Determination of Questions Regulation

SAINT VINCENT AND THE GRENADINES

STATUTORY RULES AND ORDERS

1995 N0. 11

(Gazetted 18th April 1995)

IN EXERCISE of the powers conferred by section 34 of the National Insurance Act, the Minister makes

the following Regulations: -

NATIONAL INSURANCE DETERMINATION OF QUESTIONS)

REGULATIONS, 1995

1. Citation: These Regulations may be cited as the National Insurance

(Determination of Questions) Regulations, 1995.

2. Interpretation: For the purpose of these Regulations, unless the context otherwise requires –

"determining authority" means as the case may require the Board, the Director, the Appeal Tribunal,

or the High Court:

"Director" means the Director of National Insurance:

grant means maternity, invalidity. age. survivors' or funeral grant:

"hearing" means oral hearing:

“Office" means any office so appointed for the purposes of the Act or these Regulations:

“reserved question" means any question set out in regulation 3:

"Tribunal" means the Appeal Tribunal established under Section 7.

PART II

DETERMINATION OF QUESTIONS BY BOARD

3. Definitions: For the purposes of this Part –

"claimant" includes a person whose right to be exempted from liability to pay or to be credited

with a contribution, is in question.

"question" includes a claim for benefit.

4. Questions for Determination: The following reserved questions arising under or in connection

with the Act shall be determined by the Board whose decision shall be final subject to the provisions

of these Regulations

(a) whether a person is or was employed in insurable employment pursuant to

section 18(1) of the Act:

(b) as to the class of insured persons in which a person is to be included:

under the Act, or any question otherwise relating to a person's contributions:

(d) who is or was liable for payment of contributions as the employer of any insured person:

(e) as to which children should be granted survivors' benefit.

5. Procedure for Determination of Questions: (1) Any person desiring to obtain the decision

of the Board on any question mentioned in regulation 4 shall submit to the Board an application in writing

for the purpose in a form approved by the Board and shall furnish such particulars as the Board may require

for the purposes of the consideration and determination of any such question.

(2) The Board shall take steps to bring any such particulars to the notice of any person appearing to

be an interested party and shall obtain from such person such particulars within such time and in such

form as it considers reasonably necessary for the proper determination of the question.

(3) The Board may, if it thinks fit, before determining the question appoint a person to hold an inquiry

into the matter and to report to it and any person so appointed may by summons require persons -

(a) to attend at any such inquiry to give evidence: or

(b) to produce documents reasonably required for the purposes of the inquiry: and

(4) Reasonable notice of the date and place of the holding of an inquiry shall be given to the

applicant and to any persons notified of the application in accordance with paragraph (2).

(5) The applicant and any person appearing to the Board or to the person holding

the inquiry to be an interested party in the application shall be entitle to attend and be heard at

the inquiry, and to be represented, and the procedure shall, subject to this regulation, be such as

the person holding the inquiry shall determine.

(6) The Board shall give notice in writing of its decision to the applicant and to any

other interested party and may publish its decision in such manner as it thinks fit.

(7) The applicant and any other person appearing to the Board to be an interested party shall,

on request, be furnished with a statement of the grounds of the decision as will enable them to determine

whether any question of law has arisen upon which they may appeal.

(8) Any person aggrieved by the decision of the Board on any question of law may,

in accordance with Rules of Court may pursuant to section 34 (3) (b) of the Act, appeal from that

decision to the High Court.

(9) Without prejudice to the rights of any other person, the Board shall be entitled to

appear and be heard on any such reference or appeal.

6. Reference to High Court of Questions of Law: (1) Any question of law arising in

connection with the determination by the Board of any question as is mentioned in regulation

4 may be referred by the Board to the High Court for its decision.

(2) In the event of the Board determining in accordance with paragraph (I) to refer

any question of law to the High Court, it shall send notice of its intention in writing to the applicant

and to any other person appearing to be an interested party.

7. Review of decision of the Board: (1) The Board may, on new facts being brought to its

notice or if it is satisfied that the decision was given in ignorance of, or was based on, a mistake as

to some material fact, review a decision given by it in accordance with this Part.

(2) The Board shall not review a decision while an appeal is pending against

that decision on a question of law arising, or before the time for lodging an appeal has expired.

