Robert Cummings v National Insurance Board Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Madam Justice Eleanor Joye Donaldson-Honeywell |
| Judgment Date | 06 March 2020 |
| Neutral Citation | TT 2020 HC 80 |
| Court | High Court (Trinidad and Tobago) |
| Docket Number | Claim No. CV 2019-04176 |
| Date | 06 March 2020 |
IN THE HIGH COURT OF JUSTICE
the Honourable Madam Justice Eleanor Joye Donaldson-Honeywell
Claim No. CV 2019-04176
In the Matter of the National Insurance Act Chapter 32:01
and
In the Matter of an Appeal Against Decisions of the National Insurance Board of Trinidad and Tobago Pursuant to Section 62 of the National Insurance Act Chap 32:01
Mr. Aaron Seaton and Ms. A. Bain, Attorneys at Law for the Claimant
Mr. Bryan McCutcheon and Ms. Tonya Rowley, Attorneys at Law for the Defendant
The matter determined in this Ruling is in relation to a Notice of Application filed by the Defendant seeking an order striking out the Claimant's Fixed Date Claim. The Application is based on grounds of the Court's alleged lack of jurisdiction to determine the Claim and the Claimant's alleged lack of mental capacity to bring the Claim.
On 18 October 2019, the Claimant filed a Fixed Date Claim by virtue of which the Claimant appealed a decision of the Defendant. The appeal to the High Court was made pursuant to section 62 of the National Insurance Act Chap. 32:01 (the “NIA”) which specifies that appeals from decisions of the Defendant shall lie to the Appeals Tribunal on questions of fact only and to the High Court on questions of law or partly law and partly fact.
The decisions of the Defendant which the Claimant has appealed are the Defendant's decision to:
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a) retroactively discontinue the Claimant's Invalidity Benefit in accordance with regulation 26(b) of the National Insurance (Benefits) Regulations (“the Regulations”); and
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b) to deduct the sum of $2000 per month from the Claimant's monthly pension benefit to recover the alleged overpayment in the sum of $137,052.54 arising out of the Defendant's retroactive discontinuance of the Claimant's invalidity benefit.
In response to the Claimant's appeal, on 14 November 2019, the Defendant filed a Notice of Application seeking, inter alia, an order of the court to strike out the Claimant's Fixed Date Claim. In its Application, the Defendant has argued that the Fixed Date Claim ought to be struck out because:
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a) the High Court of Justice has no jurisdiction to try the claim since the “issues raised by the Claimant within the Fixed Date Claim Form are questions of fact alone, to be determined by the National Insurance Appeals Tribunal”; and
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b) the Claimant does not have the mental capacity to bring the claim on his own and must conduct the proceedings through a ‘next friend’ because “based on the evidence adduced by the Claimant in support of the Fixed Date Claim Form, the Claimant may be a patient within the meaning of Rule 23.1(2) of the Civil Proceedings Rules, 1998, as amended (“CPR”) and/or the Mental Health Act, Chap. 28:02 and be incapable of managing and administering his own affairs”.
At the first hearing on 20 November 2019, the Claimant was present. He was dignified, well dressed, respectful, and attentive during the proceedings. He seemed to fully understand the discussions and from time to time gave sotto voce instructions to his Attorneys. He appeared slightly upset/embarrassed when Counsel for the Defendant spoke of him as being incapable of bringing his Claim on his own behalf.
Directions were given for the Claimant to file an affidavit in response to the Defendant's affidavit and the Defendant was given an opportunity to file a reply. The Claimant filed his affidavit on 10 December, 2019 and the Defendant filed a reply affidavit on 8 January, 2020.
The Court also directed that both parties file written submissions on the Defendant's application to strike out the Claimant's Fixed Date Claim.
It is submitted by the Claimants that the facts in this matter are largely uncontested and it appears from a review of the affidavits on both sides that this is so. They are summarised as follows:
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a) Up to 1990, the Claimant worked as a carpenter for the Water and Sewerage Authority (WASA). However, in 1990 even though the Claimant had not yet attained the age of sixty, he was caused to retire from WASA as he was deemed medically unfit to continue to work due to the following mental illness: (a) chronic psychotic disorder, (b) impaired judgment, and (c) personality deterioration. The Claimant was also later diagnosed with schizophrenia. Having retired medically unfit, the Claimant applied to the Defendant for invalidity benefit payments on 8 November, 1990 and the Defendant granted same.
