Application No: A13/96(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

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

INCOME SUPPORT

Application on behalf of the claimant
to set aside the decision of the
Social Security Commissioner
dated 23 May 1996.

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant's representative, Mr L Allamby, Director of the Law Centre (NI), to have my decision on this appeal set aside under the provisions of Regulation 25(1)(a) of the Social Security Commissioners Procedure Regulations (Northern Ireland) 1987, which reads as follows:-

		"25-(1)  Subject to this Regulation and Regulation 26, on an 
		application made by any party a decision may be set aside 
		by the Commissioner who gave the decision in a case where 
		it appears just to do so on the ground that:-
	
		(a)  A document relating to the proceedings was not sent to, or was 
			not received at an appropriate time by, a party or his 
			representative or was not received at an appropriate time by 
			the Commissioner;"

2.	I do not propose to set out the facts of the case.  The background to the application and the grounds upon which it is made are sufficiently explained by the following extract from Mr Allamby's letter dated 31 May 1996.

	"Sequence of events

	1.	S... M...'s appeal to a Social Security Appeal Tribunal was heard on 21 March 1995 with a decision sent to all parties on 11 April 1995. 

	2.  	An application for leave to appeal was made on 3 May 1995.

	3.  	The chairperson refused leave to appeal on 22 May 1995 and this decision was communicated to the Law Centre by way of a letter dated 26 July 1995.

	4.  	On 22 August 1995, leave to appeal was sought to the Social Security Commissioner following the chairperson's refusal of leave to appeal.  

	5.  	The Law Centre received no further correspondence on this matter until telephoning the Commissioner's office on 21 March 1996 to enquire on progress with the application.  As a result, a copy of a letter sent to S... M... on 11 September 1995 acknowledging the application was forwarded to the Law Centre and arrived on 25 March 1996.  No original copy of the letter had arrived at the Law Centre.

	6.  	No further correspondence was received by the Law Centre until the Commissioner's decision dated 23 May 1996 arrived at the Law Centre on 28 May 1996.

	Following enquiries made with the Commissioner's office, I understand that a copy of the Adjudication Officer's comments were sent to the Law Centre and the claimant on 15 April 1996.  I also understand that the applicant responded to the correspondence on 19 April 1996.  Unfortunately, the Adjudication Officer's comments were not received by the Law Centre and it came as a considerable surprise to learn that consent had been given to treat the application as an appeal and that the Adjudication Officer's comments formed part of the decision.  

	If we had received the Adjudication Officer's comments, we would certainly have formally responded to them and it is likely that we would have requested an oral hearing.  In these circumstances, we believe it would be appropriate to set aside the decision and provide an oral hearing to ensure that both parties have had an opportunity to present their case prior to a determination."

3.	I do not know what transpired in relation to the correspondence which was sent by the Commissioners' Office to the Law Centre but I accept that the documents specified by Mr Allamby were not received by him at appropriate times.  I am, however, of the opinion that the non-receipt of the documents in question does not afford a valid ground for the setting aside of my decision.  It is only "where it appears just to do so" that such action should be taken, and in the circumstances of this case I do not consider that the claimant has been in any way prejudiced or disadvantaged by my decision.  The position would have been quite different if the claimant's appeal had been dismissed, or if I had taken it upon myself to give the decision which the tribunal should have given.  In the event, the claimant's appeal was allowed, and the case was referred for determination by another tribunal.  The claimant will accordingly have a full opportunity to present his case and if it is considered that the tribunal's decision is erroneous in point of law there will be a further right of appeal to the Social Security Commissioner.

4.	I would add that I am also in the opinion that the letter dated 15 April 1996, a copy of which was sent to the Law Centre (NI), but failed to arrive, does not have the significance or importance suggested by Mr Allamby.  It was addressed to Mr M… and was in the following terms:-

		"I refer to your application for leave to appeal against the 
		decision of the Social Security Appeal Tribunal which sat at 
		Belfast on 21 March 1996.  As you can see from the last paragraph 
		of the enclosed letter, the Adjudication Officer does not oppose 
		your application and if permission is granted he consents to 
		the Commissioner treating your application as an appeal.

		Regulation 5(3) of the Social Security Commissioners Procedure 
		Regulations (Northern Ireland) provides that where a Commissioner 
		grants leave to appeal he may, with the consent of the parties 
		involved, treat the application as though it were a question 
		arising on an appeal.  

		In view of the comments of the Adjudication Officer the 
		Commissioner intends to give you leave to appeal and to avoid 
		delay he proposes, if you consent, to deal with a matter as an 
		appeal.  If you so consent please complete the attached form and 
		return it as soon as possible in the enclosed envelope which does 
		not need a stamp.  
	
		A copy of this letter has been sent today to your representative 
		for his information."  

	The letter did not invite, and was not intended to produce, a response from the claimant's representative to the Adjudication Officer's comments and if an oral  hearing had been requested I have no doubt that it would have been refused.  The purpose of the letter was to shorten the appeal procedure by securing the claimant's consent to my treating the application for leave as an appeal.  This was of course a matter on which the claimant could, if he wished, consult his representative; but he was under no obligation to do so, and his formal consent having been given the case was dealt with in the usual way.  In all the circumstances I do not consider justice in any way requires that my decision in this case be set aside.  It does not appear to me to be just to do so and I accordingly refuse this application.

	(Signed):  R R Chambers

	CHIEF COMMISSIONER