Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C1/96(SDA) (5 August 1996)

 


Decision No: C1/96(SDA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

SEVERE DISABLEMENT ALLOWANCE

Application by the claimant for leave to appeal

and appeal to the Social Security Commissioner

on a question of law from the decision of the

Belfast Social Security Appeal Tribunal

dated 17 July 1995

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the majority decision of a Social Security Appeal Tribunal which upheld the decision of an Adjudication Officer relating to claimant's entitlement to severe disablement allowance from and including 19 November 1993.
2. Briefly the facts are that the claimant is now a 52 year old unemployed factory worker who became incapable of work in July 1980, claimed sickness benefit but this was disallowed because she did not satisfy the contribution conditions. She claimed non-contributory invalidity pension from January 1981. By virtue of the Health and Social Security (Northern Ireland) Order 1984 her claim was treated as one for severe disablement allowance.
3. Since her claim claimant had been referred to Medical Officers of the Department on 5 separate occasions. In May 1986 she was found incapable of all work, twice in 1987, once in 1988 and once in 1989 the Medical Officers having considered their records were satisfied without examination that she was incapable of work. She was examined again by a Medical Officer in August 1989 and he expressed the opinion that she was permanently incapable of work.
4. As a result of an allegation that another person was leaving her child at claimant's home during working hours to be childminded, the Adjudication Officer made the following decision in December 1994:-

"I have reviewed the decision of the Adjudication Officer awarding

Severe Disablement Allowance from and including 19.11.93. I am

satisfied that the decision was given in ignorance of a material

fact. This was that Mrs K… was working as a

childminder. My revised decision only for the period from and

including 26.7.94 is as follows:-

Mrs K... is not entitled to SDA from and including

26.7.94. This is because she was not incapable of work by reason

of some specific disease or bodily or mental disablement and the

deeming of incapacity is not appropriate. As a result an overpayment

of SDA has been made from 26.7.94 to 8.9.94 (both dates included)

amounting to £305.18.

On 26.7.94 or as soon as possible afterwards Mrs K… failed

to disclose the material fact that she was working as a childminder.

As a consequence SDA amounting to £305.18 from 26.7.94 to 8.9.94

(both dates included) was paid which would not have been paid but

for the failure to disclose. Accordingly, the amount is recoverable

from Mrs K...."

Being dissatisfied with that decision claimant appealed to a Social

Security Appeal Tribunal. The decision of that Tribunal is very

interesting because the Chairperson dissented from the decision of

the lay members of the Tribunal. That Tribunal recorded what it

claimed to be findings of fact as follows:-

"1. It is accepted by the Claimant that on 26 July 1994,

27 July 1994 and 3 August 1994 the small children of

Miss B… were left at Claimant's house to be minded.

2. The point at issue, is who exactly minded the children.

Miss B… has said, she left the children with Mrs K…,

and paid Mrs K… £160 per month to look after them.

Mrs K… has said she personally would not be fit to

look after the children, but her daughter A…, son M…,

and friend R… looked after the children.

Mrs K… has also said that she was given £20 a week for

food and nappies by Miss B…, but this sum did not in fact

cover all food or nappy expenses.

In summary, there is a complete conflict of evidence as to

who looked after the children.

3. It is not clear to panel why any person, especially a person

not a close relative would allow children to be minded in their

home, if the mother of the children did not even provide enough

money to cover basics such as food or nappies.

The panel, for this reason, do not believe that Mrs K…

was completely frank with details as to how much Miss B…

paid for food (or indeed baby minding money).

4. 2 panel members, Mrs T… and Mr B…, said, that as regards

child minding, an employer would indeed pay money to someone

like Mrs K…, working from her own home who was able to do

a little bit of part-time child minding."

Claimant originally sought to have the decision of the Tribunal set aside and the Chairperson favoured the setting of the decision aside, however, the two lay members would not agree.

5. Claimant now seeks leave to appeal to the Commissioner on the grounds that the Tribunal erred in law as follows:-

"1. That the decision reached is supported by no evidence.

The facts found are such that no person acting judicially or

properly instructed as to the relevant law could have come to the

determination in question.

The issues in this case were whether I continued to be incapable

of work during the period in question, whether I had received an

overpayment of Severe Disablement Allowance and whether a

disqualification from benefit should have been imposed.

In finding me capable of work, the Tribunal had no evidence upon

which to base its decision. Rather, medical evidence contained in

the scheduled documents confirms that I was deemed to be permanently

incapable of work after examination on 16 August 1989. In

particular, while there was evidence that money was paid to my

household, there was no evidence that I personally did work or was

capable of work."

6. Having received a note of the grounds of appeal the Adjudication Officer commented as follows:-

"Mrs K…'s application is founded generally on the proposition

that there was insufficient evidence to justify the decision of the

majority of the tribunal. I would not agree with that proposition.

There was medical evidence before the tribunal to the effect that

Mrs K… had been found, in the opinion of a medical referee in

1989, to be "permanently incapable" of work due to her back pain.

