Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC C3/95(IVB) (14 February 1995)

 


C3/95(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 Lisburn Social Security Appeal Tribunal dated 15 February 1994
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. In this case the claimant seeks leave to appeal against the decision of Lisburn Social Security Appeal Tribunal, whereby it was held that invalidity benefit was not payable from and including 3 August 1993 to 6 October 1993. I grant leave to appeal and, with the consent of the parties, treat this application as the appeal.
2. The claimant, who is now aged 37 and was formerly employed as an electricity meter reader, injured his back in an accident at work in 1991. He received statutory sick pay followed by invalidity benefit, in support of which he submitted doctors' statements referring to "back injury". On 7 July 1993 the claimant was examined by a Medical Officer of the Department who expressed the opinion that he was incapable of his usual occupation but capable of suitable alternative work. On 9 August 1993 the Adjudication Officer disallowed the claim from 3 August 1993 to 6 October 1993 on "not incapable" grounds, and the claimant appealed. At the hearing before the Appeal Tribunal the claimant's representative drew attention to the fact that, since the disallowance of his appeal in August 1993, the claimant had been awarded the care component of disability living allowance at the highest rate and the mobility component at the lower rate. The documents relating to the claim for disability living allowance, including in particular the report of a medical examination by a Dr McC( in January 1994, were submitted in evidence, together with a letter dated 1 February 1994 from the claimant's GP and the claimant gave oral evidence.
3. In disallowing the appeal and confirming the decision of the Adjudication Officer the Tribunal recorded the following findings of fact:-

"36 year old - electricity meter reader - became unfit for work

from 31 January 1992 by reason of back injury. Examined on

7 July 1993 by Medical Officer of the Department and found

capable of suitable alternative work. Adjudication Officer now

suggests working as lift/car park attendant, mail sorter,

messenger or receptionist.

Disallowed benefit and appealed that decision. Produced medical

report from his General Practitioner dated 1 February 1994 which

outlines the medical problems. Also submitted documentary

evidence in relation to Disability Living Allowance claim.

Claimant's representative contended that the examination by the

Department's doctor on 7 July 1993 was a "cursory" examination.

He also submitted that the examination for the Disability

Living Allowance was more detailed and was carried out over a

longer period of time at claimant's home. The representative

also drew attention to the various restrictions of movement

outlined by the General Practitioner in his letter of

1 February 1994. Each of the alternative jobs according to

claimant's representative would produce increased pain and

discomfort and this was clearly an unsatisfactory situation.

Claimant himself indicated that he had not worked since

November 1992 and had arrived in Northern Ireland in February

1993. He said that he could not carry a heavy kettle or a pot

and had to give up his studying because of the pain. Complains

of a multitude of symptoms emanating from his back."

Their reasons for decision were:-

"We have considered all of the evidence in this case including

the most recent medical evidence from claimant's General

Practitioner and the Disability Living Allowance paper and are

satisfied that claimant is capable of working at any of

alternative jobs suggested. We find that claimant exaggerates

his symptoms.

We do not accept that the examination carried out by the

Department's doctor on 7 July 1993 was a "cursory" examination.

There is nothing in the report from the Disability Allowance

papers to suggest that he is incapable of alternative work.

Having considered his age, experience, medical condition and

education we are convinced that the alternative work suggested

is suitable."

4. The grounds now relied upon by the claimant were set out in the application for leave to appeal to the Commissioner submitted on his behalf by Mr Les Allamby of the Law Centre (NI). It was said that the Tribunal erred in law in failing to give an adequate statement of the reasons for reaching their decision in that they had failed to comment upon a contradictory statement in the Examining Medical Officer's report of 7 July 1993. It was pointed out that in one section of the report the Medical Officer had stated that the claimant's discomfort was more marked with prolonged sitting or standing, whereas in the next section his back was said to be "more comfortable after prolonged sitting or standing". It was further submitted that the Tribunal had erred in law in reaching the decision that there was "nothing in the DLA papers suggesting the claimant's incapability for work". This was said to be a decision that no Tribunal acting reasonably and judicially could reasonably have reached.
5. I held an oral hearing at which the claimant, who was present, was represented by Mr Allamby. The Adjudication Officer was represented by Mr McAvoy.

