[2009] NISSCSC C5_08_09(IB) (05 May 2009)

Decision No:  C5/08-09(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 29 August 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 29 August 2007 is in error of law. The error of law identified will be explained in more detail below.

2.	Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against. 

3.	I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. This is because there are further findings of fact which require to be made. Further I do not consider it expedient to make such findings, at this stage of the proceedings, as the findings in fact process will require a medical input. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination. 

	Background

4.	On 24 April 2007, a decision-maker of the Department superseded an earlier decision of the Department, dated 27 September 2006 and which, in turn, had awarded an entitlement to incapacity benefit (IB) from and including 4 September 1996. Further, the decision-maker decided that the appellant was not entitled to IB from and including 24 April 2007.

5.	An appeal against the decision dated 24 April 2007 was received in the Department on 1 May 2007.

6.	The appeal was heard by an appeal tribunal on 29 August 2007. The appellant was present at the oral hearing of the appeal but was unrepresented.

7.	The appeal was disallowed and the appeal tribunal confirmed that the appellant was not entitled to IB, from and including 24 April 2007.

8.	A statement of reasons for the appeal tribunal’s decision was issued to the appellant on 30 November 2007 following an extension of the statutory time limit for requesting such a statement by the legally qualified panel member (LQPM).    

9.	On 31 December 2007 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service. The application cited medical grounds and also raised an issue concerning an operation which the appellant stated he had in March 2007.

10.	On 16 January 2008, the application for leave to appeal was refused by the LQPM.

	The proceedings before the Social Security Commissioner

11.	A further application for leave to appeal was received in the Office of the Social Security Commissioners on 15 February 2008. The same or similar grounds were cited and an additional medical complaint of alcoholism was also raised.

12.	Observations on the original application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 28 April 2008. DMS opposed the application on all grounds cited. 

13.	On 27 June 2008, a further submission was received from the Law Centre (NI) who requested to be noted on record as representative for the appellant. The further submission suggested that the appeal tribunal had erred in law by not considering whether regulation 27 of Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, applied to the appellant. This submission was made in light of the evidence of the further operation which took place in March 2007. The decision of the Social Security Commissioner in R4/01(IB) was cited in support of this suggestion. The further submission also indicated that an incorrect ground for supersession was noted by the appeal tribunal in its decision.

14.	The Law Centre’s submission was shared with DMS. On 21 July 2008 DMS replied. In the reply DMS continued to oppose the application indicating, in respect of the submission concerning the application of regulation 27, that it is implicit that the appeal tribunal did consider the application of regulation 27. DMS also accepted that the appeal tribunal had applied an incorrect ground for supersession, DMS did not accept, however, that this error was sufficient to vitiate the decision, submitting that the appeal tribunal had correctly applied the correct effective date of supersession. DMS went on to submit that even if the error, in relation to the application of the incorrect ground for supersession, was accepted by me they invited me to make the decision which the appeal tribunal should have made.

15.	A further submission, in response, was received from the Law Centre on 7 August 2008. In this submission the Law Centre disagreed with the interpretation of R(IB) 2/04 which had been forwarded by DMS arguing that in light of a proper interpretation of the relevant caselaw the appeal tribunal was required to record whether it considered that regulation 27 applied. 

16.	The Law Centre agreed, however, with the further submissions made by DMS in connection with the appropriate ground for supersession accepting that either any error in this respect did not vitiate the decision or, if that error did so vitiate the decision, I could make the decision which the appeal tribunal should have made and, in so doing, identify the correct ground for supersession.          

17.	It is important to note, for the sake of certainty of proceedings, that there had been some confusion as to whether or not the application for leave to appeal to the Social Security Commissioner was late. A determination accepting the application was signed by the Chief Commissioner on 11 September 2008.

18.	I granted leave to appeal on 15 October 2008. The reasons which I gave for granting leave to appeal were that arguable issues arose as to:

(i)	the extent to which the appeal tribunal considered whether regulation 27 of Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, applied to the appellant; and

(ii)	whether the appeal tribunal identified the correct ground for superseding an earlier decision of the Department. 

