Northern Ireland - Social Security and Child Support Commissioners' Decisions



[2006] NISSCSC C4_03_04(IS) (09 May 2006)

Decision No: C4/03-04(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 27 November 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. Leave to appeal to a Commissioner was granted by the legally qualified panel member (LQPM) on 27 June 2003. The LQPM granted leave on the grounds that the Tribunal's decision might not have been correct in light of a decision given by the English Court of Appeal after the Tribunal's decision in the present case, namely, Hinchy v Secretary of State for Work and Pensions [2003] EWCA Civ 138 (20 February 2003). The present appeal was not decided in light of the Court of Appeal's decision as the case went on further appeal to the Judicial Committee of the House of Lords. The House of Lords gave its judgment on 3 March 2005 – Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16 (3 March 2005). In light of the decision of the House of Lords the issue set out in the LQPM's grant of leave to appeal is no longer relevant. Nevertheless the Hinchy case has resulted in the present appeal being held up for an unusually long period.
3. Over and above the Hinchy issues, Mr Gerard Flynn of Decision Making Services (DMS) on behalf of the Department, in a letter dated 26 November 2003, has submitted that the Tribunal has erred in law by failing to satisfy itself that there was sufficient evidence to determine that the claimant had failed to disclose a material fact.
4. Accordingly, it is clear that both parties have expressed the view that the decision appealed against was erroneous in point of law.
5. In the circumstances, 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 re-determination. In the circumstances, I direct that the Department makes available to the new tribunal the substance of what has been set out in Mr Flynn's letter to the Registrar of the Office of the Social Security Commissioners and Child Support Commissioners dated 26 November 2003, under the heading "Errors in law".

(Signed): John A H Martin QC

Chief Commissioner

9 May 2005