Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C17/97(IB) (10 September 1999)

 


Decision No: C17/97(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

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to the Social Security Commissioner

on a question of law from a Tribunal's decision

dated 6 March 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the Adjudication Officer against the decision of a Social Security Appeal Tribunal relating to the claimant's entitlement to Incapacity Benefit and comes by leave of the Chairman of that Tribunal.
2. This is another case relating to the amendment to regulation 27 of the Social Security (Incapacity For Work) (General) Regulations (Northern Ireland) 1995 which took effect from 6 January 1997. As there were many cases relating to this one point there was a delay in determining the appeals until a final decision was made relating to same.
3. Briefly, the facts in this case are that the claimant suffers from uncontrollable asthma and while she failed the All Work Test, the Tribunal considered that she was to be considered incapable of work from 29 May 1996 and gave reasons for the decision as:-

"Tribunal is satisfied that Ms D... comes within the provisions

of Reg 27(b). Her General Practitioner's medical evidence is more

up-to-date than that of the Medical Officer who examined her in April

1996 before her very bad attack in May - June 1996 and is accepted by

the Tribunal."

The Adjudication Officer sought and received leave to appeal on the following grounds:-

"This application for leave to appeal is made on the following

grounds:-

Regulation 27 of the Social Security (Incapacity For Work) (General) Regulations (Northern Ireland) 1995 as it stood prior to 6 January

1997 provided for a person who did not satisfy the all work test to

be treated as incapable of work, if in the opinion of a doctor

approved by the Department, one of the exceptional circumstances

applied to him.

The tribunal heard this appeal on 6 March 1997 and decided that the

all work test was not satisfied from 29 May 1996. However, the

tribunal also decided that from 29 May 1996 Ms D... satisfied

regulation 27(b) which provided as follows -

"27. A person who does not satisfy the all work test shall

be treated as incapable of work if in the opinion of a doctor

approved by the Department

(b) he suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement,

there would be a substantial risk to the mental or physical

health of any person if he were found capable of work;"

In the reasons for decision it is recorded -

"Tribunal is satisfied that Ms D... comes within the

provisions of Reg 27(b). Her General Practitioner's medical

evidence is more up-to-date than that of the Medical Officer

who examined her in April 1996 before her very bad attack in

May - June 1996 and is accepted by the Tribunal."

Regulation 27 was substituted by a new regulation 27 effective from

6 January 1997.

Incapacity Benefit is a day to day benefit for which entitlement must

be considered for each day covered by a claim. The basic entitlement condition of being "incapable of work", in this instance by satisfying

the All Work Test either in fact or through being so treated under

regulation 27, must therefore be considered afresh in relation to

each day. From and including 6 January 1997 the substituted

provisions of the revised regulation 27 did not include a condition

comparable to the old regulation 27(b). I submit that since the

tribunal failed to apply the substituted provisions to the period

from 6 January 1997, they erred in law. [Section 29(2)(d) of the Interpretation Act (NI) 1954 refers to the effect of substituted

provisions.]."

The Chairman of the Tribunal granted leave to appeal to a Commissioner. A copy of the appeal was sent to the claimant and to her representative. No comments were received.

4. The amended regulation to which the Adjudication Officer refers took effect from 6 January 1995. It is taken from the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations (NI) 1996 and reads as follows:-

"27.(1) A person who does not satisfy the all work test shall be

treated as incapable of work if any of the circumstances set out

in paragraph (2) apply to him.

(2) The circumstances are that -

(a) he is suffering from a severe life threatening disease in

relation to which-

(i) there is medical evidence that the disease is

uncontrollable, or uncontrolled, by a recognised

therapeutic procedure, and

(ii) in the case of disease which is uncontrolled, there is a reasonable cause for it not to be controlled by a

recognised therapeutic procedure;

(b) he suffers from a previously undiagnosed potentially life

threatening condition which has been discovered during the

course of a medical examination carried out for the purpose

of the all work test by a doctor approved by the Department;

(c) there exists medical evidence that he requires a major surgical operation or other major therapeutic procedure and it is likely

that the operation or procedure will be carried out within three

months of the date of a medical examination carried out for the purposes of the all work test."

5. I am satisfied I can deal with this point of law without an oral hearing. I have considered the arguments put forward by the Adjudication Officer and I am satisfied that the Tribunal did not consider the amendment to regulation 27. The Tribunal made no finding of fact which would have brought the claimant within the amended regulations.
6. I have also considered at length in C27/97(IB) the arguments relating to accrued rights and contrary intention under the Interpretation Act and I am quite satisfied that after the amendment to the Regulations a claimant must comply with the new Regulations to claim the benefit of regulation 27.
7. I therefore find that the Tribunal erred in law in not considering the amendment to regulation 27, and did not make sufficient findings of fact which would have enabled it to apply the amended provision. I therefore allow the appeal. I set aside the decision of the Tribunal and refer the matter back to be reheard by a differently constituted Appeal Tribunal. That Tribunal shall consider the effect on the claimant's entitlement of the amendment to regulation 27.

(Signed): C C G McNally

COMMISSIONER

10 September 1999