Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1993] NISSCSC C1/93(SB) (21 April 1993)

 


Decision No: C1/93(SB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

SICKNESS BENEFIT

Application by the claimant for leave to appeal

and appeal to the Social Security Commissioner

on a question of law from the decision of the

Banbridge Social Security Appeal Tribunal

dated 6 July 1992

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal which upheld the decision of an Adjudication Officer that claimant was not entitled to sickness benefit from 17 April 1992 to 19 May 1992 and the Tribunal also considered the period which was referred to it by the Adjudication Officer, namely 20 May 1992 to 23 May 1992.
2. I held an oral hearing of the application at which claimant appeared but was not represented and the Adjudication Officer was represented by Mrs Fearon, Solicitor for the Department of Health & Social Services. At that hearing I granted leave to appeal and both parties having consented to me treating the application as an appeal this I propose to do.
3. Briefly the facts are that the claimant who is a 27 year old self-employed general labourer, began receiving sickness benefit in November 1991. He was examined by Medical Officers on behalf of the Department on 6 January 1992 and on 29 January 1992, both expressed the opinion that he was capable of his usual occupation. He was subsequently examined by a Consultant Physician in April 1992 and after that examination the Adjudication Officer disallowed his claim for sickness benefit from 17 April 1992 on the grounds that he had not proved that he was incapable of work.
4. Claimant appealed against that decision to a Social Security Appeal Tribunal and that Tribunal recorded findings of fact material to the decision as:-

"Claimant complains of generalised pains and fatigue. He is

supported by his General Practitioner. There are, however, no

clinical findings and Dr R… finds him fit for usual

occupation."

and decided that sickness benefit was not payable and recorded reasons for that decision as:-

"Weight of medical evidence does not support claimant."

5. At the hearing before me claimant said that he had suffered from a disease which is commonly known as ME, that his own doctor accepts the fact that he suffers from ME and that one of the problems attached to that complaint is that there are no physical signs.
6. Mrs Fearon drew attention to the fact that there were no findings of fact made by the Tribunal. She also argued that the Tribunal should have made findings relating to the employment which it considered claimant was capable of doing.
7. I have considered the medical evidence in this case. Claimant was only off work for about 7 weeks before he was sent for an examination by a Medical Officer and was examined twice in the month of January. I have considered these medical reports; the one of 6 January records claimant's complaints and then says:- "There are no incapacitating signs". The medical examination of 30 January also records claimant's complaints and the last paragraph reads:-

"MR3 would be useful in this case as there is no clinical

evidence to support a diagnosis of ME. I agree with the

previous examiner that there are no incapacitating signs

and he is capable of his usual occupation."

Dealing with the second examination clearly the doctor when he said "MR3 would be useful" he must not have had an MR3. An MR3 is a form in which claimant's own doctor gives certain information about claimant and his condition. While that doctor did not have the advantage of an MR3 the Tribunal did have the required information because claimant's own doctor in a letter of 22 April after detailing his various complaints said, "I feel that he is a genuine sufferer from this condition and is unfit for work at present", and said that the symptoms of ME were present and the diagnosis was made on this condition and in the absence of any other pathology. So it may well be that the Examining Medical Officer would have formed a different opinion had he the benefit of an MR3.

Turning now to the report of the Consultant Physician, he details claimant's complaints, he then in his final paragraph says:-

"This man has multiple symptoms but there is no demonstrable

organic disease. Many patients with this symptomatology are

labelled as having the ME Syndrome which is a very non-specific

condition and there are no investigations to either confirm or

refute the diagnosis. I am not convinced, however, that

Mr M...'s incapacity is as severe as he infers and I feel

that he is fit to resume his normal occupation."

8. So all the medical reports say one way or another that there is no way to confirm or deny and no clinical evidence to support a diagnosis of ME. The Consultant Physician merely said that he did not think Mr M... was as bad as he says he was, that is as far as he went, he cannot give any medical opinion on claimant's condition because he says it is a very non-specific condition and no investigations either confirm or refute it. But his own doctor is quite satisfied that he does suffer from it and claimant feels that his own medical evidence out-weighed that of the doctors on behalf of the Department.
9. However, leaving aside that question and taking the point which Mrs Fearon made regarding the absence of any findings of fact, it is quite clear that there were no findings of fact in this case to justify a decision. The claimant has said he suffers from ME, the Department argues that he does not. The first thing a Tribunal should have done was to make a finding of fact on that question, in other words it must decide whether or not he suffers from ME; it can then in its reasons say why it made that finding of fact and upon what evidence it based that finding; it then would have to go on and consider his ability to work. While Mrs Fearon argued that the Tribunal made no finding relating to his employment, I am satisfied that in the majority of cases it would be sufficient for a Tribunal to find that claimant was capable of work, and detail what type of work or activity was to be avoided. In this instance no such finding was made. The Tribunal merely reported that Dr R… found him fit for his usual occupation, but neither in the decision nor in the reasons for the decision did the Tribunal mention work at all. But in any event in the general run of cases I think it would be sufficient for a Tribunal merely to say that the claimant was fit for work after they made specific findings of fact on the points which were in contention. There are of course some cases where because of the very nature of the complaint and of the claimant's educational background or other factors which would require a more specific pin-pointing of the work that in the opinion of the Tribunal a claimant would be capable of doing and as has been said in previous Commissioners' decisions the reality of the situation must be looked at.
10. In any event I am satisfied that this Tribunal erred in law in not dealing specifically with the points raised by the claimant and making proper findings of fact on them. I therefore allow the appeal, set the decision aside and refer the matter back to be reheard by a differently constituted Social Security Appeal Tribunal.

(Signed): C C G McNally

COMMISSIONER

21 April 1993