Decision No: C4/97(ICA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

INVALID CARE ALLOWANCE

Appeal to the Social Security Commissioner
on question of law from the decision of the
Craigavon Social Security Appeal Tribunal
dated 13 January 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal, whereby it was held that the claimant was not entitled to Invalid Care Allowance from and including 13 November 1995.  Leave to appeal was granted by a Commissioner on 5 November 1997.

2.	Having considered the circumstances of the case and the reasons put forward in the request for an oral hearing, I am satisfied that the appeal can properly be determined without such a hearing.

3.	The claimant made a claim for Invalid Care Allowance from 13 January 1993 by completing the appropriate form which was received in the Department on 13 November 1996.  On 22 November 1996 the Adjudication Officer disallowed the claim from 13 October 1995 on the grounds that K… L... , the claimant's mother was not a person in respect of whom Attendance Allowance, the highest or middle rate of care component of Disability Living Allowance, or any other prescribed payment on account of her need for attendance was payable.  The claim from 13 January 1993 to 12 October 1995 was dealt with separately and it also has been dealt with, on appeal, by me in decision C3/97(ICA).  The claimant in relation to the period from 13 October 1995 appealed to an Appeal Tribunal.  The Adjudication Officer in his written submission to the Tribunal stated that the decision was incorrect and should have read as follows:-

		"W… L...  is not entitled to Invalid Care Allowance in
		respect of K… L...  from 13.11.95.  This is because she
		is not a person in respect of whom Attendance Allowance, the
		highest or middle rate of care component of Disability Living
		Allowance, or any other prescribed payment on account of her need 
		for attendance is payable."

	The Tribunal was invited to substitute this decision for the one under appeal.

4.	The Tribunal made the following record of proceedings:-

		"Mr L... 

		She is not in receipt of the care component of Disability Living
		Allowance - my mother paid her stamp - my mother took a severe
		asthma attack - I'm not getting a fair hearing here."

	The Tribunal made the following findings of fact material to its decision:-

		"Claimant in this case has appealed firstly against the Adjudication
		Officer's decision to disallow Invalid Care Allowance in respect
		of K...  L...  from and including 13 January 1993 to 
		12 October 1995 (this date is incorrect and should, as pointed out
		in the written submission have been 12 November 1995).  Mr W…
		L...  claimed Invalid Care Allowance by completion of a form DS700
		received in the Department on 13 November 1996.  He indicated that
		he wished to claim Invalid Care Allowance from 13 January 1993.  
		K...  is and has not been in receipt of Attendance Allowance
		or the highest or middle rate care component of Disability Living
		Allowance from 13 November 1995.

		Claimant has also appealed against a disallowance of Invalid Care
		Allowance from and including 13 October 1995."

	The Tribunal gave the following reasons for its decision:-

		"In order for claimant to become entitled to Invalid Care
		Allowance in relation to K...  L...  he must prove that
		she is in receipt of either Attendance Allowance, or the highest
		or middle rate of the care component of the Disability Living
		Allowance.  This is as a result of the combination of the effect
		of Section 70 of the Social Security Contributions and Benefits
		(NI) Act 1992 and Regulation 3 of the Social Security (Invalid
		Care Allowance) Regulations (NI) 1976.  Claimant must prove that
		she is severely disabled and this is defined at part 2 of the 
		aforementioned Section 70.  It is clear that K...  L...  cannot
		satisfy that condition and therefore Invalid Care Allowance must
		be disallowed."

	The Tribunal set out its unanimous decision in the following form:-

		"Appeal disallowed.

		Invalid Care Allowance not payable from and including 13 November
		1995."

5.	Leave was sought by the claimant to appeal to a Commissioner.  Leave was refused by the Chairman on 9 May 1997 and the following was specifically noted on the document refusing leave:-

		"Reasons outlined previously.  Claimant chose to leave the
		Tribunal during the course of the hearing."

	As stated at paragraph 1 leave to appeal was granted by a Commissioner on 5 November 1997.  

6.	The claimant's application for leave to appeal states that he wishes to appeal on the following points of law:-

		(a)	the Tribunal failed to give adequate reasons for its decision; and

		(b)	he did not get a fair hearing from the Tribunal which resulted
			in him walking out of the hearing.

	These grounds were identical to those set out in relation to the case C3/97(ICA).

