Northern Ireland - Social Security and Child Support Commissioners' Decisions

WK-v-Department for Social Development (II) [2013] NICom 35

Decision No: C1/13-14(II)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INDUSTRIAL INJURIES DISABLEMENT BENEFIT

 

 

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 24 September 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 24 September 2009 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to reduced earnings allowance (REA), from and including 24 December 2008 is confirmed.

 

         Background

 

2.     The appellant suffered an industrial accident on 10 July 1975 sustaining an injury to his back and right leg.  The applicant claimed industrial injuries disablement benefit (IIDB) by completion of Form BI.100A, part of a copy of which was attached to the original appeal submission as Tab No 1.  The appellant also claimed what was then known as special hardship allowance (SHA) by the completion of Form BI.103A, a copy of which was attached to the original appeal submission as Tab No 2.  It is important to note that with effect from 19 November 1986, SHA was replaced by REA.

 

3.     The appellant was examined on a number of occasions by adjudicating medical authorities and what were then medical appeal tribunals for the purposes of his claims for IIDB and SHA/REA.  The last occasion, prior to the decision of the appeal tribunal, on which the appellant was examined for the purposes of his claim to IIDB was on 1 May 1997 when the extent of his disablement resulting from the relevant loss of faculty was finally assessed by an adjudicating medical authority at 20 per cent from 4 May 1997 for life.  The relevant loss of faculty was ‘impaired and painful movements of lower back’.  The last occasion, prior to the decision of the appeal tribunal, on which the appellant was examined for the purposes of his claim to SHA/REA was on 16 August 1979.  The Medical Board which examined the appellant on that occasion expressed the opinion that the appellant was permanently incapable of his regular occupation as a result of the relevant loss of faculty but that he was capable of alternative employment not involving heavy lifting.

 

4.     Various awards of SHA/REA were made from 29 October 1975 to 23 December 2008.  These awards are outlined in more detail in the “Facts of the Case” section of the Department’s original appeal submission.  On 8 October 2008 the appellant completed an REA renewal form in which he confirmed he was working as a security officer for B&E Security Systems.  On 24 February 2009 a decision-maker of the Department decided that REA was not payable from 24 December 2008 because the earnings in the appellant’s regular occupation were £276.07 and those in the suitable alternative employment (in the appellant’s case a security officer) were £309.40.

 

5.     An appeal against the decision dated 24 February 2009 was received in the Department on 10 March 2009.  On 22 July 2009 the decision of 24 February 2009 was revised as the wages quoted were erroneous for both occupations.  It was submitted that the wage in the regular occupation should have been £258.95 and that in the suitable alternative employment £333.20.  REA was still disallowed so the decision was revised only to correct the errors in the remuneration.

 

6.     The appeal tribunal hearing took place on 24 September 2009.  The appellant was present and was not represented.  The Department was represented by a Departmental presenting officer.  The appeal tribunal disallowed the appeal and confirmed the decision dated 24 February 2009 as revised on 22 July 2009.  On 30 March 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 8 April 2010 the application for leave to appeal was rejected by the legally qualified panel member (LQPM).  The LQPM determined that, for the purposes of regulation 58 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, the application for leave to appeal was received outside the prescribed time limits for the making of such an application and, further, that no special reasons existed for the acceptance of the late application.

 

         Proceedings before the Social Security Commissioner

 

7.     On 19 July 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  At that stage in the proceedings, the appellant was represented by McKee Solicitors.  On 10 December 2010 I accepted the late application for special reasons.  On 11 January 2011 the appellant’s representative was requested to clarify an issue arising from the application for leave to appeal.  On 8 February 2011, and no reply by that date having been received, a reminder was issue to the appellant’s representative.  On 27 April 2011 a reply was received from the appellant’s representative.

 

8.     On 17 May 2011 written observations on the application for leave to appeal were requested from Decision Making Services (DMS) and such observations were received on 31 May 2011.  In these initial written observations, Mr Hinton, for DMS, opposed the application on the grounds cited on behalf of the applicant.  The written observations were shared with the appellant and his representative on 1 June 2011.  On 5 October 2011 written observations in reply were received from the appellant’s representative.

