Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C22/97(IB) (30 June 1997)

 


Decision No: C22/97(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

INCAPACITY BENEFIT

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

Cookstown Social Security Appeal Tribunal

dated 5 August 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal which found that from and including 22 May 1996 she was not entitled to incapacity benefit as her score in the "all work test" was nil.
2. The Tribunal gave reasons for that decision as follows:-

"The claimant has extreme complaints. If her evidence is to be

believed she can do virtually nothing. She apparently is dependant

upon her elderly mother and her friend. The Medical Officer could

find no significant physical restriction. Significantly,

inconsistency was noted for instance on informal neck movement

and in the clothes she wore. We also noted inconsistencies with

the claimant's evidence. We were not impressed by her evidence

about ownership and use of her car between herself and friend.

We did not accept real mental illness. We accept she avoids

carrying out routine activities as she thinks this would be too

tiring and gives up on things because of apathy. Overall,

however, we see no significant mental problems. We note the

absence of referrals."

3. Claimant then sought leave to appeal against that decision on the following grounds:-

"The tribunal breached the rules of Natural Justice by failing

to allow an adjournment when the claimant's representative had

informed her the day before, that she could not attend. The

tribunal took into account an irrelevant factor, namely the

question of who owned and drove the car. The tribunal failed

to take into account relevant factors, such as the claimant's

health problems."

The claimant also wrote a letter which was received on 4 September 1996 in which she requested a review of the Tribunal's decision on the grounds that "I am not satisfied with the decision that was made."

4. I arranged an oral hearing of the application at which claimant was represented by Mr T..., Solicitor of J J M... & Sons, and the Adjudication Officer was represented by Mr McAvoy.
5. Mr T... said that the Tribunal erred in law in not adjourning because claimant's representative was not present at the hearing and that she was therefore disadvantaged. He stated that the Tribunal breached the rules of natural justice in not adjourning.

The second point was that the Tribunal took into consideration an irrelevant matter, namely the ownership of claimant's car. Mr T... then abandoned his third point of appeal. He argued that decision of the High Court in Priddle v Fisher & Sons [1968] 1WLR was relevant and quoted from the Judgment of Lord Parker CJ in which he said:-

"The matter can be put in many ways, but the way in which it

appeals to me is that a tribunal is acting wrongly in law if,

knowing that an appellant has all along intended to attend and

give evidence in support of his claim, and being satisfied, as

they must have been, that he was unable for one reason or

another to attend, they refuse to adjourn merely because he had

not asked expressly for an adjournment. Before deciding to

continue the tribunal should be satisfied that he was inviting

them to continue in his absence."

Mr T... argued that that was relevant to his case and that the Tribunal should have adjourned.

6. Mr McAvoy said that there had been an application to the Tribunal to set the decision aside and that that had been refused. He said the Tribunal gave credence to the evidence of the Medical Referee and placed some doubt on the evidence given by the claimant. He said ownership of the car was in his view irrelevant. The Tribunal were entitled to take the view it did and argued that there was no error of law.
7. I have considered all that has been said and I have sympathy with the claimant in her position where her representative did not attend and let her down at the last minute. Nevertheless, claimant did appear and gave evidence and was in a position to ask for an adjournment but did not do so.
8. I have considered the recent decision of Mr Justice Kerr in the matter of an application by F J for Judicial Review which relates to the refusal of a Tribunal to adjourn. In that decision the Judge sets out the arguments for and against adjournment. They relate to a case in which both claimant's representative and the Adjudication Officer supported the application for adjournment but the Tribunal saw fit not to adjourn. The point of the request for the adjournment was that a medical report which had been ordered was not available.
9. I am quite satisfied that in the present case there is no breach of the rules of natural justice. No adjournment was sought, the claimant made her own case and the Tribunal found that she was not entitled to incapacity benefit. The Tribunal was entitled to come to that view. It had sufficient evidence upon which to base that decision, and I am satisfied that the claimant was not disadvantaged in any way by the absence of the representative. The Tribunal was not in breach of the rules of natural justice and cannot be faulted.
10. At the hearing I granted leave to appeal and with the consent of both parties I treat the application as the appeal. For the reasons set out above I dismiss the appeal.

(Signed): C C G McNally

COMMISSIONER

30 June 1997