Mr Allamby reviewed the medical evidence which had been before the Appeal Tribunal. He acknowledged that it was for the Tribunal to decide whether evidence should be accepted or rejected; but said that in this instance they should have explained their reaction to the contradictory statements in the medical report of 7 July 1993. I suggested that in all probability the apparent contradiction had always been assumed to be the result of a typing error, as indeed had now been established. Mr Allamby's response was that there was just no way of telling what view the Tribunal had formed. It might even have been the case that they had not noticed the contradiction; in which event they had failed to give proper attention to the evidence. However, Mr Allamby indicated that his principal point was that the Tribunal had erred in law in deciding that there was nothing in the report from the disability allowance papers to suggest that the claimant was incapable of alternative work. In Mr Allamby's submission there could have been no possible justification for such a conclusion, and when I put it to him that it may have been nothing more than a somewhat loose comment, he maintained that it constituted an error of law.

6. Mr McAvoy pointed out that the period under consideration by the Tribunal was from 3 August 1993 to 6 October 1993; whereas the DLA report was not made until some months later. He accepted that it would have been more satisfactory if the Tribunal had made some reference to the apparent contradiction in the medical report of 7 July 1993, even though it had since been established that it was the result of a typing error. He also accepted that the Tribunal's statement that there was nothing in the report from the disability allowance papers to suggest that the claimant was incapable of alternative work might have been too sweeping; but he said that in neither case had there been any error in point of law. The Tribunal's most significant finding was that the claimant had exaggerated his symptoms, and in Mr McAvoy's submission this justified them in coming to the conclusion that he was capable of the alternative work which had been suggested. There had not, he said, been any error in point of law.
7. It is with considerable reluctance that I have come to the conclusion that the appeal in this case should be allowed. Although the findings of fact set out at Part 2 of form AT3 consists largely of submissions made at the hearing, and are not in any real sense findings of fact, the Tribunal did go on to record in their reasons for decision:-

(a) that they were satisfied that the claimant was capable of working

at any of the alternative jobs suggested;

(b) that the claimant exaggerated his symptoms; and

(c) that the alternative work suggested was suitable.

In my view those were findings of fact which in the ordinary way the Tribunal would have been fully entitled to reach. I consider, moreover, that although the Tribunal's statement that there was nothing in the report from the disability allowance papers to suggest that the claimant was incapable of alternative work was probably too sweeping, and would have been better left unsaid, it was neither a finding of fact nor a decision, and that accordingly, even if it was not justified, its making did not constitute an error in point of law. There remains the question of the Tribunal's failure to deal with or make any reference to the contradictory statements in paragraphs 3 and 4 of the medical report of 7 July 1993. Since the Tribunal hearing it has been confirmed that the apparent contradiction was merely the result of a typing error and I still think it likely that it was recognised and treated as such by the Appeal Tribunal. However, I have to acknowledge that that is an assumption on my part, and that Mr Allamby makes a valid point in submitting that an obvious contradiction in the medical evidence has not been dealt with or explained. On that ground I find that the Tribunal's decision was erroneous in point of law and I accordingly allow this appeal and set their decision aside. I am tempted to give the decision which I consider the Tribunal should have given; but not having raised that possibility at the hearing and in consequence not having heard any arguments on the merits of the claim, I have decided not to adopt that course. I therefore refer the case to another Tribunal with the reminder that it concerns the period from 3 August 1993 to 6 October 1993. All issues are open and I do not consider that any special directions are required.

(Signed): R R Chambers

CHIEF COMMISSIONER

14 February 1995