Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C1/96(REA) (8 March 1996)

 


Decision No: C1/96(REA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

REDUCED EARNINGS ALLOWANCE

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

Lisburn Social Security Appeal Tribunal

dated 28 June 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 upheld the decision of an Adjudication Officer that the appellant was not entitled to reduced earnings allowance from and including 21 October 1992 because she is not, as the result of a relevant loss of faculty, incapable of following her regular occupation.
2. Briefly the facts are that the claimant is a lady now aged 51, who had an industrial accident in 1985. She worked as a toggler and in the course of her work her left hand was crushed under steel, she sustained bruising and crushing to the hand. She tried to return to work in February 1986 but her hand started to swell again and she could not carry heavy weights, she lost her job because of the accident and has not worked since. Prior to the accident she suffered from psoriasis which in the opinion of Dr G… A… the Consultant Dermatologist appears to have worsened following her accident. The Consultant considered that it was reasonable to accept that her psoriasis has been exacerbated by the accident. She also suffers from hypertension.
3. Claimant received statutory sick pay from her employer until March 1986 and sickness benefit was paid from 11 March 1986 and invalidity benefit from July 1986. She claimed disablement benefit in February 1986 and also she claimed special hardship allowance.
4. The Adjudicating Medical Authorities in considering her disability question finally assessed her degree of disability resulting from the relevant loss of faculty ie painful and impaired function of the left hand at 5% from 15 January 1988 for life. She was awarded special hardship allowance/reduced earnings allowance at the maximum weekly rate from April 1986 to September 1987 but was disallowed reduced earnings allowance from September 1987 because a Medical Officer expressed the opinion that she was capable of her regular occupation. Claimant appealed against this decision to a Social Security Appeal Tribunal and that Tribunal decided that she was not only incapable of her regular occupation but that other suggested jobs were not suitable alternative occupations and that a reduced earnings allowance was paid at the maximum rate from September 1987 to March 1989. Reduced earnings allowance at the maximum rate continued until 18 April 1989 on condition that she submitted satisfactory medical evidence of incapacity for work.
5. The Department's medical officer sought an opinion from Mr V L…, Consultant Surgeon in January 1989 and Mr L… examined her on 20 February 1989. On the basis of Mr L…'s report the Adjudication Officer disallowed her claim for reduced earnings allowance from 19 April 1989. Against that decision the claimant appealed and the Appeal Tribunal found that claimant was incapable of all work and awarded her reduced earnings allowance at the maximum rate up to November 1989. Subsequently that award was extended to November 1990. Claimant was examined in respect of her reduced earnings allowance claim in January 1990 and the Examining Medical Officer expressed the opinion that she was incapable of her regular occupation but capable of work not involving heavy use of her left hand. She was again examined in October 1990 and two Medical Officer's expressed the opinion again that she was incapable of her regular occupation but capable of work not involving full use of her left hand. Claimant was awarded reduced earnings allowance at varying weekly rates from November 1990 to October 1992 based on wage differential.
6. Claimant made a renewal claim for reduced earnings allowance in September 1992. She was examined in October 1992 by two Medical Officers on behalf of the Department who expressed the opinion that she was incapable of her regular job and also incapable of alternative work but that the relevant loss of faculty did not materially contribute to her incapacity for her regular job. It was argued that her incapacity was related to the conditions of hypertension and psoriasis which were not related to the accident and her claim for reduced earnings allowance was disallowed. Claimant appealed against that decision. The hearing of the appeal was adjourned by the Social Security Appeal Tribunal because it considered that it needed a report from a Specialist on whether or not her psoriasis and/or her hypertension were either caused or exacerbated by her industrial accident. Having received a report from Dr G… A…, Consultant Dermatologist a fresh Tribunal considered the appeal. That Tribunal made the following findings of fact:-

"Appellant was injured in an industrial accident on 31 December 1985.

The relevant loss of faculty is "painful and impaired function left

hand".

Appellant is not incapable of her regular occupation due to the

relevant loss of faculty. We rely on Dr L…'s report (Tab 7)

which clearly states that any problem with the left hand is due to

lack of effort and there may have been some improvement in her 5%

disablement since it was assessed in January 1988; and that she is

capable of her regular occupation of toggler.

And see Tab 18 - the relevant loss of faculty does not contribute

to her incapacity for her regular occupation or alternative work."

and dismissed the appeal and gave reasons for its decision as:-

"The decision of the adjudicating medical authorities on the

relevant loss of faculty is binding on us. We accept that it does

not prevent her from working as a toggler or doing alternative

work. She is incapacitated by her psoriasis and hypertension

and the relevant loss of faculty does not materially contribute

to her incapacity and has not done so since 6 October 1992."

