THIS popular weekly column by welfare rights expert Jim Strang looks at a commissioner's decision (CIB/3899/1997) given on November 4, 1998. The decision concerns incapacity befit and confirms what representatives have argued since the introduction of incapacity benefit in 1995, when it replaced invalidity benefit.

BACKGROUND

It is often argued before social security tribunals that the way the DSS remove people from incapacity benefit was illegal. The DSS denied that this was the case. In fact, I have attended tribunals where the presenting officer stated that every incapacity benefit questionnaire and subsequent medical stood on its own and that nothing else had to be considered. The legal argument was that any previous medicals for incapacity benefit should also be considered by the adjudication officer before a decision is made. The DSS disagreed.

COMMISSIONER'S DECISION CIB/3899/1997 GIVEN ON NOVEMBER 4, 1998

In this case the person received National Insurance credits but no benefit. She had previously satisfied the all works test and did not have to supply further sick notes. The DSS again referred her for a further medical after completing a further questionnaire (IB 50). This time she failed the test and was deemed fit for work despite the fact her condition remained the same. The lady appealed and the tribunal who heard the case ruled in her favour, stating that the Adjudication Officer had to show that there were grounds for reviewing her entitlement. Commissioner Mesher stated that this was the case in a credits case so it is certainly the case where benefit is in payment.

The Commissioner also went on to say that if there had never been a previous assessment, then the mere fact that the Adjudication Officer carried one out would be a change in circumstances which is a ground for review. He went on to say that where there had been a previous assessment and the person was found to be unfit for work, then that decision had a continuing effect. Any decision bringing the entitlement to an end can only be achieved following a review for which there had to be grounds.

R(S)4/86 and CSIS/137/1994

The above Commissioner's decision clearly states that a different medical opinion does not of itself constitute a change in circumstances, although it may be evidence of an actual change in circumstances or a mistake of fact. This shows that because a different doctor who carries out the medical is only offering a different medical opinion, and that in itself is not grounds for a review.

WHAT DOES IT MEAN TO ME?

My understanding is that if the Adjudication Officer deciding your case does not consider any previous medical reports or decisions for the all works test, then they have not discharged the burden of proof placed upon them to prove that you are fit to work. The Adjudication Officer has to discharge that burden of proof before making an adverse decision. If they fail to do that benefit must be reinstated.

WHAT NOW?

If you have had your incapacity benefit withdrawn since November 4, 1998, and previously passed all the works test, then I would like to hear from you as this decision may have been illegal. If you were removed before that date then forward a new sick note to the DSS immediately. They should accept it.

JIM STRANG'S OPINION

Unfortunately anybody who had the benefit withdrawn before November 4, 1998, will not be able to take advantage of this Commissioner's decision and for that reason representation should be sought at an early stage.

If you need to know more about this or any other welfare rights matter, you can write to Jim Strang at Unit 7, 36 Beechwood Drive, Beechwood Estate, Birkenhead, enclosing an SAE. If you wish him to act on your behalf, call 606-1188, 10am - 4pm, Monday to Friday. His mobile 'phone number is 07930-104679.

Jim Strang represents clients on a 'no win, no fee' basis. Details are available from him.

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