Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C2/97(IB) (25 September 1997)

 


Decision No: C2/97(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 Belfast Social Security Appeal Tribunal dated 5 September 1996 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal which found that claimant was not unable to work.
2. The Tribunal gave reasons for its decision as follows:

"The claimant scored 3 points in the physical descriptors and

as this is less than the required 15 points he failed the

All Work Test.

The tribunal did not assess the claimant in the area of mental

health because he had informed the examining doctor that he had

no problem relating thereto. It appeared to the tribunal that

for it to assess the claimant thereon would be in breach of the

principles of natural justice and totally unfair to the

Adjudication Officer. The tribunal found assistance in the

Commissioner's decision CS/879/1995."

3. Claimant sought leave to appeal against that decision on the grounds that the Tribunal erred in law "by not considering my mental health problems. This despite having documentation to prove I have been attending a psychiatrist and on medication for nerves/sleeping tablets. My GP can confirm any of the above."
   

When the Chairman of the Appeal Tribunal granted leave to appeal the Adjudication Officer made a written comment as follows:-

"In his grounds of appeal, Mr L... states that the Tribunal were

wrong in law by not considering his mental health problem, despite

having documentation proving that he was attending a psychiatrist

and that he was on medication for nerves/sleeping tablets.

The Tribunal recorded evidence from Mr L... to the effect that he

had been suffering from a depressive illness since 1993. A letter

dated 3 September 1996 from Mr L...'s GP was also before the

Tribunal. In additional to referring to his physical problems the

GP also mentioned that Mr L... had developed a depressive illness.

They also recorded why he had not pointed out this illness to the

examining doctor. Although the Tribunal took evidence relating to the mental health descriptors they decided not to reproduce the evidence, or to assess Mr L... in the area of mental health. They gave their

reasons for this decision as follows:-

"The tribunal did not assess the claimant in the area of mental

health because he had informed the examining doctor that he

had no problem relating thereto. It appeared to the tribunal

that for it to assess the claimant thereon would be in breach

of the principles of natural justice and totally unfair to

the Adjudication Officer. The tribunal found assistance in

the Commissioner's decision CS/879/1995."

It is my submission that the Tribunal should have recorded the

evidence, assessed and scored the test in relation to the area of

mental disabilities. If the Tribunal felt that more medical

evidence was needed, eg as to the date of the onset of the

"depressive illness" referred to by the GP, it was open to them to

adjourn and seek such evidence. I do not agree that there would

have been a breach of natural justice, nor that the adjudication

officer would in anyway have been treated unfairly, had the

Tribunal decided the case.

It is not uncommon in all work test cases for claimants to suggest

at the appeal hearing, and for the first time, that a particular

descriptor was appropriate. Tribunals are best placed to test

the veracity of such assertions. At paragraph 9 of unreported

decision C4/96(IB) (copy attached) the Chief Commissioner

commented on the issue of descriptors introduced for the first

time at the appeal hearing -

".... It is right to say that an allegation which is advanced

at the outset of any fact-finding exercise will generally

carry more weight than one which comes at the last minute;

but that is only common sense, and I have no doubt it is a

factor which any Tribunal would bear in mind ...."

For the reasons given above I submit that the Tribunal erred in law

by failing to assess and score the all work test in relation to

mental disabilities. I therefore do not oppose this appeal."

4. I have considered the reasons for the Tribunals decision and I have considered the Adjudication Officer's comments. I accept the concession made on behalf of the Adjudication Officer that the Tribunal erred in not considering claimant's mental condition in the light of the evidence before it relating to same. The fact that he did not mention same to the Medical Examiner does not in any way preclude the Tribunal from considering all the evidence before it and must always bear in mind that the function of the Tribunal is inquisitorial and that it should have considered all the evidence.
5. I therefore find that the Tribunal did err in law as indicated by the Adjudication Officer. I therefore allow the appeal, set aside the Tribunal's decision and refer the matter back to be reheard by a differently constituted Tribunal.

(Signed): C C G McNally

COMMISSIONER

25 September 1997