Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2002] NISSCSC A48/02-03(IB) (21 February 2003)

 


Application No: A48/02-03(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

Application by the above-named for

leave to appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 8 January 2002.

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

I refuse leave to appeal.

REASONS

Having considered the circumstances of the case I am satisfied that the application can properly be determined without a hearing.

The Tribunal's decision and its reasons for its decision are available to me. However, the record of proceedings was not available as the claimant failed to apply for this record within the statutory time limit and therefore the record has not been produced by the Chairman. (Regulation 55(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 provides that an application for such a record must be received by the clerk to the Tribunal within six months of the date of the Tribunal decision. The decision was issued on 8 January 2002 but the application for the record was not received until on or about 30 October 2002, a date outside the six-month limit). Accordingly I am not entitled to make any assumptions in favour of the claimant on the grounds that there may have been supportive evidence in such a record as the lack of a record is due to the claimant failing to comply with the statutory time limit.

There is no arguable case that the Tribunal's decision was wrong in law.

The Tribunal was properly constituted. The Tribunal analysed the evidence rationally and in accordance with common sense. It made all necessary findings of fact material to its decision. There was evidence to support each of those findings. On those findings of fact, the Tribunal was entitled to make the decision that it did. There is nothing to suggest that the Tribunal misunderstood or misapplied the law. The full statement of the Tribunal's decision contains a detailed explanation of the reasons why the Tribunal made the decision that it did. There was no breach of the principles of natural justice or the European Convention of Human Rights.

In particular:

It is noteworthy and relevant that the applicant agreed to a "paper" hearing.

The statement signed by the applicant at page 19 of 1B 50 gives the Department or any doctor advising the Department the right to ask for information from relevant medical practitioners but does not impose a duty to ask for such information.

There is no reason to conclude that the production of x-rays reports would have resulted in any change to the Tribunal's decision as the Tribunal, having accepted that the applicant did suffer from back problems, then very properly focused its attention on the applicant's functional ability.

In any event the primary duty to adduce relevant evidence before the Tribunal rests on the applicant.

Bearing in mind that the applicant opted for a "paper" hearing, the Tribunal gave the applicant every opportunity to present all evidence that she considered relevant in her appeal.

Also it is not reasonably arguable that the Tribunal was in breach of Article 6 of the European Convention in light of the obvious care taken by the Tribunal, bearing in mind that it was the applicant who opted for the "paper" hearing.

It must be borne in mind that a Tribunal is entitled to draw its own inferences and reach its own conclusions and however profoundly a Commissioner, as an appellate tribunal on an appeal from a Tribunal on a point of law, may disagree with its views of the facts, he or she is not able to upset the Tribunal's conclusions unless:

(a) there is no (or no sufficient) evidence to found them – which may occur when the inference or conclusion is based not on any facts but on speculation by the Tribunal, or

(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse.

In this case I neither express disagreement nor agreement with the Tribunal's inferences and conclusions. However, even if I were in disagreement, that does not render the decision erroneous in point of law as the Tribunal's conclusions are based on sufficient evidence, its assessment of the evidence was reasonable and the primary facts found justify the conclusions.

(Signed): J A H MARTIN QC

CHIEF COMMISSIONER

(Dated): 21 February 2003