 

9.     On 19 October 2011 I directed an oral hearing of the application.

 

10.   On 12 January 2012 further correspondence was received from Mr Hinton.  In this correspondence Mr Hinton indicated that:

 

‘I have now received information from the Department advising that (the claimant) made a further claim to Reduced Earnings Allowance on 13/1/2010.  On this form (the claimant) still stated his regular occupation as a tyre/exhaust fitter.  On 25/2/10 the Department disallowed the claim from and including 25 September 2009.  (The claimant) subsequently appealed this decision and a tribunal hearing was convened for 6 October 2011.  This hearing was adjourned because (the claimant’s) representative from McKee solicitors wished to obtain additional information.  The nature of the information obtained from the solicitors was that (the claimant) had in fact been employed as a depot manager from 1970 to 1975 and a letter to this effect from a former sales representative was presented at a reconvened hearing on 11 January 2011.  This hearing was adjourned again in order for the representative to obtain additional information relating to wages for this post.  The hearing has yet to be reconvened.’

 

         The reference to 6 October 2011 should read 6 October 2010.

 

11.   The initial oral hearing of the application in this case took place on 17 January 2012.  At the initial oral hearing of the application the applicant was represented by Mr McGill of McKee Solicitors.  The Department was represented by Mr Hinton.  At the conclusion of the initial oral hearing of the application I gave the applicant the opportunity to provide additional information on certain of the issues arising in the application.  Due to the illness of the applicant, the further information was not forthcoming until later in March 2012.  That information required to be shared with Mr Hinton.  There then followed, at stages until the end of July 2012, the receipt of additional correspondence and information from the applicant.

 

12.   In an initial telephone conversation on 31 July 2012, and in subsequent correspondence dated 8 August 2012, received in the office on 9 August 2012, the applicant made a request for a further oral hearing of his application.  The applicant submitted that he had received poor advice from his representative at the initial oral hearing of the application and that he wished to have a former work colleague to attend to give oral evidence.  On 21 August 2012 correspondence was received from the applicant’s representative seeking an update on the course of the proceedings.  On 23 August 2012 the legal officer to the Social Security Commissioners wrote to the applicant’s representative enclosing copies of all correspondence, indicating that the Social Security Commissioner might be minded to hold a further brief hearing to hear the oral evidence and seeking confirmation that the representative remained on record for the applicant.  On 30 August 2012 correspondence was received from the applicant in which he indicated that he no longer wished McKee Solicitors to be on record for him.  On 12 September 2012 correspondence was received from McKee Solicitors in which they indicated that the applicant had decided to proceed with his application without further advice or representation from their office.  The further oral hearing took place on 6 November 2012.  The applicant attended and gave oral evidence as did Mr W.

 

         The jurisdiction of the Social Security Commissioner

 

13.   Regulation 9(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, as amended, provides that an application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave from the chairman and leave has been refused or the application has been rejected.

 

14.   It is important to note that a decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

15.   In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i)       making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)        failing to give reasons or any adequate reasons for findings on material matters;

(iii)       failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)       giving weight to immaterial matters;

(v)        making a material misdirection of law on any material matter;

(vi)       committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

         Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

         Analysis

 

         The grounds for appealing to the Social Security Commissioner

 

16.   In the original application for leave to appeal, the appellant submitted that the decision of the appeal tribunal was in error on the basis that:

 

‘At the time the decision was taken, no figure had been provided re: provision of breakdown service/call outs outside normal working hours.  There is now documentation supporting (the claimant’s) original grounds for appeal that such provision/service does exist; (Charles Hurst Communication supplied).

The Tribunal has also been misinformed about the earnings relating to this matter.’

 

17.   Attached to the original application for leave to appeal was a further four-page hand-written submission which related to the issue of the calculation of the wages of a tyre fitter and the related issue of ‘call-outs’.

