Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C71/98(IB) (20 October 1999)

 


Decision No: C71/98(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

Ballymena Social Security Appeal Tribunal

dated 3 April 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, with the leave of a Commissioner, against the decision of a Tribunal, whereby it was held that the claimant is to be treated as capable of work from and including 9 October 1997 as she has worked and that work does not fall in an exempt category.
2. Having considered the circumstances of the case I am satisfied that the appeal can be properly determined without a hearing.
3. The claimant became unfit for work and claimed Sickness Benefit from 3 February 1994 by reason of a chronic back injury. She was not entitled to Incapacity Benefit as she did not satisfy the contribution conditions for the receipt of that benefit. As she was incapable of work for more than 196 days on 18 August 1994, she claimed Severe Disablement Allowance from 18 August 1994. However, she was not entitled to severe Disablement Allowance as she did not satisfy the disablement conditions for the receipt of that benefit. She was awarded a national insurance contribution credit for each complete week that she was incapable of work. Due to changes in the legislation from 13 April 1995 entitlement to credits was subject to the claimant satisfying the incapacity conditions for receipt of Incapacity Benefit. On 23 October 1997 a memorandum was received from Antrim Social Security Office stating that the claimant was working 5 hours per week, earning £15, since 9 October 1997. After the receipt of the claimant's employment details and a letter from her general practitioner, Doctor M..., together with a standard form filled in by the Doctor setting out the specific objectives that work would be expected to achieve for the claimant, an Adjudication Officer decided that the work undertaken did not fall into an exempt category and consequently gave a decision treating the claimant as capable of work from and including 9 October 1997. The claimant then appealed to a Social Security Appeal Tribunal.
4. On appeal the Tribunal found the following findings of fact material to its decision:-

"The claimant commenced part time work on 9 October 1997 for 1 hour

per day.

She did not inform the Incapacity Branch of her intention to work.

She informed Income Support.

She worked, not to improve her physical situation but rather to be

seen as "economically active" in order to get a visa for her Turkish

husband.

Her sick lines make no mention of depression.

Her work does not fall within any exempt categories."

5. The Tribunal gave the following reasons for its decision:-

"The work carried out by Mrs R... does not fall within the exempt categories

permitted by law. Her main motive for claiming was to

allow her husband to gain admission to the United Kingdom.

Mrs R... approached her doctor to seek permission to work, he did

not advise her to work.

We are found by the restraints placed on therapeutic employment as

imposed by regulation 17 of the Social Security (Incapacity for Work)

(General) Regulations (NI) 1995. The claimant does not come within

the exemptions having not been advised by her General Practitioner to

work and freely admitting her only reason for work was to obtain a

visa for her husband to come to the United Kingdom."

6. The unanimous decision of the Tribunal was in the following terms:-

"To disallow the appeal. The claimant is to be treated as capable

of work from and including 9 October 1997 as she has worked and that

work does not fall in an exempt category."

7. The record of proceedings produced by the Chairman was in the following terms:-

"Introduced party.

Got the job herself. Got disability premium. Allowed to earn £15

per week. Never heard of therapeutic earnings. Doctor told her job

would be beneficial. Depressed over the last year. Visa would only

be got if she got a job.

Doctor told her to do job if it would help her to get the visa.

Law Centre told her she could earn £15 per week. Needed a sponsor

or had to be economically active to get a visa for her husband.

Tried for a job. Depression got worse.

Did not think she had done anything wrong. Thinks her husband has

been executed - he is listed as missing 2 days ago. No communication.

Did as book told her to do.

Little bit of bending and stooping and exercise is good for her back.

Agrees she only worked to help ameliorate her husband's condition ie

get him into the country. Cleaning a little office, it was not too

hard to do. Not looking at things therapeutically. This helped her

depression.

Mrs R...

Why did Antrim SSO not tell her of therapeutic earnings. Tribunal

explained we cannot answer for Antrim SSO. Doctor knew she was depressed.

What would be the point in her trying.

Had to get a job to get husband in the country.

