Decision No:  C57/99-00(IB)

	SOCIAL SECURITY ADMINISTRATION (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 9 June 1999

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by myself, by the claimant against a decision dated 9th June 1999 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast.  That Tribunal had disallowed the claimant's appeal in connection with a disallowance of Incapacity Benefit.  The claimant sought a hearing of the case but having read the papers I am satisfied that I can determine the matter without the necessity for such a hearing.  My decision is that the decision of the Tribunal is set aside as in error of law and the matter is remitted for rehearing by a differently constituted Appeal Tribunal.  That Tribunal should bear in mind the views set out below and in particular should make specific findings on any descriptors which the claimant's contends are applicable to him.

2.	My reasons for setting the decision aside are that the reasons for the decision do not adequately explain it.

3.	The claimant had submitted grounds of appeal by means of an OSSC1 (NI) form dated 26th September 1999.  Therein he submitted that the Tribunal had breached the rules of natural justice in awarding him nine points after the Medical Referee Service Doctor had given him zero points.  This is not an error of law.  The claimant is mistaken, though perhaps understandably so, in thinking that Medical Referee Service Doctors actually award points on the All Work Test.  That is done by decision makers or on appeal by Tribunals.  In this instant the decision maker, who is a departmental official not a doctor, had awarded nil points on the All Work Test based on the doctor's report.  However, the Tribunal was quite entitled to award a different amount of points than is awarded by the decision maker or is sought by the claimant.  Its so doing is not a breach of the rules of natural justice, rather it is indicative that the Tribunal has applied its judgment to the case.  There is no error of law in this respect.

4.	The claimant further stated on the OSSC1 form that his own medical surgery was of the view that he was unfit but again the Tribunal and the decision maker were perfectly entitled to their own view on the All Work Test and an expression of opinion that a person is generally unfit for work does not per se mean that that person will pass the All Work Test.  That test is based on a persons functional limitations across a range of activities and opinion on fitness or unfitness for work will not be relevant to whether or not the person passes that test.  Again there is no error in that respect.

5.	I am in agreement with Mr Toner, who in his thorough letter of 29th March 2000, commented on the claimant's appeal and stated that the Tribunal's reasons did not adequately explain why it came to the decision it did.  I am of the view that, in this particular case, where the claimant was contending for a much greater functional limitation than the Tribunal considered he had, some evidential assessment was needed to explain the Tribunal's decision.  The Tribunal was not obliged, of course, to accept the claimant's evidence or his assessment of his condition.  If, however, it was 	rejecting that it should have explained, albeit briefly, why it was so doing.  Without that the claimant could not understand why the decision was as it was.

6.	As stated above I do not consider that this is a case were I can make a decision which the Tribunal should have made.  There are obvious evidential issues and obvious medical issues to be explored and the Tribunal, particularly if it has a medical member, is much the more appropriate body so to do.  I therefore remit the matter to a new Tribunal and direct it to adequately explain its decision and also, as a matter of best practice, to make findings on all the activities within the All Work Test in respect of which the claimant contends he is affected by mental or physical disablement.

7.	At the rehearing it should be remembered that the Tribunal will not be able to take into account any circumstances which were not obtaining at the date when the Adjudication Officer made his decision, ie the 23rd February 1999.  

(Signed): M.F. Brown

Commissioner

7 June 2000