Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C8/97(IB) (21 November 1997)

 


Decision No: C8/97(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 2 January 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 which awarded claimant 15 points in the all work test.
2. Unfortunately the Tribunal erred in awarding 3 points in respect of descriptor 1(c) and three points in respect of descriptor 2(d). The Regulations are very clear on this type of activity and regulation 26(2) of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995 provides that where descriptors specified in activities 1 and 2 and part 1 apply only the highest score of these descriptors shall be counted when determining a persons score.
3. The Adjudication Officer was granted leave to appeal by the Chairperson of the Tribunal.
4. I am satisfied that the Tribunal erred in the allocation of points in this case. I therefore allow the appeal and set aside the Tribunal's decision.
5. Claimant's solicitor has asked that in the event of the decision being set aside that the matter be referred back to a newly constituted Tribunal. I am prepared to refer the matter back because there are other points which I think should be properly considered as it is clear from the evidence that the points awarded to the claimant where in respect of his knee, yet no points were awarded in respect of descriptor 5 relating to rising from sitting in an upright chair. If claimant has a problem with his knee it may well be that the Tribunal did not consider this descriptor because there is no mention of it in the Tribunal's decision. It may well be that when the Tribunal reached 15 points which meant that the claimant passed the all work test that it then did not pursue any other points.
6. In any event I refer the matter back to be reheard by a differently constituted Tribunal.

(Signed): C C G McNally

COMMISSIONER

21 November 1997