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THE SOCIAL SECURITY COMMISSIONERS
Commissioner’s Case No: CSIB/279/05
DECISION OF SOCIAL SECURITY COMMISSIONER
1. In my judgment this case is one suitable for summary decision by the Commissioner. Both the claimant and the Secretary of State have expressed the view that the decision of the Glasgow appeal tribunal dated 18 November 2004 is erroneous in law. Having considered the decision I have decided to exercise the power conferred by section 14(7) of the Social Security Act 1998. Leave to appeal was granted by the district chairman, Mr Gamble, who as a Deputy Commissioner in CIB/2821/2004 decided that the amendment to descriptor 15(c) from 6 January 1997 was ultra vires; the non-satisfaction of 15(c) was critical in the present case.
2. Further and in exercise of the power conferred by regulation 19(3) of the Social Security Commissioners (Procedure) Regulations 1999 I dispense with the procedure set out in paragraphs (1) and (2) thereof.
3. I set aside the said decision of the appeal tribunal and refer the case to another tribunal for determination afresh in accordance with the directions following.
4. The new tribunal must give particular attention to the potential applicability of descriptor 15(c). I take the view that the amendment adding ‘or television’ to the text of that descriptor was not ultra vires because it has added an extra hurdle for the decision maker (DM) rather than being adverse to the claimant; if a claimant is not able to concentrate to read a magazine article and also to follow both a radio and television programme, he or she satisfies the descriptor. The claimant may well have no interest in carrying out all these activities, even if mentally well, so that inferences will have to be drawn from analogous capabilities using concentration.
5. But I do not feel able to say with confidence that less concentration is needed to follow a programme in the medium of television than in that of radio, as does the learned Deputy Commissioner. However, the practical result of his approach and mine in the present case is the same because, if the DM has not satisfied the tribunal that the claimant can concentrate to follow a radio programme, it is irrelevant whether the claimant can do so to follow a television programme.
6. The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them. Although the claimant has been successful in her appeal limited to issues of law, the decision on the facts in her case remains open.
L T PARKER
Date: 13 May 2005