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b) As per section 46 of the NIA, the invalidity benefit is a payment to an insured who is likely to remain incapable of work for a period of not less than twelve months, where such incapacity is caused otherwise than by way of employment injury. The Claimant received the invalidity benefit from the Defendant from the year 1990 up until he attained the age of 60 years old on 20 July, 2017 (the age at which he became entitled to a retirement pension from the Defendant).
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c) According to the Defendant, when a person is in receipt of an invalidity benefit, it is the general practice of the Defendant to review the recipient's file to ascertain whether the need for the invalidity benefit remains. The Defendant further deposed that upon an administrative review and investigation conducted in 2017 on the Claimant, it was determined that from 3 January to 14 January, 2000, the Claimant worked with the Unemployment Relief Program (URP), a period during which the Claimant had still been receiving the invalidity benefit.
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d) In his Affidavit, the Claimant also deposed to and admitted that he worked for URP for a short period on its “ten days programme” because he had “fallen into some serious hard times”. He said the man who oversaw URP in the area decided to help the Claimant by giving him a “ten days” during which the Claimant helped dig a drain by the Community Centre.
Based on the fact that the Defendant had worked in insurable employment for a period during the time that he was in receipt of the invalidity benefit, the Defendant determined that the Claimant's invalidity benefits should have automatically ceased from that time. The Defendant calculated that the Claimant had received an overpayment of $137,052.54 from 1 January, 2000 to 31 May, 2017.
In September 2018, when the Defendant determined that the Claimant was entitled to a monthly retirement pension in the sum of $3,000, it further decided to recover the alleged overpayment through deductions of $2,000 from the retirement pension of the Claimant from 1 October, 2018 until 31 July, 2022.
By letter dated 19, September 2019, the Defendant explained its decision as follows:
“Upon an administrative review and investigations conducted on the Insured [the Claimant], it was determined that the Insured worked with the Unemployment Relief Program (URP) from the 3rd January 2000 till the 14th January 2000;
….
The Insured's Invalidity Benefit was discontinued in accordance with Section 26(b) of the National Insurance (Benefits) Regulations Chap 32:01, wherein an insured person in receipt of the invalidity benefit may be disqualified from receiving such benefit if s/he works in employment which remuneration is or would ordinarily be payable;
Due to the disqualification of the Insured from receipt of an Invalidity Benefit, the Insured became indebted to the NIBTT in the sum of $137,052.54;
In accordance with section 49A of the National Insurance Act Chap. 32:01 the NIBTT shall be entitled to recover without prejudice to any other remedy, such excess by means of deductions from any other benefits payable to such person; and
The NIBTT is therefore recovering the said sum of $137,052.54 from the insured by off-setting same from his entitlement to a monthly Pension benefit through payments of $2000 monthly till 31st July 2022 as per its missive to the Insured on the 10th May 2019.”
It is the aforementioned decision of the Defendant to discontinue the Claimant's Invalidity Benefit that is now being appealed to the High Court by the Claimant, on the basis that section 26(b) of the National Insurance (Benefits) Regulations requires that the Defendant utilise its discretion when deciding whether or not to continue payment of the invalidity benefit.
The Claimant's application to this Court seeks to determine whether the Defendant had a statutory discretion and failed to exercise it appropriately. The Claimant contends that the correct interpretation of Regulation 26(b) is not that the NIB should automatically/retroactively cease payment of the invalidity benefit upon finding out that a recipient, such as the Claimant, had worked for a period.
By virtue of its Notice of Application, the Defendant has raised two main issues for the determination of this Honourable Court:
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a) Whether the High Court of Justice has jurisdiction to try the Claimant's Fixed Date Claim; and
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b) Whether the Claimant has the mental capacity to bring/sustain the Fixed Date Claim on his own or whether he must conduct the proceedings through a next friend pursuant to Rule 23.1(2) of the Civil Proceedings Rules 1998, as amended?
The sections of the NIA relevant to these proceedings are extracted below:
“46. (1) From the appointed day the benefits payable to or in respect of persons insured under section 36(1), shall be—
(c) invalidity benefit, that is to say, a payment or periodic payments to an insured person who is likely to remain incapable of work for a period of not less than twelve months where such incapacity is caused otherwise than by way of employment injury;
55. The Board shall make Regulations relating to benefits and in particular may by such Regulations prescribe—
(a) the circumstances in which the rates of benefit as shown in the...
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