19.	I directed an oral hearing of the appeal which took place following the receipt of skeleton arguments from both DMS and the appellant’s representative on 22 January 2009. At the oral hearing the appellant was represented by Mr Hatton from the Law Centre (Northern Ireland) and the Department was represented by Mr Collins of DMS. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

	Errors of law

20.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

21.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.” 

	The error in the present case

(i) The application of regulation 27 of Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

22.	Regulation 27 has been the subject of considerable amendment since its introduction in 1995. It is accepted by all of the parties to the proceedings that the version of regulation 27 which was in force at the date of the decision under appeal, and indeed at the date of the decision of the appeal tribunal, was as follows:

’27. A person who is not incapable of work in accordance with the personal capability assessment shall be treated as incapable of work if –

(a)	he suffers from a previously undiagnosed potentially life-threatening condition;

(b)	he suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work;

(c)	he suffers from a severe uncontrolled or uncontrollable disease; or

(d)	he will, within three months of the date on which the doctor examines him, have a major surgical operation or other major therapeutic procedure,’

23.	The derivation of this version of regulation 27 is regulation 2 of the Social Security (Incapacity for Work) (General) (Amendment) Regulations (Northern Ireland0 2005, which came into operation on 10 February 2005.

24.	It is important to note, at the outset of the consideration of regulation 27, that the exceptional circumstances set out in paragraphs (a)-(d) only apply to treat a claimant as incapable of work where it has already been determined that the claimant is not incapable of work in accordance with the personal capability assessment.

25.	An earlier version of regulation 27 was considered by Commissioner Brown in R4/01(IB). However her comments on how adjudicating authorities, including appeal tribunals, should consider the general applicability of regulation 27 are apposite. Commissioner Brown concluded, at paragraphs 7-8, that in circumstances where a tribunal had evidence of admission for an operation within a few weeks of the decision under appeal to it the appeal tribunal erred in not considering the application of regulation 27.

26.	How was regulation 27 dealt with in the present case?

27.	In order to assess the appellant’s capacity for work he was examined by a medical officer of the Department. The examination took place on 12 March 2007, and a copy of the report of the medical examination is attached to the original appeal submission, as Tab No. 4. 

28.	The report is in the standard Departmental format, utilising the usual Form ‘IB85’ for the purpose. 

29.	Box 1, on page 3, of Form IB85 asks the medical officer to ‘please report details of any hospital treatment or investigations within the last 12 months’. In the instant case, the medical officer has completed Box 2, as follows:

‘Attended Orthopaedic OP [Mr C]/ MPH
-	2 mths ago
-	awaiting arthroscopy – Frid 16th March’

30.	The name of the person noted as having attended by the appellant is illegible. The medical officer has not only looked back at hospital treatments or investigations, within the previous 12 months as requested, but has also looked forward to what appears to be an ‘arthroscopy’ due to be held on Friday 16 March. The 16 March 2007 was indeed a Friday. 
 
31.	Page 4 of Form IB85 is headed ‘Description of functional ability’. On page 4 the following is noted amongst other things:

‘… lengthy waiting list for scan so having arthroscopy Friday 16.3.07’

	In Box 11 on page 7 of Form IB85 the following is noted:

‘He is to attend MPH for arthroscopy on Friday 16th March.’

32.	Page 22 of Form IB85 is headed ‘Exceptional circumstances’. The medical officer is asked to provide advice on four separate issues, all of which relate to the four circumstances set out in regulation 27. A further part of page 22 provides space for the medical officer to ‘justify’ the answer which he has given and, if he is of the view that one or more of the exceptional circumstances apply, to ‘clearly identify the evidence’ which led to the giving of that advice.

33.	The clear purpose of this part of the report is to provide a subsequent decision-maker with information and, where relevant, supporting evidence to assist the decision- maker to decide whether any of the exceptional circumstances within regulation 27 apply.