(3) The provisions of regulation 6 shall apply in relation to a decision on review as

they apply to the original determination or decision.

PART III

DETERMINATION OF CLAIMS AND QUESTIONS BY THE

DIRECTOR OR APPEAL TRIBUNAL

8. Submission of questions to Director: (1) Any question-

(a) as to the right to benefit: and

(b) arising under or in connection with the Act, not being a reserved question,

shall be submitted to the Director, who shall consider the question. and. so far as practicable,

dispose of it in accordance with these Regulations within fourteen days from the date when it was

submitted to him.

(2) If on consideration of a question the Director is of the opinion that no reserved

question arises then -

(a) if he is satisfied that the question ought to be determined wholly in favour of

the claimant, he may determine the question accordingly.

(b) in so far as he is not satisfied, he may either-

(i) refer the question so far as is practicable within fourteen days from the

date on which it was submitted to him to a Tribunal for its decision, or

(ii) himself determine the question in whole or in part adversely to

the claimant.

(3) Where the Director refers a question to the Tribunal in accordance with paragraph (2)

notice in writing of such reference shall be given to the claimant.

9. Appeals to Tribunal: (1) Pursuant to section 34 of the Act there shall be a Tribunal

having a constitution as laid down by the Schedule to these Regulations.

(2) The claimant shall, subject to this regulation have a right of appeal to the Tribunal,

and where the Director has determined a question in whole or in part adversely to the claimant,

he shall be notified in writing of the decision and the reasons therefor and of his right of appeal.

(3) Where a reserved question has arisen in connection with the decision of the Director

and has been determined by the proper authority, and the Director certifies that the decision on

that question is the sole ground for his decision. no appeal shall lie without the leave of the chairman

of the Tribunal.

(4) An appeal against a decision of the Director shall be brought by giving notice of appeal

at the office of the l3oard within twenty-one days after the date of the decision or within such

further time, not exceeding four months, as the chairman of the Tribunal may allow.

(5) A notice of appeal shall be in writing and shall contain a statement of the grounds upon

which the appeal is made.

10. Time and place of hearing: (1) Reasonable notice of time and place of the hearing before

the Tribunal shall be given to the claimant, and to any other person who may appear to the chairman

of the Tribunal to be an interested party and except with the consent of the claimant, the Tribunal

shall not proceed with the hearing of any case unless such notice has been given.

(2) If a claimant or other person to whom notice of hearing has been duly given in

accordance with these Regulations fails to appear either in person or by representative at such

hearing and has not given a reasonable explanation for his absence, the Tribunal may proceed

to determine the case, or may give such directions with a view to the determination of the case

as it thinks proper.

(3) The Tribunal may with the consent of the claimant but not otherwise proceed

with any case in the absence of any member other than the Chairman and in any such case

the Chairman shall if the number of the members of the Tribunal is an even number have a casting vote.

11. Hearing before Tribunal: (1) Every hearing by Tribunal shall be in public except in so

far as the chairman of the Tribunal may otherwise direct if he is of the opinion that intimate personal

or financial circumstances may have to be disclosed or that consideration of public security are involved.

(2) The following persons shall be entitled to be heard at the hearing of any case by the Tribunal -

(a) the claimant,

(b) the Director

and any person appearing to the Tribunal to be an interested party shall have the right to be present

notwithstanding that the hearing of the case is not in public.

(3) Any person who by virtue of this regulation has the right to be heard at the

hearing of a case by the Tribunal may be represented at the hearing by some other person,

whether having professional qualifications or not and, for the purposes of the hearing of such

representation shall have all the rights to which the person he represents is entitled under these

Regulations.

(4) Any person who exercises the right to be heard conferred by this regulation may

call witnesses and shall be given an opportunity of putting questions directly to any witness called

at the hearing.

(5) If it appears to the Tribunal that any appeal under this regulation involves a question

of law or fact of special difficulty, it may direct that in dealing with the appeal or any part thereof,

it shall have the assistance of an assessor or assessors.

(6) For the purposes of arriving at their decision, or discussing any question of procedure the

Tribunal may, notwithstanding anything in this regulation, order all persons not being members of the

Tribunal other than an officer of the l3oard acting as clerk to the Tribunal, to withdraw from the sitting

of the Tribunal.

