Decision No: C1/98(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

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

JOBSEEKERS ALLOWANCE

Application by the claimant for leave to appeal
and appeal to the Social Security Commissioner
on a question of law from the decision of the
Craigavon Social Security Appeal Tribunal
dated 5 November 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is Mr B...' appeal against the decision dated 5 November 1997 at Craigavon Social Security Appeal Tribunal (hereinafter called "the Tribunal").  That Tribunal decided that Mr B... was not entitled to Jobseekers Allowance for the period 25 April 1997 to 28 May 1997 because "he was in remunerative work".  It is worthy of note that the decision of the Adjudication Officer which was appealed to the Tribunal was that Mr B... was not entitled to Jobseekers Allowance for the period 25 April 1997 to 28 May 1997 as he did not satisfy regulation 19 of the Claims and Payments Regulations.  This regulation relates to the time for claiming benefit.

2.	Mr B...' grounds for appeal were that the Tribunal's decision was supported by no evidence in that he was not given time to find evidence of a disputed telephone call.  I do not consider that there is any error in the Tribunal's decision in terms of a breach of the rules of natural justice by the Tribunal not offering an adjournment in these circumstances.  Mr B... did not ask for an adjournment or indicate that he could obtain evidence of a relevant call if given time.  On the evidence which the Tribunal accepted (and the acceptance or rejection of evidence is a matter for the Tribunal), the Tribunal was entitled to make the findings which it did as regards the dates of the telephone call.

3.	Mrs McRory, in a most helpful letter of 24 March 1998, has, however, pointed out that the Tribunal made the decision that Mr B... was not entitled to the relevant allowance for the relevant period giving as part of its decision (and it appears its reasoning) that he was in remunerative work.  She pointed out that this was not the decision which was being appealed against and that the Tribunal's decision was based on insufficient evidence and has not been fully explained in the reasons for the decision.  I agree that the Tribunal was in error of law in relation to this matter in that it has not given adequate reasons for its view that the claimant was in remunerative work and it has made insufficient findings of fact to enable such a conclusion to be drawn as there is no finding on hours of work.

4.	I do not consider that this is a case in which it is appropriate for me to give the decision which the Tribunal should have given and I therefore remit the matter to a differently constituted Appeal Tribunal which should deal with the matter on the basis of the decision appealed against.  If it considers that a fresh issue in relation to whether or not the claimant was in remunerative work arises on appeal it should indicate this to the claimant, give him and the Adjudication Officer an opportunity to comment on it (with adjournment if this is necessary) and decide the matter.  The new Tribunal will, of course, be able to take on board any new evidence produced since the date of hearing although the original Tribunal could not be faulted in any way for not having this evidence before it.

	(Signed):  M F Brown
	
COMMISSIONER

3 September 1998