Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C1/96(SuppBen) (20 June 1996)

 


Decision No: C1/96(SUPP BEN)

RE: P… M…, DECEASED)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

SUPPLEMENTARY BENEFIT

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Belfast Social Security Appeal Tribunal

dated 3 April 1995

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal in respect of P… M…, deceased brought by his son against the decision of the Social Security Appeal Tribunal and it comes with leave of the Chairman of that Tribunal.
2. The grounds of appeal set out in the application to the Chairman for leave are:-

"1. The claimants representative did not have adequate time to

prepare the appeal for the hearing on Monday, 3 April 1995

as notification of the appeal was only received in her office

on Friday, 31 March 1995.

2. The Appellant had severe communicative disabilities and his

wife has Altzeimers disease. Their son Mr M… M… only

received additional medical evidence on the morning of the

Tribunal and did not have adequate time to attend the hearing.

An application was made to adjourn the hearing, bearing in

mind the applicants duty to discharge the burden of proof by

the Best Evidence Rule. We feel this application was

unreasonably refused.

3. The hearing on 3 April was a re-hearing. The panel comprised

of Mrs B…, Chairman, and Mr W…, both of whom sat

at the previous hearing. Mr E… was not a member of the

original Tribunal. Bearing in mind the substance of point

(4) below, it was unjust and unreasonable for the new panel

to hear the case and reach a decision in the absence of the

third member of the original Tribunal. This is especially

so in the absence of any reference to an adoption of the

findings of fact from the previous hearing.

4. The appellant would rely on the 'Decisions of appeals

tribunals', laid down in Regulation 25 of the Social Security

(Adjudication) Regulations (NI) 1987. These state that;

(2) "The Chairman of an appeal tribunal shall;

a Record in writing all their decisions

b include in the record of every decision a statement of

their reasons for such a decision and of their findings

on questions of fact material there to".

There being no reliance on the findings of fact from the

previous hearing, the Chairperson of the Tribunal, breached

in her duty under the Adjudication Regulations by failing

to record any findings of fact material to the decision at

section S2 of the Record of Proceedings of the Tribunal of

3 April 1995.

It is therefore submitted that the Tribunal reached a decision,

recorded at Section 4 of the record of proceedings which was

disadvantageous to the Appellant and which was based on a

breach of natural justice viz the duty to act reasonably at

all time and to regard fully the findings of fact material

to the decision.

In conclusion it is therefore our submission that this case

should be re-admitted to an appeal Tribunal for a fresh

re-hearing."

3. The Adjudication Officer made a written comment upon receipt of the grounds of appeal as follows:-

"1. Thank you for the opportunity to comment on Mr M…'s

appeal to the Social Security Commissioner on a question

of law against the decision of the Belfast Social Security

Appeal Tribunal dated 3 April 1995.

His representative has based the appeal on 2 grounds:-

a. the tribunal had breached the rules of natural justice

on several counts, and

b. had failed to comply with the provisions of regulation

25 of the Social Security (Adjudication) Regulations

(NI) 1987 by failing to record findings of fact

material to the decision.

2. In the first instance the representative has stated that she

did not have adequate time to prepare the appeal for the

hearing on Monday 3 April 1995. Regulation 4(2) of the

Adjudication Regulations (pre 25 August 1995) states:-

"(2) Reasonable notice (being not less than 10 days

beginning with the day on which the notice is given

and ending on the day before the hearing of the case

or, as the case may be, the inquiry is to take place)

of the time and place of any oral hearing before an

adjudicating authority or of an inquiry shall be given

to every party to the proceedings, and if such notice

has not been given to a person to whom it should have

been given under the provisions of this paragraph the

hearing or inquiry may proceed only with the consent of

that person."

Apparently notification of the hearing was only received in

her office on Friday 31 March 1995. However according to

the Independent Tribunal Services notification of the hearing

was sent to Miss L… of the Community Development Centre

on 22 March 1995 (copy of notification attached) which was

reasonable notice for the purposes of regulation 4(2).

3. The second issue is that the tribunal refused the request to

adjourn the hearing on the grounds that Mr M… had only

received additional medical evidence on the morning of the

hearing and did not have adequate time to attend the hearing.

In accordance with regulation 5(2) of the Adjudication

Regulations (pre 25 August 1995) the tribunal had the

discretion (but to be used in a fair manner) to decide

whether or not to adjourn the hearing. Although Mr M…

may not have had the opportunity to produce additional

medical evidence at the hearing, the tribunal decided that

in their opinion an adjournment would not be helpful in view

of the time lapse and the conflicting evidence in relation

to the General Practitioner's report and the verbal evidence

given at previous hearings. I therefore submit the tribunal

were entitled to decide that an adjournment was unnecessary.

4. The next point raised was that as the hearing on 3 April 1995

was a re-hearing then it was unjust and unreasonable for the

new tribunal (which was differently constituted from the

previous hearing) to hear and reach the decision in the absence

of the third member of the original tribunal. According to

the evidence recorded by the Chairman on 3 April 1995 at Part 1

of form AT3:-

"Chairman explained this was a re-hearing. Neither party

had any objection to Mrs B…, Mr W… continuing

to sit."

Although there was no objection to the change in the tribunal's

constitution, Mr M…'s representative apparently was not

asked to consent to it (R(I)3/51).

5. I would agree with Mr M…'s representative's final point

that the tribunal have made no findings of fact in relation

to additional requirements for clothing, baths and laundry

and as such have failed to comply with the provisions of

regulation 25(2)(b) of the Adjudication Regulations (pre

25 August 1995)."

4. I am satisfied that this appeal can be dealt with without an oral hearing and in the light of the Adjudication Officer's comments I propose to do so.
5. I have read all the papers in the case. I accept the concession made by the Adjudication Officer in paragraph 5 of his observations in which he agrees with Mr M…'s representatives that the Tribunal made no finding of fact in relation to the additional requirements for clothing, baths and laundry and as such failed to comply with the provisions of regulation 25(2)(b) of the Adjudication Regulations (pre 25 August 1995).
6. In the light of that concession I will allow the appeal and set aside the decision of the Tribunal and refer the matter back to be reheard by a newly constituted Social Security Appeal Tribunal. In the light of that referral I do not propose to make any comment on the other grounds of appeal set out on behalf of the applicant as the complaints therein can be dealt with at the new hearing and the claimant's representatives will have ample time to prepare a submission and to marshall whatever medical evidence they consider appropriate.

(Signed): C C G McNally

COMMISSIONER

20 June 1996