Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2005] NISSCSC C1/05-06(IS) (26 May 2005)

Decision No: C1/05-06(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
INCOME SUPPORT
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 30 July 2002
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. Having considered the circumstances of the case, I am satisfied that the appeal can properly be determined without a hearing.
2. The claimant has submitted that the Tribunal erred in law. As the correctness of the Tribunal's decision could not be ruled upon until a relevant case in England, namely, Hinchy v Secretary of State for Work and Pensions, was adjudicated upon, a Commissioner did not rule on the present case until the litigation in Hinchy was finalised. The Court of Appeal in England and Wales on 20 February 2003 – Hinchy v Secretary of State for Work and Pensions [2003] EWCA Civ 138 – gave its decision but there was a further appeal to the Judicial Committee of the House of Lords. The decision of the House of Lords was given on 3 March 2005 – Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16. Only when that decision, which is binding on Commissioners in Northern Ireland, was given, could the present application and appeal be dealt with appropriately. In any event, it is now clear that the decision in Hinchy does not support the claimant in this present appeal.
3. The Department, through Mr Sloan and Miss Boal of Decision Making Services (DMS), by letters dated 23 June 2004 and 22 July 2004 respectively, submitted that, over and above Hinchy matters, the Tribunal had erred in law in coming to its decision.
4. Leave to appeal was granted by a Commissioner on 19 April 2005 on the following grounds:-

"It is arguable that the decision was wrong in law, because:

(i) it appears that the clerk to the appeal tribunal failed to direct the appellant to notify the clerk in writing whether she wished to have an oral hearing of the appeal or whether she was content for the appeal to proceed without an oral hearing – see regulation 39(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999;

(ii) the Tribunal has failed to satisfy itself that there was sufficient evidence to determine that the appellant failed to disclose a material fact (as it appears that the Tribunal did not satisfy itself that the order book instructions presented to it in the Department's submission were appropriate to the overpayment period)."

5. Therefore, it is clear that both parties have expressed a view that the decision appealed against was erroneous in point of law.
6. Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination. In the circumstances I direct the clerk to the appeal tribunal to direct the claimant to notify the clerk of the appeal tribunal in writing whether she wishes to have an oral hearing of the appeal or whether she is content for the appeal to proceed without an oral hearing – see regulation 39(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999. This fresh tribunal may obtain assistance from the decision of the Tribunal of Commissioners C2/02-03(ICA)(T) when deciding the case.

(Signed): John A H Martin QC

Chief Commissioner

26 May 2005