Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1994] NISSCSC C8-94(IVB) (26 July 1994)

 


Decision No: C8/94(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 Cookstown Social Security Appeal Tribunal dated 17 January 1994

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 is upheld by a majority decision of the Social Security Appeal Tribunal that claimant was not entitled to invalidity benefit from 16 July 1993 to 23 August 1993 and also for a referred period from 24 August 1993 to 23 December 1993, and from and including 24 December 1993.
2. I held an oral hearing at which claimant was represented by Mr McLaughlin and the Adjudication Officer was represented by Mr McAvoy.
3. Briefly the facts are that the claimant is a 39 year old unemployed labourer who became unfit for work in December 1987 and has been receiving sickness benefit followed by invalidity benefit from that date. He was examined by a Medical Officer of the Department in June 1993 who formed the opinion that he was capable of his usual occupation and as a result of that one examination the invalidity benefit was withdrawn from the claimant from 16 July 1993.
4. Claimant's main complaint is urinary tract infections and he has to catheterise himself 4 times a day and that he suffers an infection approximately every 2 weeks. Claimant appealed to a Social Security Appeal Tribunal which upheld the decision of the Adjudication Officer. That Tribunal dismissed his appeal by a majority decision and recorded findings of fact material to that decision as:-

"Claimant 38.

Was labourer.

Incapable of this.

Urinary tract infection.

has to catheterise 4 times per day.

Infection every 2 weeks.

Claimant can drive.

Claimant fit for alternative work."

and under the heading "reasons for decision" recorded:-

"Mr C… dissenting. Sterile conditions are required for

catheterisation and 30 minutes required to carry this out. He

would be rendered incapable of full time employment. Also the

fact he is blind in one eye. The majority felt claimant would

be capable of alternative work in particular a job such as a

hospital porter or hotel porter. The claimant gave the appearance

of being a particularly strong healthy young man."

5. Claimant sought leave to appeal from the Chairman of the Tribunal on the following grounds:-

"1. The majority decision did not state how the Tribunal reached

their opinion on a balance of medical probabilities.

2. From reading the facts of the concluding reasons for the

Tribunal's decision, it would appear that the majority of the

appeal Tribunal reached a decision on their own opinion which

did not include any medical opinion.

3. The Tribunal's decision did not take into account the letter

that was handed in by the claimants representative "a copy

of the same is enclosed".

As can be seen the job as porter would not be offered to our client

due to his medical condition, as he would be unsuitable for the job.

The said letter goes much further, it states reasons why Mr M...

would not be suitable for a porter or telephonist job, whereby the

Tribunal based their decision on seeing and talking to the claimant."

6. At the hearing before me Mr McLaughlin argued that on reading the decision one would not know why claimant's benefit was withdrawn. He said it would appear that the Tribunal based its opinion on the fact that claimant looked well and also referred to the fact that the letter from the hospital was not mentioned in the notes, and that the reasons given by the Tribunal were non-existent.
7. Mr McAvoy on behalf of the Adjudication Officer wrote prior to the hearing commenting on the claimant's application for leave to appeal in the following terms:-

"In this case the tribunal decided, by a majority, that Mr M...

was capable of alternative work, such as a hospital porter or hotel

porter.

It is clear from the evidence before the SSAT that the chief problem

for Mr M... is the need for catheterisation which is self-administered.

The tribunal findings are inadequate in the following respects, so far as

the majority view is concerned (the minority view is adequately covered) -

It is not clear what is the effect of self-catheterisation

4 times a day, so far as employment is concerned.

There is no finding of how long this takes.

There is no finding on the need for sterile conditions -

what does this mean in the employment situation?

How frequent and how practical is the need for catheterisation -would it be likely to interfere with performance in the jobs concerned.

What complications arise from "infections", said to occur

every 2 weeks?

I should add that the findings overall are otherwise not very

comprehensive - some are not findings at all. Some reference to what

the tribunal thought about the 2 letters handed in would also have been

expected - they were evidence and required some comment."

8. At the hearing Mr McAvoy commented upon the absence of any medical findings. He said that there were no proper findings on the main complaint and although the dissenting member gave reasons for dissenting, the majority decision merely stated a conclusion but gave no reasons, nor was any mention made of the fact that other than in the findings of fact that claimant got an infection every 2 weeks and there was no finding on what effect that would have on his ability to work.
9. Taking into consideration the fact that claimant has been in receipt of this benefit now for several years and that it was withdrawn on the strength of one inadequate medical report, I am satisfied that the Tribunal did not record proper findings of fact nor did it give reasons for its decision which would allow a claimant to know why the benefit had been withdrawn after so many years.
10. I am satisfied therefore that the Tribunal erred in law and at the hearing I granted leave to appeal, both parties having consented I treated the hearing as the hearing of the appeal. I allow the appeal for the reasons stated above and refer the matter back to be reheard by a differently constituted Social Security Appeal Tribunal.

(Signed): C C G McNally

(COMMISSIONER

26 July 1994