Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1994] NISSCSC C4-94(IVB) (6 April 1994)

 


Decision No: C4/94(IVB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 INVALIDITY BENEFIT Appeal to the Social Security Commissioner on a question of law from the decision of the Londonderry Social Security Appeal Tribunal dated 27 August 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 held that he was not entitled to invalidity benefit from 24 September 1992 to 29 December 1992.
2. Briefly the facts are that the claimant, a 32 year old joiner, became unfit for work in January 1989. He received a fractured hip in the course of his employment and as a result he was awarded disability of 15% for life from 24 April 1992 having previously been awarded assessments of 20% reduced to 15% from 26 April 1989. When he was given the final assessment of 15% disability the Adjudicating Medical Authority also found that he was incapable of his usual occupation but capable of work within certain limits; and that he was capable of work not involving much bending, lifting or stooping or prolonged standing. The reason for that was that he has continuing pain in his lower back and right arm and has also bronchial asthma.
   
3. Having received the medical evidence the Adjudication Officer was of the opinion that claimant was capable of various alternative occupations and as a result disallowed his claim from 24 September 1992, and against that decision claimant appealed to a Social Security Appeal Tribunal. That Tribunal disallowed the appeal and gave reasons for its decision as:-

"The Tribunal, having considered the case at some length, is of the

view that the claimant is capable of work as (a) A Radio Telephone

Operator and (b) Telephone Operator (Private Branch Exchange). We

feel that the claimant would not be capable of work as a door

security person, because as the claimant's representative points

out, the claimant could not challenge or run after unauthorised

persons entering premises.

It is felt that the jobs (a) and (b) above are sufficiently light

to fall within the criteria suggested by the medical officers who

examined claimant on 1.5.1992 and 13.8.1992.

We have considered all the medical evidence including the reports

of Doctor S… and Doctor M… dated 7.7.1993 and 26.7.1993

respectively, but feel that the views of the medical officers dated

1.5.1992 and 13.8.1992 should prevail."

4. Claimant sought leave to appeal on the grounds that the Tribunal erred in law and set out his grounds in a letter of 5 October 1993 as follows:-

"In R(A) 1/72 a Commissioner held that "the minimum requirement

must at least be that the claimant looking at the decision should

be able to discern, on the face of it, reasons why the evidence

failed to satisfy the authority".

At the Tribunal my representative, Mr Sean O..., stated that

I experience constant pain in my right shoulder/arm, that I was right

handed and that in respect of 'Radio Telephone Operator' and

'Telephone Operator' (Private Branch Exchange) these jobs required

constant use of the arm. (Mr O... also pointed out that I

would have extreme difficulty recording details of all messages

sent and received, however this particular evidence was not recorded

by the Chairman).

In Doctor B…'s report dated 13/8/92 it is stated "Has pain in

right shoulder over past 5 months" and in Doctor C…'s report

dated 1/5/92 it is stated "Also getting pain in right arm". In Tab 5

(Questionnaire dated 15/5/92) I clearly state "I always feel sore,

even when sitting on a chair".

The above evidence is apparently rejected and the Tribunal have

failed to identify the grounds for such rejection (R(SB)33/85

and R(I) 2/51 to be considered).

The Tribunal make no findings of fact in relation to my ability to

sit for prolonged periods; a fact which is of great importance in

determining my suitability for the above jobs. The Presenting

Officer did state "No evidence to suggest prolonged sitting should

be avoided", but as Mr O... explained at Tab 3 (Working

conditions which should be avoided) it is not stated that I should

avoid exposure to dust and fumes when in actual fact it is obvious I

should avoid such exposure due to suffering from asthma.

The Tribunal make no findings of fact in relation to Doctor C…'s

contradiction dated 1/5/92 when he states "No material change(Implying

incapable of usual occupation or any alternative work) and by stating

"Minimal improvement but should be fit for work of sedentary nature

despite his low back problem and bronchial asthma".

In short, looking at the Tribunal's decision I am unable to discern

how I was found fit for work as 'Radio Telephone Operator' and

'Telephone Operator' (Private Branch Exchange), given the already

detailed problems with my right arm/shoulder and the fact that I

am right handed.

