Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C23/97(IB) (9 July 1997)

 


Decision No: C23/97(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

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

Dungannon Social Security Appeal Tribunal

dated 24 May 1996

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 found that from and including 28 February 1996 he was capable of work.
2. The facts are that the claimant is a man of 50 years of age, who lives in a caravan and claimed sickness benefit on 2 July 1994 by reason of his back problem. He was examined by a Medical Officer on behalf of the Department in respect of the "all work test". The outcome of the examination resulted in an Adjudication Officer awarding him no points.
3. Claimant appealed against that decision to a Social Security Appeal Tribunal. That Tribunal awarded him 12 points and gave reasons for its decision as follows:-

"The All Work Test applies as the claimant has been incapable for

196 days preceding 13 April 1995. The claimant is a well built

man who appears slightly overweight with high colouring. He

complained of a sore back and stomach problems. We accepted he

has genuine complaints but felt having regard to the Medical

Officer's clinical findings and the absence of recent hospital

attendances or referrals his condition was fairly moderate. The

Medical Officer noted a full range of back movement. There was

a 10% reduction in both straight leg raisings but the Medical

Assessor advised us that this is not a significant reduction.

His blood pressure was controlled by the time of the Medical

Officer's examination. We did not feel his migraine affected

function. The claimant complained of restriction in both arms.

This was contradicted by the Medical Officer's finding. The

Tribunal felt the claimant had some restriction in one arm but

the majority felt it was not as great as the minority felt.

Applying the descriptors the majority felt 12 was the proper

score. This meant claimant failed the All Work Test."

Claimant now seeks leave to appeal against that decision.

4. I arranged an oral hearing of the application at which claimant was present but was not represented and the Adjudication Officer was represented by Mr McAvoy. Mr McD...'s main complaint was inaccurate recording by the Medical Officer of the examination. He said the Medical Officer had recorded that claimant could get on to the bed by himself but said that in fact the Medical Officer had to help him on to the couch. He also said that the Medical Officer recorded that he had driven to the examination. That was entirely wrong because his daughter had driven him. He also said that the Medical Officer recorded that he could dress and undress without any difficulty and without any problem when in fact the Medical Officer had to help him on with his pullover.
5. Mr McAvoy said that he was not in a position to make any comment on the medical examination, but that the points which claimant was now making were made by him at the Tribunal. He said the Tribunal took all matters into account because on at least 4 descriptors it rejected the findings of the Medical Officer. Mr McAvoy argued that there was no error in law in either the findings or the decision of the Tribunal.
6. I have considered all that has been said and I have read all the documents. The evidence recorded by the Chairman was that the claimant said that the doctor had given him a hand to take off his coat and his jumper. He had to give him a hand to get on the couch and that his daughter drove him to the medical examination. Taking those three points on their own, and the fact that in the all work test claimant scored 12 points and that a minority decision would have given him additional points for reaching, it was incumbent upon the Tribunal to say how it resolved this dispute in evidence between the claimant and the record of the medical examination. I think it was particularly important in view of the fact that if he satisfied one other descriptor he would have passed the test.
7. The Tribunal clearly rejected many points made by the Medical Examiner and one would have expected the Tribunal to have commented on the conflict between claimant's evidence and the medical report. I am satisfied that that failure to do so is a flaw which amounts to an error in law, because the Tribunal did not make proper finding relating to that conflict, nor did they give any reasons of why they resolved it in the way they did.
8. For that reason I am satisfied that there was an error of law and the application for leave should be granted. I granted that leave at the hearing and both parties consent to me treating the application as the appeal. I therefore allow the appeal for the reasons set out above and refer the matter back to be reheard by a differently constituted Social Security Appeal Tribunal. That Tribunal shall attempt to resolve the conflict and to spell out how it does so.

(Signed): C C G McNally

COMMISSIONER

9 July 1997