MM-v-Department for Social Development (IB) [2011] NICom 157

 

Decision No: C27/10-11(IB)

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INCAPACITY BENEFIT

 

 

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 28 October 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.  I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

 

2.    The decision of the appeal tribunal dated 28 October 2009 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

3.    For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

 

4.    In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

 

5.    It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to incapacity benefit (IB) credits remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

 

Background

 

6.    The decision under appeal to the appeal tribunal was a decision of the Department, dated 5 March 2009, which decided that:

 

(i)           grounds existed to supersede an earlier decision of the Department, dated 21 December 1999, and which had awarded an entitlement to IB, from and including 18 November 1999; and

 

(ii)          the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB credits from and including 5 March 2009.

 

7.    The appeal was received in the Department on 16 March 2009.

 

8.    On 28 April 2009 the decision dated 5 March 2009 was looked at again but was not changed.

 

9.    The first oral hearing of the appeal took place on 23 July 2009.  The appellant was present and was represented.  A significant amount of oral evidence was taken but the appeal tribunal decided to adjourn in order to obtain the appellant’s general practitioner records.

 

10.   The substantive appeal tribunal hearing took place on 28 October 2009.  The appellant was, once again, present and was represented.  The appeal was disallowed, and the appeal tribunal made a decision to the effect that the appellant did not satisfy the personal capability assessment, could not be treated as incapable of work and was, therefore, not entitled to IB credits from and including 5 March 2009.

 

11.   On 9 December 2009 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.  On 21 December 2009, the application for leave to appeal was refused by the legally qualified panel member.

 

Proceedings before the Social Security Commissioner

 

12.   On 15 January 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.

 

13.   On 8 March 2010 observations were sought from Decision Making Services (DMS) and these were received on 8 April 2010.  In these initial observations DMS opposed the application on the grounds cited by the appellant.  Observations were shared with the appellant and his representative, Mr Sean O’Farrell, Citizens Advice Bureau on 6 May 2010.  Further observations in reply were received from the appellant’s representative on 10 May 2010.  On 13 September 2010, DMS were asked to provide observations on a specific question.  These further observations were received on 23 September 2010 and were shared with the appellant and his representative on 4 October 2010.  On 11 October 2010 further observations in reply were received from the appellant’s representative which were shared with DMS on 21 October 2010.

 

Errors of law

 

14.   A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

15.   In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i)    making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

 

(ii)     failing to give reasons or any adequate reasons for findings on material matters;

 

(iii)    failing to take into account and/or resolve conflicts of fact or opinion on material matters;

 

(iv)    giving weight to immaterial matters;

 

(v)     making a material misdirection of law on any material matter;

 

(vi)    committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

Was the decision of the appeal tribunal in the instant case in error of law?

 

16.   It is clear from the record of proceedings for the appeal tribunal hearing that the appeal tribunal went about the forensic evidence-gathering process in a careful and thorough manner.  Equally, the appeal tribunal has provided a detailed, analytical statement of reasons for its decision.  Where then did the appeal tribunal go wrong in law?

 

17.   As was noted above, the decision under appeal to the appeal tribunal was a decision of the Department, dated 5 March 2009, which decided that:

 

(i)     grounds existed to supersede an earlier decision of the Department, dated 21 December 1999, and which had awarded an entitlement to IB, from and including 18 November 1999; and

 

(ii)     the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB credits from and including 5 March 2009.

 

18.   The test of incapacity for work, applicable to the appellant, was the personal capability assessment.  The personal capability assessment is an assessment of the extent to which a person who has some specific disease or bodily or mental disablement to perform certain of the activities as prescribed - section 167A(1), 167C(1) and (2) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

 

19.   The prescribed activities are to be found in Parts I and II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

 

20.   As part of the evidence-gathering process, giving rise to the decision under appeal, the appellant was requested to complete a questionnaire giving details of how his illness(es) affected his ability to perform certain activities.  In the completed questionnaire, the appellant indicated that he had difficulties with sitting, bending or kneeling, standing, walking, walking up and down stairs, lifting and carrying, consciousness and coping with toilet needs.  The appellant also stated that he had problems with his mental health.

