Decision No: C29/02-03(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 17 December 2001.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 17 December 2001 of an Appeal Tribunal sitting at Belfast.  Both the claimant and the Department made written observations on the appeal.  I held a hearing of the appeal which the claimant attended accompanied by his wife.  Mrs Gunning of the Decision Making and Appeals Unit attended to represent the Department.  I am grateful to Mrs Gunning for her very considerable assistance in this case.

2.	The Tribunal had disallowed the claimant’s appeal against a Departmental decision dated 26 June 2001 superseding an earlier decision which awarded Incapacity Benefit to the claimant and deciding that he was not entitled to that benefit from 26 September 1999 to 5 February 2000.  The grounds for supersession were that there had been a relevant change of circumstances in that the claimant worked from 1 October 1999 to 31 January 2000 and the work was not in an exempt category, by reason of regulation 16 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.  At a “paper hearing” the Tribunal disallowed the appeal.

3.	The background to the case was that the claimant had been accepted as unfit for work from 1 February 1999 by reason of suspected heart attack, rheumatoid arthritis, inflamed joints, skin problems, fatigue and recurrent cellulitis.  Later doctor’s statements referred to chest pains and rheumatoid arthritis.  The claimant had informed the Department on 10 September 1999 that he had undertaken a small amount of work for less than 16 hours per week and less than £40 per week income.  He had written again to the Department on 25 June 2000 informing it of the “therapeutic” work and enclosing a letter from his General Practitioner approving the work as beneficial.

4.	The Department carried out some investigations and eventually disallowed the benefit.  The claimant appealed to the Tribunal which, as mentioned above, disallowed the appeal.  The grounds of appeal were contained in letters dated 17 July 2001 and 25 July 2001 (both of which were before the Tribunal). The latter of these indicated frequent serious infections during the period 1 October 1999 to 31 January 2000 and referred to work having been attempted “in the very brief breaks between infections”.

5.	On appeal to me both parties expressed the view that the Tribunal had erred in law in not exploring adequately the precise weeks when the claimant did and did not work.  I also consider that the Tribunal erred in law in that respect.  It is unfortunate that the claimant did not seek a hearing by the Tribunal. However, the letters mentioned above should have alerted the Tribunal to the fact that there was an issue to be explored as to whether or not the claimant did the alleged work on every week in the relevant period.  The Tribunal did not explore the matter and it was in breach of its inquisitorial role in failing so to do.  I set the decision aside as in error of law for that reason.

6.	I consider that this is a case where I can give the decision which the Tribunal should have given.  I took evidence from the claimant which I accept finding him to be an honest and reliable witness.  He informed me, and I accept, that he suffered severe side effects from the drugs prescribed for rheumatoid arthritis, one of these being depression.  This sapped his “drive” to keep mobile in periods of exacerbation thereby creating a deterioration in his physical condition.  Prior to undertaking the work in question he had been frequently advised by his consultant to do something to keep his mind active to prevent deterioration in the rheumatoid condition and to counteract the depressive effect of the rheumatoid drugs.  The claimant discussed the matter with his General Practitioner (G.P.) (he had previously been offered the work) and the G.P. recommended some type of work.  He then undertook the work.  The GP’s view was that non-physical, stimulating work would help him.

7.	The work did improve the depressive symptoms but unfortunately there was a physical deterioration which in retrospect (and now being on a different and new drug regime) the claimant attributes to the drugs.  However, the work did significantly alleviate the depression which itself caused flares in the rheumatoid condition.

8.	The claimant informed me that he worked most weeks in the period 1 October 1999 to 31 January 2000.  Mrs Gunning accepted that the earnings were within the limits set by regulation 17(2) of the said Regulations.  I find that the earnings were within those limits being less than £40 per week.  

9.	I consider that the work which the claimant undertook was exempt work within regulation 17(1) being undertaken on the advice of a doctor, which helped delay deterioration in the rheumatoid arthritis by alleviating the depression caused by the drugs and the resultant immobility.  The arthritis was one of the conditions causing incapacity for work.

10.	The work was within the category of exempt work in regulation 17(1)(a) and within the weekly limits in regulation 17(2).  It therefore fell within the exemption in regulation 16(1) and the claimant was not to be treated as capable of work because of it. The decision of 7 March 1999 which awarded incapacity benefit should not have been superseded.

11.	My decision is that the claimant is entitled to Incapacity Benefit for the period 26 September 1999 to 5 February 2000 (both dates inclusive).

(Signed):  M F BROWN

COMMISSIONER

14 APRIL 2003