 

18.   As was noted above, on 27 April 2011 and subsequent to the receipt of the application for leave to appeal, correspondence was received in the Office of the Social Security Commissioners in which the appellant’s representative submitted:

 

‘It now appears that (the claimant) described himself incorrectly as a tyre fitter when he was in fact a tyre manager.  This fact now indicates that he has suffered significant financial loss as a result of him being deprived of REA.’

 

19.   Thereafter the preponderance of the remainder of the proceedings before the Social Security Commissioner was taken up with evidence in connection with the question of the nature and type of employment held by the appellant during the period of his employment from 6 April 1970 to 10 July 1975.

 

         The evidence which was before the appeal tribunal on 24 September 2009

 

20.   The record of proceedings for the appeal tribunal hearing notes that the appeal tribunal had before it:

 

(i)        Scheduled documents and submissions;

(ii)       Addendum and attended documentation; and

(iii)      Letter from the claimant (handed in today).

 

21.   The ‘scheduled documents and submissions’ are a reference to the original appeal submission and attached evidential documents.  The ‘addendum and attended documentation’ is a reference to an addendum dated 6 August 2009 which had been prepared by an officer of the Department and which was added to the original appeal submission in advance of the oral hearing of the appeal.  The ‘letter from (the claimant)’ is a reference to a hand-written submission which was submitted to the appeal tribunal at the oral hearing of the appeal.  The appellant also attended the oral hearing of the appeal as did an officer of the Department.

 

         What did the evidence before the appeal tribunal say about the nature and type of employment held by the appellant during the period of his employment from 6 April 1970 to 10 July 1975?

 

22.   Attached to the original appeal submission prepared for the oral hearing of the appeal were a number of documents.  The first of these was part of an original claim form to IIDB.  At question 6 of this part of the claim form the appellant is asked to describe his occupation.  His response was ‘tyre fitter’.  The second document attached to the original appeal submission was a claim form to what was then SHA.  At question 3 of this form the appellant was asked to describe his occupation.  His response was ‘Tyre Fitter/Exhaust Fitter’.  At question 6 of the form the appellant was asked to give ‘… a full description of duties performed in your regular occupation.’  His response was:

 

‘Puncture repairs on cars Agriculture and Commercial + Giant wheels and fitting new tyres.  Most of these the physical effort was kneeling bending and lifting.  Also we fitted all types of car exhausts.’

 

23.   At question 8(a) the appellant was asked to indicate how long he had been doing this job.  His response was ‘5 years 7 months.’  At question 10 the appellant was asked whether ‘… persons employed in your regular occupation normally have prospects of advancement to better paid work’.  The appellant’s response was ‘Starting as tyre fitter you could have gone on to be Depot Manager or a Sales Representative or even Tyre Manager.’  At question 10(b) the appellant is asked whether he considered he had normal prospects of advancement as mentioned at 10.  His response was ‘Yes’.  At question 10(c) the appellant was asked whether he considered that he had lost prospects of advancement as a result of his accident.  His response was ‘yes’.

 

24.   The documents attached to the original appeal submission as 5, 6 and 7 relate to an appeal tribunal hearing against a decision of the Department concerning the appellant’s entitlement to REA.  Throughout these documents the appellant’s ‘pre-accident’ occupation is referred to as ‘tyre fitter’.

 

25.   The documents attached to the original appeal submission as 8, 8A, 8b and 9-15A relate to a further appeal tribunal hearing in connection with a Departmental decision in connection with the appellant’s entitlement to REA.  As above, throughout these documents the appellant’s occupation is referred to as ‘tyre fitter’.

 

26.   Document 16 of the original appeal submission is a copy of correspondence dated 30 June 2003 from the Department to the appellant notifying him of the outcome of a Departmental decision.  In this correspondence the appellant’s occupation is referred to as ‘tyre fitter’.  Documents 17 and 17A consist of a copy correspondence between the Department and Charles Hurst concerning the earnings of an individual employed in the appellant’s regular occupation which is described as a ‘tyre fitter’.  Documents 20 and 21 are records of enquiries made to Charles Hurst in connection with the wages earned by an individual employed as a tyre fitter.  Documents 22 and 23 relate to enquiries made by the appellant concerning his then most recent claim to REA and a further telephone call to Charles Hurst in connection with that decision.  Once again the reference to an occupation is to that of ‘tyre fitter’.

