Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C8/99(IS) (17 April 2000)

 


Decision No: C8/99(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 INCOME SUPPORT Appeal to the Social Security Commissioner on a question of law from a Tribunal's decision dated 26 February 1999 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by myself, against a decision dated 26th February 1999 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Newry. I held a hearing of the appeal which was attended by Mr Brady representing the claimant and by Mrs McRory of the Decision Making and Appeals Unit. The claimant did not attend.
2. Both at hearing and in the letter of application dated 26th May 1999, Mr Brady's contention was that the Tribunal had erred in that it did not accept his argument that the declaration made by the claimant in September 1995 to the effect that her son no longer lived with her as he had gone to college in Dublin, should have triggered a full reassessment of all of the claimant's Income Support entitlement by the Adjudication Officer.
3. Mrs McRory opposed this argument. The Decision Making and Appeals Unit (DMAU) (then known as Central Adjudication Services) by letter of 10th November 1999 had originally submitted that the Adjudication Officer in September 1998 had erred by ignoring decision R(SB)2/83. This is a decision of a Tribunal of Commissioner's in Great Britain and it delineates the extent of the inquisitorial role of a Tribunal. No contention was made that the Adjudication Officer did not also have this inquisitorial role. The Decision Making and Appeals Unit originally submitted that the Adjudication Officer had ignored decision R(SB)2/83 and therefore regulation 57(3) of the Social Security (Adjudication) Regulations (Northern Ireland) 1995 applied.
4. The significance of this was that if regulation 57(3) applied the Adjudication Officer on 12.8.98 could have awarded arrears back to 26.9.95 when reviewing the claimant's entitlement to Income Support. If regulation 57(3) did not assist the Adjudication Officer on 12.8.98 could not have awarded arrears further back than 1.5.98 (1 month before the review request which triggered that decision).
5. Regulation 57(3) provides that if an Adjudication Officer in giving the decision under review, overlooked or misconstrued either -

"(a) some statutory provision; or

(b) a determination of a Commissioner or the court,

which, had he taken it properly into account, would have resulted

in a higher award of benefit or, where no award was made, an award

of benefit."

then the review decision given is to have effect from the date from which the decision being reviewed had effect.

6. At hearing Mrs McRory resiled from this argument and submitted that there was no breach of the inquisitorial role by the Adjudication Officer. Referring specifically to paragraphs 10 and 11 of R(SB)2/83 she stated that there was nothing self evident which would have caused the Adjudication Officer to canvas any other point in the claimant's favour than those she had raised in her review letter of September 1995. Mrs McRory stated that possibly a more diligent Adjudication Officer might have further investigated the matter but there was no issue clearly apparent and that the onus was on the claimant to report any change of circumstances and there had been no contention made to the Tribunal that the claimant had reported that her maintenance had ceased. The Tribunal itself had not erred in that it had dealt clearly with Mr Brady's submission and its conclusion thereon was correct.
7. Mrs McRory stated further that there was no obligation on an Adjudication Officer to review every aspect of an Income Support award when a review was sought in relation to a particular aspect of it.
8. I am in agreement with Mrs McRory. I do not consider that there was any breach of the Adjudication Officer's inquisitorial role when he made his decision in September 1995. The relevant paragraphs of R(SB)2/83 are as follows:

"10. It is, of course, accepted that in this jurisdiction a

tribunal has an inquisitorial function to perform. Proceedings

are not adversarial in nature. It is open to a tribunal, and

indeed it is the members' duty, whenever they identify a point

in favour of the claimant, notwithstanding that it has not been

taken by the claimant, to consider it and to reach their decision

in the light of it. (Moreover, exactly the same principle

applies in the case of a Commissioner, or for that matter, a

Tribunal of Commissioners, and not infrequently Commissioners

do of their own volition discover points, which were never put

forward by the claimant, but which are instrumental in giving

rise to a decision favourable to the claimant.) However,

although the members of a tribunal must investigate any matter

which occurs to them as having any relevance to the appeal

before them, they are not expected to question the facts

presented to them in case after further investigation they

might prove (to the advantage of the claimant) to be materially

different, especially when, as here, there has been no

suggestion on the part of the claimant that he is unsure of the

facts as presented by him. We reach this conclusion irrespective

of the fact that in the case of supplementary benefit appeal

tribunals the chairman is often not legally qualified. Indeed,

exactly the same principle applies whether the chairman is or is

not legally qualified.

11. Of course, in a particular case it may be that a particular

factual point was so obvious and self-evident that any tribunal

ought to have considered it, irrespective of whether it was

specifically made by the claimant. Everything will depend upon

the circumstances in any given instance. However, the primary

duty for making out his case falls on the claimant, and he must

not expect to rely on the tribunal's own expertise. We would be

slow to convict a tribunal of failure to identify an uncanvassed

factual point in favour of the claimant in the absence of the

most obvious and clear-cut circumstances. There were certainly

no such circumstances in the present case. ..."

9. I am in full agreement with the views expressed in that extract and I do not consider that there was any breach of the inquisitorial role by the Adjudication Officer. I make no comment as to whether the Adjudication Officer has the full duties which a Tribunal has in that respect. It is not necessary that I do so. Even accepting that he does have such duties there has been no breach of them. Reporting that a child has left home to go to college would not, in my view, raise any obvious question as to maintenance being cut and a claimant could well be expected to report that there had been a drop in income especially as against the background of the instructions in the order book. I therefore consider that the Adjudication Officer in September 1995 did not err in law by ignoring R(SB)2/83. It is possible that an ultra diligent Adjudication Officer might have divined a possibility of an income drop from the information given. That is not the standard. The standard is as set out in R(SB)2/83 and it has not been breached in this case. There were no obvious and clear cut circumstances indicating a drop in income.
10. I similarly do not consider that there was any error on the part of the Adjudication Officer in not conducting a full reassessment of the claimant's Income Support entitlement when requested to review it by the letter of 26th September 1995. That letter was headed "Extra money for the severely disabled" it was on a form obviously prepared by the Social Security Agency which had at the top an explanatory paragraph as follows:

"You may be able to get extra money in your Income Support if

you are severely disabled. We call this extra money a Severe

Disability Premium. Before we can decide whether you can get

this, we need some more information."

11. The claimant had written:

"Dear Sir/Madam

I would like you (sic) consider allowing me this extra money as

and from 11.9.95. My son does not live with me from 18.9.95 as

he has gone to college in Dublin. ..."

12. The claimant supplied other information on this letter but it was agreed that none of it related to any maintenance stopping. I do not consider that there was any obligation, raised by the request for a review of an existing award for a particular reason for the entire award to be subject to reassessment. In any event the failure to reassess would not bring the claimant within regulation 57(3) there being no statutory provision and no determination of a Commissioner or court which obliges the Adjudication Officer in those circumstances to conduct a full reassessment of aspects of an award which have not been put in question.
13. I therefore disallow the appeal.
14. At hearing and agreeing fully that it had not been mentioned to the Tribunal and indeed that it had not been known to him until well after the hearing, Mr Brady indicated that the claimant had now found some evidence of having reported specifically that her maintenance had stopped. This is not a matter which I can deal with in deciding whether or not the Tribunal had erred in law. It is a matter which would fall to be dealt with by a subsequent review request and if this is not already under way it may be that Mr Brady would wish to consider making an application for review.
15. As regards the matters within my own jurisdiction I am unable to ascertain any error in the Tribunal's decision either as outlined above or in any other manner and I therefore dismiss the appeal.

(Signed): M F Brown

COMMISSIONER

17 April 2000