Decision No:  C25/99(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

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 24 March 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by Mr B... for leave to appeal against a decision dated 24 March 1998 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Newry.  That Tribunal had disallowed Mr B...'s appeal against an Adjudication Officer's decision dated 18 December 1997 that Mr B... was not incapable of work and could not be treated as incapable of work from that date.

2.	I grant leave and with the consent of both parties treat the application as an appeal and proceed to determine any question arising thereon as though it arose on appeal.

3.	My decision is that the Tribunal's decision is in error of law.  I consider that this is a case where it is appropriate that I give the decision which the Tribunal should have given.  My decision is that from 18 December 1997 to 9 March 1998 and from 11 March 1998 to 24 March 1998, the claimant was not incapable and cannot be treated as incapable of work.  The claimant is however to be treated as incapable of work on 10 March 1998.

4.	I held an oral hearing of the application and appeal which was attended by Mr Brady to represent Mr B... and by Mr Fletcher of Central Adjudication Services representing the Adjudication Officer.  On the OSSC1 (NI) form dated 1 September 1998 the claimant had set out grounds of appeal as follows - the Tribunal had not given adequate reasons for its decision, he was not given the benefit of his representative being in attendance having requested an adjournment, the Tribunal had not addressed the extent of his problems.  At hearing before me Mr Brady and Mr Fletcher were in agreement that there was no error in the Tribunal proceeding without the representative.  I note that at the hearing Mr B... said that although he had made an earlier application for a postponement he would be content to proceed although he had wanted his representative to be present.  There is no error of law per se in a Tribunal deciding to proceed without the attendance of a representative and I am in agreement with Mr Brady and Mr Fletcher in relation to there being no error in respect of that matter in this case.

5.	As regards the investigation of the matter Mr Brady referred to regulation 12 of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995.  He said that Mr B... had been admitted to Daisy Hill Hospital overnight early in March 1998 (in fact the admission was on 9 March 1998 and discharge on 10 March 1998) and the Tribunal had not investigated the situation immediately prior to and in the aftermath of the admission.  Mr Fletcher submitted that in relation to regulation 12 while the claimant would have to be considered incapable of work for one day of the in-patiency it was quite apparent that the Tribunal had investigated and scored him at less than 15 points up to and after the date of admission.  While there may have been an oversight it was of a minor and technical nature and did not go to the heart of the decision.

6.	As regards the claim that the situation had not been fully investigated Mr Fletcher was of the view that it had been. The Tribunal's decision indicated that it had looked at matters up to the date of hearing and it seemed to have taken account of whether the pain which led to the hospital admission was anginal or muscular.  

7.	Mr Fletcher opposed the application.  He cited to me C.S.118/49(KL).  This was I think a mistaken reference to C.S.131/49(KL) as the former case (which is on the same page of the volume of reported decisions) is not relevant.  I have applied C.S.131/49(KL) in determining the period of in-patiency.

8.	Mr Brady acknowledged that the Tribunal had mentioned the question of whether or not the pain pre hospitalisation was anginal or muscular.  He felt that the Tribunal had not gone into enough detail on the matter though he appreciated that this would have been difficult without stress test results.  Mr Brady raised the question as to whether or not exercise could have damaged the claimant but in response to my question did acknowledge that there was no indication before the Tribunal that the hospital had told the claimant to refrain from exercise.

9.	There was an error albeit small in relation to 10 March 1998 and, I have set the decision aside for that reason.  

10.	It is quite apparent that the Tribunal has adequately investigated the situation both pre and post this brief hospitalisation.  While, therefore, allowing the appeal, my own decision differs from the Tribunal's only in relation to 10 March 1998.  I set the decision aside only because the Tribunal was dealing with the question of the days of incapacity for work.  Had it been dealing with the entitlement to Incapacity Benefit, the small error in question might not have led to any disturbance of the decision.  Here, however, the question for the Tribunal's determination related to whether or not the claimant had been incapable of work from 18 December 1997 and the decision was therefore in error, albeit relating only to one day (10 March 1998).

(Signed):  M F Brown 

COMMISSIONER

	16 September 1999