 

27.   Documents 26 and 26A are the appellant’s appeal against the Departmental decision of 24 February 2009 disallowing his entitlement to REA.  Throughout the appeal documents the appellant makes reference to the occupation of ‘tyre fitter’.

 

28.   Documents 27 to 52 are copies of correspondence between the appellant and the Department concerning the issues arising in the appeal and, consequently, further correspondence between the Department and Charles Hurst.  In all of that correspondence the references are to the duties both main and ancillary of a ‘tyre fitter’.

 

29.   As was noted above, the appeal tribunal also had access to an addendum dated 6 August 2009 which had been prepared by an officer of the Department and which was added to the original appeal submission in advance of the oral hearing of the appeal and to a further submission which was handed into the appeal tribunal by the appellant.  In this documentation all of the occupational references are to ‘tyre fitter’.

 

30.   During the course of the oral hearing of the appeal, the appeal tribunal had the benefit of the oral evidence of the appellant.  As is evident from the record of proceedings for the appeal tribunal hearing, the evidential and other issues were concerned with the duties of a ‘tyre fitter’.

 

         Was the decision of the appeal tribunal in error of law for failing to consider whether the appellant was employed during the relevant period as a tyre or depot manager?

 

31.   The answer to that question has to be a categorical ‘no’.  The analysis of the wide-ranging evidence which was before the appeal tribunal makes it clear that at no stage prior to the appeal tribunal hearing did the appellant submit that his regular occupation was anything other than a tyre fitter.  The appellant did make submissions concerning the duties of a tyre fitter, including submissions on ancillary duties such as exhaust or battery fitting and in connection with call-outs but at no stage did the appellant ever submit that the nature and category of his occupation was that of tyre or depot manager.

 

32.   As was noted above, the first indication that I have noted of a claim to the occupation being that of tyre or depot manager was in the correspondence dated 27 April 2011 and forwarded in connection with the application for leave to appeal to the Social Security Commissioner.  By that stage, of course, the proceedings before the appeal tribunal had concluded.

 

33.   In CDLA/7980/1995 a Social Security Commissioner in Great Britain stated:

 

‘Finality is an important principle.  Parties cannot demand a rehearing simply because, at the original hearing, they failed to adduce the right evidence, failed to ask the right questions or failed to advance the right arguments.’

 

34.   In A63/95(DLA), the then Chief Social Security Commissioner stated, at paragraph 7:

 

‘A Tribunal can clearly not be faulted for failing to take account of evidence which was not made available at the hearing.’

 

35.   Accordingly, and applying those principles, I cannot find the decision of the appeal tribunal to be in error of law on the basis that it failed to take account of evidence which had not been made available to it.

 

         What was the evidence which was not before the appeal tribunal?

 

36.   As was noted above, and in connection with the present proceedings, the first occasion on which it was mooted that the appellant’s occupation during the relevant period was that of ‘tyre/depot manager’ rather than ‘tyre fitter’ was in correspondence received from the appellant’s then representative, dated 27 April 2011 and received on 3 May 2011.  The application for leave to appeal to the Social Security Commissioner had been received on 19 July 2010.

 

37.   During the course of the proceedings before me, and as was noted above, it became clear that the appellant had made a further claim to REA on 13 January 2010.  On 25 February 2010 the Department made a decision to disallow entitlement to REA on foot of that claim.  The appellant made an appeal against the decision dated 25 February 2010.  During the course of an oral hearing of the appeal, on 11 January 2011, a hand-written letter was submitted to the appeal tribunal to the following effect:

 

‘(The claimant) was employed by Thompson-Reid Ltd at their Tyre Depot in Beresford Place Coleraine as Depot Manager from 1970 to 1975 selling and fitting car and truck tyres, mending punctures, wheel balancing and wheel alignment and also the fitting of exhaust pipe systems to various vehicles.  He was also responsible for standby breakdown service for Shell and BP Oils, Blue Circle Cement Co and the Milk Marketing Board.  His hours Monday to Friday 9.00 to 5.30 pm Sat 9.00 - 1 o’clock.  He was a dependable and efficient manager.’

