SAM-v-Department for Social Development(IB) [2010]NICom 07
Decision No:  C3/10-11(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 24 July 2008

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 24 July 2008, to the effect that the applicant did not satisfy the conditions of entitlement for an award of incapacity benefit (IB) from and including 10 March 2006.

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 statement of reasons for the appeal tribunal’s decision fails to give an adequate explanation as to why the voluminous medical evidence which was submitted to the appeal tribunal, and which was supportive of the appellant’s oral evidence, was rejected by the appeal tribunal.

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

	(i)	how the appeal tribunal dealt with the supersession issue; and

	(ii)	how the appeal tribunal addressed the activity of ‘continence’ in connection with the personal capability assessment and, more particularly, the failure of the appeal tribunal in considering the issues of ‘frequency’ and ‘urgency’ which had been raised during the course of the appeal tribunal hearing.

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, 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:

	(i)	the decision under appeal is a decision of the Department, dated 10 March 2006, which decided that the applicant was not entitled to IB from and including 10 March 2006;

	(ii)	the Department is directed to prepare an additional submission which addresses the issues relating to the ‘continence’ descriptor, as set out in its written observations on the application for leave to appeal to the Social Security Commissioner;

	(iii)	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; and

	(iv)	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

27 January 2010