Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C1/96(IVB) (21 March 1996)

 


Decision No: C1/96(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

[INSERT NAME OF BENEFIT OR ALLOWANCE]

Late 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

Newry Social Security Appeal Tribunal

dated 12 April 1995

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is a late application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal which upheld the decision of an Adjudication Officer on review that claimant was no longer entitled to invalidity benefit from and including 17 February 1995 because from that date he was not incapable of work by reason of some specific disease or bodily or mental disability. I accept the late application for special reasons.
2. Claimant appealed against that decision to a Social Security Appeal Tribunal, that Tribunal upheld the decision of the Adjudication Officer, made the following findings of fact:-

"Mr G... has a mild to moderate back problem. He is aged 40

and has not worked for approx 4 years. He accepts the functional

analysis in the Examining Medical Practitioner report of 3.2.95

and so find."

and gave reasons for their decision as:-

"It was reasonable at his age and having been so long out of work

to expect Mr G... to consider alternative work by 17.2.95. He

has been in our view fit for same since that date. We do not accept

that he is very substantially disabled by his back condition that he

could do a wide variety of jobs not involving heavy work and where

he had an opportunity to sit and to stand in the working day eg

door security. Above has been so since 17.2.95.

The Adjudication Officer has discharged the onus of proof we are

satisfied of capacity for work since 17.2.95."

3. Claimant then sought leave to appeal against that decision on the grounds that the Tribunal failed to give an adequate statement of the reasons for its decision and the findings of fact upon which it was based. It also made a decision based on insufficient evidence. The Adjudication Officer then made a written comment on that application as follows:-

"1. I note that the medical report of 3 February 1995 is relied

upon by the tribunal. In that report the functional score

for prolonged sitting is "1" ie full function. However at

para 5 of the report the doctor states "Not .... prolonged

sitting ....". The Commissioner may wish to consider whether

this contradiction, which was drawn to the tribunal's attention

by Mr Brady, was important enough to merit some explanation

in the tribunal's recorded findings and reasons. If so, the

failure to do so may be an error of law.

2. Similarly the deterioration in Mr G...'s condition, also

referred to at the tribunal hearing, may have merited

explanation in the findings and reasons, especially in view

of the comparative scores on the following functions -

Function Med Report 1.12.93 Med Report 3.2.95

Working at heights 1 3

Heavy lifting 2 3

Walking 1 2 30 minutes

3. I also note that at paragraph 3 of his report of 3 February

1995 Dr B… has not elaborated on the assessments for a

number of functions scored "2" ie reduced function."

4. At the oral hearing Mr Brady on behalf of the claimant raised the same points as were raised by the Adjudication Officer in his comments. He said that the medical report was contradictory, it was clear from the medical report which the Tribunal appeared to accept that claimant's condition had deteriorated from the previous medical report and that the previous Tribunal had considered the previous medical report and nevertheless found that claimant was incapable of all work. He also commented that the findings of fact were very scant, it merely said that claimant had a mild to moderate back problem and they accepted the function analysis of the Examining Medical Practitioner's report and that they did not explain, in either their findings or in their reasons for the decision how they dealt with the deterioration in claimant's condition.
5. Mr Shaw said that he reiterated the remarks made by the Adjudication Officer in his comments. He said that the Tribunal did not mention the deterioration in claimant's condition shown up by the medical report but it may well be that the Tribunal discounted it and thought that it was not relevant. He said that the Tribunal appeared to put a lot of emphasis on recording the evidence but made no mention of any specific job except in the reasons for their decision where they gave as an example, door security. At the hearing I granted leave to appeal and with the consent of both parties treated the application as an appeal.
6. I have considered all that has been said. I have considered the medical report of the 1 December 1993 and the comments of the previous Tribunal which considered that report when it said, "Dr B… has also acknowledged that claimant has genuine back problem and although he has suggested alternative light work we find that claimant is not yet sufficiently mobile to engage in any of the suggested jobs." Then turning to the report of 3 February 1995 it is clear from the gradings that claimant is now worse than he was in December 1993.
7. Taking that into account I think the claimant is entitled to know why this Tribunal considered that even with his deterioration he was now fit for work and one would have expected findings of fact to reflect that view.
8. I think this is a very borderline case but I am satisfied that because of deterioration shown in the second medical report that the Tribunal should have made more detailed findings of fact and that it erred in law in not doing so.
9. I am satisfied the decision does not comply in full with the requirements of the regulations and therefore I allow the appeal and set aside the decision of the Tribunal. I refer it back to be reheard by a differently constituted Social Security Appeal Tribunal and that Tribunal shall consider the change in the claimant's condition and the effect of such a change.

(Signed): C C G McNally

COMMISSIONER

21 March 1996