 

21.   The appellant was also examined by a medical officer (MO) of the Department.  Following the examination, the MO gave the opinion that the appellant would have limitations with the activities of sitting, easing from sitting, bending and kneeling, walking and with certain activities associated with his mental health.  The decision-maker accepted the opinion of the MO of the Department.

 

22.   At the original adjourned oral hearing of the appeal, the appellant’s representative submitted that the appellant wished to dispute the findings and decision with respect to sitting, walking, lifting and carrying and consciousness.  Further, the appellant’s representative submitted that several descriptors from Part II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, were relevant.

 

23.   At the substantive oral hearing of the appeal, the appellant’s representative made a further submission in connection with the activity of ‘consciousness’, submitting that descriptor 14(e) from Part I to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, was relevant and should be applied.

 

24.   In connection with activity 14 from Part I to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, the appeal tribunal did not apply a specific descriptor, but indicated, through the completion of a ‘score sheet’, that the appellant scored ‘0’ points for a variety of activities, including activity 14.

 

25.   In the application for leave to appeal to the Social Security Commissioner, the appellant has challenged the appeal tribunal’s conclusions with respect to activity 14.  In summary, he has submitted that given the evidence which was before the appeal tribunal, he found it difficult to understand why descriptor 14(e) was not applied.  Further, he submitted that he was left to assume that the appeal tribunal preferred descriptor 14(f) or 14(g) but neither the statement of reasons for the appeal tribunal’s decision, nor the ‘score sheet’ make that clear.

 

26.   In the initial written observations on the application for leave to appeal to the Social Security Commissioner, Mr Kirk, for DMS, opposed the application on the grounds submitted by the appellant.  He made reference to paragraphs 12 to 15 of the decision of Mrs Commissioner Brown in C30/98, where she had discussed the meaning of ‘epilepetic or similar seizures’ as it appeared in the wording of activity 14 from Part I to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.  She said:

 

‘12.   What is meant by lost or altered consciousness has not changed but it is now only involuntary episodes of lost or altered consciousness coming from epileptic or similar seizures during waking moments that can be considered for the award of points under the relevant activity.

 

13.    Tribunals and indeed Adjudication Officers should rarely have difficulty in ascertaining whether or not a claimant suffers from epilepsy.  This is defined in Blakiston Medical Dictionary as:-

 

"A disorder of the brain characterised by a recurring excessive neuronal discharge, manifested by transient episodes of motor, sensory or psychic dysfunction, with or without unconsciousness or convulsive movements.  The seizure is associated with marked changes in recorded electrical brain activity".

 

        Thus an epileptic seizure appears to be an excessive neuronal discharge manifested by a transient episode of motor, sensory of psychic dysfunction with or without unconsciousness or convulsive movements.  As Dr McVicker said the person suffers from epilepsy if there is a continuing tendency to have these seizures.

 

14.    Collins English Dictionary defines a seizure as, "a sudden onset of disease".  However in the context of "epileptic or similar seizures" and in view of the fact that whether or not a person suffers from epileptic seizures is essentially a matter for medical diagnosis, I consider that the term "similar seizure" must be given the meaning of seizures which resemble epileptic seizures.  Under the activity as previously framed "Remaining conscious other than for normal periods of sleep", a person who suffered any attack of lost or altered consciousness could have qualified.  The evident intention was to narrow down the attacks which could qualify.  This has been done by confining consideration to attacks coming from epileptic seizures and further only to attacks coming from similar seizures.  It is not just any sudden attack of disease which can count under this descriptor but only sudden attacks resembling epileptic seizures.  What then are the characteristics of an epileptic seizure?

 

        (a)    Its origin – it is as a result of excessive neuronal discharge

 

        (b)    Its manifestation – an episode of motor, sensory or psychic dysfunction etc.

 

        (c)    The concomitants – marked changes in recorded electrical brain activity.

 

        It seems to me that an adjudicating authority in deciding whether a seizure is similar to an epileptic seizure must bear in mind all three, but particularly the first two of these characteristics and make the determination of whether or not the claimant suffers "during waking moments" from epileptic or similar seizures.  The seizures to qualify, do not have to be epileptic seizures but they do have to be:-

 

        (a)    seizures

 

                and

 

        (b)    similar in general characteristics to epileptic seizures.

 

15.    There will of course be cases where it is accepted ab initio that someone suffers from epileptic or similar seizures.  These are, however, likely to be cases where there is considerable medical evidence and one would expect considerable medical evidence where it is contended that a person suffers from epileptic or similar seizures.’

