Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1992] NISSCSC A9/92(MOB) (16 March 1992)

[1992] NISSCSC A9/92(MOB) (16 March 1992)

 


Application No: A9/92(MOB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

MOBILITY ALLOWANCE

Application by the above-named claimant for

leave to appeal to the Social Security Commissioner

on a question of law from the decision of the

Belfast Medical Appeal Tribunal

dated 16 March 1992

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against the decision of a Medical Appeal Tribunal which refused her a mobility allowance.
2. Claimant is a 42 year old married lady who has back problems. I arranged an oral hearing of her application for leave to appeal and while she was not represented at the hearing, she appeared accompanied by her husband. The Department was represented by Miss Brown.
3. The claimant's main complaint is that the Tribunal did not have all the medical records available to it and consequently was not in a position to arrive at a proper opinion on her condition. She also complained that the doctors which made up the Medical Appeal Tribunal were GPs who were not competent to make a medical decision on her. She said that she was being treated by a Consultant at the Royal Victoria Hospital and that it was essential that the Tribunal saw the records from that hospital. She said that it had not been pointed out to her that she could have asked for an adjournment. She said that she had applied for mobility allowance and for an attendance allowance on the advice of her General Practitioner and that she had been granted mobility allowance and attendance allowance at the lower rate, but whenever this was reviewed the mobility allowance was withdrawn but she got attendance allowance at the higher rate.
4. Miss Brown said that there clearly was some difficulty in getting the medical reports, that the Tribunal could have adjourned if it thought it desirable, but it obviously did not think it necessary. It was also entitled to go on and decide the matter on its own expert evidence and Miss Brown relied upon the recent decision of the Chief Social Security Commissioner for Northern Ireland in A14/91(MOB) which was on almost the same point; in which the Chief Commissioner said that the Tribunal was entitled to proceed to hear a case in the absence of medical records. Miss Brown also said that it was wrong to suggest that the Tribunal was not medically qualified to decide on these matters because in fact it was made up of two Consultants and not General Practitioners as suggested by the claimant.
5. I have considered all that has been said and I have read all the papers. I think that the decision of the Chief Commissioner in A14/91(MOB) referred to by Miss Brown is very relevant, and in which he said:-

"I agree at once that it is highly desirable that

all relevant medical evidence should be considered

by the Medical Appeal Tribunal before their decision

is reached. I am, however, well aware that in many

instances Tribunals have to manage with something less

than a claimant's complete medical record. It is an

unfortunate fact that hospital records frequently fail

to arrive on time. If the Tribunal considers that, by

reason of the nature of the case they cannot reach a

decision without seeing the records, the normal practice

is to adjourn the hearing to a later date. It is also

open to the claimant in any case to apply for an

adjournment, if it is thought that absent records might

affect the decision. Failure to grant such an application

would in my view constitute a breach of the rules of

natural justice. In the absence of any such application

for an adjournment, it must in my opinion be for the

Tribunal alone to decide, in the light of their medical

expertise, whether or not they have sufficient medical

evidence to enable them to adjudicate reasonably and

fairly upon the matter before them. It is evidently

agreed that in this instance there was no request for

an adjournment because of the absence of the medical

records, and in the ordinary way that would in my view

dispose of any suggestion that the Tribunal had erred

in law in deciding to proceed with the hearing. There

remains, however, the suggestion now made that the

appointee and the representative were not made aware

that the records had failed to arrive. If that was

indeed the position, I would again take the view that

there was a breach of the rules of natural justice."

6. It is no part of the function of a Commissioner to investigate in detail everything that is said or done in the course of a hearing before a Medical Appeal Tribunal, nevertheless it is relevant for me to point out that claimant was represented by a barrister at the hearing and that the appeal had previously been adjourned at the request of the claimant's legal representatives because medical reports had not arrived. That adjournment was granted on 14 January and the case was relisted and heard on 16 March and no application was made at that time by claimant's representative for an adjournment; in fact it is recorded, "It was explained to Mrs G... that the Tribunal had before it medical records from the Downe Hospital but they did not, despite repeated attempts have anything from the Royal Victoria Hospital. Miss M… said that she too had had difficulties in obtaining these records". Miss M… was claimant's legal representative.

I find no error in law in the proceedings and I am satisfied that the Tribunal was entitled to proceed in the absence of the medical records from the Royal Victoria Hospital. There is no validity in claimant's contention relating to the composition of the Tribunal.

7. For this reason leave to appeal is refused.

(Signed): C C G McNally

COMMISSIONER

(Date):