Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C3/99(REA) (7 April 2000)

 


Decision No: C3/99(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 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 REDUCED EARNINGS ALLOWANCE Appeal to the Social Security Commissioner on a question of law from a Tribunal's decision dated 16 April 1999 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by the Tribunal Chairman, by the claimant against a decision dated 16th April 1999 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Armagh. That Tribunal had disallowed the claimant's appeal against an Adjudication Officer's decision dated 7th January 1999. That Adjudication Officer's decision was to the effect that Reduced Earnings Allowance was not payable to the claimant from and including 9th December 1998. The grounds given for the decision were that the probable standard of remuneration in a suitable alternative employment of which the claimant was not incapable, as a result of the relevant loss of faculty, was higher than that in the probable standard of remuneration in his regular occupation.
2. The claimant's grounds of appeal were set out in a letter dated 30th July 1999 from Mr Druse of Armagh Citizens Advice Bureau. Essentially the grounds were based on the method by which the probable standard of remuneration in the suitable alternative employment (Traffic Warden) had been determined. Mr Druse mentioned that the figure for overtime given by the Police Authority for Northern Ireland was, in that Authority's own words, "based on Traffic Warden's who do overtime on a regular basis". In Mr Druse's words "... it seems perfectly clear that a figure based only on those wardens who do overtime on a regular basis is not an average figure for overtime."
3. Mrs Gunning of Central Adjudication Services, representing the Adjudication Officer, agreed with Mr Druse, in her letter of 12th November 1999, that there was insufficient evidence to support the submission that the claimant could earn £329.47 per week as a Traffic Warden. She accordingly supported the appeal.
4. I am in agreement with Mr Druse and Mrs Gunning. There should have been further exploration by the Tribunal of the probable standard of remuneration of a Traffic Warden. The Tribunal (having been made aware of the basis on which the Police Authority reached its figure in relation to overtime for Traffic Wardens) was in dereliction of its inquisitorial duty in not exploring the question of overtime further. It is for this reason that I set the decision aside. The Tribunal should have sought further information to enable it to determine if the claimant was likely to be offered overtime and thus his probable earnings. It also appears possible that there may have been an error in the Tribunal's findings on the weekly earnings in the regular occupation. They may be more than £212.30 per week when bonus is included. However, I make no determination on this. It is a matter for a future Tribunal to determine.
5. I do not consider that this is a case were I can give the decision which the Tribunal should have given. The Tribunal will have to decide whether the conditions of paragraph 11(1) of Schedule 7 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 are satisfied. This will involve deciding whether or not (a) as a result of the relevant loss of faculty, the claimant is incapable of the job of traffic warden (b) if he is capable of it, it is suitable for the claimant and (c) if it is suitable and he is capable of it, it is of an equivalent standard to his regular occupation.
6. For purposes of determining whether a suitable alternative occupation is of an equivalent standard the comparison is between normal earnings in the suitable alternative and those in the regular occupation. This is not necessarily a comparison between the claimant's earnings in the respective occupations. It is between "normal" earnings, being a more objective comparison.
7. It is only if paragraph 11(1) is satisfied because the suitable alternative occupation of which the person is capable is not of an equivalent standard that paragraph 11(10) comes into play. It determines the rate at which the award is to be made. For purposes of paragraph 11(10) it is necessary to determine a beneficiary's probable standard of remuneration which may or may not be the same as the normal earnings in the relevant occupation.
8. The new Tribunal should re-hear the matter and bear in mind the above observations. It would probably be of assistance to the Tribunal if information could be placed before it in relation to the overtime situation for Traffic Wardens.

(Signed): M F Brown

COMMISSIONER

7 April 2000