 

27.   Mr Kirk submitted that:

 

‘It is evident from the statement of reasons that the tribunal has in fact considered if the hypoglycaemic episodes (the claimant) suffered from equated to epileptic or similar seizures and concluded that this was not the case.  In reaching its decision the tribunal has clearly set out the evidential basis and reasons for its decision as to why (the claimant) did not satisfy descriptor 14(e).  I would therefore submit that the tribunal has not erred as contended and that there is no merit in this ground of appeal.’

 

28.   Following receipt of this written submission, I requested Mr Kirk to provide further written observations on the following question:

 

‘To what extent are the principles in C30/98(IB) consistent with the decision of the Tribunal of Commissioners in Great Britain in R(IB) 2/07 as approved of in CIB/1612/2009?’

 

29.   In reply, Mr Kirk observed that:

 

‘In the Tribunal of GB Commissioner’s decision R (IB) 2/07, the representative for the Secretary of State submitted that the phrase ‘epileptic or similar seizures was to be giving a medical meaning (similar to that place by Commissioner Brown).  The Commissioners rejected this argument.  In the opinion of the tribunal the seizures could apply to episodes that did not involve the discharge of neurones in the brain and the similarity to epileptic seizures was to be judged by the effects of such episodes rather than their cause.  The Commissioners found that seizures were to be construed as meaning episodes that are involuntary overwhelming and sudden.  The phrase similar seizures is to be construed by reference to the effects of the seizure.  This would involve considering the suddenness of the loss or alteration of consciousness but without consideration of whether the seizures are characterised by the discharge of cerebral neurones.

 

In reaching their decision the Tribunal of Commissioners considered the validity of the amending legislation and its construction and had the benefit of various reports and papers which were before the Social Security Advisory Committee.  The Commissioners went into great detail as to why it considered that the true construction of the amending legislation was to focus on the effects of the seizures as opposed to the cause.

 

It is clear that the principles endorsed by Mrs Brown in C30/98(IB) are not consistent with those expressed in R (IB) 2/07.  Whilst Commissioner Brown has focussed upon the causes of the seizures, the GB Commissioner’s have in contrast considered the effects of the seizure.  In particular whilst Commissioner Brown found that the seizures had to be similar to epileptic seizures i.e. involving the discharge of cerebral neurones into the brain the GB Commissioner’s found that this was not necessary.  Thus it is clear that the GB Commissioner’s identification of similar seizures could be used to identify more conditions which cause seizures then the test set by Commissioner Brown.

 

There is a clear divergence of views between Commissioner Brown and the GB Commissioners and to that extent the principles in C30/98(IB) are not consistent with those in R (IB) 2/07.  Having said that, as stated above the Commissioners in R (IB) 2/07 had the benefit of the various background reports and papers into the amendment of the legislation and it is now the Department’s view that R (IB) 2/07 should be followed.’

 

30.   I am in agreement with Mr Kirk’s very helpful submission on this point.  In R(IB) 2/07, the Tribunal of Commissioners in great Britain undertook a very extensive analysis of the meaning of the phrase ‘epileptic or similar seizures’ as it appears in activity 14 in the Great Britain equivalent to Part I to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.  At paragraphs 41 and 42 of their decision, the Tribunal concluded that:

 

‘41.     Whether terms that are used both in medicine and colloquially are to be construed in a strictly scientific and medical sense or in a looser colloquial sense depends on what the legislator intended, which is usually to be inferred from the context.  Although there has never been any doubt that the term “epileptic … seizures” must be read as a medical condition defined in the way that doctors would accept, Commissioners in Great Britain have not taken such a strict approach to the simple term “seizure” and have therefore construed “similar seizures” more loosely.  Broadly the approach has been that “seizure” is capable of being understood by a layperson (and perhaps some doctors) as applying to episodes that do not involve the discharge of neurones in the brain and that similarity to epileptic seizures is to be judged by the effects of such episodes rather than by their cause or mechanism (see CIB/13739/1996, CIB/16122/1996, CIB/17021/1996, CIB/3721/1997, CIB/2104/1998, CIB/4598/2002, CSIB/196/2003 and CIB/1714/2003, in several of which cases the more technical approach taken in Northern Ireland by Mrs Commissioner Brown in C30/98(IB) has explicitly been rejected).  In CIB/2104/1998, it seemed to Mrs Deputy Commissioner Ramsay that “the phrase ‘similar seizures’ is meant to imply something which is involuntary and is so overwhelming that it takes place whatever the affected person might do” and, in CIB/1714/2003, Mr Deputy Commissioner White accepted that blackouts suffered by the claimant due to cough syncope were “seizures” because they were “of sudden onset and recurrence”.  (The approach taken in CIB/2104/1998 to deciding what is involuntary may be inconsistent with R(DLA) 6/06 but that is not material to the present case.  That the loss or alteration of consciousness must be involuntary is clear from the terms of the descriptors.)