 

         The letter was signed by Mr W.

 

38.   As part of the submissions made in connection with the application for leave to appeal, the appellant’s then representative supplied a further hand-written statement from Mr W, dated 20 January 2011, to the following effect:

 

‘Further to my letter dated 10-1-11 in 1970 my then Depot Manager [AM] left … The position was offered to DB the tyre fitter who turned the offer down.  It was then advertised and along with WM the tyre manager from Belfast interviewed applicants.  We agreed to offer the position to (the claimant) because of his extensive knowledge of Depot Management that he gained in previous employment.  His main duties were puncture repair fitting tyres and exhausts and wheel balancing and alignment.  His other duties were selling tyres and exhausts to the public also to account holders with Thompson-Reid Ltd.  He was responsible for ordering stock and keeping stock records.  He was on stand by to do after hours call outs for contracted hauliers like Shell and BP Oil Companies also Blue Circle Cement the Milk Marketing Board and Allied Bakeries.  Working hours Monday to Friday 09.00 a.m. to 05.30 p.m. and Saturday 09.00 a.m. to 01.00 p.m. I was North West Regional Tyre Representative so I was away from the Depot all the time only calling in to pick up a dispatch order.  (The claimant) was a dependable and efficient Depot Manager.’

 

39.   In addition to these two pieces of written evidence, and as was noted above, I agreed to convene a further oral hearing of the application in order to permit the appellant and Mr W to give oral evidence concerning the nature and category of the appellant’s occupation during the relevant period.

 

40.   At the re-convened oral hearing, Mr Hinton submitted two additional items of written evidence.  The first of these was a copy of the appellant’s further claim form to REA made on 13 January 2010.  The second was a DHSS enquiry form forward to the Manager of the Tyre Department of Thomson Reid Ltd on 23 July 1975 in connection with a claim to IIDB and completed by the manger on 24 July 1975.

 

41.   At the re-convened oral hearing the appellant also submitted three additional pieces of evidence.  The first of these was a list of names and telephone numbers of individuals under the heading ‘After Hours Breakdown Service - Telephone Numbers’.  All of the information on the form is type-written but the name and telephone numbers of one of the individuals in the Coleraine area has been annotated in hand-writing to add the words ‘depot manager’.  The second additional piece of evidence was a letter from HM Revenue and Customs outlining the appellant’s earnings for the tax year 1975-1976.  The final piece of evidence was a hand-written list of dates and times which the appellant submitted were sightings by him of movements of the Charles Hurst breakdown van in and around the Coleraine area.

 

         Should the Social Security Commissioner take the evidence which was not before the appeal tribunal into consideration?

 

42.   As was noted above, I have found that the decision of the appeal tribunal could not have been in error of law on the basis of a failure to consider evidence which was not before it.  Nonetheless, the additional evidence is now before me.  I have decided to exercise my inquisitorial role to consider that evidence.

 

         Analysis of the additional evidence

 

43.   I begin with an analysis of the oral evidence of the appellant and Mr W given at the re-convened oral hearing on 6 November 2012.  I gave both the appellant and Mr W the opportunity to provide oral evidence on the background to and the nature and form of the appellant’s employment with Thompson Reid during the relevant period.  In summary, the evidence of both the appellant and Mr W was wholly contradictory and inconsistent.