34.	The fourth issue on which the medical officer is asked to give advice is ‘will, [the claimant] within three months of the date on which the doctor examines him, have a major surgical operation or other major therapeutic procedure’.          

35.	In the instant case, the medical officer has ticked the box ‘no’ in response to the request for the advice and in the box below has indicated:

‘No major surgery 	- for arthroscopy 16.3.07
- considered minor surgery’

36.	The medical officer also ticked the boxes ‘no’ in connection with the other three issues on which he was requested to give advice.

37.	In his letter of appeal against the Departmental decision, undated but attached to the original appeal submissions as Tab No. 7, the appellant has stated:

‘I am in recovery from a knee operation a few days after my appointment with your doctor. I informed your doctor that I was going for this operation. I have since been back to the hospital and have been referred to the rhumatology [sic]clinic.’ 

38.	In the original appeal submission, at Section 18, the appeals writer addresses the ‘Grounds of Appeal’. After noting what the appellant had stated in his letter of appeal, the appeals writer stated:

‘When a customer is not incapable of work in accordance with the personal capability assessment he/she can be treated as incapable of work if they satisfy any of the exceptional circumstances set out in law i.e. Regulation 27 of the Incapacity for Work Regulations.

However, as can be seen [Dr M] was fully aware that (the claimant) was to have an Arthroscopy on 16th March 2007 and has recorded that this is considered minor surgery (Box 59). I would draw the Tribunal’s attention to paragraph 15 of the submission and submit that regulation 27 cannot assist (the claimant) because the Arthroscopy, although carried out within 3 months of the examination, is not a major surgical operation or other major therapeutic procedure.’

39.	It is clear, therefore, that the Department has considered the applicability of regulation 27. The Department has accepted that the appellant had had an arthroscopy on 16 March 2007 and, that for the purposes of regulation 27(d), while this was within three months of the date of the examination by the medical officer of the Department, which had taken place on 12th March 2007, it did not amount to ‘a major surgical operation or other major therapeutic procedure’.  Accordingly, the appellant already having been found not to be incapable of work in accordance with the personal capability assessment, could not be treated as incapable of work in accordance with regulation 27.

40.	It was clear, therefore, that the issue of the possible application of regulation 27 was one of the issues that was raised by the appeal and was one which required to be addressed by the appeal tribunal. How did the appeal tribunal address that issue?

41.	To begin with the appeal tribunal addressed the primary issue raised by the appeal which was whether the Department, on 24 April 2007, had grounds to supersede the earlier decision of the Department, dated 27 September 2006 and which, in turn, had awarded an entitlement to IB from and including 4 September 1996. In so doing, the appeal tribunal was considering whether the appellant was incapable of work in accordance with the personal capability assessment. 

42.	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) Social Security Contributions and Benefits (Northern Ireland) Act 1992.

43.	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.

44.	The appeal tribunal’s decision in connection with that issue was that the application of relevant descriptors to relevant activities means that the appellant scored 12 points. The appellant, therefore, failed to satisfy the personal capability assessment in that he was not incapable, by reason of some specific disease or bodily or mental disablement, to perform certain of the activities as prescribed in the relevant legislation.

45.	Having determined that the claimant is not incapable of work in accordance with the personal capability assessment the appeal tribunal was under a duty to consider whether any of the exceptional circumstances set out in regulation 27 applied to the appellant so that he could be treated as incapable of work. 

46.	In its statement of reasons for its decision, the appeal tribunal noted the following, in respect of the ‘arthroscopy’ undergone by the appellant on 16 March 2007:

‘He had an operation shortly after the examination by the Medical Officer in which the knee was “… cleaned out”. The result of the operation is that the right knee only locks every so often whereas it would lock every 2 to 3 hours.

The Medical Officer was of the opinion that the Appellant may have some torn cartilage in the knees or indeed debris which could cause some mild problems on prolonged weight-bearing with pain/discomfort and intermittent locking. The operation mentioned above would appear to support that opinion.’