 

42.     Mr Brodie conceded that his construction would have the effect of excluding from the scope of Activity 14 those who suddenly lost consciousness due to, for instance, vasovagal syncope or cardiac syncope.  We asked him what the policy justification for that might be and he was not able to provide an answer.  He nonetheless submitted that Commissioners have been wrong to contrast “effect” with “cause” and should have given “seizures” its specific meaning “describing a constellation of clinical signs and symptoms”.  However, it seems to us that Commissioners’ concentration on the practical effects of episodes rather than on what is happening invisibly in the brain is entirely understandable, given that Activity 14 is part of the personal capability assessment used to determine the practical question whether a person is capable of work.  We prefer that approach to Mr Brodie’s.’

 

31.   The decision of the Tribunal of Commissioners in Great Britain in R(IB) 2/07 was approved of in CIB/1612/2009.  It is clear that the weight of the jurisprudence, including R(IB) 2/07, favours a judgment of similarity to epileptic seizure, to be based on the effects of the episodes rather than their cause, for the purposes of activity 14.  It is equally clear that certain of the principles set out by Commissioner Brown in C30/98(IB) are inconsistent with what the Tribunal of Commissioners in Great Britain stated in R(IB) 2/07.  To the extent that those principles are inconsistent, it is my view that, with respect, the decision in C30/98(IB) should no longer be followed and I accept and adopt the principles in R(IB) 2/07 as properly representing the law in Northern Ireland.  I also accept that Mrs Commissioner Brown did not have the benefit, as had the Tribunal of Commissioners in R(IB) 2/07, of the various background reports and papers relating to the amendment of the relevant legislation.

 

32.   That is not the end of the matter, however.  While making the concession concerning the precedential status of C30/98(IB), Mr Kirk went on to submit that:

 

‘Although the principles in the above case law are not consistent it is my submission that this would not affect the tribunal’s decision in this case.  That is because the tribunal found (on the evidence before them) that (the claimant) had warnings about his hypos and as such was able to mange them.’

 

33.   With respect to Mr Kirk, I cannot accept that submission.  The task of the appeal tribunal, on the basis of the specific submission which was put to it by the appellant’s representative, was to determine whether any of the descriptors in activity 14 of Part I to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, applied to the appellant.  More specifically, it was submitted to the appeal tribunal that descriptor 14(e) was applicable.  Activity 14 is described as ‘Remaining conscious without having epileptic or similar seizures during waking moments’.  Descriptor 14(e) is described as ‘Has an involuntary episode of lost or altered consciousness once in the 6 months before the day in respect of which it falls to be determined whether he is incapable of work for the purposes of entitlement to any benefit, allowance or advantage.’  On the facts which are available to me, the appellant does not suffer from epilepsy.  Accordingly he could not have epileptic seizures. If he was to satisfy descriptor 14(e) his involuntary episode of lost or altered consciousness (in the relevant period) must have been as a result of a seizure which is similar to an epileptic seizure.  Whether that is the case is to be judged on the principles set out in R(IB) 2/07.  The issue is not about the ‘management’ of ‘similar seizures’, it is about their effects.

 

34.   Having said that, I have considered what the appeal tribunal made of the evidence submitted in connection with the applicability of activity 14.  There was a considerable amount of such evidence, including medical reports, and his own oral evidence at the first adjourned oral hearing.  In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has recorded that:

 

‘Whilst much, for example, was said about the diabetes and control being generally good there was nothing to indicate ‘… epileptic or similar seizures ...’’

