Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C9/97(IB) (10 September 1999)

 


Decision No: C9/97(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 10 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, by leave of the Chairman of that Tribunal and relates to claimant's Incapacity Benefit subsequent to a change in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations which came into effect on 6 January 1997.
2. Briefly, the facts are that the claimant suffers from diabetes. She is insulin dependent and her condition is difficult to control. In January 1996 she had a hysterectomy and had a strong post operative period requiring antibiotics for a wound infection. The Tribunal held that there would be a substantial risk to her physical and mental health if she were found capable of work. The Tribunal found that claimant had failed the All Work Test, but nevertheless that she was entitled to Incapacity Benefit by virtue of regulation 27 and in giving reasons for its decision the Tribunal recorded:

"... Given the claimant's recent hysterectomy we feel this is a

case to which regulation 27 applies (see Secretary of Stage ex

parte Moule). We feel that there would be a substantial risk to

the claimant's physical and mental health if she were found

capable of work..."

3. The Adjudication Officer sought to seek leave to appeal on the following grounds:-

"GROUNDS OF APPEAL

Regulation 27 of the Social Security (Incapacity For Work) (General) Regulations as it stood prior to 6 January 1997 provided for

exceptional circumstances for a person to be treated as incapable of

work when they did not satisfy the all work test. One of the

conditions for the operation of the regulation was that an opinion

of a doctor approved by the Department was required. On 12.9.96 this condition was ruled to be ultra vires by the High Court in England in

the Moule case.

The tribunal heard this appeal on 10 January 1997 and decided that

the all work test was not satisfied from 3 October 1996. However,

the tribunal also decided that Mrs D... satisfied regulation 27(b)

which provides 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 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;"

The tribunal gave the following as their reasons -

"Given the claimant's recent hysterectomy we feel that this is a

case to which regulation 27 applies (see Secretary of Stage ex

parte Moule). We feel that there would be a substantial risk to

the claimant's physical and mental health if she were found capable

of work. We note her General Practitioner in his letter of 8th

January 1997 refers to a stormy post operative period. We have

also taken advice from the Medical Assessor and the danger of pulling

tissue if the person moved awkwardly. A further significant factor

we felt was the psychological affect of the operation on the claimant

and the requirement of a period of recovery.

Regulation 27 was revoked from 6 January 1997 and substituted by a

new regulation 27.

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.]."

A copy of the appeal papers were sent to the claimant who was invited to comment on same. No comments were received.

4. This case was delayed because there were several other cases of a similar nature and this case was delayed pending a final determination. I am satisfied I can decide the point of law involved without an oral hearing.
5. I have considered this matter in decision C24/97(IB) and in other decisions and it is quite clear that the amended regulation was not considered by the Tribunal. The amendment is found in 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."

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. As the Tribunal did not take the amendment into account it clearly erred in law. It would be necessary to consider the claimant's position after 6 January 1997. I consequently allow the appeal and set aside the decision of the Tribunal and refer the matter back to be reheard by a differently constituted Tribunal and that Tribunal shall take into account the amended regulation.

(Signed): C C G McNally

COMMISSIONER

10 September 1999