Decision No: C1/93(SUPP BEN)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
	(NORTHERN IRELAND) ACT 1992

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

	SUPPLEMENTARY BENEFIT

	Application by the above-named claimant for
	leave to appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Downpatrick Social Security Appeal Tribunal
	dated 10 September 1992

	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 dated on 10 September 1992 and relates to whether or not claimant was entitled to the long-term scale rate or additional requirements for diet and heating under the old Supplementary Benefit Legislation.

2.	Claimant was granted leave to appeal out of time on 14 February 1992 and the appeal was heard in September 1992.

3.	Briefly the facts are that the claimant now seeks to apply for diet and heating supplements going back to January 1961.  One of the problems is that the Department have no records dating back that far in relation to supplementary benefit.  However claimant submitted an application for a review and also an application for leave to appeal out of time.  The application for review was not considered by an Adjudication Officer because of the limitations imposed by section 104(3B) of the 1975 Act which would have restricted any payment of arrears to 12 months from the date of the application.  However as leave to appeal out of time was granted then what was before the Tribunal was an appeal against the original decision.

4.	Grounds for appeal as indicated by claimant's representative, Mr Les Allamby of Belfast Law Centre were that the Tribunal erred in law by misdirecting itself as to the meaning of the law in -

		"(i)	Late appeal is governed by Section 100 of the Social
			Security (NI) Act 1975 (as now consolidated) and Regulation
			3(3) of the Adjudication Regulations.  Neither party raised 
			the question of this matter being a review nor did the 
			Tribunal suggest as such at the hearing.  Late appeals are
			not subject to Regulations 69 and 72 (as was) of the 
			Adjudication Regulations.

		(ii)	The Tribunal took account in their decision that the claimant
			failed to provide medical evidence to substantiate the extent
			of the medical condition and there was no evidence that the
			claimant followed a special diet.  The Tribunal is entitled to
			accept or reject claimants' evidence, but must set out why
			evidence rejected and not require medical corroboration (see
			R(SB) 33/85 and CSB 1148/1986).  A stomach ulcer is a medical
			condition normally requiring a special diet.  The evidence of
			Mr C... at the Tribunal regarding dietary needs also went 
			beyond those recorded in findings of fact."

5.	The Adjudication Officer having received the grounds of appeal considered same and made the following comments:-

		"1.	Thank you for the opportunity to comment on this application
			for leave to appeal to the Social Security Commissioner.

		2.	I would agree with the views of Mr C...'s representative
			that the Tribunal misdirected itself in law by considering 
			the requirements of Section 104 of the 1975 Act and Regulations
			69 and 72 of the Adjudication Regulations.  On 12 September 1991
			Mr C... made an application for review and a late appeal 
			against the original and all subsequent decisions on his claim
			for Supplementary Benefit.  An extension of time for a late 
			appeal was granted by the Chairman on 14 February 1992.  The
			Adjudication Officer did not, therefore, consider the application
			for review due to the limitations imposed by Section 104(3B) of
			the 1975 Act.  Accordingly, once the late appeal was accepted the
			review question was sidelined and the Tribunal have erred in law
			by reaching a decision based on review provisions.

		3.	The second point of law raised by Mr C...'s representative
			is that, the Tribunal took account of the fact that no medical
			evidence was provided to substantiate the extent of the medical
			condition.  In view of the following statement from para 16 of
			R(SB) 33/85, I would submit that the Tribunal were entitled to 
			take this into account and that this in itself may be a reason
			for rejecting a claimant's evidence:-

				"... I should stress that whilst presence or absence
				of medical evidence (or evidence at least of having
				consulted a doctor), though the necessity for such is
				not prescribed may in given circumstances be of 
				relevance in assessing the creditability of a claimant's
				own evidence ..."

		4.	However, if the Tribunal were suggesting that corroborative
			medical evidence was required before Mr C...'s own evidence could be accepted, then this is obviously an error of law (para 14 R(SB) 33/85).  Additionally, the Tribunal have erred in law by finding that there was no "evidence that claimant followed a special diet for medical reasons".  Para 13 of Schedule 3 to the Requirements Regulations (NI) 1983 allowed an additional requirement to be paid for a special diet if the person was suffering from "a peptic, including stomach and duodenal, ulcer"; there was no requirement that the need should be attributable to "medical reasons".  Accordingly, the Tribunal whilst accepting that Mr C... suffered from an ulcer, erred by imposing the requirement that the special diet should relate to "medical reasons" when this was not in the legislation.

		5.	Although the Tribunal has erred in law the main difficulty in this
			case remains the lack of evidence.  No documentary evidence is held
			by the Department as the alleged supplementary benefit claim is said
			to have ceased in 1972 and therefore any documents pertaining to 
			such a claim would have been destroyed by this stage.  As such 
			destruction would have occurred in the normal course of events and
			was not a deliberate attempt to conceal or remove evidence, it does
			not raise any presumption against the Department (CIS 620/91).  
			Although corroboration of Mr C...'s own evidence is not required,
			the onus of proof still rests with him and he must prove his case 
			on the 'balance of probabilities'.  If the probabilities are equal
			he will have failed to discharge that onus as he is not entitled 
			to the benefit of the doubt (R(I) 31/61, R2/85(II)).

		6.	The Tribunal found that the evidence was insufficient to reach the
			conclusion that Mr C... had been in receipt of benefit throughout
			the periods contended and, having considered the available evidence,
			it was entitled to do so on the balance of probabilities.  
			Unfortunately, the Tribunal went on to relate this to review provisions
			but I submit that the same principles in relation to evidence apply
			to proving a case on appeal.  Accordingly, if the probabilities are
			equal, that is, it is just as likely that the facts were as contended
			as it is that they were not, then the evidence would be insufficient
			to enable the appeal to succeed.

		7.	The Adjudication Officer consents to the Commissioner treating the
			application as an appeal and determining any question arising on 
			the application as if it arose on appeal."

6.	Both parties having consented to me treating the application as an appeal and determining any question arising on the application as if it arose on appeal, I propose so to do.

7.	I accept the concessions made by the Adjudication Officer.  I accept that the Tribunal appeared to and in fact decided the matter as if it was an application to review and consequently misdirected itself when it considered that the claimant was obliged to show that the original decision was given in ignorance of or based on a mistake as to some material fact.   For the reasons set out in the Adjudication Officer's letter I allow the appeal, set aside the decision of the Social Security Appeal Tribunal and refer the matter back to be reheard by a differently constituted Tribunal which shall take cognisance of the points made by the Adjudication Officer.

	(Signed):  C C G McNally

	COMMISSIONER