Decision No:  C24/97(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 6 February 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 which awarded the claimant Incapacity Benefit from and including 18 December 1996.  The decision in this case was to be delayed pending a determination of the law in other cases. 

2.	Briefly, the facts are that the claimant, now 51 years of age, was a self-employed plasterer and became unfit for work in December 1994.  The claimant was awarded sickness benefit from that date by reason of his incapacity.  The Doctor's certificate certified that he suffered from tuberculosis and from sarcoidosis.  Due to a change in the legislation in April 1995 this award became a transitional award of Incapacity Benefit and as the claimant had been incapable of work for more than 196 days from June 1995 the All Work test applied to him.  In order to assess his capacity he filled in a questionnaire and was examined by a Medical Officer.  As a result the Adjudication Officer considered all the available evidence and scored him 10 points in the All Work Test.  However, the Medical Officer was of the opinion that the claimant suffered from a severe uncontrolled or uncontrollable disease and consequently the Adjudication Officer decided that the claimant was to be treated as incapable of work by virtue of Regulation 27 of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995.

3.	The claimant was again asked to complete the All Work Test and a report was sought from his GP.  He was again examined by a Medical 0fficer of the Department.  The Adjudication Officer then considered all the available evidence and scored the claimant no points.  Consequently, the claimant failed the All Work Test.  There is no evidence that the Adjudication Officer in reaching his reviewed decision on the grounds that there was a change of circumstances considered Regulation 27 which was the regulation under which claimant had previously been awarded the benefit, although in the submission to the Tribunal to which the claimant appealed the Adjudication Officer records "the Adjudication Officer decided that none of the exceptional circumstances applied to Mr D...."

4.	The Tribunal to which the claimant appealed found that the claimant suffered form sarcoidosis which cannot be treated because of underlying tuberculosis, and that sarcoidosis is a severe disease.  The Tribunal allowed the appeal and held that he was entitled to Incapacity Benefit from and including 18 December 1996 on the grounds that he was suffering from a severe uncontrolled disease (sarcoidosis), and therefore he falls within Regulation 27(c) of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995 before amendment.  The Tribunal then went on the say "The Tribunal did not consider it appropriate to apply the amended Regulation 27 (which came into effect on 6 January 1997) because this claim was made and the decision made on it under the 'old' Regulation."

5.	The Adjudication Officer applied to the Chairman of the Tribunal for leave to appeal on the grounds that the Tribunal erred in law as follows:-

		"Regulation 27 of the Social Security (Incapacity For Work) 
		(General) Regulations (Northern Ireland) 1995 as it stood 
		prior to 6 January 1997 provided for a person who did not 
		satisfy the all work test to be treated as incapable of work, 
		if in the opinion of a doctor approved by the Department, one 
		of the exceptional circumstances applied to him.

		The tribunal heard this appeal on 6 February 1997 and decided 
		that the all work test was not satisfied from 18 December 1996.  
		However, the tribunal also decided that from 18 December 1996 
		Mr D... satisfied regulation 27(c) which provided 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

			(a) ..........

			(b) ..........

			(c) he suffers from a severe uncontrolled or uncontrollable 
			disease; or

			(d) .........."

		In the reasons for decision it is recorded - 

			"While the claimant on his own evidence, does not score 15 
			or more points under the All Work Test, the Tribunal concluded 
			that he is suffering from a severe uncontrolled disease 
			(Sarcoidosis), and therefore he falls within Regulation 27(c) 
			of the Social Security (Incapacity for Work) (General) 
			Regulations (Northern Ireland) 1995 (before amendment).

			The Tribunal did not consider it appropriate to apply the 
			amended Regulation 27 (which came into effect on 6 January 
			1997) because this claim was made and the decision made on 
			it under the "old" Regulation"

		The amendment referred to by the tribunal took effect from 6 January 
		1997 by virtue of the Social Security (Incapacity for Work and 
		Miscellaneous Amendments) Regulations (NI) 1996.  The substituted regulation 27 provides -

			"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 a 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 purposes 
			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 that 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."

		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 created a new 
		entitlement condition applying to Mr D...'s claim.  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.]."

6.	As there were many cases relating to the amendment of the Regulations which had the effect of withdrawing the benefit from claimants, the matter was delayed until the definitive answer was received relating to the amendment.