12. Decisions of Tribunal: (1) The Tribunal shall -

(a) record its decision in writing in such form as may from time to time be approved

by the Board, and

(b) include in the record of every decision, which shall be signed by all the members of

the Tribunal, a statement of the reasons for its decision including its findings on all questions

of material fact.

(2) Where the Tribunal is unable to reach a unanimous decision on any ease, the

decision of the majority of the members shall be the decision of the Tribunal.

(3) As soon as may be practicable, a copy of the record of its decision made in

accordance with this regulation shall be sent to the claimant and to the Director and to

any other person who appears to the Tribunal to be an interested party.

13. Review of decisions of Director or Tribunal: (1) Subject to paragraph (2) any decision

of the Director or Tribunal under this Part, may be reviewed -

(a) by the Director if the decision was made by him:

(b) by the Tribunal on a reference from the Director where the decision was made by

the Tribunal.

(2) There shall be a review only where -

(a) the Director or the Tribunal as the case may be. is satisfied (but not without fresh

evidence in the case of a decision of the Tribunal) that the decision was given in ignorance

of, or was based on a mistake as to, some material fact or was wrong in law:

(b) there has been any relevant change of circumstances since the decision was given: or

that question has been revised.

(3) A question may be raised with a view to such a review by means of an application in

writing to the Director stating the grounds of that application.

(4) On receipt of any such application, the Director shall proceed to deal with or refer

any question arising thereon in accordance with the Act and these Regulations.

(5) Any decision given on review under this regulation, and any refusal to review under this

regulation shall be subject to appeal in like manner as an original decision, and the provisions of this Part

shall, subject to the necessary modifications apply in relation to any decision given on a review as they

apply to the original decision of a question.

14. Interim payments: (1) Subject to these Regulations, benefit shall be payable in accordance with

an award, notwithstanding that an appeal against the award is pending.

(2) Where it appears to the Director that a question has arisen as to whether-

(a) the conditions for the receipt of benefit payable under an award is fulfilled, or

(b) an award of benefit ought to be revised in accordance with these Regulations,

he may direct that payment of the benefit shall be suspended in whole or in part until that question has been determined.

15. Review involving increase of benefits other than grants: (1) Subject to these Regulations,

where on review a decision is revised so as to bestow a benefit, or increase a benefit, the decision on

review shall have effect as from the date of the application for the review.

(2) Subject to paragraph (3), if in any case the claimant proves that on a date earlier than the

date of application for the review he was (apart from satisfying the condition of making a claim therefor)

entitled to benefit, he shall not be disqualified by virtue of the provisions of paragraph (1) from receiving

any benefit to which he would have been entitled in respect of the period between the earlier date and

the date on which the application for the review was made.

(3) Notwithstanding anything contained in this regulation, the following provisions shall have effect-

(a) paragraph (2) shall apply subject to the condition that no sum on account of benefit

shall be paid to any person in respect of any part of the period referred to in that paragraph

earlier than six months before the date of application for the review.

(b) the decision on review shall not have effect for any period before the date on which

the original decision took effect or would have taken effect if an award had been made:

(c) if the said decision on review was based on material chance of circumstances

subsequent to the date from which the original decision took effect, it shall not have effect

for any; period before the date declared by the Director or the Tribunal, to be the date on

which such material chance of circumstances took place.

(4) For the purposes of this regulation, where a decision is reviewed at the in-stance of the

Director under regulation 16 (1), the date on which the Director first decided that the decision should be

reviewed shall be deemed to be the date of the application for the review.

(5) For the purposes of this regulation "benefit" does not include an invalidity, age, survivors,

or funeral grant.

16. Adjustment of benefit: (1) Where a grant is awarded by a decision on review or appeal in

lieu of a pension previously awarded, such decision shall direct that any payments made on account

of such pension shall, in so far as they do not exceed the amount of the grant, be treated as being made

on account of the grant.

(2) Where on review or appeal a benefit other than a grant replaces a previous benefit the

decision on appeal or review shall contain directions that

(a) where the amount is not in excess of any arrears payable by way of benefit the payment

shall be treated as payment on account of such arrears:

(b) any amount in excess of the arrears (except any amount to be repaid under this regulation)

shall be treated as made on account of any sum payable as benefit as a result of the decision

made on review or appeal.