7.	As in that case I have had the benefit of submissions from Ms E Griffin on behalf of the Adjudication Officer.  These submissions were set out in a letter dated 16 December 1997 and in particular submitted:-

		(a)	that the Tribunal correctly applied the appropriate legislation
			to the facts of the case and gave adequate reasons for its
			conclusion; and

		(b)	that the evidence would suggest that the claimant had walked
			out of the Tribunal proceedings because of what he perceived
			to be intransigence on the part of the Tribunal but which, in
			reality was the Tribunal pointing out that it had no 
			discretionary power to extend the 12 months time limit, or to
			ignore the statutory definition of a "severely disabled person",
			(which required Mrs L... , the claimant's mother to have been
			in receipt of either Attendance Allowance or Disability Living
			Allowance care component at the middle or highest rate, see section 70(2) of the Social Security Contributions and 
			Benefits (Northern Ireland) Act 1992).

	The reference to the 12 months time limit is properly more relevant to the decision in C3/97(ICA).  The reference to the claimant walking out of the Tribunal proceedings is based on the fact that there is contained in the record of proceedings made by the Chairman the following words:

			"I'm not getting a fair hearing here."

8.	There is no suggestion that Mrs L...  was in receipt of either Attendance Allowance or Disability Living Allowance care component at the middle or highest rate for the relevant period.  Therefore the Tribunal had no alternative but to rule that the claimant was not entitled to Invalid Care Allowance.  

9.	I therefore conclude that the Tribunal did correctly apply the appropriate legislation to the facts of this case and also gave adequate reasons for its conclusion.

10.	In relation to the allegation that the Tribunal did not give the claimant a fair hearing, I consider that the decision of a Tribunal of Commissioners in Great Britain in R(S)4/82, which was drawn to my attention by Ms Griffin, is relevant in this case as it was in C3/97(ICA).  The Tribunal of Commissioners stated the following:-

		"25.  A local tribunal is exercising quasi-judicial functions and
		forms part of the statutory machinery for investigating claims in
		order to ascertain whether the claimant satisfies the statutory
		requirements which entitle him to be paid benefit.  Its investigatory
		function has as its object the ascertainment of the facts and the
		determination of the truth and it is not restricted as in ordinary
		litigation where there are proceedings between parties, to accepting
		or rejecting the respective contentions of the claimant on the one
		hand and of the insurance officer on the other.  The common law
		requires bodies exercising quasi-judicial functions to observe the 
		rules of natural justice, and accordingly these rules apply to
		local tribunals: see the judgment of Lord Justice Diplock in R v
		Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1
		Q.B. 456 at pages 486 et seq.

		26.  Natural justice requires that the procedure before any 
		tribunal which is acting judicially shall be fair in all the 
		circumstances.  It has been described as "fair play in action"
		and its requirements depend on the circumstances of the case,
		the nature of the inquiry, the rules under which the tribunal
		is acting, the subject matter that is being dealt with and so
		on: see Wiseman v Borneman [1971] A.C. 297 at pages 308, 309,
		311, 314, 315, and 320 (per Lords Reid, Morris, Guest, Donovan 
		and Wilberforce).  There are accordingly no hard and fast rules
		that apply to all tribunals.  But, in the case of an appeal by
		a claimant for benefit to a local tribunal, for practical 
		purposes these requirements can be reduced, as indicated, by
		Lord Justice Diplock (as he then was) in Moore's case at pages
		486 et seq to three: an absence of personal bias or mala fides
		on the part of the tribunal, an obligation to base their decision
		on evidence and, whether or not there is an oral hearing, to 
		listen fairly to the contentions of all persons entitled to be
		represented.

		27.  After carefully listening to the claimant's evidence and 
		submissions before us, and considering the whole of the case
		papers, including all of his written submissions, we can find
		absolutely nothing to support the allegation of personal bias,
		or bias of any kind, on the part of the chairman or any other 
		member of the local tribunal.  The local tribunal was under a 
		duty to investigate the grounds on which the claimant contended
		that he had good cause for the lateness of his claim for an 
		increase of benefit and it was natural that in ascertaining the
		facts the legally qualified chairman should question the claimant
		in order to discover why he, a policeman who might reasonably
		be expected to be familiar with form-filling, had omitted to 
		complete the dependant's box on form Med 3.  The nature of the
		claimant's usual occupation and of his expertise in form filling
		was highly relevant when considering whether "good cause" had been 
		shown, in the light of the specific description of "good cause" 
		contained in Decision R(S) 2/63 (a decision of a Tribunal of    
		Commissioners which was binding on the local tribunal) as depending
		on the age and experience (amongst other matters) of the claimant.
		The claimant clearly took offence at the investigatory nature of the
		proceedings and wrongly regarded the probing questions that he was,  
		quite properly, asked by the chairman as "accusatory" and as 
		assuming "guilt"."

11.	I conclude that in the present case, as in R(S) 4/82, the claimant also took offence at the investigatory nature of the proceedings and wrongly regarded the probing questions in relation to the date as being accusatory.  It seems clear to me, however, that the Tribunal was merely doing its job by ensuring that the claimant understood the issues before the Tribunal and by giving him an opportunity to deal with relevant matters in the case, namely the time limit for making a claim and whether Mrs L...  was a severely disabled person as defined.

