Judge orders NIS to reconsider widow’s claim to Survivor’s Benefit -after refused by Board for late submission

Aug 08, 2019 News

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High Court Judge Damone Younge has ordered the National Insurance Scheme (NIS) to reconsider the claim by Ismay Lake to Survivor’s Benefit, which she was initially denied due to submitting the claim some 26 years after her husband’s death. The judgment was handed down on Wednesday at the High Court in Demerara.

NIS was also ordered to determine whether the reasons proffered by the woman for the delay in filing her claim, together with the specific circumstances of her case, amounted to good cause being shown for delay. That aside, Justice Younge granted a declaration that Ismay Lake was not disqualified as a dependent of her husband, Vibert Lake, since at the time of his death on July 14, 1990, she was a widow captured by Regulation 14 (3) (b) (iii) of the National Insurance and Social Security (Benefits) Regulation.
This was notwithstanding the fact that her claim for survivor benefits was submitted on November 15, 2016, some 26 years after her husband passed away.
The Judge, further, granted an Order of Certiorari quashing the decision of NIS’s General Manager made on January 17, 2017, and that of the National Insurance Board made on May 22, 2018, disallowing Ismay Lake’s claim to the benefits.
The judge instructed that the reconsideration must be completed within three months of the court’s order. The widow was also awarded costs in the sum of $75,000 to be paid within 21 days of the court order. The General Manager and National Insurance Board are hereinafter referred to as the number one and two respondents respectively.
Ismay Lake, through her lawyer Daren Wade, had approached the High Court for an Order Certiorari quashing the decision of the National Insurance Board General Manager and the National Insurance Appeal Tribunal disallowing her claim to the benefits. She had also sought an Order of Mandamus compelling the National Insurance Board to pay the Survivor’s Benefit to her.
According to court documents seen by this publication, Lake was denied the benefit by the number one Respondent on account of the lateness of the submission of the claim. She thereafter appealed the decision to the tribunal which disallowed her appeal. In the decision of the court, it was stated that Lake gave reasons for filing the claim decades later.
She asserted that she was unaware of the procedures of NIS and only became aware of her entitlement to Survivor’s Benefit in November 2016.
In defence, the number one and two Respondents relied on the limitation period set out in the Regulations of the National Insurance and Social Security Act, Cap 36:01, in particular Regulation 14 (1) (c) of the National Insurance and Social Security (Claims and Payments) Regulation, the (Claims and Payments), which stipulates than an application for Survivor’s Benefit must be made within three months from the date the claimant becomes entitled.
The Respondents therefore argued that their decision was reasonable and grounded in law because the application was made out of time and the Applicant (Ismay Lake) was disqualified from receiving it by operation of the law. That aside, it was for the court to determine if the Respondents’ decision to disallow Lake’s claim on the ground of late submission was reasonable.
According to the written judgment of Justice Younge, based on the provisions of Regulation 14 of the National Insurance and Social Security (Benefits) Regulations, Ismay Lake is entitled to benefit through the contribution of her late husband.
The Respondents, the court found, admitted that Vibert Lake made over 1000 contributions, a number far in excess of what is required to satisfy Regulation 7 (1) (c) of the Benefit Regulations to entitle him to invalidity pension, and as such entitling his dependent, on his death, to Survivor’s Benefit, pursuant to Regulation 14 (1) (c) of those Regulations.
Further the court found that, “The Applicant was not disqualified as a dependent under Regulation 14 (3) (b) since at the time of her husband’s death, she was a widow with the care of a child of their marriage under sixteen years of age—two facts which are undisputed. The Regulation clearly contemplates the age of the child at the time of the deceased’s death, rather than at the time of submission of consideration of the claim. That being so, the Applicant falls within the exception set out in Regulation 14 (3) (b) (111) of the Benefit Regulation.”
Moreover, the court had to consider whether the grounds in which the Respondents disallowed the benefits to Ismay Lake was unreasonable. The widow, herself, contended that the Respondents acted unreasonably in disallowing her claim because they failed to consider that she may have good reason for the delay in submitting same.
According to Justice Younge, “Having regard to the express provisions of the quoted Regulation, it is immediately apparent that the decision maker has a fairly wide discretion to consider submissions beyond the stated limitation period on good cause being shown for the delay.”
The court said that based on the evidence in the matter, it was pellucid that neither of the Respondents in coming to a decision to disallow the Applicant’s claim, gave any consideration to the reason proffered by her for the delay in submitting her claim. The court also said, “It is equally evident that the decisions were taken based solely on the timing of the submission, which all can agree was far outside the prescribed period.”
In the circumstances, the court said it found it difficult to agree with counsel for the Applicant’s argument that the Respondents failed to exercise the discretion conferred on them by the proviso to Regulation 14 of the C&P Regulations. The court, however, held that there was no doubt that National Insurance Board did not address its collective mind to whether the Applicant had given a good reason for the delay in submitting the claim.
The decision of the Tribunal states, “Appellant (Ismay Lake) appeared in person. Survivor’s benefit was not paid. The Benefit was disallowed for late submission. The insured person died on the 14th day of July, 1990 and the claim was submitted on the 15th November, 2016. This period of 26 years is inordinately late, and therefore this claim cannot be granted or allowed. This appeal is therefore disallowed.”
Justice Younge, nevertheless, held that the Respondents were obliged to give consideration to whether or not the Applicant was an appropriate case for the exercise of their discretion under the proviso to Regulation 14 (2) of the C&P Regulation. The court further found that the failure or omission by the Respondents to exercise the power given to them by the Regulations rendered the determination of Ismay Lake’s claim unfair.
“The court also holds that the failure of the Respondents to consider the reasoned proffered by the Applicant for the delay in submitting her claim, as well as refusing her claim solely on the ground of lateness, also rendered the decision to disallow her claim unfair and unreasonable,” Justice Younge underscored in her judgment.
Justice Younge noted that the role of the court is not to become the decision maker, but to ensure that the decision makers act properly, fairly, and within the ambit of their powers. The judge noted, too, that it was not for the court to look at the merits of the case and determine if a different decision ought to have been made, but to ensure that the authority follows due process and acts fairly.

 

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