Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC C6-94(IS) (27 February 1995)

 


Decision No: C6/94(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 Appeal to the Social Security Commissioner on a question of law from the decision of the Belfast Social Security Appeal Tribunal dated 20 January 1994 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal in relation to claimant's entitlement to severe disability premium.
2. The Tribunal which heard the appeal adjourned the period from 9 October 1989 to 10 November 1991 as the Faulkner case was relevant and wished the matter to stand over pending the decision in that case. However it proceeded to hear and determine the question in relation to the period from 11 November 1991.
3. At the hearing before me both Mr Allamby who appeared for the claimant and Mrs McRory who appeared for the Adjudication Officer supported the appeal and said that the Tribunal erred in law in not taking account of the saving provision in relation to severe disability premium contained in the Income Support (General) (Amendment No.5) Regulations (Northern Ireland) 1991 and in particular Regulation 4 which is the saving provision in relation to severe disability premium in which 4(2) reads:-

"(2) Where paragraph (3), (4), (5) or (6) applies to a claimant,

sub-paragraph (2)(a)(ii), or, as the case may be, sub-paragraph

(2)(b(iii) of paragraph 13 of Schedule 2 to the principal

regulations shall have effect in relation to him as if the

relevant amendment had not been made."

4. In the light of the decision in the Bates case where the Court of Appeal held that "a householder does not reside with the persons with whom he shares his accommodation; they reside with him", both the Adjudication Officer and Mr Allamby accept that there could well be circumstances in which claimant would be entitled to the benefit after 11 November 1991 and in those circumstances the Tribunal erred in not adjourning until the Bates case had been argued in the House of Lords.
5. I accept the argument and find that the Tribunal erred in law in proceeding and that the proper course would have been to have adjourned. I therefore set aside the decision and refer the matter back to a differently constituted Social Security Appeal Tribunal; no doubt the matter will there rest until there is a final decision in the Bates case.

(Signed): C C G McNally

COMMISSIONER

27 February 1995