Decision No: C2/04-05(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 23 October 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

2.	Leave to appeal was granted by a Commissioner on 10 June 2004 on the following grounds: -

“It is arguable that the decision was wrong in law, because the Tribunal failed to deal with an issue specifically raised by the claimant, namely, that her condition had not changed since she had previously been found to be incapable of work in accordance with the personal capability assessment.”

3.	The claimant, who is unrepresented, submitted, inter alia, that the Tribunal had erred in law in coming to its conclusion as the claimant’s condition had not changed since she first became incapable of work.

4.	The Department, through Mrs Gunning of the Decision Making and Appeals Unit, in a letter dated 12 March 2004, has submitted that the Tribunal’s decision was erroneous in law as the Tribunal failed to deal with an issue raised by the claimant, namely that her condition had not changed since she had previously been found to be incapable of work in accordance with the personal capability assessment.

5.	In addition, the Department, through Mr Morrison of the Decision Making and Appeals Unit, in a letter dated 5 July 2004, has submitted that the Tribunal’s decision was also erroneous in law, in accordance with the principles of law set out by Mrs Commissioner Brown in decision C15/03-04(IB) dated 21 June 2004, as the claimant had not been sent a direction pursuant to regulation 39(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.

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

7.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against and I refer the case to a differently constituted Tribunal for determination, which should deal specifically with the relevant issue raised by the claimant.  I note that the other defect in the Tribunal’s decision (which was not due to any fault on the part of the Tribunal but rather was due to an administrative failure) will be remedied by the new Tribunal re-determining the appeal.

(signed):  J A H Martin QC

Chief Commissioner

26 July 2004