	(This paragraph repeats paragraph 13 in decision C3/97(ICA) as the issues are identical).

12.	In the circumstances, as in decision C3/97(ICA), I conclude that the Tribunal neither failed to give adequate reasons for its conclusion nor did it fail to give the claimant a fair hearing.

13.	An additional issue arose during the consideration of this appeal, namely the effect, if any, of the Tribunal purporting to disallow the appeal, but then proceeding to make a decision which was inconsistent with the Adjudication Officer's decision.  In the circumstances I invited additional written comments from the claimant and from Ms Griffin.  The claimant did not address the issue but Ms Griffin made the following submission by letter dated 5 April 1998:-

		"At paragraph 6.1 of both the submissions to the Social Security
		Appeal Tribunal, it was pointed out that the AO's decision as set
		out at Part 1 of the submission was incorrect.  The corrected
		decision was then quoted and the Tribunal were invited to 
		substitute it for the decision under appeal.

		At paragraph 10 of decision R(SB) 1/82 the Commissioner held:-

			"There is a well recognised distinction between an appeal
			in the strict sense and an appeal in the nature of a
			rehearing.  On an appeal of the former kind a judgment 
			can only be given if it can be said that it ought to have
			been given at the former hearing, while with a rehearing
			a judgment may be given that could have been given by the
			tribunal of first instance if it were considering the matter
			at the time of the rehearing (see per Lord Davey in 
			Ponnamma v Arumogam [1905] AC 383 at page 390.  I have no
			doubt that appeals to an appeal tribunal are (like appeals 
			under the Social Security Act 1975 to local tribunals and
			Commissioners (as to which see Decision R(F) 1/72 at
			paragraph 9)) in the nature of rehearings to which the latter
			rule applies ..."

		In Decision R(F) 1/72 the Commissioner considered a case of a claim
		to family allowance.  On receipt of the appeal and before any 
		payment had been made, the Insurance Officer discovered that he had
		made errors in law in the decision and family allowance was not
		payable for certain periods for which he had made awards.  In his
		submission to the local tribunal the Insurance Officer pointed out
		where he had erred in law in framing his decision.  The Tribunal
		decided that his submission was correct and dismissed the claimant's
		appeal.  At paragraph 9 the Commissioner held

			"... I am satisfied that it was open to the local Insurance
			Officer to pursue the course that he did.  It is well-settled
			that a hearing before the Commissioner is a rehearing of the
			whole case.  It is open to the Commissioner to deal with any
			points, and any questions of law, that may be put before him,
			always, of course, provided that the claimant is given a proper
			opportunity of meeting any fresh point that may be raised.
			Logically, I think the same must apply to a hearing before a
			local tribunal, but, again, always provided that the claimant
			is given a proper opportunity of meeting any fresh point that 
			may be raised.  In the present case the position was made 
			perfectly clear by the submission of the Insurance Officer
			and the claimant could not be heard to say that she was taken
			by surprise.  Accordingly I approach the decision of the 
			present appeal on the footing that the local tribunal's 
			decision upheld the "decision" of the local Insurance Officer
			as set out in his submission."

		I submit that the present case has been treated in the same way as
		that dealt with by the Commissioner in R(F) 1/72.  The record of
		proceedings shows that the date the claim was made was clarified 
		with Mr L...  and it is clear from the Tribunals findings of fact
		that they were aware of the incorrect dates in the decision.  The
		Tribunal's unanimous decision was one which they were entitled to
		give and simply disallowed the appeals in the manner that the AO
		should have done."

	The reference by Ms Griffin to "both the submissions" is a reference not only to this case, but also the related case involving the claimant, namely, C3/97(ICA).  (This paragraph is the same in substance to paragraph 15 of decision C3/97(ICA) as the issue is identical in each case).

14.	I consider that Ms Griffin is correct in her submissions.  As I have already stated in decision C3/97(ICA), it would have been preferable if the Tribunal had stated specifically that it was upholding the decision of the Adjudication Officer as set out in his submission, but it is entirely clear what the Tribunal was in fact doing, namely deciding that Invalid Care Allowance was not payable from and including 13 November 1995.  To some extent the words "appeal disallowed" in the decision are mere surplusage.  Accordingly I do not consider that there has been any error in law in the Tribunal's decision in this respect.  

15.	In all the circumstances I am satisfied that the decision of the Tribunal is not erroneous in point of law.  Accordingly I dismiss this appeal.

	(Signed):  J A H Martin

	CHIEF COMMISSIONER

	1 September 1998