Decision No: C2/95(SUPP BEN)

SUPPLEMENTARY BENEFITS (NORTHERN IRELAND) ORDER 1977

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN 

SUPPLEMENTARY BENEFIT

Application by the above-named claimant for leave to
appeal and appeal to the Social Security Commissioner
on a question of law from the decision of
Newry Social Security Appeal Tribunal
dated 12 April 1994

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal relating to his entitlement to arrears of additional allowance in respect of heating under the Supplementary Benefit Regulations.

2.	I arranged an oral hearing at which claimant was represented by Mr H... and the Adjudication Officer was represented by Mr McLaughlin.  At the hearing I granted leave to appeal and with the consent of both parties treated the application as the appeal.

3.	Briefly the facts are that the claimant who is a man now aged 44 is physically handicapped from birth, he also suffers from epilepsy.  On 2 September 1991 he requested a review of the amount of supplementary benefit paid to him prior to 11 April 1988.  It would appear from the records that it took the Adjudication Officer over 2 years to deal with this request for a review because claimant was written to on 13 September 1993 to say that the Adjudication Officer was unable to carry out his review because he was not satisfied that there were any grounds to review the decision.

4.	Claimant immediately sought leave to appeal against that decision.  His appeal was heard in April 1994, the record of the proceedings before the Tribunal show that the Chairman recorded the Presenting Officer as saying:-

"I don't know why the benefit was reduced.  In 1974 he was signing on - he must have been disallowed Severe Disablement Benefit -  I can't see any reference to epilepsy - we don't have any correspondence on decisions - there is no reason why the information is not reproduced in the papers - from 1980 the fact that he was epileptic - it's the evidence that the Adjudication Officer."

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

"Claimant has appealed against Adjudication Officer's refusal to review his entitlement to Supplementary Benefit prior to April 1988.He initially claimed Supplementary Benefit in October 1967 after he left school.  His health was recorded as fairly good.  He made further repeat claims to benefit subsequent to periods of employment up to and including 7 November 1980 when there is no record of any exceptional needs or indeed unusual circumstances concerning his health or accommodation.  He was visited on 7 November 1980 and it was discovered that he suffered from epilepsy.  No additions were considered appropriate at this stage or indeed at any time up to and including the change over to Income Support on 11 April 1988."

and allowed the appeal relating to a quarter rate heating addition from 7 November 1980 until 24 November 1980 and at the lower rate heating addition thereafter and otherwise the appeal was disallowed, and gave reasons for that decision as:-

"1.  We are satisfied that the Adjudication Officer should have awarded a quarter rate heating to claimant on the basis of his epilepsy from the above date.  Furthermore that quarter rate should then have been replaced by lower rate heating addition on 24 November 1980 when the Additional Requirements Regulations were introduced.  We find that this is appropriate given the conditions required for this award.

2.  There is no evidence to suggest that any of the other additions should have been paid throughout the claim.  We find that the Regulations were not satisfied in relation to any other matters and did not warrant any Additional Requirements or their equivalent prior to November 1980."

6.	In the submission to the Tribunal relating to the powers of an Adjudication Officer to review a decision the Adjudication Officer submitted in relation to the period of time were an Adjudication Officer can go back to award benefit was restricted by regulation 16(1) of the Adjudication Regulations unless it was relaxed by regulation 64A and the Adjudication Officer submitted:-

"6.11  Regulation 64A(2) only applies to "reviews" under ignorance of or mistake as to a material fact.  This relaxation would seem inappropriate as the AO, or appeal tribunal, if applicable, must be satisfied that the evidence directly relevant to the claim was overlooked by the AO or not submitted to the AO by the Department (or not available to the claimant).  In this case all relevant evidence was before the AO when the decisions were given."

7.	At the hearing before me Mr McLaughlin conceded that the information supplied by the Adjudication Officer to the Tribunal was wrong and accepted the fact that there was evidence which he (Mr McLaughlin) had discovered indicating that the Department was aware that claimant suffered from epilepsy from 5 December 1968 when the Visiting Officer recorded same.

8.	I have considered the defective submission made to the Tribunal and I am satisfied the Tribunal acted upon incorrect information.

9.	I have also considered the findings of fact made by the Tribunal.  No findings of fact were made relating to claimant's condition at all.   The facts that were recorded are merely a litany of what happened and not any finding of fact relating to the claimant himself, but merely what an Adjudication Officer alleged he found.

10.	I am satisfied therefore that the Tribunal erred in law in not making proper and sufficient findings of fact.  I therefore allow the appeal and set aside the decision of the Tribunal.

11.	I consider this is an appropriate case to give the decision the Tribunal should have given.  It is conceded by the Adjudication Officer that claimant would have been entitled to the quarter rate heating because of his epilepsy from 5 December 1968 and I am satisfied that that is the decision which the Tribunal should have given and it is the decision which the Tribunal would have given had it been in possession of all the facts.  I am also satisfied that the provisions of regulation 64A(2) apply.

12.	I therefore give the decision which the Tribunal should have given, namely that claimant is entitled to the quarter rate heating on the basis of his epilepsy from 5 December 1968 to the 24 November 1980 and at the lower rate heating addition thereafter.

	(Signed):  C C G McNally

	COMMISSIONER

	14 April 1995