Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C4/97(ICA) (1 September 1998)

 


Decision No: C4/97(ICA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 INVALID CARE ALLOWANCE Appeal to the Social Security Commissioner on question of law from the decision of the Craigavon Social Security Appeal Tribunal dated 13 January 1997 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal, whereby it was held that the claimant was not entitled to Invalid Care Allowance from and including 13 November 1995. Leave to appeal was granted by a Commissioner on 5 November 1997.
2. Having considered the circumstances of the case and the reasons put forward in the request for an oral hearing, I am satisfied that the appeal can properly be determined without such a hearing.
3. The claimant made a claim for Invalid Care Allowance from 13 January 1993 by completing the appropriate form which was received in the Department on 13 November 1996. On 22 November 1996 the Adjudication Officer disallowed the claim from 13 October 1995 on the grounds that K… L... , the claimant's mother was not a person in respect of whom Attendance Allowance, the highest or middle rate of care component of Disability Living Allowance, or any other prescribed payment on account of her need for attendance was payable. The claim from 13 January 1993 to 12 October 1995 was dealt with separately and it also has been dealt with, on appeal, by me in decision C3/97(ICA). The claimant in relation to the period from 13 October 1995 appealed to an Appeal Tribunal. The Adjudication Officer in his written submission to the Tribunal stated that the decision was incorrect and should have read as follows:-

"W… L... is not entitled to Invalid Care Allowance in

respect of K… L... from 13.11.95. This is because she

is not a person in respect of whom Attendance Allowance, the

highest or middle rate of care component of Disability Living

Allowance, or any other prescribed payment on account of her need

for attendance is payable."

The Tribunal was invited to substitute this decision for the one under appeal.

4. The Tribunal made the following record of proceedings:-

"Mr L...

She is not in receipt of the care component of Disability Living

Allowance - my mother paid her stamp - my mother took a severe

asthma attack - I'm not getting a fair hearing here."

The Tribunal made the following findings of fact material to its decision:-

"Claimant in this case has appealed firstly against the Adjudication

Officer's decision to disallow Invalid Care Allowance in respect

of K... L... from and including 13 January 1993 to

12 October 1995 (this date is incorrect and should, as pointed out

in the written submission have been 12 November 1995). Mr W…

L... claimed Invalid Care Allowance by completion of a form DS700

received in the Department on 13 November 1996. He indicated that

he wished to claim Invalid Care Allowance from 13 January 1993.

K... is and has not been in receipt of Attendance Allowance

or the highest or middle rate care component of Disability Living

Allowance from 13 November 1995.

Claimant has also appealed against a disallowance of Invalid Care

Allowance from and including 13 October 1995."

The Tribunal gave the following reasons for its decision:-

"In order for claimant to become entitled to Invalid Care

Allowance in relation to K... L... he must prove that

she is in receipt of either Attendance Allowance, or the highest

or middle rate of the care component of the Disability Living

Allowance. This is as a result of the combination of the effect

of Section 70 of the Social Security Contributions and Benefits

(NI) Act 1992 and Regulation 3 of the Social Security (Invalid

Care Allowance) Regulations (NI) 1976. Claimant must prove that

she is severely disabled and this is defined at part 2 of the

aforementioned Section 70. It is clear that K... L... cannot

satisfy that condition and therefore Invalid Care Allowance must

be disallowed."

The Tribunal set out its unanimous decision in the following form:-

"Appeal disallowed.

Invalid Care Allowance not payable from and including 13 November

1995."

5. Leave was sought by the claimant to appeal to a Commissioner. Leave was refused by the Chairman on 9 May 1997 and the following was specifically noted on the document refusing leave:-

"Reasons outlined previously. Claimant chose to leave the

Tribunal during the course of the hearing."

As stated at paragraph 1 leave to appeal was granted by a Commissioner on 5 November 1997.

6. The claimant's application for leave to appeal states that he wishes to appeal on the following points of law:-

(a) the Tribunal failed to give adequate reasons for its decision; and

(b) he did not get a fair hearing from the Tribunal which resulted

in him walking out of the hearing.

These grounds were identical to those set out in relation to the case C3/97(ICA).

