Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C6/97(IB) (17 December 1997)

 


Decision No: C6/97(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

Newry Social Security Appeal Tribunal

dated 22 October 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal which had upheld the decision of an Adjudication Officer that claimant was not entitled to incapacity benefit.
2. Leave to appeal against the Tribunal's decision was granted by the Chairman of the Tribunal and upon receipt of claimant's notice of appeal the Adjudication Officer now concerned with the matter readily conceded in a letter of 1 July 1997 that the Tribunal had in fact erred in law.
3. The Adjudication Officer in his letter of concession set out his reasons for the concession as follows:-

"I attach a copy of the decision of the Divisional Court in

Regina v. Secretary of State for Social Security, ex parte

Moule, in which it was held that regulation 27 of the 1995

Incapacity for work (General) Regulations was ultra vires to

the extent that it required a doctor, rather than an adjudication

officer or a tribunal, to make the final decision whether the

claimant was suffering from any of the conditions mentioned in

the regulation. [Reg 27 has been amended as a result of Moule

from 6 January 1997.] The effect of this decision, given on

12 Sept 1996 which was before the date of the tribunal decision,

is that the old version of reg 27(a) should be read without the

words "in the opinion of a doctor approved by the Department".

Clearly the tribunal relied upon this phrase in reaching their

decision, as is obvious from their recorded reasons. I would

therefore concede that the tribunal erred in law.

Another effect of Moule is that it is open to Mr O... to produce

evidence, especially medical evidence, to support his contention

that he satisfied leg (a) of regulation 27 from a date prior to

his heart attack. The Commissioner may therefore wish to refer

this case back to a tribunal to consider this question of fact

based on all the evidence, including the MO's opinion of

2 September 1996 and any other evidence Mr O... may produce."

I accept the reasons set out in the Adjudication Officer's letter. I am satisfied that I can deal with this matter without an oral hearing. I allow the appeal for the reasons given above, set aside the decision of the Tribunal and refer the matter back to be reheard by a differently constituted Social Security Appeal Tribunal and that Tribunal shall take cognisance of the various points raised in the Adjudication Officer's letter and also in the claimant's notice of appeal.

(Signed): C C G McNally

COMMISSIONER

17 December 1997