMISSIONER