[2007] UKSSCSC CIS_4104_2006 (27 March 2007)

CIS/4104/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Oxford appeal tribunal dated 14 September 2006 and I refer the case to a differently constituted appeal tribunal for determination.  I direct the Secretary of State to make a further submission to the tribunal as to whether the claimant falls within the scope of paragraph 8 of Schedule 1B to the Income Support (General) Regulations 1989 (S.I. 1987/1967 as amended).  That may require him to carry out further investigations first.

REASONS

2.	The claimant says she suffers from agoraphobia but her doctor says it is claustrophobia.  Perhaps she suffers from both.  In any event, she is not well and is under the care of a community mental health team.  It appears that she had been working for 6¾ hours a week while in receipt of income support on the basis that she was incapable of work.  On 16 May 2006, it was decided that she had not been incapable of work because the work she had being doing was not “exempt”, although it was said to be “to build up her self-esteem” and, on 22 May 2005, it was decided that she was not entitled to income support from 24 May 2006.  She claimed jobseeker’s allowance, although whether the claim was successful or not I do not know.  She appealed against the decision that she was not entitled to income support. The Secretary of State made a submission to the tribunal.  Paragraph 5.5 read –

“The law provides that a person to whom any paragraph of Schedule 1B [to the 1987 Regulations] applies falls within a prescribed category of person for the purposes of section 124(1)(e) of the Contributions and Benefits Act (entitlement to income support).  I submit [the claimant] does not satisfy any of the prescribed categories for claiming income support.”

The best that can be said about that is that it pointed the tribunal towards the relevant legislation.  However, as the terms of Schedule 1B were not set out and explained, it gave no guidance to the claimant as to what the relevant issues were.  She, perhaps understandably in view of her disablement, asked for her appeal to be heard on the papers.  The suggestion in her letter of appeal that there be a domiciliary hearing had been ignored.  The tribunal dismissed the appeal on the ground that the claimant was not incapable of work.  The claimant now appeals against the tribunal’s decision with my leave and the support of the Secretary of State.

3.	The evidence before the tribunal plainly raised the question whether the claimant was a “disabled worker” within the scope of paragraph 8 of Schedule 1B to the 1987, particularly because, as in R(IS) 10/05, she had been regarded as not incapable of work only because she was working.  Although the claimant had asked for the appeal to be heard on the papers, the tribunal should have adjourned for further enquiries to be made of the claimant because the Secretary of State had clearly not addressed the issue or even made the claimant aware of what the issue was.

	(signed on the original)	MARK ROWLAND
		Commissioner
		27 March 2007