Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC A3/96(IB) (15 April 1997)

 


Application No: A3/96(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

INCAPACITY BENEFIT

Application by the claimant for leave to appeal to the Social Security Commissioner on a question of law from the decision of Newry Social Security Appeal Tribunal dated 22 January 1996
DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER
1. In this case the claimant seeks leave to appeal against the decision of Newry Social Security Appeal Tribunal; whereby it was held that he could not be treated as incapable of work from and including 17 October 1995 and was therefore not entitled to incapacity benefit. The reason for the Tribunal's decision was that the claimant failed to score at least 15 points in respect of the descriptors specified in Part I of the Schedule to the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995, (the Incapacity for Work Regulations), and accordingly did not satisfy the all work test.
2. The grounds of the claimant's application for leave to appeal to the Commissioner have been stated by him as follows:-

"The Tribunal failed to give an adequate statement of the reasons

for its decision and the findings of fact on which it was based.

It also made a decision based on insufficient evidence.

From reading the decision I do not understand why I was disallowed.

I am attending Dr M( in the RVH and will be continuing treatment

for quite a while. I am also waiting to go for an operation in

Daisyhill Hospital for a prostate problem."

3. Having studied the case file and the Appeal Tribunal's decision as recorded on Form AT3 I am satisfied that the "reasons for decision" and "findings of fact" were entirely adequate for a case of this nature. I am also satisfied that the decision as recorded made it clear why the claimant's appeal was disallowed. The only point which seemed to me to require any consideration was whether there were any grounds on which the Tribunal might be held to have erred in law in relation to their approach to the question of whether the claimant was to be treated as incapable of work because, within 3 months of the date of his examination by a doctor approved by the Department, he was to have a major surgical operation. The relevant provisions are to be found at regulation 27 of the Incapacity for Work Regulations, and are as follows:-

"27. A person who does not satisfy the all work test shall be

treated as incapable of work if in the opinion of a doctor

approved by the Department -

(d) he will, within 3 months of the date on which the doctor so

approved examines him, have a major surgical operation or

other major therapeutic procedure."

I am aware that these provisions have been the subject of a decision of the High Court in England to the effect that a medical opinion by an approved doctor is not binding or conclusive, and that it is for the adjudicating authorities to decide on all the evidence whether a claimant is to be treated as incapable of work on such grounds. Turning to the facts of this case it occurred to me that it might possibly be argued that the Tribunal should have considered whether, on the information before them, the claimant came within the scope of regulation 27 because he was a person who within 3 months of the date of his examination by the approved doctor was to have a prostate operation. I have, however, confirmed that the date of the examination by the approved doctor was 3 October 1995, which means that more than 3 months had elapsed before the appeal was heard by the Tribunal on 22 January 1996. In these circumstances I am satisfied that it would have been unnecessary and pointless for the Tribunal to consider whether, on the evidence at their disposal, the claimant was to be treated as incapable of work by virtue of the provisions of regulation 27(d) of the Incapacity for Work Regulations.

4. I have also considered whether there are any other grounds for holding that the decision of the Appeal Tribunal is or may be erroneous in point of law and have reached the conclusion that there are not. Leave to appeal will accordingly be refused.
5. The claimant requested an oral hearing of this application; but having considered the circumstances of the case and the reasons put forward for the request, I am satisfied that a hearing is not required. The request has accordingly been refused.

(Signed): R R Chambers

CHIEF COMMISSIONER

15 April 1997