 

44.   The appellant submitted that the background to his gaining employment with Thompson Reid Ltd was as follows.  A job, described by the appellant as ‘Tyre Fitter/Depot Manager’ and as a ‘combined job’ was advertised in the local paper.  He called the relevant telephone number and was told to come along for interview.  He was interviewed by Mr W and another individual BM who was a tyre manager.  The job was to be in Coleraine.  Other people were also interviewed.  He was told what the job entailed.  This was tyre fitting, exhaust fitting, puncture repairs, wheel balancing, selling tyres to public tyres, and to people with monthly accounts.  He would also be responsible for stock orders from tyre distributors.  He would order from the main depot in Belfast.  He was to be paid £2.50 per hour.

 

45.   The appellant gave the following account of his initial working conditions.  When he commenced work there were himself and another tyre fitter (Mr B) working in the company’s premises.  Another company employee had left.  Mr B had been offered the position of ‘Tyre Fitter/Depot Manager’ but had turned it down.  He was paid the same hourly rate as Mr B.  He did not have to be trained.  His duties were as were described to him during the interview.  He undertook certain different duties due to Mr B which included handling money and receipts and undertaking paperwork including the preparation of stock records.  He would undertake these additional duties during the day if the premises were not busy or do certain extra hours of overtime.  He was also responsible for break-down cover and call-outs.  He would also prepare sales information for Mr W who was out of the premises for the majority of the time and prepare an envelope for Mr W to take to a weekly sales meeting in Belfast.  He was authorised to give orders to Mr B but he was not responsible for ‘hiring or firing’.

 

46.   Mr W submitted that the background to his gaining employment with Thompson Reid Ltd was as follows.  He had worked with Thomson Reid since 1963.  The appellant ‘first came’ to Thomson Reid Ltd as a tyre fitter.  The job of ‘tyre fitter’ had been advertised in 1970.  The appellant had applied and, together with three others had been interviewed.  The appellant’s application was successful and he was appointed as a tyre fitter.  At the start the appellant worked on his own as a tyre fitter.  The company then moved to larger premises as business increased and the company moved to fitting exhausts.  The expansion happened within two years of 1970, maybe three.  Another tyre fitter, Mr B, was then employed and joined the appellant.  The appellant was then given additional duties in stock control, ordering and selling.  Prior to that his duties had been solely those of tyre fitter.  He was not sure about wages but was aware that there were general company pay rises.  The appellant would have no responsibility for ‘hiring or firing’ or discipline.

 

47.   I have also noted that in the renewal claim form to REA, received in the Department on 13 January 2010, the appellant, at page 4 of the relevant form described himself as a ‘tyre and exhaust fitter’.  Further in the DHSS enquiry form submitted to Thompson Reid Ltd on 23 July 2005 in connection with the appellant’s claim to IIDB, the manager of the Tyre Department in Thompson Reid Ltd, in a reply dated 24 July 1975, described the appellant’s occupation as ‘Tyre/Exhaust Fitter’.

 

         Was the appellant’s regular occupation during the relevant period that of ‘tyre fitter’ or ‘tyre manager/depot manger?

 

48.   The preponderance of the evidence is that the appellant’s regular occupation during the relevant period was that of ‘tyre fitter’.  As was noted above in all of the documentation associated with the appellant’s initial claim to IIDB, his subsequent claims to REA, and appeal tribunal hearings in connection with decisions made on those claims, the appellant’s occupation is described solely as that of a ‘tyre fitter’.

 

49.   It is important to note that the appellant, as part of his claims to the relevant benefits and in connection with appeals arising from Departmental decisions in connection with those claims has had numerous opportunities to set out in detail the nature and type of his employment with Thompson Reid Ltd during the relevant period, has consistently described his occupation as that of tyre fitter.  It is accepted that the appellant did describe ancillary duties such as exhaust fitting and wheel balancing and alignment.  As was noted above, the second document attached to the original appeal submission was a claim form to what was then SHA.  At question 3 of this form the appellant was asked to describe his occupation.  His response was ‘Tyre Fitter/Exhaust Fitter’.  At question 6 of the form the appellant was asked to give ‘… a full description of duties performed in your regular occupation.’  His response was:

 

‘Puncture repairs on cars Agriculture and Commercial + Giant wheels and fitting new tyres.  Most of these the physical effort was kneeling bending and lifting.  Also we fitted all types of car exhausts.’