47.	Thereafter, there is no specific reference to regulation 27 and no link between the comments on the ‘arthroscopy’ and the potential application of that regulation.   

48.	In written and oral submissions to me, Mr Collins, on behalf of the Department, submits that the appeal tribunal in the instant case, unlike the appeal tribunal in R 4/01(IB), did in fact refer to the operation or arthroscopy undergone by the appellant. Further, whilst it would have been preferable for the appeal tribunal to refer specifically to the provisions of regulation 27 it is implicit that the appeal tribunal has considered its application and decided that the appellant could not benefit from it. In this respect, Mr Collins refers to another statement in the statement of reasons, as follows:

‘In any event we accept the opinions, observations and findings of the Medical Officer as an accurate reflexion [sic] of the Appellant’s capabilities.’ 

49.	Mr Collins submits that by accepting all the ‘opinions, observations and findings’ of the medical officer, the appeal tribunal was, by implication, accepting those opinions, observations and findings in connection with regulation 27.

50.	Mr Hatton, on behalf of the appellant, concedes that the appeal tribunal in the instant case, unlike the appeal tribunal in R4/01(IB), did refer to the operation or arthroscopy undergone by the appellant. He submits, however, that the appeal tribunal was under a duty to make an express reference to regulation 27, make findings in fact in connection with that regulation and set out its determination in respect of it.

51.	With respect to the articulate submissions made by Mr Collins with respect to regulation 27, I cannot accept them. While I agree that the appeal tribunal did make reference to the operation or arthroscopy undergone by the appellant it did not, in my view, do so in respect of a determination as to whether the exceptional circumstances in regulation 27 applied to the appellant. The reference to regulation 27 is, in my view, part of the appeal tribunal’s overall assessment of the evidence in connection with its determination of whether the appellant was incapable of work in accordance with the personal capability assessment. 

52.	As was noted above, the primary issue before the appeal tribunal was whether the appellant was incapable of work in accordance with the personal capability assessment. Having done so, and determined that the appellant was not so incapable, the appeal tribunal was under a duty to consider whether the appellant satisfied any of the exceptional circumstances set out in regulation 27 applied to him. That required the appeal tribunal to acknowledge, in its statement of reasons, that the application of regulation 27 was considered by the appeal tribunal. It required the appeal tribunal to make sufficient findings of fact in connection with those exceptional circumstances. In the instant case that would have involved findings in fact in connection with the timing of any medical intervention ie within three months of the date on which the doctor examines him. More importantly, it would have involved the making of sufficient findings in fact as to whether any medical intervention amounted to ‘a major surgical operation or other major therapeutic procedure’. Finally, the issue having been raised by the appellant, in his letter of appeal, and in his oral evidence to the appeal tribunal, the appellant was entitled to know, through the statement of reasons, what was the appeal tribunal’s determination in connection with the potential application of regulation 27, and the reasons for its conclusions in connection with it. As was noted above, the statement of reasons for the appeal tribunal’s decision is silent on all aspects of regulation 27. 

53.	Having found that the appeal tribunal was under a duty to consider whether any of the exceptional circumstances set out in regulation 27 applied to the appellant and, having failed to consider that regulation, explain in its statement of reasons that it has so considered it I find that the decision of the appeal tribunal is in error of law.

54.	I would note, at this stage, that in the majority of cases in which an appeal tribunal is considering whether the appellant is incapable of work in accordance with the personal capability assessment, the further issues of whether he also satisfies the exceptional circumstances in regulation 27, will not be relevant. Nonetheless, it will be safest and best practice for appeal tribunals to note that the regulation was considered. I am aware that many LQPMs of appeal tribunals have aide-memoirs to assist in ensuring that all issues in connection with personal capability assessment appeals have been considered. In my view, such aide-memoirs should also contain a reminder to consider regulation 27. Where a statement of reasons for the appeal tribunal’s decision is requested it will also be safest and best practice to make a reference therein that the application of regulation 27 was considered but was discounted. That will not be an onerous duty for appeal tribunals. Where regulation 27 is not relevant a simple statement to that effect is sufficient.