(3) Where on review or appeal a decision is revised, or reversed or varied so as to take away

or reduce a benefit the decision shall require the repayment to the Fund of the whole or part, as the case

may be, of any benefit overpaid as a result of the decision appealed.

(4) 'Where

(a) on appeal against an award or benefit a decision is reversed or varied so as to take away

or reduce a benefit: and

(b) subsequently on review, the decision on appeal referred to at sub-paragraph (a) is revised

so as to restore or increase such benefit from a date prior to the decision made on appeal at

sub-paragraph (a):

then any benefit paid prior to the appeal shall be credited to the account of any benefit payable at the

review rate for that period except where pursuant to paragraph (3) it has been repaid or treated as paid

on account of the decision appealed.

(5) Where, in accordance with a decision given on a review or appeal, any benefit is required to

be repaid to the Fund then, without prejudice to any other method of recovery, such benefit shall be

recoverable by deduction from any benefit then or thereafter payable to the person by whom it is to be

repaid or from any benefit payable on his death.

(6) Nothing in this regulation shall be construed as preventing the operation of

regulation 59 of the National Insurance (Benefits) Regulations (which regulation concerns

the adjustment of benefits where there is entitlement to more than one benefit).

17. Reference of Reserved Questions: (1) If on consideration of a question the Director is of

the opinion that a reserved question arises he shall -

(a) refer the reserved question for determination to the Board: and

(b) deal with any other questions as if the reserved question had not arisen.

(2) The Director may -

(a) postpone the reference of or determination of any question until after other questions

have been determined:

(b) in cases where the determination of a question disposes of a claim or part of a claim,

make an award or otherwise as to the claim or part of a claim, before the determination of,

any other question.

(3) The foregoing provisions of this regulation shall apply to the Tribunal as they apply to the

Director, except that the Tribunal shall refer a question for determination in accordance with sub-paragraph

(a) of paragraph (1) through the Director.

PART IV

MISCELLANEOUS

18. Miscellaneous powers of Board and Tribunal: (1) Subject to the Act and these Regulations

the procedure on the determination of any question by the Board or the Tribunal shall be such as the

Board or the Tribunal may determine.

(2) The Board or Tribunal, may refer to a medical practitioner for examination and report any

question relating to health arising for its determination.

(3) Any power given by these Regulations to extend the period during which anything is

required to be done or to dispense with any of the requirements may be exercised in any case,

notwithstanding that the period during which the thing is required to be done has expired.

19. Decision conclusive for purpose of proceedings under Act, etc.: (1) Where in any proceedings -

(a) for an offence under the Act: or

(b) involving any question as to the payment of contributions under the Act: or

any question arises which under the Act or Regulations is to be determined by the Board, or by

the High Court in the event of an appeal on a point of law, or by Director of the Tribunal, the

decision by the appropriate determining authority shall, unless an appeal under these Regulations

is pending or the time for so appealing has not expired, be conclusive for the purpose of these

proceedings.

(2) If any such decision under paragraph (1) has not been obtained and the decision is

necessary for the determination of the proceedings the question shall be referred to the appropriate

determining authority, as the case may require, in accordance with procedure (modified where necessary) prescribed in these Regulations.

(3) Where any such appeal as is mentioned in paragraph (1) is pending, or the time for

so appealing has not expired, or where any question has been referred under paragraph (2), the

authority dealing with the case shall adjourn the proceedings until such time as a final decision upon

the question has been obtained.

20. Authority for payment of Expenses: There shall be paid out of the Fund to the Chairman

and members of the Tribunal such salary or other remuneration and such expenses as the Minister from

time to time determines.

21. Remuneration and allowances: (1) There shall be paid to persons appointed by the Board

under regulation 4 (3) such remuneration and such travelling or other allowances as the Board may

determine and such sums shall properly be payable out of the Fund.

(2) There shall be paid to persons required to attend on the consideration or a case

before the Tribunal or the Board, such travelling or other allowances as the Board may by Resolution

declare and such sums shall be properly payable out or the Fund.

(3) There shall be paid such other expenses incurred in connection with the work of the

Tribunal or the Board as the Board may determine and such sums shall be properly payable out of the

Fund.

(4) For the purposes of this regulation references to travelling or other allowances include

references to compensation for loss of remuneration:

Provided that such compensation shall no