Decision No: C6/97(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
	Newry Social Security Appeal Tribunal
	dated 22 October 1996

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal which had upheld the decision of an Adjudication Officer that claimant was not entitled to incapacity benefit.

2.	Leave to appeal against the Tribunal's decision was granted by the Chairman of the Tribunal and upon receipt of claimant's notice of appeal the Adjudication Officer now concerned with the matter readily conceded in a letter of 1 July 1997 that the Tribunal had in fact erred in law.  

3.	The Adjudication Officer in his letter of concession set out his reasons for the concession as follows:-

		"I attach a copy of the decision of the Divisional Court in
		Regina v. Secretary of State for Social Security, ex parte
		Moule, in which it was held that regulation 27 of the 1995
		Incapacity for work (General) Regulations was ultra vires to
		the extent that it required a doctor, rather than an adjudication
		officer or a tribunal, to make the final decision whether the
		claimant was suffering from any of the conditions mentioned in
		the regulation.  [Reg 27 has been amended as a result of Moule
		from 6 January 1997.]  The effect of this decision, given on
		12 Sept 1996 which was before the date of the tribunal decision,
		is that the old version of reg 27(a) should be read without the 
		words "in the opinion of a doctor approved by the Department".  
		Clearly the tribunal relied upon this phrase in reaching their
		decision, as is obvious from their recorded reasons.  I would
		therefore concede that the tribunal erred in law.

		Another effect of Moule is that it is open to Mr O... to produce
		evidence, especially medical evidence, to support his contention
		that he satisfied leg (a) of regulation  27 from a date prior to
		his heart attack.  The Commissioner may therefore wish to refer
		this case back to a tribunal to consider this question of fact
		based on all the evidence, including the MO's opinion of
		2 September 1996 and any other evidence Mr O... may produce."

	I accept the reasons set out in the Adjudication Officer's letter.  I am satisfied that I can deal with this matter without an oral hearing.  I allow the appeal for the reasons given above, set aside the decision of the Tribunal and refer the matter back to be reheard by a differently constituted Social Security Appeal Tribunal and that Tribunal shall take cognisance of the various points raised in the Adjudication Officer's letter and also in the claimant's notice of appeal.

(Signed):  C C G McNally

COMMISSIONER

17 December 1997