7.	I have considered the arguments of the Adjudication Officer in relation to the amendment which took effect in January 1997.  Firstly, I consider that the Tribunal erred in law in not taking account of the amendment and consequently, I would allow the appeal and set aside the decision of the Tribunal.  However, I do not think that this will advance any claimant very far because all that means is that his claim must be considered in the light of the new regulations after 6 January 1997.

8.	Under the regulations before they were amended, a claimant had to prove that he suffered from a severe uncontrolled or uncontrollable disease and this only applied to people who did not satisfy the All Work Test.  The Tribunal had decided that from 18 December 1996 he did suffer from such a disease.

9.	The amendment however, requires that before a person can be treated as incapable of work having failed the All Work Test he must suffer from a severe life threatening disease which is uncontrolled by a recognised therapeutic procedure or is uncontrollable, and in the case of a disease which is uncontrollable there is a reasonable cause for it not to be controlled by recognised therapeutic procedure.

10.	What I now have to consider is whether or not in view of the fact that the claimant was in receipt of Incapacity Benefit when the amendment took effect, it has an adverse affect on the claimant's entitlement.

11.	To consider the matter one must turn to Interpretation Act (NI) 1954.  Section 28(2)(c) of that Act is the relevant section relating to existing rights and states:-

		"Where an enactment repeals or revokes a transferred provision, 
		the repeal or revocation shall not, save as in this section 
		otherwise provided -

		...

		(c) affect any right, privilege, obligation or liability acquired, 
		accrued or incurred under the transferred provisions so repealed 
		or revoked"

	In order therefore to proceed, consideration must be given as to whether 
	the claimant had acquired or accrued a right under the statutory provision 
	relating to Incapacity Benefit prior to 6 January 1997 which can be 
	retained after regulation 27 was amended.

12.	In a submission in the case C31/97(IB) an Adjudication Officer dealt with the question of accrued rights and contrary intention in the interpretation act and I think it will clarify the position if I quote that submission in full as follows:-

		"ACCRUED RIGHT

		7.	As stated in my letter of application and expanded upon at paras 1 - 4 above, incapacity benefit is a day to day benefit 
			and as such the accrual of rights argument is of no assistance 
			to [claimant].

		8.	Consideration was given by a Tribunal of Commissioners in GB in decision R(U)1/91 as to whether, in UB cases, any "right" could be an accrued right.  At paragraph 14 the Tribunal recorded:

				"It is settled law that it is a daily benefit which 
				accrues on a daily basis and the right only arises 
				where there has come into existence a day which 
				properly may be treated as a day of unemployment".

		The tribunal of Commissioners, in distinguishing UB (a daily benefit) 
		and widows benefit (a long term benefit), continued at the same 
		paragraph:

			"We have considered R(G)2/89.  We do not doubt the correctness 
			of that decision, but it seems to us that there is an essential 
			difference between it and the case before us.  Widow's pension 
			does not accrue on a daily basis."

		The tribunal went on to say that any right existing prior to the 
		crucial change could not be an accrued right because the claimant 
		had no right as far as the future was concerned.  Since IB like UB 
		is also a daily benefit I would submit that the above case law has 
		direct application to [claimant's] case, that she has not accrued a 
		right under regulation 27 prior to amendment, and therefore she 
		cannot gain assistance from Section 28(2)(c) of the Interpretation 
		Act (NI).

		ACQUIRED RIGHT

		9.	Consideration was also given by the Tribunal of Commissioners as to whether the claimant had an acquired right to UB.  They decided that it was not possible to acquire a right until entitlement is established.
			I would therefore submit that based on the above argument 
			[claimant] cannot acquire a right under the "old" Regulation 27.

		CONTRARY INTENTION

		10.	If the claimant cannot establish an accrued/acquired right the following argument on "contrary intention" is academic. Nevertheless for completeness and in the event that the Commissioner may decide that [claimant] has a accrued/acquired right I would submit the following:

			Section 2(1) of the Interpretation Act (NI) 1954 provides as 
			follows-

				"Every provision of this Act shall extend and apply 
				to every enactment, whether passed or made before or 
				after passing of this Act, unless a contrary intention 
				appears in this Act or in the enactment".

			As was pointed out in the Notes on Clauses ... relating to that 
			section at the Bill stage, when it was being introduced, "it is 
			important to discover whether the Bill or any enactment shows a "contrary intention", in which case the provisions of the Bill 
			will not apply".  The Notes also stated that "the general 
			reference in this sub-section renders unnecessary its constant 
			repetition in this Bill".

			I submit therefore that what has to be considered is whether 
			regulation 27 shows a contrary to the application of the accrued 
			right provision in s28(2)(c).