55.	Where, of course, regulation 27 has a potential relevance there is a greater duty on the appeal tribunal to consider that application, as indicated in paragraph 52 above.       

(ii)	The identification of the correct ground for supersession

56.	Both Mr Collins for the Department and Mr Hatton for the appellant submitted that the appeal tribunal also erred in law by failing to identify the correct ground for supersession. Both also submitted, however, that the error would not be sufficient to vitiate the decision.

57.	The decision notice for the appeal tribunal’s decision reads as follows:

‘Appeal disallowed

Department correct to supersede the decision awarding Benefit on the basis of a change of circumstances. Appellant is not incapable of work and not entitled to Incapacity Benefit from and including 24.4.07.’

58.	Thereafter, there is no reference in the statement of reasons for the appeal tribunal’s decision to the fact that the decision under appeal was a decision, dated 24 April 2007, in which a decision-maker of the Department superseded an earlier decision of the Department, dated 27 September 2006 and which, in turn, had awarded an entitlement to IB from and including 4 September 1996.

59.	In C7/08-09(IB), at paragraphs 41 to 44, and 49 to 53, I said the following about identifying the correct ground for supersession in IB appeals:

‘41.	Regulation 6(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, reads as follows:

‘Supersession of decisions

6.—(1) Subject to the following provisions of this regulation, for the purposes of section 10, the cases and circumstances in which a decision may be superseded under that section are set out in paragraphs (2) to (4).’

42.	Regulation 6(2)(g) reads as follows:

‘(g) is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision) and where, since the decision was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Incapacity for Work Regulations from a doctor referred to in paragraph (1) of that regulation;’

43.	Regulation 6(2)(g) was introduced through amendments introduced in 1999 through the Social Security and Child Support (Decisions and Appeals) (Amendment No. 2) Regulations (Northern Ireland) 1999, as amended. The purpose of the amendment was to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession. Previously, case-law had held that the obtaining of a new medical opinion did not itself amount to a change of circumstances justifying a supersession on that ground – R(IS) 2/97 and R(DLA) 6/01.

44.	While regulation 6(2)(g) has been, since its introduction, the principal basis on which decisions relating to IB have been superseded, it is important to note that this does not mean that there cannot be a supersession on any other ground contained in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. It is possible to supersede, for example, on the basis that there had been a relevant change of circumstances, under regulation 6(2)(a)(i). To do so would require the decision-making authority to identify the relevant change of circumstances, and the date from which the supersession took effect.’   

…

‘49.	As has already been noted, in an IB case, it is possible to supersede a decision awarding entitlement to the benefit, on the basis that there had been a relevant change of circumstances, since the decision was made. Such a supersession would be made under the legislative power given in regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

50.	To supersede on this basis would require the decision-making authority, in this case the appeal tribunal: 

(i)	to identify what the relevant change of circumstances was; and 
(ii)	identify the date from which the supersession took effect.

51.	It is my view that the appeal tribunal made an error in identifying the correct ground for supersession. The legislative provisions which make provision for the supersession of decisions, and the date from which a supersession decision should take effect, namely Article 11 of the Social Security (Northern Ireland) Order 1998 and regulations 6 and 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, are complex. There is a temptation to assume that the natural ground on which a supersession decision has been made is ‘change of circumstances’. 

52.	The cases and circumstances under which a decision may be superseded are more varied than ‘change of circumstances’, however, and specific provisions have been included to deal with discrete situations, such as supersessions in respect of IB. The appeal tribunal was given clear guidance by the decision-maker, and the appeals writer, on the apposite legislative basis on which the supersession decision was undertaken. It is essential that appeal tribunals are satisfied that the correct ground has been identified, and that the supersession decision takes effect from the correct date.