7. As in that case I have had the benefit of submissions from Ms E Griffin on behalf of the Adjudication Officer. These submissions were set out in a letter dated 16 December 1997 and in particular submitted:-

(a) that the Tribunal correctly applied the appropriate legislation

to the facts of the case and gave adequate reasons for its

conclusion; and

(b) that the evidence would suggest that the claimant had walked

out of the Tribunal proceedings because of what he perceived

to be intransigence on the part of the Tribunal but which, in

reality was the Tribunal pointing out that it had no

discretionary power to extend the 12 months time limit, or to

ignore the statutory definition of a "severely disabled person",

(which required Mrs L... , the claimant's mother to have been

in receipt of either Attendance Allowance or Disability Living

Allowance care component at the middle or highest rate, see section 70(2) of the Social Security Contributions and

Benefits (Northern Ireland) Act 1992).

The reference to the 12 months time limit is properly more relevant to the decision in C3/97(ICA). The reference to the claimant walking out of the Tribunal proceedings is based on the fact that there is contained in the record of proceedings made by the Chairman the following words:

"I'm not getting a fair hearing here."

8. There is no suggestion that Mrs L... was in receipt of either Attendance Allowance or Disability Living Allowance care component at the middle or highest rate for the relevant period. Therefore the Tribunal had no alternative but to rule that the claimant was not entitled to Invalid Care Allowance.
9. I therefore conclude that the Tribunal did correctly apply the appropriate legislation to the facts of this case and also gave adequate reasons for its conclusion.
10. In relation to the allegation that the Tribunal did not give the claimant a fair hearing, I consider that the decision of a Tribunal of Commissioners in Great Britain in R(S)4/82, which was drawn to my attention by Ms Griffin, is relevant in this case as it was in C3/97(ICA). The Tribunal of Commissioners stated the following:-

"25. A local tribunal is exercising quasi-judicial functions and

forms part of the statutory machinery for investigating claims in

order to ascertain whether the claimant satisfies the statutory

requirements which entitle him to be paid benefit. Its investigatory

function has as its object the ascertainment of the facts and the

determination of the truth and it is not restricted as in ordinary

litigation where there are proceedings between parties, to accepting

or rejecting the respective contentions of the claimant on the one

hand and of the insurance officer on the other. The common law

requires bodies exercising quasi-judicial functions to observe the

rules of natural justice, and accordingly these rules apply to

local tribunals: see the judgment of Lord Justice Diplock in R v

Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1

Q.B. 456 at pages 486 et seq.

26. Natural justice requires that the procedure before any

tribunal which is acting judicially shall be fair in all the

circumstances. It has been described as "fair play in action"

and its requirements depend on the circumstances of the case,

the nature of the inquiry, the rules under which the tribunal

is acting, the subject matter that is being dealt with and so

on: see Wiseman v Borneman [1971] AC 297 at pages 308, 309,

311, 314, 315, and 320 (per Lords Reid, Morris, Guest, Donovan

and Wilberforce). There are accordingly no hard and fast rules

that apply to all tribunals. But, in the case of an appeal by

a claimant for benefit to a local tribunal, for practical

purposes these requirements can be reduced, as indicated, by

Lord Justice Diplock (as he then was) in Moore's case at pages

486 et seq to three: an absence of personal bias or mala fides

on the part of the tribunal, an obligation to base their decision

on evidence and, whether or not there is an oral hearing, to

listen fairly to the contentions of all persons entitled to be

represented.

27. After carefully listening to the claimant's evidence and

submissions before us, and considering the whole of the case

papers, including all of his written submissions, we can find

absolutely nothing to support the allegation of personal bias,

or bias of any kind, on the part of the chairman or any other

member of the local tribunal. The local tribunal was under a

duty to investigate the grounds on which the claimant contended

that he had good cause for the lateness of his claim for an

increase of benefit and it was natural that in ascertaining the

facts the legally qualified chairman should question the claimant

in order to discover why he, a policeman who might reasonably

be expected to be familiar with form-filling, had omitted to

complete the dependant's box on form Med 3. The nature of the

claimant's usual occupation and of his expertise in form filling

was highly relevant when considering whether "good cause" had been

shown, in the light of the specific description of "good cause"

contained in Decision R(S) 2/63 (a decision of a Tribunal of

Commissioners which was binding on the local tribunal) as depending

on the age and experience (amongst other matters) of the claimant.

The claimant clearly took offence at the investigatory nature of the

proceedings and wrongly regarded the probing questions that he was,

quite properly, asked by the chairman as "accusatory" and as

assuming "guilt"."

11. I conclude that in the present case, as in R(S) 4/82, the claimant also took offence at the investigatory nature of the proceedings and wrongly regarded the probing questions in relation to the date as being accusatory. It seems clear to me, however, that the Tribunal was merely doing its job by ensuring that the claimant understood the issues before the Tribunal and by giving him an opportunity to deal with relevant matters in the case, namely the time limit for making a claim and whether Mrs L... was a severely disabled person as defined.

