Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C2/96(IVB) (5 August 1996)

 


Decision No: C2/96(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

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 the

Omagh Social Security Appeal Tribunal

dated 23 June 1995

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is a late application for leave to appeal to the Commissioner and I granted leave to appeal out of time.
2. The appeal relates to a claim for invalidity benefit. Claimant is a 57 year old self-employed farmer who became unfit for work on 30 September 1994 and was awarded invalidity benefit from that date. He was examined by a Medical Officer of the Department in November 1994 who expressed the opinion he was capable of his usual occupation. As a result the Adjudication Officer reviewed that decision from 30 November 1994 and recorded the he had reviewed the decision on the grounds that the requirements of entitlement were no longer satisfied and he was satisfied that claimant was not incapable of work. It would appear that he used regulation 17(1), (6) and (7) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 to carry out that review.
3. The claimant appealed to a Social Security Appeal Tribunal against that decision. That Tribunal made the following findings of fact:-

"Claimant is 56 year old farmer.

He has stock of 80 cows and 400 sheep on the farm.

The farm is functioning.

He has been certified unfit due to Rolator cuff lesion and tennis

elbow.

He complains of pain in the left shoulder and arm which prevents

him from doing any work on the farm.

On examination by a Medical Officer on 23.11.1994 no physical

disability or psychological dysfunction was found. A full range

of movement was found in the left arm."

and disallowed the appeal by a majority decision as stated below:-

"Appeal disallowed.

Adjudication Officer was correct in reviewing the award of

Invalidity Benefit.

The claimant is capable of work and is not entitled to Invalidity

Benefit from 30 November 1994.

One member's dissenting view was that the appellant was not

capable of any work on the basis that the complaint regarding

shoulder and evidence of depression would seriously restrict him."

and gave reasons for its decision as follows:-

"The issue in this case is whether the appellant is capable of

work and therefore not entitled and Invalidity Benefit. Having

heard the evidence today we are satisfied that the appellant is

no longer incapable of work. We have attached appropriate weight to the Medical Officer's report of 23rd November 1994 which revealed no physical disability. We do not believe that he is

incapable of performing work on his farm. It is noted that he has

many animals and that the farm continues to function. The Tribunal are satisfied that he would be able to contribute to various

general farming activities not involving heavy work. We do not

accept that his complaints relating to his arm and shoulder are

a serious impediment."

4. Claimant sought leave to appeal to the Commissioner and I arranged an oral hearing at which claimant was represented by Mr Turley and the Adjudication Officer was represented by Mr McAvoy. The basic point which Mr Turley made was that a Tribunal sat on 10 April 1995 to hear this appeal and that Tribunal was adjourned because there was conflicting evidence as to the viability of the farm and it adjourned for clarification and to enable the applicant to produce farm accounts for the past 6 years and to forward same urgently to the Clerk of the Independent Tribunal Service so that the case may be relisted again without delay and made a comment that it should be the same panel please. That hearing began with the recording by the Chairman of the medical evidence handed in which is noted as follows:-

"Copy of General Practitioner's notes, report from Doctor F...,

dated 12 January 1995; letter from Guardian Insurance to

Doctor O'H..., dated 13 February 1995; letter from Doctor O'H... to Guardian Insurance Limited, dated 2 March 1995; letter from

Doctor F... to Doctor O'H... dated, 1 March 1995; letter from

Doctor F... to Doctor O'H... dated 22 February 1995."

Mr Turley then referred to the record of the adjourned proceedings which was before a differently constituted Tribunal which then should have been a complete rehearing. It would appear that the only medical evidence which was before that Tribunal was the report of a Medical Officer dated 23 November 1994 and that none of the papers from the previously adjourned Tribunal were before the Tribunal and consequently none of the medical evidence which had been submitted by the claimant was taken into account. Claimant was entitled to assume that the Tribunal would have considered all the medical evidence which had been submitted on his behalf.

5. Mr McAvoy said that he did not know what papers were before the Tribunal. He also said there was a question of whether or not regulation 17(7) entitled the Adjudication Officer to review the situation.
6. Without going into the merits of the case I am quite satisfied that the Tribunal erred in law in not considering all the evidence which had been submitted on claimant's behalf which was before the previous Tribunal and that as the new Tribunal would have been a complete rehearing then it should have taken into account the evidence which claimant was entitled to expect the Tribunal would have had before it. I do not know why the medical evidence was not on the file. If it was then the Tribunal should have seen it.
7. For that reason and that reason alone I am satisfied that the Tribunal erred in law as this is the only point I have considered. At the hearing I granted leave to appeal and both parties having consented I treated the application as the appeal. I allow the appeal, set aside the decision of the Tribunal and refer it back to be reheard by a differently constituted Social Security Appeal Tribunal. That Tribunal shall take into account all the evidence which has been submitted on behalf of the claimant and also consider the relevance of regulation 17(7) relating to the purported review by the Adjudication Officer and whether or not the Adjudication Officer was entitled to review the previous decision. This must not be looked upon as making any comment on the merits of the case.

(Signed): C C G McNally

COMMISSIONER

5 August 1996