Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1993] NISSCSC C1/93(SDA) (21 July 1993)

 


Decision No: C1/93(SDA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

SEVERE DISABLEMENT ALLOWANCE

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

Strabane Social Security Appeal Tribunal

dated 11 January 1993

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 severe disablement benefit from 14 September 1992 to 7 November 1992. Also that he was not entitled to same for a period from 8 November 1992 to 26 January 1993, such period having been referred to the Tribunal by the Adjudication Officer.
2. I arranged an oral hearing of the application at which claimant was represented by Mr M..., of the firm of J… F… & Company, Strabane. The Adjudication Officer was represented by Mr McAvoy.
3. Briefly the facts are that claimant is a 23 year old man who has never worked and who claimed severe disablement allowance from August 1989 in respect of an ulcer. He was examined by various medical officers on behalf of the Department who found him incapable of work but on 28 July 1992 he was examined by a Medical Officer on behalf of the Department who considered him capable of work. He was again examined in September 1992 by a different Medical Officer who, while accepting that he had a duodenal ulcer considered the symptoms were not of such severity as to preclude him from work. As a result of those medical opinions the Adjudication Officer disallowed his claim from 14 September 1992.
4. The Social Security Appeal Tribunal to which claimant appealed recorded reasons for its decision as:-

"Having considered the detailed clinical findings made by Doctor

D… and Doctor K… the panel is of the opinion, on

balance of probabilities, that Appellant's symptoms are not so

severe as to prevent him from working. Although Appellant does

not have a formal occupation, having never worked, panel have

no doubt that the Appellant could do any jobs which he chose to

do and which would be within his educational ability."

5. Claimant sought leave to appeal to a Commissioner on the following grounds:-

"(a) The Tribunal erred in law in failing to give proper

consideration to the evidence of Doctor Q…,

the Appellant's G.P.

(b) The Tribunal failed to give proper consideration,

if any, to the evidence given by Mr C... (the Appellant).

(c) The Tribunal were wrong in reaching the decision that

the Appellant could do any job which he chose to do

which would be within his educational ability. The

Tribunal should have considered what work the Appellant

was capable of performing bearing in mind that the

Appellant has no formal qualifications, no experience

and had never worked.

(d) The Tribunal breached the Rules of natural justice.

When the Appellant informed the Tribunal that he

was waiting to be admitted to Hospital for further

tests, namely a camera test on his ulcer, the

Chairperson replied that, "this was all they seemed

to hear that people were waiting on tests". The

Appellant formed the opinion that it was his fault

that he had not undergone the camera test to date

and that he was to some extent not telling the

truth about his illness. Accordingly the Appellant

felt that the Tribunal did not act reasonably,

independently and fairly.

(e) The Tribunal did not give proper reasons for its

decision. There are not sufficient reasons stated

on the Form AT3 to enable the Appellant to see why

on the evidence as presented to the Tribunal, it

reached the conclusion it did."

6. Mr M... at the hearing argued that the Tribunal erred in failing to consider all the evidence before it and that it did not pay sufficient regard to the evidence of claimant's own doctor, Dr Q… or of the claimant himself. He said the impression one got from reading the reasons for the Tribunal's decision was that it only considered the results of the medical examinations of the two doctors who examined him on behalf of the Department and did not consider the other evidence. If it did consider all the other evidence it should have said so. He also argued that it was recorded by the Chairman that the evidence of the claimant was that he cannot sit or stand for more than half an hour at a time, sometimes he is sick for 3 to 4 nights in the one week and that he has been waiting for over 2 years for tests to be carried out, and said the Tribunal erred in not properly considering the reported decision of Great Britain Commissioners R(S) 6/85 in which the Commissioner said that one must have regard to the medical and general circumstances of the case and that an Adjudication Officer should with reasonable precision designate the type of work which a claimant would be capable of doing.
7. Mr McAvoy argued that it was clear that the Tribunal considered all the evidence, although it did not specifically say so. He said that the Tribunal came to a decision which it was entitled to come to and that there was no error of law in the proceedings.
8. I have considered all that has been said and I have read all the documents in this case. The first point which was relied on by the claimant was that in giving reasons for its decision the Tribunal began by saying it considered the clinical findings of the two doctors and in the balance of probabilities claimant's symptoms were not so severe as to prevent him from working showed it only considered that evidence. I do not consider that to leave out the words "we have considered all the evidence" is a fatal flaw. It is quite clear that the Tribunal heard the evidence and formed a conclusion, by selecting the evidence which weighed heaviest with it. It may have been better if it had said "we have considered all the evidence" but not specifically to have said so would not constitute an error in law. I also consider the question of whether or not the Tribunal considered the evidence of the claimant and his General Practitioner. The evidence of the General Practitioner is in the form of a one sentence certificate which read "this man has a duodenal ulcer which bothers him constantly. He is awaiting further hospital investigations.", and a second certificate which reads, "this man's dyspepsia has not improved lately, he is awaiting further hospital tests." together with the ordinary doctor's certificates for benefit purposes. Claimant's own evidence was the same as he gave to the doctors who examined him on behalf of the Department. It is quite clear that the Tribunal was entitled to say that on the balance of probability he was capable of work.
9. Turning to the question of what work claimant could do I have considered R(S) 6/85 relied upon on behalf of the claimant. That decision when read in full relates to the ordinary burden of proof which rests upon a claimant to prove his incapacity and goes on to say that often it can be properly concluded as a matter of common knowledge there is a range of occupations or at least one occupation of which a claimant must have been capable at the material time. It goes on to say that in other cases one must have regard to the medical and general circumstances of the case, in those cases it may not be acceptable to decide against a claimant without forming an affirmative conclusion as to what job he would be able to do.
10. I am satisfied that on the facts found in this particular case that there is nothing exceptional in either the medical or the general circumstances which would compel a Tribunal to spell out in specific terms what job it considered claimant was capable of doing. The medical condition is that claimant has an ulcer, the general circumstances are that he never worked and the preponderance of medical opinion is that he is capable of some work.
11. At the hearing before me I granted leave to appeal and with the consent of both parties treated the application as the appeal. For the reasons set out above I find no error of law in this case and I therefore dismiss the appeal.

(Signed): C C G McNally

COMMISSIONER

21 July 1993