		11.	Regulation 27 was submitted and the provision referring to "Risk to self or others" was removed from 6/1/97.
			The Commissioner at paragraph 7 of R(G)2/89, while referring 
			to contrary intention, stated;

				It is a long established principle that a statute is not 
				to be taken as depriving a person of a right or benefit he 
				had before the passing of the statute unless there are 
				express words or plainest implication to that effect: see 
				eg Lauri V Renaud 1892 Ch 402 and Kenshall V Porter 1923 2 KB 193."

		12.	Relying on the above decision I submit that the omission of the relevant words in regulation 27, plainly implies that Parliament intended the amended legislation to apply to all cases from 6/1/97.  If this was not so, a savings or transitional provision could have been introduced to protect existing cases from the effects of the amended legislation or alternatively the wording of regulation 27(b) could have been repeated in the new amending legislation."

13.	I have considered all the arguments relating to the amendment to regulation 27.  I made a finding in relation to same in decision C31/97(IB) and in that decision found that because Incapacity Benefit is a day to day benefit, that there is neither an accrued nor an acquired right to the benefit.  Nor is there a contrary intention in the act and consequently, the amendment applies to the claimant from 6 January 1997.  In that event it would be necessary for the claimant to bring himself within the provisions of the amended regulation, in other words, he would be required to prove that he was suffering from a severe life threatening disease.  Unfortunately the attitude adopted by the Tribunal to the amendment of regulation 27 was such that it did not consider whether or not the claimant satisfied the conditions in the amendment to the regulation.  Consequently, no finding was made relating to 27(2)(a).

14.	I have no option therefore but to allow the appeal and set aside the decision of the Tribunal.  It is not possible for me to give the decision which the Tribunal should have given because no enquiry was made relating to regulation 27(2)(a).  I therefore refer the matter back to be reheard by a differently constituted Tribunal and that Tribunal will make whatever findings are necessary to determine the matter.  That Tribunal shall also consider Great Britain Commissioner's decision CIB/3899/1997 (starred as 83/98).  This decision deals with the burden of proof on an Adjudication Officer to show grounds to review an award where a claimant had previously passed the All Work Test.  In his decision the Commissioner said:-

		"14. ... I accept that as a matter of practice an appeal tribunal 
		may start, as indicated in paragraph 47(2) of appendix to 
		CSIS/137/1994,  by asking whether it has been shown to its 
		satisfaction that the all work test is not satisfied at the date 
		of the Adjudication Officer's assessment.  However, in considering 
		whether that has been shown, the appeal tribunal must consider and 
		give proper weight to the evidence on which the previous decision 
		was based....

		15. Some cases will be straightforward.  The new examining medical 
		officer's report or other evidence may clearly point to particular 
		improvements in the claimant's abilities and the reasons for the 
		improvements.  Other cases will not be so straightforward.  The new examining medical officer's report may paint a very different 
		clinical picture from the previous report, with the implication that 
		the previous report over-emphasised the claimant's problems at the 
		time.  The appeal tribunal would have to consider, in the light of 
		all the other evidence, whether it was satisfied (the burden of proof 
		being on the adjudication officer) that the new report accurately 
		described the claimant's condition.  Or there may be cases where the 
		clinical picture painted in the two reports is substantially the same, 
		but there are differences in the opinions of the examining medical 
		officers about particular descriptors.  For instance, there might be 
		similar clinical findings on limitations on the claimant's walking 
		ability, and similar statements by the claimant about actual walking, 
		yet the first examining officer has ticked the box for "cannot walk 
		more than 200 metres without stopping or severe discomfort" and the 
		second has ticked the box for "cannot walk more than 400 metres"... 
		In such circumstances an appeal tribunal (and an adjudication officer) 
		should think very carefully before concluding that the points to go 
		into new all work test assessment are 3 and not 7 and being satisfied 
		that the All Work Test is not met.  Such circumstances (which I do 
		not attempt to define with any precision at all) may well point to 
		the proper starting point being consideration of whether it has been 
		proved that there has been a change in the claimant's condition or a 
		mistake by the first adjudication officer as to some material fact.  
		Then, the principle (approved in CSIS/137/1994) comes into play that 
		the expression of a new medical opinion is not itself a relevant 
		change of circumstances, but may be evidence of an actual change of circumstances or a mistake of fact."

(Signed):  C C G McNally

COMMISSIONER

17 August 1999