Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1994] NISSCSC C7-94(IVB) (6 July 1994)

 


Decision No: C7/94(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 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 Dungannon Social Security Appeal Tribunal dated 20 July 1993

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. These are two appeals by the claimant against two decisions of the Adjudication Officer relating to claimant's entitlement to invalidity benefit.
2. The facts are that the claimant, now a man of 34 years of age, worked as a fitter/welder but about 5 years ago began having discomfort in his hands which was subsequently diagnosed as Raynaud's disease. He eventually had to give up his work because of this and was paid invalidity benefit from 21 October 1991. He was examined by a Medical Officer on behalf of the Department on 27 May 1992 who was of the opinion he was incapable of his usual occupation but capable of work within certain limits. On 29 July 1992 a report was received in the Central Benefits Branch that an officer of the Department had observed the claimant working on 16 July.
3. He was again examined by a Medical Officer of the Department on 3 August 1992 who expressed the opinion that he was incapable of his usual occupation but capable within limits. The Adjudication Officer decided to review each decision awarding invalidity benefit to claimant from 14 July 1992 to 17 August 1992 (both dates inclusive) on the grounds that when he, the Adjudication Officer, made his decision it was given in ignorance of a material fact, namely that claimant was working on 16 July 1992. So the Adjudication Officer revised his decision and decided claimant was not incapable of work during that period, that he had received an overpayment of £563.36 of invalidity benefit which was repayable as claimant had failed to disclose a material fact.
4. The Adjudication Officer made a second decision, namely that invalidity benefit was not payable from 18 August 1992 to 24 September 1992 (both dates included) because claimant was not incapable of work. When claimant appealed to a Social Security Appeal Tribunal against those decisions the Adjudication Officer referred all further claims to the Appeal Tribunal and consequently that Tribunal considered the period from 25 September 1992 to 17 July 1993 also.
5. The Social Security Appeal Tribunal allowed the appeal in respect of the period from 16 July 1992 to 17 August 1992, that was the period which the Adjudication Officer had reviewed and revised his decision, and held that invalidity benefit was payable to claimant for that period, the amount of £563.36 was not recoverable, that claimant had not been working as alleged and there is no appeal against that decision; even though it would appear that the proper decision would have been that the Adjudication Officer had no right to review the decision because if the Tribunal found claimant was not working then there was no grounds to allow the Adjudication Officer to review the previous decision.
6. What was the subject of an appeal was the period from 18 August 1992 to 24 September 1992 and the further period which was referred from 25 September 1992 to 17 July 1993.
7. The Tribunal in respect of those periods made the following findings of fact:-

"Claimant suffered from Raynauds Disease.

This condition could fluctuate with temperature changes.

Age 32. Fitter/welder.

No Educational Qualifications.

Claimant capable of driving or working inside as a messenger in

Civil Service for instance.

Claimant cannot do outside work."

and having held that invalidity benefit was not payable, gave reasons for its decision as:-

"For the period in question the Tribunal are satisfied that claimant

is not capable of his usual occupation but should be quite capable of

alternative light work such as an indoor messenger within the civil

service or a light driving job, in a van or taxi. Both types of job

are in a controlled heated environment and should be within the

abilities of claimant.

The claimant is quite capable of driving.

Doctor B... stated that claimant is capable of work 'under

conditions not likely to trigger onset of Raynaud's Disease'.

Doctor B... indicated that the condition can fluctuate - he

went on to assess the condition as moderate and outlined how a

severe case would affect someone. He said that clearly

Mr D...'s problem is not at that level' The medical evidence

clearly proves claimant is capable of alternative work."

8. Against that decision claimant now seeks leave to appeal on the grounds that the Tribunal erred in law in that -

"1. Tribunal breached the rules of natural justice in that,

contrary to a Direction issued on the 16th April 1993 the

adjourned hearing proceeded in front of a differently

constituted Tribunal by way of a re-hearing. This was

prejudicial to the appellant.

2. The Tribunal made a decision which was not supported by

the evidence before it. The reasons given for the decision

of the Tribunal in allowing this appeal were that although

the appellant was not capable of his usual occupation, he

should be quite capable of light work and 2 occupations were

suggested, namely, indoor messenger with the Northern Ireland

Civil Service or light driving job in a van or taxi. It is

nowhere suggested by the Department that the appellant is

capable of a driving job and this occupation has not been

averted to in any of the medical evidence. The Tribunal

therefore is not entitled to take this occupation into

account and has no evidence for its conclusion that it is

within the abilities of the claimant. In relation to the

other occupation suggested, the Tribunal concluded that this

work is carried out in a controlled heated environment. This

conclusion is not in accord with the job description provided

by the Department for a messenger. A copy of that description

is enclosed. The conclusion of the Tribunal is also at variance

with the evidence given by the appellant in relation to his

education, qualifications and literacy. The job description

requires that the appellant be literate and be capable of

performing routine clerical tasks. The evidence given by the

appellant would suggest that he is not so capable and this has

not been countered by the Department. Doctor B… in his report

concludes that "a messenger job that involves going outside during

the winter would not be feasible". Insufficient weight has been

given to the report of Doctor B..., to whom the appellant was

referred by his own General Practitioner. Doctor B... was

familiar with the appellant's condition for some time, in fact

since February of 1990 and therefore of all the examiners was in

the best position to determine the appellant's capabilities and

limitations. The Tribunal in its decision is selective in its

interpretation of the medical evidence and ignores relevant

medical opinion."

