Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC A1/96(REA) (4 December 1996)

 


A1/96(REA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

REDUCED EARNINGS ALLOWANCE

Application by the claimant for leave to appeal

to the Social Security Commissioner

on a question of law from the decision of

Belfast Social Security Appeal Tribunal

dated 9 June 1995

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1. In this case the claimant seeks leave to appeal against the decision of Belfast Social Security Appeal Tribunal; whereby it was held that an overpayment of £2,036.08 reduced earnings allowance for the period from 3 October 1990 to 7 January 1992 was recoverable from him.
2. The grounds of the claimant's application are as follows:-

"That I had informed the tribunal in writing on two

occasions that I would not be available on the date of

the said tribunal and was not able to represent or give

evidence."

3. The hearing before the Appeal Tribunal of the claimant's appeal against the Adjudication Officer's decision that reduced earnings allowance for the period inquestion was recoverable from him because he had failed to disclose the material fact that he had started work as a steel worker on 1 October 1990 was held in his absence. The Tribunal delayed the start of the hearing for 20 minutes and decided to proceed after having been informed that notification of the hearing had been duly given to the claimant at 61 V( Road, Belfast.
4. The grounds of the claimant's appeal before the Tribunal, as set out in his letter dated 29 August 1994 where:-

"... that my employment at Harland & Wolff was only on a temporary

basis and between 17th May until 9th Sept 1991 I was on sickness

benefit which I paid back to the DHSS and from Sept 91 til Jan 92

I was unemployed."

The Tribunal were evidently not impressed by this submission. Their decision, as set out in paragraph 1 above, is fully explained by their "findings of fact" and "reasons for decision" as recorded by the Chairman. These were as follows:-

"Findings of Fact Material to the Decision:

Claimant in this case has appealed against the Adjudication

Officer's decision to raise an overpayment of Reduced Earnings

Allowance in the sum of £2,036.08 for the period 3 October 1990

to 7 January 1992. This overpayment was raised due to the fact

that Claimant was working as a steel worker in Harland and Wolff

from 1 October 1990. Claimant who is 38 years of age sustained

an injury to his right ear in an industrial accident on

8 October 1987. On 8 August 1988 he claimed Reduced Earnings

Allowance and following a disallowance Claimant was awarded

Reduced Earnings Allowance at the maximum weekly rate following

a Social Security Appeal Tribunal hearing on 15 January 1991.

This award was made for the period 13 September 1989 to

15 July 1991 on the basis that Claimant was incapable of work

and on the basis of the comparison of the wages payable to a

boiler maker with those payable to a messenger which was the

occupation considered as acceptable as suitable in Claimant's

case. On 14 May 1991 Claimant renewed his claim for Reduced

Earnings Allowance stating that he was not working. On

9 October 1991 the Adjudication Officer awarded Reduced Earnings

Allowance at a maximum weekly rate on the basis of that information.

On 29 November 1991 Claimant completed a form B195 indicating

that he had sustained an accident at work on 18 April 1991.

(It was later confirmed that this accident occurred on 16 May 1991).

Claimant was also employed as a plater with Pilot Engineering

Limited from 5 September 1991 to 5 December 1991. He was asked

to return his Reduced Earnings Allowance book which showed that

the last order had been cashed up to and including 1 January 1992.

Details of the wages of steel worker with Harland and Wolff are

contained at TABs 19 and 20 and the wages of Pilot Engineering

Limited are detailed at TAB 20(a)."

"Reasons for decision:

We are satisfied that Claimant was working in Harland and Wolff

for the period from 1 October 1990 to 16 May 1991 as a steel

worker. We are satisfied that he was also working as a plater

with Pilot Engineering from 5 September 1991 to 5 December 1991.

Claimant is entitled to Reduced Earnings Allowance so long as

he can prove that he is incapable of his normal occupation and

that the job that is suitable for him pays wages less than those

of his normal occupation. In this case his normal occupation

was that of boiler maker and the job considered suitable for

him following a Tribunal hearing was messenger. The 2 jobs

that he actually worked at produced wages in excess of those

earned by a boiler maker and therefore no Reduced Earnings

Allowance is payable. Claimant declared on 14 May 1991 that

he was not working during a period when in fact he was working

with Harland and Wolff as a steel worker. We are satisfied

that Claimant's order book for Reduced Earnings Allowance points

out quite clearly that the book must be returned if the recipient

becomes employed. This was not done. This failure to notify

the Department of his activities with Harland and Wolff and

Pilot Engineering is a failure to disclose a material fact as

a result of which an overpayment of Reduced Earnings Allowance

has been made."

5. It has proved difficult to communicate with the claimant by post. Letters sent by recorded delivery have been returned to the Commissioners' Office: but after several abortive attempts I succeeded in holding an oral hearing of the claimant's application for leave to appeal. The claimant had by letter explained that he would not be present because he was "again in temporary employment with Harland & Wolff", and he was not represented. The claimant did not attend and was not represented. The Adjudication Officer in attendance was Miss E Griffin, who submitted that the Appeal Tribunal had not erred in law in proceeding to hear the case in the claimant's absence. I had already caused enquiries to be made and had ascertained that a hearing of the claimant's appeal scheduled for 14 March 1995 had been postponed at his request, on the grounds that work commitments meant that he would not be available until the end of May. The hearing was rearranged for 9th June 1995, and while it is correct to say that there was a further request for a postponement, this was not received by the Independent Tribunal Service until 13 June 1995; by which time the appeal had of course already been decided. It was against this background, as confirmed by Miss Griffin, that she expressed the opinion that the Tribunal had been fully entitled to proceed with the hearing of the appeal.
6. Miss Griffin further pointed out that the Tribunal had correctly considered the question of the review of the claimant's entitlement to reduced earnings allowance as well as his liability to repay the amount overpaid, and she submitted that there was nothing to indicate or suggest that the Tribunal's decision was erroneous in point of law.
7. The claimant did not attend the oral hearing of his application for leave to appeal to the Commissioner, and I have therefore no way of knowing what his reaction might have been to the news that his second request for a postponement of his Tribunal hearing was not received until some days after the event. I am however satisfied that in the circumstances the Tribunal did not err in law in proceeding to hear and decide the appeal on 9 June 1995 in the claimant's absence. I am further of the opinion that there is no other ground on which it might be held that the Tribunal's decision is or may be erroneous in point of law. I may add that, if the only grounds upon which the claimant sought to challenge the Adjudication Officer's decision on overpayment are those set out in his letter of 29 August 1994, they would have had no effect whatever upon the outcome of his appeal. The fact that the claimant was not employed throughout the whole of the period of the alleged overpayment is of no consequence. He had clearly demonstrated by his actions that he was no longer incapable, as a result of the relevant loss of faculty, of following employment of a standard equivalent to that of his regular employment, and thereafter he ceased to be entitled to reduced earnings allowance:- see paragraph 11(1) of Schedule 7 to the Social Security Contributions and Benefits (Northern Ireland) Act 1992.
8. For the reasons given in paragraph 7 above leave to appeal will be refused.

(Signed): R R Chambers

CHIEF COMMISSIONER

4 December 1996