[2006] NISSCSC C7_05_06(IB) (29 March 2006)

Decision No: C7/05-06(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 2 August 2005

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 30 January 2006 for the following reasons:

	“It is arguable that the decision was wrong in law, because

(i)	the tribunal appears to have applied the wrong burden of proof to the facts of the case as the burden of proof was on the Department, which was contending that the award should be changed, not on the claimant; and

(ii)	the tribunal has not made clear which particular mental health descriptors warranted the award of five points under the personal capability assessment.”

3.	The claimant, who is represented by Mr Noel Kelly, has submitted that the tribunal’s decision is erroneous in point of law.  The Department, through Mr Simon Sloan of Decision Making Services, has also submitted, by letter dated 25 November 2005, that the tribunal’s decision is erroneous in point of law.

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

5.	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 re-determination.

John A H Martin QC

Chief Commissioner

29 March 2006