Denied survivor’s benefit by the National Insurance Scheme (NIS) she never knew she was entitled to until 26 years after the death of her husband, a High Court judge last week declared that Ismay Lake is entitled to the benefits stemming from the more than one thousand contributions her husband Vibert would have made to the Scheme when he was alive.
Further declaring the decision of the NIS refusing the payouts as being unreasonable for not considering the reasons for Lake’s late submission of her claim, Justice Damone Younge in a ruling has ordered the social security entity to once again review Lake’s application for her claim.
And as opposed to its first handling of the woman’s claim, the judge has specifically ordered the NIS to reconsider the woman’s application to recoup her benefits in view of the reasons she would have given as to why her claim was submitted late in the first place. The General Manager and National Insurance Board of the NIS are the respondents in the matter.
The judge has ordered the respondents to determine whether the reasons proffered by Lake for the delay in filing her claim, amounted to “good cause” shown for the delay.
This review Justice Younge noted, is to be completed within three months of her ruling last Wednesday.
The ruling of the court could have wider implications for the Scheme if Lake succeeds in receiving survivor’s benefit.
Justice Younge declared that the decision of the Insurance Scheme to deny Lake’s claim because it was made late was “unreasonable” especially having found that she has always been entitled to the claim.
Referencing the affidavit in defence of the respondents, the judge noted in her written ruling that it seemed to suggest that Lake would be entitled to survivor’s benefit, but for the lateness of her submission.
Nowhere in their defending affidavit the judge said, did the respondents expressly state that the applicant was not entitled to the benefit, but that they instead sought to place much emphasis on the lateness of the filing of the claim.
“The applicant, on the other hand, is expectedly operating from a position that she is so entitled,” the judge said in her ruling, adding that in this regard, the facts are not disputed on either side.
According to the ruling, there is acceptance that Lake was married to Vibert Lake—an insured person, who is now deceased, and who when alive would have made contributions to the scheme, thereby entitling his dependents to claim for survivor’s benefits.
In addition, the court said it found that at the time of Vibert’s death in 1990, he and his wife had a child under the age of 16.
Justice Younge noted that having examined Regulation 14 of the National Insurance and Social Security (Benefit) Regulations, she found the applicant to be entitled to survivor’s benefit through her late husband.
The court noted also, the Insurance Scheme’s admission that the deceased had made more than one thousand 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 dependents, on his death, to survivor’s benefit pursuant to Regulation 14(1) (c) of those regulations.”
In their affidavit in defence, the NIS had sought to rely on the limitation period set out in the regulations to 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) Regulations, which stipulates that an application for survivor’s benefit must be made within three months from the date on which the claimant becomes entitled.
And also that Lake was disqualified from receiving the benefit, having failed to make the claim within the specified period pursuant to Regulation 14(2) (c) (i) of the Claims and Payment Regulations.
The General Manager and National Insurance Board held to the argument that their decision to deny Lake’s claim was reasonable and grounded in law, because the application was made out of time and therefore she was disqualified from receiving it by operation of the law.
Justice Younge in her ruling, however, said she 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 his widow with the care of a child of their marriage under 16 years—two facts which she said were undisputed.
According to Justice Younge, the regulation clearly contemplates the age of the child at the time of the deceased’s death, rather than at the time of submission or consideration of the claim. Against this background, the judge said that the applicant fell within the exception set out in Regulation 14(3) (b) (iii) of the Benefit Regulations.
The judge quashed the Insurance Scheme’s decision not to pay the applicant the survivor’s benefit on the sole ground of late submission as being unreasonable.
Attorney Darren Wade who represented Lake, argued that the Insurance Scheme acted unreasonably in denying his client’s claim, in that it failed to consider that she may have had a good cause for the delay in submission.
Having regard to the provisions on exception, Justice Younge concluded that 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.
Based on the evidence presented in the case, the judge said it was clear that the respondents, in arriving at their decision to deny Lake her claim, gave no consideration to the reason(s) advanced by her for the late submission.
Justice Younge noted further that it was equally evident that the decisions by the Insurance Scheme were taken based solely on the timing of the submissions.
In the circumstances, the court said it found it difficult to disagree with Wade’s argument on behalf of the applicant, that the respondents failed to exercise the discretion conferred on them by the exception in Regulation 14.
Justice Younge said that there can be absolutely no doubt that the National Insurance Board did not address its collective mind to whether the applicant had given a good reason for the delay in submitting her claim.
The judge noted that the respondents merely pointed out that since Vibert died on July 14th, 1990 and the claim was submitted on November 15th, 2016—26 years later, it was inordinately late and therefore her claim could not be allowed.
Referenced in the court ruling, Lake had explained that she was unaware of the procedure of the Insurance Scheme and only became aware of her entitlement to survivor’s benefit in November 2016.
Citing case law authority, the judge said that after considering Lake’s matter, she found that both respondents were obliged to give consideration to whether or not her case was an appropriate one for the exercise of their discretion under the exception in Regulation 14.
Justice Younge said it must be pointed out that “the role of the court is not to become the decision maker, but to ensure that the decision maker acts properly, fairly and within the ambit of their powers.”
Having regard to her findings, the judge ordered that Lake is entitled to survivor’s benefit consequent on the contributions of her husband, while declaring that she is qualified as a dependent of her late husband.
Against this background, the judge also granted an order of certiorari quashing the decision of the respondents denying Lake her claim and an order remitting her matter to the General Manager for reconsideration and a determination of whether the reasons she advanced for the delay in filing her claim amounted to good cause.
The court further ordered that the reconsideration and determination of Lake’s claim be done within three months from the July 31st, 2019 date of the court’s order.
Meanwhile, the applicant was awarded $75,000 court costs which has to be paid by the NIS within 21 days of the court order.
Lake was represented by Wade, while the NIS was represented by attorney Randalyn Rowe.