Over last 15 years has been to boards.

Got more depressed over the situation.

Feels not much point in adding anything else. Did what the law

required - not fair.

Doctor has said for years job would improve her lot. Feels she has

said everything she wishes to say. Angry her representative was not

here."

8. The claimant sought leave to appeal to a Commissioner on the grounds that the Tribunal erred in law by (i) breaching the rules of natural justice and (ii) coming to a conclusion when it had incomplete facts before it. In particular, in relation to the first ground, the claimant submitted that the Chairman mishandled the hearing. In relation to the second ground the claimant submitted that she was prevented from giving a full account of her case.
9. Leave to appeal was refused by the Chairman on 3 September 1998 but leave was granted by a Commissioner on 12 January 1999.
10. In relation to the claimant's first point, it seems that the claimant did not consider that the Chairman permitted her to deal with all the points that she wished to bring before the Tribunal. It is evident that the point that concerned the Tribunal was a somewhat narrow one. Perhaps this was not appreciated or understood by the claimant. The issue was whether the claimant should be treated as capable of work from 9 October 1997, as a result of the work undertaken by her from the same date, in light of the provisions of regulation 17 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.
11. A claimant will not be treated as capable of work, and therefore will not be disqualified from receiving Incapacity Benefit (on the grounds that he or she has worked) if he or she undertakes any of the following categories of exempt work:

(i) Work undertaken on the advice of a doctor which either;

(a) helps to improve, or to prevent or delay deterioration in,

the disease or bodily or mental disablement which causes the

claimant's incapacity for work (provided that when taken with

any volunteer work the claimant is working less than 16 hours

a week); or

(b) is part of a treatment program and is done under medical

supervision while the claimant is an in-patient or regularly

attending as an out-patient of a hospital or similar institution;

or

(c) is done while the claimant is attending an institution which

provides sheltered work for people with disabilities.

(See section 167D of the Social Security Contributions and Benefits (Northern Ireland) Act 1992; regulation 16 and 17 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.)

12. Mr Toner, the Adjudication Officer now concerned with this case, submitted that the Tribunal was not in error in all the circumstances.
13. It seems to me that the Tribunal has been careful to deal with the relevant issues before it. The Tribunal came to the conclusion that the claimant started work, not to improve her condition but rather to be seen as "economically active" in order to obtain a visa for her husband so that he could come to the United Kingdom. This, in the circumstances, is a perfectly reasonable reason for the claimant wishing to work. However, the adjudicating authorities are confined, when coming to a conclusion in the present case, to deciding whether or not the claimant comes within the exempt categories of work as set out in regulation 17(1) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995. These regulations are specific and restrictive. There is no general discretion left to the adjudicating authorities in deciding whether a person is undertaking exempt work or not. In light of the facts before the Tribunal, it is entirely reasonable for it to have come to the conclusion that the claimant's work does not fall within any of the exempt categories. As the Tribunal has stated in its reasons for its decision, the claimant was not advised by her general practitioner to work (and therefore the work could never have been undertaken on the advice of her doctor) and her reason for working was to obtain a visa for her husband to come to the United Kingdom (and such a reason could never come under any of the categories of exempt work referred to in regulation 17(1)). I conclude that the Tribunal, in light of all the circumstances and the evidence before it, could only have come to the conclusion that it did come to, namely that the claimant is to be treated as capable of work from and including 9 October 1997.
14. In relation to the claimant's second ground - namely, that she was prevented from giving a full account of her case - this matter is clearly linked to the claimant's first ground of appeal. The Tribunal, as I have stated at paragraph 9 herein, was dealing with a narrow point. I have no reason to come to the conclusion that the Tribunal did not hear and consider all the relevant available evidence on this point.
15. Whilst I have sympathy for the claimant in the circumstances that she found herself in, I conclude that the decision of the Tribunal is not erroneous on point of law. Accordingly I dismiss this appeal.

(Signed): J A H Martin

CHIEF COMMISSIONER

20 October 1999