(This paragraph repeats paragraph 13 in decision C3/97(ICA) as the issues are identical).

12. In the circumstances, as in decision C3/97(ICA), I conclude that the Tribunal neither failed to give adequate reasons for its conclusion nor did it fail to give the claimant a fair hearing.
13. An additional issue arose during the consideration of this appeal, namely the effect, if any, of the Tribunal purporting to disallow the appeal, but then proceeding to make a decision which was inconsistent with the Adjudication Officer's decision. In the circumstances I invited additional written comments from the claimant and from Ms Griffin. The claimant did not address the issue but Ms Griffin made the following submission by letter dated 5 April 1998:-

"At paragraph 6.1 of both the submissions to the Social Security

Appeal Tribunal, it was pointed out that the AO's decision as set

out at Part 1 of the submission was incorrect. The corrected

decision was then quoted and the Tribunal were invited to

substitute it for the decision under appeal.

At paragraph 10 of decision R(SB) 1/82 the Commissioner held:-

"There is a well recognised distinction between an appeal

in the strict sense and an appeal in the nature of a

rehearing. On an appeal of the former kind a judgment

can only be given if it can be said that it ought to have

been given at the former hearing, while with a rehearing

a judgment may be given that could have been given by the

tribunal of first instance if it were considering the matter

at the time of the rehearing (see per Lord Davey in

Ponnamma v Arumogam [1905] AC 383 at page 390. I have no

doubt that appeals to an appeal tribunal are (like appeals

under the Social Security Act 1975 to local tribunals and

Commissioners (as to which see Decision R(F) 1/72 at

paragraph 9)) in the nature of rehearings to which the latter

rule applies ..."

In Decision R(F) 1/72 the Commissioner considered a case of a claim

to family allowance. On receipt of the appeal and before any

payment had been made, the Insurance Officer discovered that he had

made errors in law in the decision and family allowance was not

payable for certain periods for which he had made awards. In his

submission to the local tribunal the Insurance Officer pointed out

where he had erred in law in framing his decision. The Tribunal

decided that his submission was correct and dismissed the claimant's

appeal. At paragraph 9 the Commissioner held

"... I am satisfied that it was open to the local Insurance

Officer to pursue the course that he did. It is well-settled

that a hearing before the Commissioner is a rehearing of the

whole case. It is open to the Commissioner to deal with any

points, and any questions of law, that may be put before him,

always, of course, provided that the claimant is given a proper

opportunity of meeting any fresh point that may be raised.

Logically, I think the same must apply to a hearing before a

local tribunal, but, again, always provided that the claimant

is given a proper opportunity of meeting any fresh point that

may be raised. In the present case the position was made

perfectly clear by the submission of the Insurance Officer

and the claimant could not be heard to say that she was taken

by surprise. Accordingly I approach the decision of the

present appeal on the footing that the local tribunal's

decision upheld the "decision" of the local Insurance Officer

as set out in his submission."

I submit that the present case has been treated in the same way as

that dealt with by the Commissioner in R(F) 1/72. The record of

proceedings shows that the date the claim was made was clarified

with Mr L... and it is clear from the Tribunals findings of fact

that they were aware of the incorrect dates in the decision. The

Tribunal's unanimous decision was one which they were entitled to

give and simply disallowed the appeals in the manner that the AO

should have done."

The reference by Ms Griffin to "both the submissions" is a reference not only to this case, but also the related case involving the claimant, namely, C3/97(ICA). (This paragraph is the same in substance to paragraph 15 of decision C3/97(ICA) as the issue is identical in each case).

14. I consider that Ms Griffin is correct in her submissions. As I have already stated in decision C3/97(ICA), it would have been preferable if the Tribunal had stated specifically that it was upholding the decision of the Adjudication Officer as set out in his submission, but it is entirely clear what the Tribunal was in fact doing, namely deciding that Invalid Care Allowance was not payable from and including 13 November 1995. To some extent the words "appeal disallowed" in the decision are mere surplusage. Accordingly I do not consider that there has been any error in law in the Tribunal's decision in this respect.
15. In all the circumstances I am satisfied that the decision of the Tribunal is not erroneous in point of law. Accordingly I dismiss this appeal.

(Signed): J A H Martin

CHIEF COMMISSIONER

1 September 1998