Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C14/97(IB) (12 December 1997)

 


Decision No: C14/97(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

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Banbridge Social Security Appeal Tribunal

dated 27 November 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant with leave of the Commissioner against the decision of a Social Security Appeal Tribunal which held that as she only scored 9 points on the All Work Test she was not entitled to incapacity benefit from and including 17 June 1996.
2. Briefly the facts are that the claimant was awarded invalidity benefit from 10 November 1993 and incapacity benefit from 13 April 1995. She was then required to take the All Work Test and the Adjudication Officer awarded her no points.
3. She appealed to a Social Security Appeal Tribunal. That Tribunal awarded her 9 points and made the following findings of fact:-

"Paragraphs 5(1), 5(2), 5(3), 5(4), 5(5), 5(6) of the summary of

facts in the written submission are confirmed and adopted as

findings of fact.

Clinical examination of appellant's back by the Medical Officer

on 30 April 1996 did not reveal significant abnormality. Examination

suggested mild problem. (5-10% disability). Box 9, page 5,

Medical Officer report. Clinical examination of shoulders and

knees were normal.

Appellant had a mild back problem at the time of examination.

Appellant's physical condition does not result in significant

physical limitations.

Appellant suffers from depression. She takes Lustral, an

anti depressant drug.

She has limitations in the areas of daily living (16a, 16c, 16e)

and in interaction with other people (18d, 18c) due to her mental

condition."

and gave reasons for its decision as follows:-

"We have noted the answers recorded by the Medical Officer during

questioning of the appellant regarding her mental condition.

Although it would appear that no problems were identified in that

area we are of the view that the appellant does have some

limitations due to her mental condition. We have noticed that she

was somewhat tearful today and appeared to have difficulty giving

her evidence. We note that she is on medication for her

depression. Having heard the evidence and made our own

observations, and having taken account of the tragedies which

she has experienced we are satisfied that her mental condition

does affect her to an extent in the areas of daily living and

in interaction with other people.

We are of the view that her physical condition is not so severe

as to result in significant limitations in physical activities.

We have considered the medical evidence and have placed a great

deal of weight on the findings and observations made by the

Medical Officer in April 1996. There are some findings which

would suggest a mild back problem but overall we do not regard

her physical condition to be a significant problem. It has been

stated that there has been a recent exacerbation in her back

problem and that her condition has deteriorated. However this

situation has to be considered in light of Commissioners

Decision 27/95 and it may be the case, in certain circumstances,

that a deterioration subsequent to the Adjudication Officer's

decision, may form the basis of a new claim."

4. In a written submission in respect of her grounds of appeal claimant argued that the decision of the Tribunal to refuse to adjourn to enable her to get a fuller and better medical report was a breach of the rules of natural justice. The Tribunal therefore proceeded with insufficient evidence.
5. I arranged an oral hearing at which claimant neither appeared nor was represented. The Adjudication Officer was Mr Seamus Toner.
6. Mr Toner dealt firstly with the mental aspect and said that the medical evidence which was handed in at the hearing only dealt with the mental aspect of claimant's illness and that her GP disagreed with the nil score for mental descriptors but the Medical Report did not deal with her physical aspect. He said that the Tribunal was entitled to consider that it had sufficient evidence and therefore was entitled to refuse an adjournment.
7. He referred to the two reports, one from a Psychiatrist and one from a General Practitioner which were handed in after the Tribunal hearing but argued that the Tribunal was correct in rejecting any evidence after the date of the Adjudication Officer's decision and argued that once the Adjudication Officer disallowed the claim the claim had been extinguished.
8. I have considered all the evidence in this case. The claimant clearly suffers from very severe mental problems and the medical evidence which the Tribunal considered related purely to her mental condition and seemed to disregard her physical condition altogether.
9. The Tribunal recorded it placed a great deal of weight on findings and the observations by the Medical Officer in April 1996. If one considers that medical report there are various matters recorded which do not appear to have been considered by the Tribunal. The first matter which is relevant and is recorded by the Medical Officer relating to rising from sitting:-

"... Got up from chair using very little support. Carried bag in one arm and used 2nd hand on chair but put next to no pressure on it." The Tribunal seem not to have considered 5(b) "Cannot rise from sitting to standing without holding on to something. 7 points", or 5(c) "Sometimes cannot rise from sitting to standing without holding on to something. 3 points". Turning then to the descriptor "standing" the Medical Officer records "Can iron in batches of 30 minutes at a time. No problem washing dishes for a large family (2 adults and 5 children) and preparing vegetables. Stood normally for 1-2 minutes." Claimant's answer to that is that she has a washing machine and it is difficult to understand why the Tribunal did not make findings in relation to descriptor 4(d) "Cannot stand for more than 30 minutes before needing to sit down. 7 points", or 4(f) "Cannot stand for more than 30 minutes before needing to move around. 3 points". Another matter which would appear not to have been considered by the Tribunal was the matter of incontinency. The Medical Officer recorded that she had stress incontinency for 2 years and her evidence was that she was incontinent perhaps once a month, which if accepted by the Tribunal would have entitled her to getting points under descriptor 13(f) "Loses control of bladder at least once a month. 3 points". Claimant's evidence was that "Sometimes I don't feel like getting up. My mother-in-law comes up to help me ...", which should have lead the Tribunal to consider descriptor 16(a) "Needs encouragement to get up and dress. 2 points".

10. I am satisfied that the Tribunal erred in not either considering these matters or in making proper findings in respect of same.
11. The Tribunal seemed to get bogged down in considering whether or not it should look at deterioration in claimant's condition since the Adjudication Officer's decision. I do not need to make a finding on that but I am satisfied that by now Tribunals must have been instructed in relation to CS/12054/96 of a Tribunal of Commissioners in Great Britain in which the Tribunal found that as the Appeal Tribunal did not adopt the "down to the date of hearing" it erred in law and set aside the decision of the Appeal Tribunal. I can do no better than quote paragraph 13 from that decision in which the Tribunal held:-

"13. Consequently, we hold that social security appeal tribunals

must adopt the "down to the date of hearing approach" and must not

e.g. (as happened in these 3 cases) reject contentions or evidence

of a deterioration in the claimant's health between the date of the

adverse review decision of the adjudication officer and the date of

hearing in the social security appeal tribunal. It is obviously

desirable that all issues that are outstanding should be resolved

if possible by the social security appeal tribunal at its hearing.

Nevertheless, if such a contention is made to the tribunal at its

hearing, it may well wish to adjourn the hearing in order to

exercise its powers under section 53 of the 1992 Act to obtain e.g.

medical or other expert evidence to assist it in coming to a

conclusion on the assertion that there has been a subsequent

deterioration in health. Alternatively the tribunal may decide

to require the claimant or his representative to produce e.g. medical

or other evidence of the alleged deterioration. A tribunal is not

obliged to rule immediately on assertions of deterioration in

health. Although the tribunal is obliged to deal with the matter

(and does not have a mere discretion), it nevertheless should not,

bearing in mind the detailed nature of the evidence required e.g. as

to the all work test for Incapacity Benefit), rule on the matter

until it has sufficient evidence."

12. For the reasons set out above I allow the appeal and set aside the decision of the Tribunal. I do not feel that I have sufficient evidence to give the decision which the Tribunal should have given, consequently I refer the matter back to be reheard by a differently constituted social security appeal tribunal. That Tribunal shall consider all the evidence and whatever other evidence claimant sees fit to

produce and record proper findings and will make its decision down to the date of hearing.

(Signed): C G McNally

COMMISSIONER

12 December 1997