(1987)1987 November 18 [DEMETRIADES J ] INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION ANTONIS G PHILIPPOU. Applicant, ν THE REPUBLIC OF CYPRUS, THROUGH 1 THE MINISTEROFLABOUR ANDSOCIAL INSURANCE, 2 THE DIRECTOR OFSOCIAL INSURANCE Respondents (Case No 227/83) Executory act— Social Insurance— The Social InsuranceLaw, 1980 (4/80), section 78— Hierarchical recourse to theMinister— Once itisfiled, the decision of the Directorissuspended and ceased tobeexecutory, untilthe outcome of therecourse, when itwill merge inthefinaldecision —The original decision of theDirector can bechallenged through thefinalactas forming part ofit 5 Social Insurance—TheSocialInsuranceLaw, 1980 (4/80) —Dateofbirthofan insuredperson —Thepower to determine itandthemode of itsexercise — Sections 76
(1)(h),76
(2)and 76
(3)ofsaidlaw—Inthelightof thewordingof sections 76
(2)and 76(3}the conclusion is that the inquiry should be 1 0 conducted strictlyinaccordancewiththerulesofnaturaljustice —Ifnot, the decision has tobeannulled The factsofthiscasesufficiently appear in the judgmentofthe Court Subjudice decisionannulled Costsagainstrespondent 15 Recourse. Recourse against the decision of the respondents to dismiss applicants' application for old age pension and to determine applicant's date of birth for social insurance purposes as the 28th October, 1920 and not 1916. Chr. Melides, for the applicant. 1894 20 3 C.L.R. PhJttppouv.Republic A Vassiliades, for the respondent. Cur. adv. vult. DEMETRIADES J. read the following judgment. The present recourse turns against the decision of the respondents
(1)to 5 dismiss the applicant's application for old age pension and
(2)to determine his date of birth for the purposes of social insurance as being the28th October, 1920, instead of theyear U916as claimed by him. Thefacts of thecase,astheseappearfrom therelevantfileofthe 10 administrationwhich isexhibit No. 1before me,arethefollowing: The applicantjoined the Social InsuranceScheme (hereinafter called the «scheme») in 1965 as a self-employed person and he then produced a certificate of birthwhich was issuedinthemonth of May of that year, in which it was stated that he was bom at 15 Kolossi villagein the Districtof Limassol, onthe 15th April,
- This birth certificate was issued on the strength of an entry in the Register of Births which was presumably made on thebasisof an affidavit sworn by the applicant in
- On the 30th October, 1982, the applicant applied to the 20 Department of Social Insurance of the Ministry of Labour and Social Insurance for old age pension and in his application h stated that he was bom in
- On receipt of his applicationc search was carried outanditwas found thattheapplicant,bothin his application tojoin thescheme, as well as inhis applications > 25 obtainapassport and anidentitycard,declared as hisdateofbin!ι the 15thApril, 1919(seeRed9of ExhibitNo. 1). As a result of the above, the 2nd respondent instructed the District Labour and Social Insurance Officer of Limassol, {hereinafter referred to as the «officer») to carry out an 30 investigation regarding the date of birth of the applicant. In the course of thisinvestigation the officer firstvisitedthehouse of the applicant where he was informed that the applicant was abroad and was advised by his daughter-in-law to conduct Neophytos, one of the brothers of the applicant. The officer did so and the 35 brother informed him thatthe applicantwas two years older than him. According to the report submitted by the officer to the 2nd respondentregarding thedateofbirthof theapplicant,thebrother was bom on the 11th October,
- 1895 Dcmetriade· J. Phlllppou v.Republic
(1987)Theofficer then carried out further inquirieswiththeschool and the church of the village where the applicant was bom but they wereunable toprovidehimwithanyinformation aboutthedateof the birth of the applicant as no records were kept by them. Nor elders of the village could give him any information. 5 The officer then proceeded to carry out a search in the birth records kept by the DistrictAdministration of Limassol and found that three entries in the name of «Antonis» appeared as having been bom of the couple Georghios Philippou and Andromachi Hadjionoufriou, the parentsoftheapplicant.The first entrystated 10 that the child was bom in
- This entry was made on the strengthofanaffidavit swornin1982bytheapplicant.Thesecond entry, which showed that the child was bom on the 15th April, 1919, was again made after an affidavit was sworn by the applicant. The third entry, which stated that Antonis was bom on 15 the 28th October, 1920, was a regular entry made as a matterof procedure for the registration ofbirths. After completing hisinvestigation the officer submitted a report to the 2nd respondent in which, after stating his findings, he concluded bysayingthatinhisopinion therealdateofbirth ofthe 20 applicant wasthe28th October,
