Decision No:  C34/00-01(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 20 March 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of the Chief Commissioner, against the decision of the appeal Tribunal (“the appeal Tribunal”) sitting at Ballymena on 20th March 2000.  For the reasons which I give, that decision is erroneous in point of law.  I therefore set it aside and refer the case to a differently constituted appeal Tribunal (“the new Tribunal”) for rehearing.

2.	This appeal is concerned with whether or not the claimant satisfies the All Work Test introduced by section 167C of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  The claimant underwent an All Work Test assessment during the latter part of 1999.  As part of the assessment, she was medically examined on 22nd October 1999.  On 21st December 1999, a decision maker then proceeded to give the following decisions: -
	
“I have superseded the decision of the Adjudication Officer/Department awarding Incapacity Credits from and including 16.10.95.

This is because there has been a relevant change of circumstances since the decision was given this was that [the claimant] is no longer incapable of work.

My decision only for the period from and including 21.12.99 is that [the claimant] is capable of work and is not entitled to Incapacity Credits from and including 21.12.99.

The claimant appealed against those decisions and her appeal came before the appeal Tribunal, sitting at Antrim, on 20th March 2000.  The members of the appeal Tribunal, comprising a legally qualified Chairman and a medical member, were unanimous in dismissing her appeal.  Leave to appeal was refused by the Chairman but was granted by the Chief Commissioner on 2nd April 2001.

3.	The claimant’s grounds of appeal are set out in an attachment to her application for leave to appeal.  It is unnecessary for me to investigate those grounds because I allow the appeal for the following reason.  The Department of Social Development was invited to make submissions on the application for leave and did so by a letter dated 27th October 2000.  The grounds put forward by the claimant were opposed but the writer of the letter then went on as follows: -

“Although I have opposed all grounds of [the claimant’s] application there is one matter I consider it proper to draw to the attention of the Commissioner.  As previously stated, the adjudication officer on 2 November 1998 decided that [the claimant] did not satisfy the all work test and on 14 December 1998 [she] was successful in her appeal against that decision.  An examination of the submission to the Tribunal (i.e. Section 4) shows that the Tribunal was not made aware of these details and paragraphs 16, 17, 19 and 20 of Section 5 of the Department’s submission to the Tribunal are appropriate to cases where a claimant has been assessed on the all work test for the first time during the period of a claim.  With no reference having been made to the question of supersession in the Tribunal’s decision this raises the further question of whether the Tribunal applied the correct onus of proof.  When considering similar cases in decisions C4/00-01(IB) and C49/99-00(IB) … the Commissioner decided to refer those cases for determination to differently constituted Tribunals.”

4.	Although this was an appeal in which the onus of proof may not have been as important as in other cases, I accept that submission.  Having examined the papers I think it probable that the Tribunal was unaware that there had been a previous assessment.  Knowledge that there had been one might, possibly, have affected the way the appeal Tribunal approached some of the issues it had to decide.  At any rate I am not satisfied that it is safe to uphold the decision.  In my judgment, the failure to inform the appeal Tribunal of the previous assessment was a breach of natural justice which resulted in an error of law – although not one for which the appeal Tribunal was responsible.

5.	Since I am remitting the appeal to the new Tribunal for rehearing, it is unnecessary for me to investigate the claimant’s own grounds of appeal.  She was unrepresented before the appeal Tribunal but now has representation.  Her grounds of appeal, so far as they continued to be relevant, will no doubt be the subject of submissions to the new Tribunal.  For the reasons already given, I allow the appeal and remit the matter for rehearing.

(Signed):  J P Powell

DEPUTY COMMISSIONER

15 June 2001