9. I arranged an oral hearing at which claimant did not appear but was represented by Mr R..., Solicitor of the firm of F… R... & Co and the Adjudication Officer was represented by Mr McAvoy.
10. Mr R... referred to the grounds of appeal and went through them very thoroughly. He argued that on the first appeal to the Tribunal it accepted claimant's credibility but that in the second appeal it clearly did not give his credibility the same weight. He said that the Tribunal decided that claimant was capable of driving and working as an indoor messenger and said that driving entailed claimant going outside and that social driving and commercial driving were two entirely different things. He also quoted Dr B...'s report that a messenger's job would not be suitable as it would entail claimant going outside in the winter time and said that there was insufficient weight given to Dr B...'s opinion.
11. Mr McAvoy dealt firstly with the first ground of appeal, namely that there was a rehearing by a differently constituted Tribunal after the first Tribunal had adjourned, and said that the second hearing was a complete rehearing, with the consent of the claimant and that no fault could be found with that, and that it was explained to the claimant that the rehearing would take place.
12. As far as the second grounds of appeal is concerned he said that the Tribunal took into account all the medical evidence, assessed the weight of medical evidence and came to its conclusion which it was entitled to do. He said as far as the job as an indoor messenger was concerned, Mr McAvoy said that there were permanent indoor messengers in the Civil Service, but whether or not such a job existed in Dungannon or not he did not know. He thought it would have been better if the Tribunal had been less selective in its interpretation of the medical evidence.
13. I have considered all that has been said and I have considered the evidence in this case. I am always unhappy with a long period of disallowance without further medical reports. In this case it is from 18 August 1992 to 17 July 1993 which is 11 months. The medical evidence is from two reports of the Medical Officers who examined the claimant on behalf of the Department on 27 May 1992 and on 3 August 1992 and they were both of the opinion that claimant was incapable of his usual occupation but was capable of work under certain conditions not likely to trigger the onset of the Reynaud's phenomenon. The only other medical evidence was a medical report submitted by the claimant in respect of an examination carried out on 2 April 1993 by Dr T J B..., Consultant Physician who records the history of claimant's complaints and interestingly enough he also records the following:-

"He recently has been investigated for rectal bleeding in the South

Tyrone Hospital (December 1992). He had a colonoscopy carried out

which showed some piles but no other abnormality in the colon to

the splenic flexure. He was reviewed after a period of 8 weeks at

which stage his rectal bleeding had settled and consequently no

further investigations were carried out."

There is no mention of that period by the Tribunal at all and no consideration was given by the Tribunal as to whether or not the claimant was capable or incapable during that period. But in any event Dr B... expressed the opinion that the claimant suffers from Reynauds phenomenon and went on to say:-

"The important feature of the condition is the precipitation usually

by cold and often by psychological factors as well, features which

are present in Mr D...'s case. .... This is important to establish

in that clearly the assessment, in respect of his fitness for work,

may be as much related to any associated medical condition as to the

Raynaud's itself. ...... However, classifying it very simply as mild,

moderate and severe I would feel that Mr D...'s condition could be

considered as moderate. ..... It must be emphasised that even if the

ambient temperature is satisfactory, previous exposure to cold or

psychological factors can be protracted.

Any job that would be suitable would need to be an indoor job requiring

as little in the line of manual dexterity as possible. Currently,

on the basis of my examinations to date, I would feel he may be, on

balance of probabilities, fit for work as a general receptionist.

However, again it must be emphasised that the condition is prone to

marked vacillations and, as stated, it can be difficult to make a

judgment on the "snap shots" of a few examinations. Also the

condition can change with time, and I would feel that the situation

does need to be kept under surveillance."

The Tribunal found that he was capable of work as an indoor messenger within the Civil Service or a light driving job, because both types of jobs are in a controlled heated environment and should be within the ability of the claimant. But that seems to disregard completely the important feature referred to by Dr B... that a feature of the condition is the precipitation usually by cold and often by psychological factors as well which are present in Mr D...'s case. So what he referred to as associated medical condition was not considered by the Tribunal at all, which merely considered whether or not these jobs related to a heated environment. Also the fact that Dr B... considered it difficult to make a judgment on a snap shot of a few examinations.

14. I am satisfied therefore that the Tribunal did err in that it did not give sufficient consideration to the other points raised by Dr B..., namely the psychological factors which were present in claimant's case. I am also satisfied that no consideration was given to the period when claimant was being investigated for rectal bleeding in the South Tyrone Hospital in December 1992.
15. I granted leave to appeal and with the consent of both parties treated the hearing of the application as the appeal. I allow the appeal as I consider the Tribunal erred in law in the matters set out above. I refer the matter back to be reheard by a differently constituted Tribunal and that Tribunal shall consider the points which I have raised.

(Signed): C C G McNally

COMMISSIONER

6 July 1994