DMcK-v-Department for Social Development (IB) [2010] NICom 52

			Decision No: C8/10-11(IB)

SOCIAL SECURITY ADMINISTRATION (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 18 September 2009 

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against a decision of an appeal tribunal, dated 18 September 2009, to the effect that the applicant did not satisfy the conditions of entitlement for an award of incapacity benefit (IB) credits from and including 25 February 2009.

2.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the application can properly be determined without a hearing.

3.	Leave to appeal is granted.

4.	By virtue of regulation 11(3) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, I treat and determine this application as an appeal as both parties have given their consent.

5.	The applicant has submitted that the appeal tribunal erred in law in that the activities of sitting, walking and stairs were not addressed specifically by the appeal tribunal, while problems with rising from sitting and bending and kneeling were accepted.   

6.	The Department, through Mr Toner of Decision Making Services, has submitted that the tribunal erred in law on the basis that: 

	(i)	the appeal tribunal’s completion of the personal capability scoresheet with respect to two of the activities relating to the personal capability assessment – standing and walking up and down stairs – did not reconcile with its conclusions with respect to these descriptors in the statement of reasons for the appeal tribunal’s decision; and

	(ii)	the appeal tribunal failed to make explicit its determination, findings and conclusions with respect to the issue of supersession.  

7.	Therefore, it is clear that both parties have expressed the view that the decision appealed against was erroneous in point of law.

8.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

9.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to IB credits, for a particular period, remains to be determined by another appeal tribunal. 

10.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following.

11.	The decision under appeal is a decision of the Department, dated 25 February 2009, which superseded an earlier decision of the Department dated 10 July 2008 and which decided that the applicant was not entitled to IB credits from and including 25 February 2009.

12.	Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 25 February 2009 had grounds to supersede the decision of the appeal tribunal dated 10 July 2008. The ground for supersession on which the decision-maker relied is to be found in regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, namely that since the decision awarding IB was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, from a doctor referred to in paragraph (1) of that regulation.

13.	The test of incapacity for work, applicable to the appellant, was the personal capability assessment. The personal capability assessment is an assessment of the extent to which a person who has some specific disease or bodily or mental disablement to perform certain of the activities as prescribed - section 167A(1), 167C(1) and (2) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

14.	The prescribed activities are to be found in Parts I and II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

15.	If the appeal tribunal determines that the appellant is not incapable of work in accordance with the personal capability assessment then it must then decide whether any of the exceptional circumstances set out in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, apply to the appellant. Guidance as to the approach to be taken to regulation 27 is to be found in R 4/01(IB), C22/01-02(IB), CIB/14667/1996, and CIB/1381/2008.

16.	It will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal. The appellant’s representative may wish to make a submission to the appeal tribunal, and adduce further evidence in connection with that submission, as to the potential application of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

17.	It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it. 

	Signed):  K Mullan

	COMMISSIONER

	4 June 2010