Decision No: C10/98(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

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
Omagh Social Security Appeal Tribunal
dated 2 January 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by leave of the Chairman against the decision of a Social Security Appeal Tribunal which decided that claimant did not show or failed to provide information sought by the Department in the All Work Test questionnaire, claimant is to be treated as capable of work from and including 3 September 1996.

2.	This relates to a late submission of the questionnaire by the claimant.  The facts are that the claimant was entitled to incapacity benefit credits and a questionnaire was issued to him in July which was not returned in the proper time.  An Adjudication Officer on 9 September 1996 decided that claimant was capable of work as and from 3 September 1996.  He gave that decision because the form had not been returned and recorded that claimant had not proved that there was good cause for the failure.  It should be noted that at that time the Adjudication Officer was aware that claimant had been in receipt of credits in respect of incapacity benefit because he suffered from vertigo and hypertension.  The question of good cause is found in regulation 9 of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995 and in determining whether a claimant has shown good cause the following matters must be taken into account -

(a)	not relevant;

(b)	the claimant's state of health;

(c)	the nature of any disability the claimant has.

3.	It is quite clear that the Adjudication Officer did not fulfil the requirements imposed upon him by the Regulations as he did not at any time consider claimant's state of health.  Also he recorded in his submission to the Tribunal that the form was returned on 2 October 1996 and he then must have known that that form contained a certificate from his doctor to say that claimant was suffering from hypertension, depression, vertigo and alcoholism.  In any event claimant appealed against the Adjudication Officer's decision and it was dealt with as a paper hearing.  It would appear that the certificate from the doctor and the questionnaire which was returned on 2 October 1996 were not before the Tribunal as they were not in the papers supplied by the Agency.  It did not consider claimant's state of health at all; it merely considered the facts which the Adjudication Officer had put before it.  It is absolutely essential that if there is to be a paper hearing by a Tribunal that that Tribunal satisfies itself that it has all the papers and its attention was drawn to the fact that the questionnaire was returned on 2 October 1996 and found as a fact in the record of its decision that the questionnaire was received in the Department on that date but clearly the Tribunal did not ask to see it.  That of itself was an error in law because if it is making a finding on paper it should make sure it has all the papers.  Also once it knew from previous awards that claimant was suffering from vertigo and hypertension it should have taken into account, as it is obliged to do, his state of health.

4.	It is unfortunate that this type of hearing was intended to speed up the process and to save money and yet this case which does not relate at all to the payment of any benefit but merely relates to an award of credits from 6 September 1996 to 1 October 1996 should have gone this far and have resulted in a most costly exercise and waste of valuable time.

5.	I am satisfied that the Tribunal did not properly consider the evidence which it could have obtained.  It did not properly carry out the obligations under the Regulations to consider his state of health.  It therefore erred in law and I allow the appeal and set aside the decision of the Tribunal.  Mr McAvoy on behalf of the Adjudication Officer in a written submission to me of 14 November accepts that if I find that the Tribunal erred then Mr L... had shown good cause, and as the evidence can be accepted that claimant was incapable of work from 3 September 1996 to 1 October 1996.  There is no question of entitlement to incapacity benefit as Mr L... does not satisfy the contribution conditions for its receipt, but the case merely relates to credits.
I accept Mr McAvoy's argument that the evidence is sufficient to allow me to find that claimant was incapable of work from 3 September 1996 to 1 October 1996.

(Signed):  C C G McNally

COMMISSIONER

12 February 1998