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Neutral Citation Number:
Reported Number:	R(IS)10/05
File Number:	CIS 1657 2004
Appellant:
Respondent:
Judge/Commissioner:	Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision:	15/02/2005
Date Added:	29/03/2005
Main Category:	Income support and state pension credit
Main Subcategory:	other: income support
Secondary Category:	Income support and state pension credit
Secondary Subcategory:	other: income support
Notes:	Prescribed category of person - claimant found capable of work - duty of the Secretary of State to consider all prescribed categories - correct approach to category of "disabled worker" The claimant was receiving income support on the basis of incapacity for work. It was discovered that she had been working and a decision was made on behalf of the Secretary of State that she was to be treated as capable of work for a number of specified past periods. On the basis of that decision, which was not produced to the tribunal, a decision was made that she was not entitled to income support for specified periods and was entitled to reduced income support for other periods. Income support paid in excess of entitlement was determined to be recoverable because she had failed to disclose the material fact that she had been working. The claimant appealed the income support decisions to a tribunal and an appeal tribunal dismissed her appeal. The claimant appealed to the Commissioner. Held, allowing the appeal, that: 1. the fact that a claimant no longer falls within one of the categories prescribed by Schedule 1B to the Income Support (General) Regulations 1987 for entitlement will not usually be a ground for superseding a decision awarding income support unless, on a balance of probabilities, he or she does not fall within any other prescribed category (paragraph 16); 2. the circumstances prescribed by paragraph 8 and regulation 6(4)(a) of Schedule 1B (disabled workers) are such that decision-makers and appeal tribunals will usually need to give express consideration to it in cases where a claimant has been in receipt of income support on the basis that he or she is incapable of work and that benefit is then stopped on revision or supersession because the claimant is engaged in work which is not "exempt work" (paragraph 22); 3. where the evidence suggests that another prescribed category may be relevant, then in the exercise of their inquisitorial jurisdiction, the tribunal must consider that possibility irrespective of whether it is also raised by either of the parties (Kerr v Department for Social Development (R 1/04 (SF)), R(IS) 11/99, CIS/1997/2002 followed) (paragraphs 25 to 28); 4. in the absence of evidence of the precise terms of the original decision of the incapacity benefit decision-maker it would be difficult for the Secretary of State to show that the income support decision had been correctly superseded (paragraphs 30 to 35). The Commissioner remitted the case to a new tribunal to decide whether the Secretary of State had established a valid supersession and if so to decide whether the claimant was a disabled worker in accordance with directions given in paragraphs 37 to 38.
Decision(s) to Download:	R(IS) 10_05 bv.doc