7. Claimant sought leave to appeal against that decision on the grounds that the Tribunal erred in law in making a decision supported by insufficient evidence in that the Tribunal relied on Dr L...'s report dated 20 February 1989 which a previous Tribunal dismissed as it contained a number of inconsistencies. She also said the Tribunal had adjourned to get a specialist's report but this report was completely ignored by the Tribunal and it relied upon a report of February 1989.
8. The Adjudication Officer upon receipt of the grounds of appeal commented as follows:-

"1. At 16 October 1992, Mrs T…'s assessment of disablement was

5% for life and the relevant loss of faculty was specified as

"painful and impaired function left hand". She was incapable

of all work but the Tribunal of 28 June 1994 decided that the

relevant loss of faculty did not contribute to her incapacity

for her regular occupation and she was not entitled to Reduced

Earnings Allowance (REA).

2. Following an application for a review on the grounds of

unforeseen aggravation of the disablement an Adjudicating

Medical Authority (AMA) decided on 23 August 1994 that the

extent of disablement arising was now 8%. On appeal, a Medical

Appeal Tribunal (MAT) subsequently decided the extent of

disablement is assessed at 10% from 17 November 1993* and

specified the relevant loss of faculty as reduced function of

the left hand - ie reduced movement and grip and impaired

skin function ie psoriasis, affecting especially the arms and

legs [see Appendix 1].

[*17 November 1993 is a date determined in accordance with

regulation 62 of the Social Security (Adjudication) Regulations

(Northern Ireland) 1995 - formerly regulation 68 of the 1987

Adjudication Regulations - Appendix 2]

3. Consequently, since the Tribunal hearing, it has been decided

that psoriasis forms part of Mrs T...'s relevant loss of

faculty (albeit from a later date) and this must be taken into

account when deciding what caused her incapacity for work.

4. As the assessment and relevant loss of faculty is revised from

17 November 1993 only, the relevant loss of faculty for the

period 16 October 1992 - 16 November 1993 remains "painful

and impaired function left hand" and to succeed in her appeal,

Mrs T... must show that this materially contributed to her

incapacity for work during that time. If she cannot do so,

she cannot establish entitlement to REA from 16 October 1992

and any subsequent claim will also fall for disentitlement -

paragraphs 11(1) and (2) of Schedule 7 to the Social Security

Contributions and Benefits (Northern Ireland) Act 1992

(Appendix 2).

5. The Tribunal relied on the report of Dr L... which held

there had been some improvement in the disablement since

January 1988 and also the opinion of the Senior Medical Officer

that the relevant loss of faculty did not contribute to

Mrs T...'s incapacity for all work.

I submit that it is difficult to reconcile those opinions with

either the earlier decision of the Social Security Appeal

Tribunal dated 7 August 1989 that she was incapable of her

regular occupation due to the "painful and impaired function

left hand", or the MAT's conclusion that the disablement

arising is getting worse. Indeed, if an earlier Tribunal

rejected Dr L...'s report and awarded REA on the basis

of incapacity for all work due to the relevant loss of

faculty, it is both inconsistent and inappropriate for a later

Tribunal to use that report as a basis for their decision that

Mrs T... is not entitled to the benefit from 16 October 1992.

6. On the available evidence in this case, I therefore support

this application and should the Commissioner decide to grant

leave to appeal I consent to his treating the application as

an appeal and determining any question arising on the

application as if it arose on appeal."

9. I arranged an oral hearing at which claimant appeared but was not represented. The Adjudication Officer was represented by Miss Griffin.
10. Mrs T... again drew attention to the fact that Dr L...'s report had been rejected by a previous Tribunal, that that report was in February 1989, that the Tribunal had adjourned to get a report from a Specialist and that the Tribunal completely ignored the report of the Specialist.
11. Miss Griffin argued that the loss of faculty was binding upon the Tribunal, nevertheless the Tribunal took Dr L...'s report which had been dealt with by a previous Tribunal which had found that the report was inconsistent and that this Tribunal erred in law in considering and accepting Dr L...'s report. She said she did not think that the same report should be used twice to do different things.
12. She accepted that the Tribunal had erred and I accept her concession.
13. I am satisfied that the Tribunal did err in law, it was wrong to rely upon Dr L...'s report of February 1989. I have considered the previous Tribunal which rejected that report and in rejecting same made the following comments on it:-

"The Department's case rests entirely on the medical evidence of

Dr L.... While we would not comment on the length of time

the examination lasted we find a number of inconsistencies in that

report. At one point he suggests that claimant is fit for her own

work yet he continued by suggesting alternative jobs in the event

that she is found incapable of her normal occupation. Dr L...

does not appear to appreciate exactly what was involved in her

job as a toggler. We have looked at the history of the medical

evidence which itself is riddled with inconsistencies. In the

light of that background and in the light of her present

incapacity, outlined in detail by Mr N… we find that she is

incapable of all work."

14. I allow the appeal and set aside the decision of the Tribunal for the reasons set out above. It was urged upon me by both parties to exercise the power vested in me to give the decision which the Tribunal should have given which I propose to do. I am satisfied on the evidence that claimant is incapable of all work from 21 October 1992 and that the relevant loss of faculty, namely the painful and impaired function of her left hand materially contributed to her incapacity during that time. She is therefore entitled to reduced earnings allowance from 21 October 1992 and as this would be a third award it would require to be indexed, although the Adjudication Officer suggests that it would not be necessary to go back to employers to get figures.

(Signed): C C G McNally

COMMISSIONER

8 March 1996