 

50.   At question 8(a) the appellant was asked to indicate how long he had been doing this job.  His response was ‘5 years 7 months.’  At question 10 the appellant was asked whether ‘… persons employed in your regular occupation normally have prospects of advancement to better paid work’.  The appellant’s response was ‘Starting as tyre fitter you could have gone on to be Depot Manager or a Sales Representative or even Tyre Manager.’  At question 10(b) the appellant is asked whether he considered he had normal prospects of advancement as mentioned at 10.  His response was ‘Yes’.  At question 10(c) the appellant was asked whether he considered that he had lost prospects of advancement as a result of his accident.  His response was ‘yes’.

 

51.   It seems to me that if the appellant was already employed in the advanced role of ‘Tyre/Depot’ Manager’ then there would be no requirement to answer those questions in that particular manner.  I have noted that in his application for leave to appeal to the Social Security Commissioner, the appellant has queried why the Department should have asked a ‘tyre manager’ for details of the earnings of a ‘tyre fitter’.  He submits that the roles of a tyre manager or depot manager and, accordingly, their knowledge, would be different to that of a wages clerk.  Once again, therefore, the appellant is holding out his occupation to be that of a ‘tyre fitter’.

 

52.   Throughout the entirety of the appellant’s claims to IIDB and REA, the appellant’s employer, in response to official Departmental requests for information on the nature and type of his occupation have consistently described the appellant’s occupation as that of tyre fitter.

 

53.   At no stage between the date of his initial claims to IIDB and REA from July 1975 through to January 2011, did the appellant ever intimate that his occupation was different to that of tyre fitter and had management aspects or elements.  It is not clear to me why the appellant, if he had sought employment for a job with management elements and, as he has submitted, was appointed to such job, thereafter did not describe his occupation in such terms.  I gave the appellant a further opportunity to adduce oral evidence in connection with the nature of his occupation.  He took the opportunity to bring to a re-convened oral hearing the man who interviewed him for his job with Thompson Reid Ltd and subsequently appointed him to that job.  I have undertaken an analysis of the appellant’s oral evidence submitted in connection with the submissions made by the appellant that his occupation was more than that of a fitter and had management elements.  As was noted above, it is contradictory and inconsistent with all of the other evidence which is available to me.  It is wholly inconsistent with the oral evidence of Mr W.  At best it could be said that the appellant assumed certain additional duties in connection with the control of stock and the preparation of paperwork.  At no stage, however, did he ever hold a management position.

 

54.   Accordingly I have concluded that the appellant’s regular occupation with Thompson Reid Ltd was that of a tyre fitter and the appeal tribunal was correct in its conclusions on this issue.

 

         Another issue arising

 

55.   As was noted above, during the course of the re-convened oral hearing, the appellant submitted a hand-written list of dates and times which the appellant submitted were sightings by him of movements of the Charles Hurst breakdown van in and around the Coleraine area.  All of these sightings are in 2011.  The appellant made a reference to correspondence, dated 27 January 2011, which his then representative had received from Charles Hurst.  In that correspondence the Human Resources Advisor for Charles Hurst had advised that the average number of call-outs would have one per year.  The appellant submitted that this information was ‘complete nonsense’ and ‘rubbish’.  He submitted that his list of sightings of the movements of the Charles Hurst breakdown van in and around Coleraine supported the inaccuracy in the information supplied by the company concerning the number of call-outs.

 

56.   I cannot accept this submission made by the appellant.  Even if the list of sightings made by him of a van with a Charles Hurst logo is accurate that does not necessarily mean that on each and every occasion on which the van was sighted it was on a call-out in response to a breakdown.  I am wholly satisfied that the gathering and processing of information by the officer of the Department responsible for the administration of the appellant’s claim to REA was forensic and meticulous and was wholly accurate.

 

         Disposal

 

57.   The decision of the appeal tribunal dated 24 September 2009 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to REA, from and including 24 December 2008 is confirmed.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

1 May 2013