That evidence must have weighed heavily with the chairperson who

accepted that Mrs K… was unfit medically. However there was

also before the tribunal extensive evidence suggesting that

Mrs K… may have been working as a baby minder. Also the

tribunal had the great advantage in cases of this nature, of having

the opportunity of questioning the claimant and forming an opinion

on her credibility. This is a task eminently well suited to

tribunals, and in this case two members were "not at all sure that

Claimant is being truthful". That finding, which the tribunal

majority was fully entitled to make, was crucial to the decision

because it called into question the entirety of Mrs K…'s

own evidence. Indeed it also cast doubt on the 1989 medical opinion

which would have been to a significant extent based on statements

made by Mrs K…. Reported decision R 1/84(IVB) of the then

Northern Ireland Chief Commissioner, especially at paragraph 7,

is of interest here.

I also argue that when children are entrusted to the care of

someone, that person becomes legally responsible for the children.

That responsibility is absolute even if occasional and casual

help with the physical attention to the children is given by

other members of the household. In these circumstances the

tribunal were entitled to find against Mrs K…, accepting that

the job of caring for the children could involve a supervisory

role as well as, or apart from, the physical role.

I feel I must also comment on the adequacy of the recording of

findings and reasons by the tribunal chairperson. The reasons of

the majority are somewhat scanty and could usefully have included

more specific comment on review, incapacity and recoverability.

Having said that the chairperson's dissenting reasons are well

enough recorded and the majority's views, where not specifically

stated, are clear by inference to the contrary. On balance

therefore I submit that the tribunal decision is adequately

recorded."

7. I arranged an oral hearing of the application at which I granted leave to appeal and both parties consented to me treating the application as the appeal. Claimant was represented by Mrs Mary Johnston from Belfast Law Centre and the Adjudication Officer was represented by Mr McAvoy.

Mrs Johnston said that she agreed with the opinion of the Chairperson of the Tribunal, there was no direct observations of claimant actually working. It is accepted that the children were dropped off at the house and that all the medical evidence was of the opinion that claimant was incapable of all work and that there was no medical evidence whatever, asked for or sought, to support the contention that claimant was no longer entitled to the benefit. She said it was quite clear that the two majority members of the Tribunal confused the payment with capacity and that they got bogged down with who paid who for what and that really was not material to the main point in the Adjudication Officer's decision.

8. Mr McAvoy accepted that all the medical evidence was in favour of the claimant and that the whole question was who looked after the children. He said the majority of the Tribunal accepted that claimant was paid by Mrs B…. He also accepted that the reasons for the decision and the findings of fact were scant.
9. I have considered all that has been said and I have considered all the documents in this case. It is unfortunate that there is such a disagreement between the lay members of the panel and the Chairperson. I am quite satisfied that there were not proper findings of facts because it is quite clear that the two majority members of the panel did not really understand the point at issue because what the Adjudication Officer was doing was taking away from the claimant a benefit which she was in receipt of for many years and which as Mr McAvoy admits, all the medical evidence was in her favour. They made no findings of fact relating to that at all, I am satisfied that they did not realise the full significance of the Adjudication Officer's decision. Also it is clear from the papers that there were many people in claimant's household and even her mother was there. There was no direct evidence as to who was minding the children. Also it is not inconsistent with the award of disability living allowance for a mother to be looking after her own children because the test which the claimant had to pass at the time she was awarded the benefit which continues was the test of whether or not she could do her housework, consequently she would not have to satisfy the 80% disability which would be required of a current claimant.
10. I am quite satisfied that there was no proper findings of fact relating to claimant's incapacity and the majority seemed to base their whole decision on the fact that the claimant was not completely frank with details of payment and that is probably true and there could well be a variety of reasons for that, one being that other people in the house who are getting benefit may well be at risk of losing that benefit if claimant had answered otherwise. I am satisfied that the Tribunal did not properly consider claimant's state of health or her entitlement to the disablement allowance. There is no finding of fact relating to her physical condition at all. Even the decision of the Tribunal clearly relates only to whether or not £305.18 is recoverable, that really is a very minor matter when one considers the effect of the Adjudication Officer's decision which is referred to in his submission in which he says that "If however the Tribunal accepts that Mrs K… did work as alleged then the next step is to decide whether or not she is incapable of work, weighing up the medical evidence against the fact that she did work. If it is accepted that Mrs K… was incapable of work in spite of the fact that she did work then I submit this appeal is for allowance but the question of disqualification from 9.9.94 to 20.10.94 arises for the first time and submissions on this question should the Tribunal think fit to determine it is attached."

The Adjudication Officer then made submissions on that aspect of the matter which was completely ignored by the Tribunal. In paragraph 21 of the submission to the Tribunal the Adjudication Officer submitted that on the available evidence and taking account of Mrs K…'s incapacity (back disability) and the nature and extent of the work in which she was engaged she has failed to prove incapacity for work from and including 26.7.94, so what that is doing is taking away the benefit from her from that date.

11. I am satisfied that the Tribunal erred in not making proper findings of fact or adequate reasons for its decision. I therefore allow the appeal and refer the matter back to be reheard by a differently constituted Social Security Appeal Tribunal. That Tribunal shall consider all the facts and all the submissions by the Adjudication Officer and make proper findings of fact.

(Signed): C C G McNally

COMMISSIONER

5 August 1996