Decision No: C11/95(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

INCOME SUPPORT

Application by the claimant for leave to appeal
and appeal to the Social Security Commissioner
on a question of law from the decision of the
Newry Social Security Appeal Tribunal
dated 5 September 1994

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal which upheld the decision of an Adjudication Officer that claimant was not entitled to the disability premium.

2.	I arranged an oral hearing at which Mr Brady appeared for the claimant and the Adjudication Officer was represented by Mr McLaughlin.  At the hearing I granted leave to appeal and with the consent of both parties treated the application as the appeal.

3.	Briefly the facts are that the claimant is a 30 year old insulin dependent diabetic, who left school at 16, is unable to read and write and has never worked. 

4.	He has been in receipt of income support since 1988 when he became incapable of work and claimed sickness benefit from October 1992, although the benefit was disallowed as he did not satisfy the contribution conditions for receipt of the benefit.  Instead he was awarded National Insurance Contributions Credit for each complete week that he proved his incapacity for work.  In the submission to the Tribunal the Adjudication Officer recorded:-

		"As Mr C... was forwarding medical certificates to the Central
		Benefits Branch since 13/10/92 and an Adjudication Officer had not
		found him capable of work he was not required to be available for
		employment as a condition for receiving Income Support."

	It went on to say that he was awarded disability premium from April 1993 as the result of having submitted medical evidence of his incapacity for a period of 28 weeks.  He was examined by a Medical Officer of the Department on 30 July 1993 who found him incapable of work and he was again examined by a Medical Officer of the Department on 16 March 1994 who expressed the opinion that claimant was capable of work.  Also in the Adjudication Officer's submission he recorded:-

		"In decision R(S)13/52, the Commissioner held that the burden of
		proving that a person is incapable of work rests on the claimant.
		However, in decision R(S)3/90, the Commissioner held that the 
		burden of proving that a person is incapable of work rests on the
		claimant in cases where a new award is to be made, on a review 
		under regulation 17 it is for the Adjudication Officer to show
		that the claimant is no longer incapable."

5.	Mr Brady at the hearing before me argued that not sufficient consideration was given to the claimant's own doctor's report and that claimant was totally dependent upon insulin which he required 4 times a day and that he was illiterate which seriously restricted his ability to work and that the Tribunal took no account of that.

6.	Mr McLaughlin commented upon the fact that this was a review carried out by the Adjudication Officer who decided to withdraw the benefit and that the Tribunal erred in recording that claimant had not discharged the onus of proving incapacity.

7.	This is the type of case which is now becoming familiar where an Adjudication Officer is reviewing and withdrawing the benefit after receiving one medical report on the claimant saying that he was capable of work.   I have found it necessary on previous occasions to draw attention to the Chief Commissioner's Decision C9/94(IVB) in which he said that:-

		"While it may be correct to say that there is no rule that a 
		different medical opinion does not justify a review under
		regulation 17(7) I consider that revision by way of termination of
		an existing award on that ground alone would never be appropriate.
		Without some further change, of which examples have been given
		above, an Adjudication Officer would not in my view be able
		to discharge the onus of proving that a claimant who had 
		previously satisfied the conditions of entitlement no longer did
		so."

8.	I have considered the reasons given by the Tribunal.  The Tribunal gives among its reasons - "R(S) 13/52  Claimant has not discharged onus of proving incapacity."  That alone would be enough to invalidate the decision because the onus is on the Adjudication Officer to prove the incapacity.  Clearly the Tribunal looked at this from the wrong angle, possibly mislead by the Adjudication Officer's submission and I find it odd that in the type of case where the onus of proof rests upon the Adjudication Officer in a review situation that the Adjudication Officers seem to take a blanket paragraph from previously prepared submissions and it is difficult to see the relevance of the comment in the Adjudication Officer's submission relating to the burden of proof that a person is incapable of work rests on the claimant.  In fact it is quite clear that that misleads a Tribunal and the sooner the Tribunals realise the better that in a review situation the onus rests upon the Adjudication Officer to prove the incapacity and also that the proof of the incapacity should be considered in the light of the Chief Commissioner's decision C9/94(IVB), then a lot of appeals will be avoided.

9.	For the reasons set out above I allow the appeal, set aside the decision of the Social Security Appeal Tribunal and refer the matter back to be reheard by a differently constituted Social Security Appeal Tribunal.

(Signed):  C.C.G. McNally 

COMMISSIONER

4 August 1995