Decision No: C25/97(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

	INCAPACITY BENEFIT

	Appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Belfast Social Security Appeal Tribunal
	dated 10 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 held that claimant was incapable of work since 25 November 1996.  

2.	Briefly the facts are that the claimant is a 26 year old man who became unfit for work in February 1994 and claimed benefit from that date.  As he was not entitled to sickness benefit because he did not satisfy the contributions conditions, he was awarded National Insurance Contribution Credits for each week he claimed.  He was required to take the All Work Test due to a change in the legislation in April 1995 and was awarded no points.  Consequently he was considered capable of work.

3.	Claimant appealed to a Social Security Appeal Tribunal against that decision.  That Tribunal found that on it's assessment he scored only 7 points in the All Work Test. Although he did not satisfy the All Work Test, it found that he was incapable of work since 25 November 1996 by virtue of regulation 27 of the Incapacity for Work Regulations.  This regulation had been amended from 6 January 1997, although the Tribunal in its reasons for decision said that the new amendment only related to the All Work Test on and after that date.  The date of the Adjudication Officer's decision in the instant case was 25 November 1996, therefore the amendment was not relevant to this claim.

4.	The Adjudication Officer sought leave to appeal against that decision on the grounds that the amendment to the Regulations which took effect from 6 January 1997 applied; his grounds of appeal were 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 exceptional circumstances for a 
		person to be treated as incapable of work when they did not 
		satisfy the all work test.  One of the conditions for the 
		operation of the regulation was that an opinion of a doctor 
		approved by the Department was required.  On 12.9.96 this 
		condition was ruled to be ultra vires by the High Court in
		England in the Moule case.

		The tribunal heard this appeal on 10 February 1997 and decided
		that the all work test was not satisfied from 25 November 1996.
		However, the tribunal also decided that from 25 November 1996
		Mr S... satisfied regulation 27(b) 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 

			(b)  he suffers from some specific disease or bodily or
			mental disablement and, by reason of such disease or
			disablement, there would be a substantial risk to the 
			mental or physical health of any person if he were found
			capable of work."

		In the reasons for decision it is recorded -

			"Mr S... does not satisfy the all work test since 
			25 November 1996.  We are, however, satisfied that to be
			fit for work would be a substantial risk to his health at
			present and since 25 November 1996.  He is therefore
			incapable of work.

			Regulation 27(b) of the Incapacity for Work (General)
			Regulations applied.  The new amendment to the Regulations
			did not take effect till 6 January 1997 and applied to all
			work tests on and after that date.  The date of decision
			in this present case was 25.11.96.

			As regards the rules of Regulation 27(b) in its then form
			the decision of the High Court in England in the case of
			R v Secretary of State for Social Security ex parte Moule
			applies."

		Regulation 27 was substituted by a new regulation effective from
		6 January 1997.

		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 did not include a condition comparable to the old
		regulation 27(b).  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.]"

5.	I arranged an oral hearing at which the claimant was represented by Mr Stockman of the Law Centre (NI) and the Adjudication Officer was represented by Mrs McAllister.  Long and helpful submissions were made to me by both parties on whether or not the claimant had an "accrued right" after the amendment of the Regulations.  Mr Stockman also drew attention to the fact that the amendment to regulation 10 of the Incapacity for Work (General) Regulations was ambiguous and also submitted that because claimant had been awarded Severe Disability Allowance by a Medical Appeal Tribunal (which held that he suffered from a mental condition and was assessed at 80% from 1 June 1991 to 1 June 1999) that claimant satisfied the conditions of regulation 10 and as a result was to be treated as incapable of work.  That amendment took effect from 1 April 1997.  There was no dispute as to the finding by the Tribunal that claimant was incapable of work from 25 November 1996 but the period after 6 January 1997 was disputed.  At the hearing, claimant's mother gave evidence as to claimant's mental condition including his moods, behaviour and the severe restrictions on his social functioning.

6.	Mrs McAllister submitted that once regulation 27 was amended with effect from 6 January 1997 the claimant could not be treated as incapable of work and stated that the Interpretation Act did not help claimant.  Mr Stockman supplied me with very interesting evidence relating to a report of a hearing before the Parliamentary Social Security Committee on 15 January 1997.  He also submitted a report of the Fourth Standing Committee of the House of Commons on delegated legislation dated 17 December 1996 in which the Minister, Mr Burt said in relation to regulation 27:-

		"... it is not our intention that anyone who came under the
		original scope of Regulation 27 should now be excluded ..."

7.	I have considered all that has been said and whether or not I will take cognisance of the House of Commons Committee's report.  I find in the instant case that it is unnecessary for me to do so.  The Medical Appeal Tribunal found claimant 80% disabled because of his mental condition.  That situation pertained from 1 June 1991; there is no dispute that claimant was properly found incapable of work under the old Regulation.   I am satisfied therefore that the Tribunal erred in not taking account of any period after 6 January 1997.  I therefore allow the appeal and set aside the decision of the Tribunal.  I think it is proper that I should give the decision which the Tribunal should have given.  

8.	I accept and endorse the finding that claimant was incapable of work from 25 November 1996.  I am satisfied that he was also incapable after 6 January 1997 by virtue of regulation 10(2)(e)(viii) in its original and amended form.  To enable me to make proper findings of fact and to give a proper decision I arranged to have a report from a Consultant Psychiatrist.  I also heard evidence from claimant's mother.  I am surprised that once claimant's mental condition was an issue that the only medical evidence in relation to his condition was contained in form DLS584 from his GP.  The information on this form is of no use in this type of case.  Consideration should be given to amending this form.  

	I accept the 7 points awarded by the Tribunal.  I was impressed by claimant's mother's evidence as to her son's mental condition - his difficulty with relating to people, his need for help from others and also his inability to cope with pressure.  Also the fact that he stopped using the telephone as recorded by the Examining Medical Practitioner.  I am satisfied that he is entitled to further points.

	I therefore award him the following additional points -

	Completion of tasks			15(a)			2 points
	Daily Living 				16(c)			1 point
	Interaction with other people	18(a)			2 points
						18(c)			2 points

	Together with the 7 points awarded by the Tribunal he now has a total of 14 points.  I find therefore that he satisfied the all work test.

	This is a credits only case in its original form and the qualifying period of 196 days would have been relevant.  However, in view of the finding that claimant has been and is incapable of work from 25 November 1996 the qualifying period is not relevant.  I am satisfied therefore claimant has been incapable of work since 25 November 1996.

(Signed):  C C G McNally

COMMISSIONER

20 November 1998