A notice of an appeal has been served to the Full Court in relation to a landmark decision on November 27 by Justice Damone Younge which pronounced on the obligation of the NIS and employers for the maintenance of accurate and complete records.
The appeal by the NIS will raise eyebrows as the decision was seen as a boon for persons who have been denied their right a NIS pension largely due to their employers not paying over contributions to the National Insurance Scheme (NIS) and the poor state of the Scheme’s records.
In the notice of appeal filed by Mohabir A Nandlall and Associates, the grounds of appeal include: the judge misdirected herself in application of the provisions of the National Insurance and Social Security Act and regulations; the judge misdirected herself in applying Section 17 (1) C of the act and regulations and failing to apply the provisions of Section 45 of the principal act.
The filing also said that having accepted and found that the applicant’s former employer failed to remit the requisite contributions on his behalf, the judge ought to have added Toolsie Persaud Limited to the proceedings.
Fourteen grounds are listed in the December 20th filing under the name of attorney at law, Manoj Narayan.
Shariff Zainul, a carpenter won his case for pension, after taking the NIS to court.
NIS’ contention was that Shariff Zainul did not have the required number of contributions for the payment of old age pension, and was therefore entitled only to a grant.
Justice Younge found that Zainul was entitled to be credited the 354 contributions for the period he contested—which his former employer—Toolsie Persaud Limited (TPL)— had said he had not been employed.
This pensioner’s win over the insurance scheme would not only be seen as a victory for him, but for countless other pensionable members whose complaints against the scheme are all too similar.
Justice Younge in her ruling made it clear that an applicant should not be made to suffer for failure on the part of NIS and employers to reconcile their records or to have an accurate record of the contributions made by an applicant—or for the failure of employers to pay over their employees’ contributions to the insurance scheme.
In fact, the Judge in no uncertain blasted the NIS which she said has become “notorious” for inaccurate and incomplete contribution records which are ultimately unreliable.
In the written ruling seen by this newspaper, Justice Yonge asserted; “as the instant case pellucidly demonstrates, contribution Schedules can and sadly are often inaccurate or incomplete.”
She continued, “it is most unfortunate that NIS contribution records in the possession of the Respondent [NIS] have become notorious for its unreliability.”
NIS’ case was that, because Zainul did not meet the minimum threshold of 750 contributions, he was not entitled to old-age pension; but based on his 453 recorded contributions was entitled only to the payment of an old-age grant which he had been paid.
Zainul vehemently argued and resolutely maintained, however, that his former employer—TPL—failed to remit contributions on his behalf for the years 1992 to 2000 and so he had requested the insurance scheme to credit him with the 354 omitted contributions which would have entitled him to old-age pension.
Instead, what the NIS did, was pay the pensioner a grant of $9,869 to reflect 426 contributions; and over time updated his contributions to 453 with an additional grant award of $14,549.
Citing Regulation 3 of the National Insurance and Social Security (Benefits Regulations), Justice Younge said that a person who has attained the age of 60, and who has paid or been credited with 150 contributions and has paid or been credited with not less than 750 contributions is entitled to an old-age pension.
Regulation 3 provides, “Old age pension shall be payable to an insured person who has attained the age of sixty years and that such person has paid not less than one hundred and fifty (150) contributions, and has paid or been credited with, or has paid and been credited with, not less than seven hundred and fifty (750) contributions.”
On this point, the Judge noted from the evidence that NIS’ records showed that Zainul had amassed only 453 contributions, though he contended having worked with TPL during the years in dispute and it was the company that failed to remit his contributions.
In this regard, she said that provisions of both the Regulations and the National Insurance and Social Security Act needed to be considered.
Section 17(1)(c) of the Act states, “regulations may provide for treating for the purposes of any right to benefit, contributions payable by an employer on behalf of an insured person but not paid as paid where the failure to pay is shown not to have been with the consent or connivance of or attributable to any negligence on the part of such person.”
Meanwhile; Regulation 6(1) of the Contribution Regulations she noted, provides that “Where a contribution payable by an employer in respect or on behalf of an insured person is paid after the due date or is not paid, and the delay or failure in making payment thereof is shown to the satisfaction of the Board not to have been with the consent or connivance of, or attributable to any negligence on the part of the insured person, the contribution shall, for the purpose of any right to benefit, be treated as paid on the due date.”
Justice Younge underscored that both provisions allow for contributions which have not been paid by an employer on behalf of an employee to be deemed as paid as at the due date provided that there is no consent, connivance or negligence on the part of the insured person.
Against this background, she went on to reason that in Zainul’s case, no issue of consent, connivance or negligence on his part regarding the failure to pay the omitted contributions was raised.