- Relyingon the findings ofthe officer the2nd respondent came, also, to the conclusion that the real date of birth of the applicant was the 28th October, 1920, and by his letter dated the 28th January, 1983,communicated hisdecision tothe applicant. 25 By another letter, dated the 1st February, 1983, the 2nd respondent informed the applicant that he was not, as then, entitled toold age pension. The applicant then appealed to the Minister of Labour and Social Insurance through his advocate in accordance with the 30 provisions of section 78 of the Social Insurance Law, 1980 (Law 41/80). By a letter dated the 12th April, 1983, counsel for the applicant was informed that the Minister, after examining the appeal ofthe applicant andafter takingintoconsideration all facts and circumstances of the case, had dismissed it. He was further 35 informed that the correct date ofbirth ofhisclient,forpurposesof social insurance, remained the 28th October,
- Asa result of the decision of the Minister the applicant filed the present recourse. 1896 3 C.L.R. PhUlppou v.Republic Demctriadea J. The groundsof law,on which the recourse isbased, are that(a)The respondents failed tocarry out adue inquiry. (b)Thesubjudicedecision lacksreasoning. (c)The sub judice decision isarbitrary and/or unlawful and/or 5 unconstitutional. In arguing the grounds of law, counsel for the applicant submitted that the inquirycarried out bythe respondents was not theproper one inthatitwasinsufficient inthecircumstances;that the statement ofthe brotherofthe applicantastothe year oftheir 10 birth was not taken into consideration or weighed properly and thattherewereotherpersonswhogaveinformation tothe District Administration in the past about the matter, from whom the respondents failed toseekinformation. Healsosubmitted thatthe Minister did not afford the applicant the opportunity of being 15 heard. On the ground of due reasoning counsel argued that the sub judice decision is not adequately reasoned and that the omitted reasoning isnot supplemented bythe materialinthe file. Regarding the last ground, counsel contended that the 20 respondents could not have taken, on the question of the dateof birthoftheapplicant,adifferent decisionfromtheonereachedby the District Administration which is the proper organ to decide such a matter. Before proceeding to deal with the issues raised in the present 25 case Iwish to deal briefly with the submission of counsel for the respondentsthatthisrecoursewasfiled outoftimeasfarasprayer 2isconcerned. Inhissubmission onthisissuecounselarguedthat the recourse isoutof timeasitwasfiled more than 75days from the communication of the decision of respondent No. 2 to the 30 applicant,andfurtherthat itisnotanexecutoryadministrativeact. I find this submission of counsel for the respondents as groundless. Once a hierarchical recourse isfiled, the decision of the Director is suspended and ceases to be an executory administrative actuntil the outcome of the hierarchical recourse, 35 when hisdecision wiltthenmerge inthe finaldecision. Although the decision of the Directorisno longer executory on itsown,it canbe challenged throughthefinalactasformingpartof it.This groundis,therefore,dismissed. 1897 DemetriadesJ. PhlHppouv.Republic
(1987)Coming now to the issues before me. the provisions of the law governing the matter are sections 76 and 78 of the Social Insurance Law. 1980 (Law 41/80) Under para (h) of sub-section
(1)of section 76 of the Law. the Director has power to determine the date of birth of an insured person incaseswherethere isadifference astothecorrectdateof hisbirth. 5 Under sub-section
(2)the Director may. before reaching a decision on an issue,likethe one inthe presentcase,appoint one of the officers in the service of the Ministry of Labour and Social 10 Insurance tocarryoutaninquiry*intothe matterindisputeand the officer, during the inquiry, may demand from any person to appear before him in order to give evidence or to produce documents that are reasonably considered tobe necessary for the carrying out of the inquiry. Sub-section
(3)ofsection 76ofthe lawprovidesthatanyperson who,atthediscretion oftheDirectororoftheperson appointed by him by virtue of the provisions of sub-section
(2), possesses any interest in a matter which calls for determination by virtue of the provisionsofthatsection, isentitled (a)tobepresentandbeheard 20 during the inquiry into the matter in question and (b) to receive copy of the decision of the Director as well as the reasoning on which he based his decision. Section 78 of the lawprovides that an insured person has the right toappeal against thedecision ofthe Directorortheexaminer 25 ofclaims. Havinginmindthewordingofsub-sections
(2)and
(3)ofsection 76ofthe lawand, inparticular, what isprovided bythem, namely that the Director or the officer to replace him in the inquiryto be carried out are possessed with the power tosummon any person 30 to give evidence before them, or to produce documents reasonably considered by them to be necessary for the carrying out of their inquiry and, further, that the person interested in the matterthe subject of the inquiryisentitled tobe present and to be heard during the carrying out of the inquiry, Ihave come to the 35 conclusion that an inquiry of this nature should be conducted in such a manner that the rules of natural justice should be strictly followed and that failure tofollow them rendersthe inquiry void 1898 lij 3 C.L.R. PhUlppou v.Republic DemetrHdes J. In the present case it does not appear that the procedure envisaged bythelawwasfollowed bythe respondent. Asaresult,Iholdthatthesubjudicedecision hastobe annulled. Order accordingly. Respondentstopaythecostsoftheapplicant. Sub judice decision annulled withcostsin favourofapplicant. 1899