53.	Even if the appeal tribunal had in mind that the correct ground for supersession was a relevant change of circumstances, under regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, it has not explained what that change was and, more importantly, why the change and, by implication the supersession, took effect from the identified date ie 18 July 2007. Accordingly, even if the appeal tribunal was not in error by failing to identify the correct ground for supersession, it was in error in following through with the ground which it did identify.’ 

60.	In C9/08-09(IB), I added the following, at paragraphs 43 to 46:

43.	In the present case, it is arguable that the appeal tribunal had in mind, and intended to apply, the regulation 6(2)(a)(i) ‘change of circumstances’ ground, as an alternative to the regulation 6(2)(g) ground, which had formed the basis of the decision under appeal. To support that argument, the appeal tribunal, in the SORs, has indicated that it is of the view that there has been a relevant change of circumstances, namely an improvement in the appellant’s ‘condition’. Further, a change of circumstances is mentioned in the appeal tribunal’s decision notice.

44.	I am not convinced, however, that the appeal tribunal did intend to apply the regulation 6(2)(a)(i) ‘change of circumstances’ ground, as an alternative to the regulation 6(2)(g) ground. Change necessarily involves comparison of the circumstances as they were at the time of the original decision and circumstances at the date of the supersession decision.  There is no further explanation, in the SORs, for example, as to how such a comparison was made.  

45.	Even if the appeal tribunal had in mind that ‘relevant change of circumstances’ was the correct ground, it has not explained why the change and, by implication the supersession, took effect from the identified date ie 22 August 2007. Accordingly, even if the appeal tribunal was not in error by failing to identify the correct ground for supersession, it was in error in not following through with the ground which it did identify.

46.	It is essential that appeal tribunals are satisfied that the correct ground has been identified, and that the supersession decision takes effect from the correct date. It is not enough, as DMS suggest in their submissions, that its implicit from the appeal tribunal’s decision notice and SORs, that the correct ground for supersession has been applied. In this regard, I refer to my comments in C12/08-09 (DLA), at paragraphs 52 and 57:

‘52.	The appeal tribunal’s duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it has done so. It is not sufficient for it to be, as DMS suggests, implicit from the appeal tribunal’s documentation that the supersession issue was addressed. That consideration must be explicit from the decision notice, the statement of reasons or a combination of both. In the present case, I am of the view that it is not even implicit that consideration was given to the supersession issue.   

57.	DMS submits that it may have been preferable for the appeal tribunal to refer specifically to the grounds for supersession in the conclusion to its statement of reasons. It is not preferable but essential that it should do.’ 
 
61.	Accordingly I would agree that the appeal tribunal erred in law in failing to identify the correct ground for supersession in the present case. I would, additionally, have set aside the decision of the appeal tribunal on that basis. Absent, however, the issues relating to regulation 27, already set out above, I would have adopted the findings of fact made by the appeal tribunal in connection with the personal capability assessment and exercised the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given, which would have been to the same effect.

	Disposal

62.	The decision of the appeal tribunal dated 29 August 2007 is in error of law. 

63.	Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against. 

64.	I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. This is because there are further findings of fact which require to be made. Further I do not consider it expedient to make such findings, at this stage of the proceedings, as the findings in fact will require a medical input. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination. 

65.	The newly-constituted appeal tribunal is reminded that the decision under appeal is a decision dated 24 April 2007 in which a decision-maker of the Department superseded an earlier decision of the Department dated 27 September 2006 and which, in turn, had awarded an entitlement to IB from and including 4 September 1996. Further, the decision-maker decided that the appellant was not entitled to IB from and including 24 April 2007.

66.	Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 24 April 2007 had grounds to supersede the decision dated 27 September 2006. 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.

67.	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) Social Security Contributions and Benefits (Northern Ireland) Act 1992.

68.	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.

69.	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.

70.	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. 

71.	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):  Kenneth Mullan

Commissioner

5 May 2009