Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C11/97(IB) (17 December 1997)

 


Decision No: C11/97(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

INCAPACITY BENEFIT

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Belfast Social Security Appeal Tribunal

dated 4 September 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by an Adjudication Officer against the decision of a Social Security Appeal Tribunal which awarded the claimant 15 points in the All Work Test.
2. Grounds of appeal are as follows:-

"The tribunal erred in law when deciding the total points scored

for assessment under the all work test. Regulation 26(2) of the

Social Security (Incapacity for Work) (General) Regulations

(Northern Ireland) 1995 provides that where descriptors specified

for activities 1 and 2 in Part 1 apply, only the highest scoring

of those descriptors shall be counted when determining a person's

score (see also C1/95(IB), to be reported as R1/96(IB), paragraph 7).

Accordingly I would submit that the tribunal's decision is

erroneous in law as the score of 7 points for walking on level ground

(activity 1) and the score of 3 points for walking up and down

stairs (activity 2) have both been counted."

3. The claimant's representative also made a written submission in respect of the appeal as follows:-

"The Adjudication Officer in his submission maintains that the

tribunal erred in law when deciding the total points scored for

assessment under the all work test. We concede that the tribunal

erred in law by including scores for both walking on the level and

walking up and down stairs. We would however like to submit the

following in support of our clients case. Good practise should

dictate that tribunals consider applicable points for all relevant

descriptors. However, in practise, the vast majority of tribunals

will only consider relevant points until a score of 15 points is

reached. Tribunals will not generally consider additional relevant

points once a score of 15 is reached because these points are not

necessary for the claimant to pass the test once 15 points have

been determined. Any other relevant areas are simply scored as

zero.

In his application for Incapacity Benefit Mr C( indicated that

he experienced difficulties in the following areas; Sitting,

Standing, Stairs Walking, Bending and Kneeling Reaching and Lifting

and Carrying. All of these areas were raised and discussed at appeal

but do not appear to have been considered by the tribunal. We

submit that the reason for this was the tribunal had satisfied

itself that a score of 15 points had been reached and did not

proceed to consider additional relevant points in determining the

total score for the purposes of the all work test. In the

interests of natural justice we respectfully request that the

above case be referred back to tribunal in order that all

relevant and applicable points be fully considered."

4. I am satisfied an oral hearing is not required as it is patent that the Tribunal erred in law as stated. However, I am satisfied that this is a proper case to be reheard.
5. I therefore allow the appeal, set aside the decision of the Tribunal and refer the matter back to be reheard by a differently constituted Appeal Tribunal.

(Signed): C C G McNally

COMMISSIONER

17 December 1997