 

35.   Immediately following, there was reference to a report from a Consultant Psychologist but that was assessed in the context of whether any descriptors from Part II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, applied to the appellant.

 

36.   Further, there was, as Mr Kirk submitted, an assessment of the appellant’s ability to be alert to or manage hypoglycaemic attacks.  Once again, however, that was in the context of whether descriptor 17(b) applied to the appellant.

 

37.   Finally, the appeal tribunal concluded that:

 

‘We accept Medical Officer’s assessment in relation to functional ability as we believe it to be the more reliable assessment of functional ability.  We found nothing in the medical reports to cast doubt on the assessment.’

 

38.   I am of the view that the appeal tribunal had in mind its duty to decide whether any of the descriptors in activity 14 applied to the appellant.  I am also of the view, however, that the appeal tribunal did not make adequate findings in fact with respect to this issue which was specific to the appeal.  The appellant had provided evidence concerning the nature and frequency of his hypoglycaemic attacks.  I have a concern that the detailed oral evidence which was given at the first adjourned oral hearing might have been inadvertently overlooked by the time of the second substantive hearing.  Further, as the appellant has stated in his application for leave to appeal to the Social Security Commissioner, the statement of reasons for the appeal tribunal’s decision does not indicate to him whether the appeal tribunal accepted the submitted evidence and, further, the statement of reasons does not contain adequate findings as to whether the hypoglycaemic attacks amounted to seizures similar to epileptic seizures and resulting in lost or altered consciousness, in line with the principles set out in R(IB) 2/07.  Accordingly, and although the issue is a narrow one, I am of the view that it was incumbent on the appeal tribunal to give an explicit explanation as to why descriptors 14(e) of Part I to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, applied to the appellant.

 

39.   The issue having been raised by the appellant meant that the appeal tribunal was under a duty to consider it.  That required the appeal tribunal to acknowledge, in its statement of reasons that the issue was considered by the appeal tribunal.  It required the appeal tribunal to indicate what it made of the evidence concerning his hypoglycaemic attacks, and having assessed that evidence, make sufficient findings of fact in connection with the issue.  Finally, the issue having been raised by the appellant, and his representative, in the appellant’s oral evidence to the appeal tribunal, and with medical evidence, submitted to be supportive of that oral evidence, the appellant was entitled to know, through the statement of reasons, what was the appeal tribunal’s determination in connection with the issue, and the reasons for its conclusions in connection with it.

 

40.   Accordingly, and with some regret given the appeal tribunal’s careful and judicious management of the other aspects of the appeal, and its circumspectly prepared statement of reasons, I find that the decision of the appeal tribunal is in error of law.

 

Disposal

 

41.   The decision of the appeal tribunal dated 28 October 2009 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

42.   I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

 

43.   I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following.

 

44.   The decision under appeal is a decision of the Department, dated 5 March 2009, which decided that:

 

(i)     grounds existed to supersede an earlier decision of the Department, dated 21 December 1999, and which had awarded an entitlement to IB, from and including 18 November 1999; and

 

(ii)     the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB credits from and including 5 March 2009.

 

45.   Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 5 March 2009, had grounds to supersede the decision of the appeal tribunal dated 21 December 2009.  The ground for supersession on which the decision-maker relied is to be found in regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, namely that since the decision awarding IB was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, from a doctor referred to in paragraph (1) of that regulation.

 

46.   The test of incapacity for work, applicable to the appellant, was the personal capability assessment.  The personal capability assessment is an assessment of the extent to which a person who has some specific disease or bodily or mental disablement to perform certain of the activities as prescribed - section 167A(1), 167C(1) and (2) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

 

47.   The prescribed activities are to be found in Parts I and II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

 

48.   If the appeal tribunal determines that the appellant is not incapable of work in accordance with the personal capability assessment then it must then decide whether any of the exceptional circumstances set out in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, apply to the appellant.  Guidance as to the approach to be taken to regulation 27 is to be found in R4/01(IB), C22/01-02(IB), CIB/14667/1996, and CIB/1381/2008.

 

49.   It will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal.

 

50.   It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.  The appeal tribunal should note the relevance of the decision of the Tribunal of Commissioners in Great Britain in R(IB) 2/07 to the applicability of activity 14 in Part I to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

 

 

(signed):  Kenneth Mullan

 

Commissioner

 

 

 

14 March 2011