Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Decision No: C6/04-05(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 16 December 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, with my leave, against a decision of the appeal tribunal sitting at Craigavon on 16 December 2003 ("the appeal tribunal"). For the reasons which I give, that decision is erroneous in point of law. I therefore set it aside and refer the case to a differently constituted tribunal ("the new tribunal") for rehearing.

2. The new tribunal should conduct a complete rehearing of the appeal.

3. The question for determination by the appeal tribunal was whether the claimant was able to satisfy the personal capability assessment and thereby show that he was incapable of work. In order to succeed, he had to qualify for the appropriate number of points, as provided for in the schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995. The appeal tribunal decided that he did not satisfy the personal capability assessment and dismissed his appeal.

4. I can deal with the matter quite shortly and without going into the facts. When granting permission to appeal I said that I did so for the following reasons:

   "The applicant's sole ground of appeal is that, having asked for an oral hearing, he never received notification of the date on which his appeal was due to be heard. Consequently he did not attend the hearing by the tribunal.

   The Department has produced a copy of an undated letter, addressed to the applicant at his home address, informing him that his appeal was due to be heard on 16 December 2003 at 2.20 pm. The applicant's case is that he never received a letter.

   Save that there is a section for "Date issued" against which has been written "2/12/03", posting of the letter has not been proved. So far as I am aware, there is no evidence which proves its receipt by the applicant.

   In these circumstances it is arguable that the appeal should be allowed and the matter remitted to a new tribunal for a complete rehearing."

5. The Decision Making Services of the Department for Social Development have lodged helpful and carefully researched submissions which accept the error of law which I have identified and submit that the case should be remitted for a complete rehearing. Reliance is placed on paragraphs 10 and 13 of decision CIB/303/1999, a decision of Mr Commissioner Rowland in Great Britain. I accept those submissions and accordingly allow the appeal. That I do so is, of course, no reflection on the appeal tribunal which would not have been aware of the fact that the claimant had not received notice of the hearing.

   (Signed): J P Powell

   Deputy Commissioner

   25 January 2005