Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC C16-95(IS) (31 October 1995)

 


Decision No: C16/95(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 INCOME SUPPORT 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 Londonderry Social Security Appeal Tribunal dated 6 January 1995 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 withdrew his disability premium from 13 October 1994.
2. Claimant seeks leave to appeal on the grounds that the decision was supported by insufficient evidence, that the medical report on which the decision was based was flawed and that the fields of employment were not suitable.
3. The Adjudication Officer having received claimant's grounds of appeal commented as follows:-

"I accept Mr M...'s grounds for appeal with regard to the medical

report being flawed. The fact that Mr M... was fitted with a

hearing aid on 4 January 1995 is inconsistent with a full function

marking for hearing in the medical report dated 15 August, unless

his hearing deteriorated considerably in the intervening period.

The SSAT acknowledged the fact that the doctor did not record the

claimant's hearing loss but the extent of this was not addressed.

They accepted that Mr M... was not incapable from 13 October 1994

and by inference that he was fit to work as a postal worker and

messenger for the period before he was fitted with a hearing aid

(13 October 1994-3 January 1995).

I respectfully submit that the tribunal erred in law in failing to

make specific findings of fact in relation to Mr M...'s hearing

problem for the period 13 October 1994-3 January 1995, in

accordance with regulation 25(2) of The Social Security (Adjudication)

Regulations (Northern Ireland) 1987.

I consent to the Commissioner treating the application as an appeal

and determining any question arising on the application as if it

arose on appeal."

The claimant has also consented to me treating the application as an appeal and to determine any question arising on the application as though it were a question arising on an appeal and this I propose to do.

4. Briefly the facts are that the claimant is a 55 year old self-employed farmer who became incapable of work and received sickness benefit from 28 February 1992 and disability premium in addition to same from 10 September 1992. He was examined by a Medical Officer of the Department on 15 August 1994 who was of the opinion that claimant was incapable of working as a farmer but capable of suitable alternative work. The Adjudication Officer responsible for incapacity benefit consequently considered that claimant was capable of alternative occupations and the case was referred to the income support Adjudication Officer who considered the facts and the opinion of the incapacity benefits Adjudication Officer and decided that no incapacity benefit was payable from 16 August 1994 because claimant had not proved that he was incapable of work by reason of some specific disease or bodily or mental disability. He gave that decision on 4 October 1994.
5. Claimant appealed against that decision to a Social Security Appeal Tribunal. That Tribunal found as a fact that claimant suffered from -

(1) Double hernia

(2) Ischemic Heart Disease

(3) Arthritis

(4) Hearing Loss (he had been fitted with a hearing aid 4/1/95)

(5) Stomach Ulcer.

However, it disallowed the appeal and gave reasons for same as:-

"a. We accept the conclusion of Dr E… that claimant is

capable of a sedentary occupation not involving much walking,

climbing, carrying etc. Accordingly we feel he could do work

as a Postal Worker and Messenger.

b. In view of claimant's hearing loss (which was not recorded

by Dr E…) we feel claimant could not carry out the jobs

of Despatch Clerk and Telephone Operator.

c. We feel that claimant is capable of undertaking supervisory

tasks on his farm and note that he has delegated the day to day

normal work to his son, pays the bills and engages an Accountant

to help manage the farm's financial affairs."

6. Being dissatisfied with that decision the claimant sought leave to appeal and I have quoted above the response of the Adjudication Officer. I am satisfied that the Tribunal did err in law as detailed in the Adjudication Officer's submission and consequently I allow the appeal and set aside the decision of the Social Security Appeal Tribunal.
7. I now have to decide whether or not I should exercise the power vested in me to give the decision which the Tribunal should have given.
8. I have considered the submission made by the Adjudication Officer to the Tribunal and I have considered the reasons given by the Tribunal for its decision. I have also considered the decision of the Adjudication Officer.
9. In the submission to the Tribunal the Adjudication Officer details the decision of the Adjudication Officer as:-

"I have reviewed the decision dated 24 September 1992 of the

Adjudication Officer awarding income support from 10 September 1992

because the claimant is not incapable of work by reason of some

specific disease or bodily or mental disablement. My revised

decision is that Mr M... is entitled to Income Support at the

weekly rate of £133.04 from 13 October 1994."

That decision as recorded in the submission bears no relationship to the decision in the papers of 4 October 1994. There is no mention of any review being carried out.

Also there is no mention in the Appeal Tribunal's decision that it considered whether or not the Adjudication Officer was entitled to carry out a review. In fact if one considers the submission made by the Adjudication Officer to the Appeal Tribunal one would be almost forced to the conclusion that Social Security law stopped in 1978 because decisions of Commissioners from 1951 to 1978 have been quoted and relied upon and the only decisions after 1978 quoted in the submission relate to two decisions, namely R(S) 2/82 and R(S) 7/85 which say that:-

"In some cases it is necessary to explore more specifically whether

or not medical views do in fact correspond with actualities."

10. This is very surprising considering the many times references have been made in Commissioners' decisions to the necessity to refer to and to consider firstly whether or not there is any justification for a review and to the fact that the onus of proof rests on the Adjudication Officer; also no reference has been made in the submission or in any document to the Chief Commissioner's decision C9/94(IVB) which was issued in April of this year and in which the Chief Commissioner said and I quote:-

"... I do not however consider that a mere change of medical

opinion, based upon the same medical findings and background, and

judged by reference to the same yardstick by which a claimant's

capacity for work should be assessed, could ever in itself be

accepted as proof that he no longer satisfied the conditions of

entitlement to benefit. Indeed, the decision in R(S) 6/78

indicates that, while a further medical opinion may constitute

evidence that the requirements for payment have not been satisfied,

it is not in itself a finding that those requirements have not been

satisfied, and in my opinion it would be a brave Adjudication

Officer who would seek to terminate an award on that ground alone.

In my experience, unless there has been some further change, for

example - an improvement in the claimant's condition, or the

extension of the yardstick by which his capacity for work was to be

judged, or a widening of the scope of alternative employment to

include additional suggested conditions - you do not find

Adjudication Officers deciding that the conditions of entitlement

are no longer satisfied. Were they to do so their prospects of

being upheld on appeal would in my opinion be slim indeed.

Accordingly, while it may be correct to say that there is no rule

that a different medical opinion does not justify a review under

regulation 17(7) I consider that revision by way of termination

of an existing award on that ground alone would never be appropriate.

Without some further change, ... an Adjudication Officer would not

in my view be able to discharge the onus of proving that a claimant

who had previously satisfied the conditions of entitlement no longer

did so."

11. In view of the fact that the medical report was flawed, and that the report was the only thing upon which the Adjudication Officer based his review, I am satisfied that the Tribunal erred in law in this regard. I therefore allow the appeal, and set aside the decision of the Tribunal. I am satisfied that this is a proper case for me to give the decision which the Tribunal should have given, namely that claimant is entitled to disability premium on top of his income support from 13 October 1994.

(Signed): C.C.G. McNally

COMMISSIONER

31 October 1995