In conclusion one further point worth mentioning and which was not

recorded by The Chairman is the fact that Mr O... clearly

explained to the panel that I had been awarded sickness benefit

from 5/5/93 and I first became aware of this entitlement on

25 June 1993 when Mr O... contacted Central Benefits branch

in Belfast; please note that the Tribunal's decision of 26/1/93 was

set aside on 2/6/93. My medical condition from 5/5/93 onwards is no

different to that of the period 24/9/92 to 29/12/92 (Period considered

by Tribunal)."

5. I arranged an oral hearing of the application at which claimant was represented by Mr O... and the Adjudication Officer was represented by Mr McAvoy.
6. At that hearing Mr O... referred to the letter which I have just quoted above and argued that the Tribunal erred as set out in the letter.
7. Mr McAvoy said that there was no error of law in the findings of fact or the reasons for the Tribunal's decision, it recorded the evidence extensively, it was clear that the Tribunal gave prolonged consideration to the various jobs mentioned and rejected the door security job because it considered that claimant would not be fit to carry out all the work involved. However it was satisfied that the other jobs were sufficiently light in nature to be in the criteria suggested by the Medical Officers. Having considered all the medical evidence the Tribunal rejected the claim.
8. I have considered all that has been said and have carefully read all the documents and the notice of appeal. This claimant has been in receipt of invalidity benefit from April 1989 as the result of an accident in January 1989. I have considered all the medical reports since that date and I think it is necessary to set them out in some detail.

1.6.89 he was examined and found that he was suffering from a

disability which made him "unable to carry out work involving much

walking or prolonged standing or much bending, stooping or lifting

weights", and the doctor concluded by saying "unfit for any work at

present".

2.11.89 he was examined again - his disability was recorded as -

"unable to carry out work involving much standing, walking, bending,

lifting or climbing. Some improvement in hip function." The doctor's

opinion was "although there has been some improvement since the last

examination he is still incapable of his usual work or any alternative

work".

3.5.90 his disability was recorded as "unfit for work involving

much standing, walking, bending or lifting/no material change." and

the doctor expressed the opinion that there was no material

change since the last examination and that he was incapable of either

his regular job or incapable of alternative work.

18.4.91 his disability was recorded as "unfit for prolonged walking

or standing/no material change" and the doctor recorded "there has

been no material change since his last Board and that he was

incapable of his regular job or incapable of alternative work."

1.5.92 his disability was recorded as "unfit for prolonged standing

or walking/no material change", but the doctor then recorded "minimal

material improvement but should be fit for work of a sedentary nature

despite his low back problem and bronchial asthma."

It is interesting to note that all these examinations were carried out by the same doctor and that the comment of "no material change" is in answer to a question "say whether there has been any improvement or worsening since the last assessment (if so describe in what way)". In all examinations since 1989 the same doctor has certified no material change, yet in the last report he reported that there is no material change but added that there has been a minimal change.

9. In view of the fact that the Tribunal was dealing with a continuation claim or a reassessment of claimant's ability to work and the argument on behalf of the claimant was that there was no change in his condition and in view of the fact that the medical reports over the years have been almost identical and the last report found in one part that there was no material change and in another that there was a minimal change. I find it difficult to see how the last report could come to a different conclusion from all the previous reports. I think the Tribunal is obliged to explain why it considered that there was such an improvement in claimant's condition as to render him fit for some work now, even though the medical report is contradictory on whether or not there has been any change in his condition. It may well be that the Tribunal is saying that all the other reports were wrong but if that is what it is saying then it should spell that out. I think the claimant could not possibly know why he is now being refused benefit which he was receiving for several years. If the Tribunal is now saying his condition has improved so as to make him fit for work it should make a sufficient finding of fact to enable the claimant to know why he is losing his benefit.
10. 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 am satisfied that the Tribunal erred in law in not giving sufficient reasons for its decision. I therefore allow the appeal, set aside the decision of the Tribunal and refer it back to be reheard by a differently constituted Social Security Appeal Tribunal.

(Signed): C C G McNally

COMMISSIONER

6 April 1994