Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C4/97(IB) (14 November 1997)

 


Decision No: C4/97(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

Ballymena Social Security Appeal Tribunal

dated 18 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 held that she was not entitled to invalidity benefit as she did not pass the All Work Test.
2. Claimant sought leave to appeal against that decision on the grounds that the Tribunal erred in law in that it did not record reasons and findings for their decision fully and clearly enough for her to understand how they had reached their decision. Also that they did not consider relevant matters and gave a decision unsupported by sufficient evidence.
3. I granted leave to appeal, leave having been refused by the Chairman of the Tribunal.
4. I arranged an oral hearing of the appeal at which claimant was present but was not represented. The Adjudication Officer was represented by Mr McAvoy. Claimant drew attention to the fact that she suffered from ME, and that she was constantly suffering from fatigue which was a symptom. She said that she had produced a report from a Consultant Rheumatologist, Dr W… in which he said that she had problems with her shoulders and that she suffered from overwhelming fatigue during everyday activities, and that she could only walk short distances. Claimant said that she was surprised when she received a copy of the evidence which was recorded by the Chairman and did not record any of the evidence relating to the Medical Assessor. She said that the Medical Assessor, Dr H… in reply to a question from the claimant's representative whether or not Dr W…'s report carried a lot of weight, the Medical Assessor's reply was that since Dr W… was a Consultant Rheumatologist and dealt with such conditions on a day-to-day basis she would certainly know more than an Examining Medical Officer. While her representatives question was recorded the reply from Dr H... was not recorded, nor was there any reference whatever in all the recording and decision of the Tribunal that Dr H… made any contribution to the hearing at all. She also complained that the Tribunal made an assumption about the date of Dr W…'s medical examination and said that the Tribunal recorded that Dr W… report had caused the Tribunal some concern. She said she was told to wait outside while the Tribunal considered the matter and that if they were having difficulty and concern about Dr W…'s report and the date of her appointments with him, it would have been a very simple matter to have brought her back in and asked her when she was last seen by him, because it was recorded that she saw him frequently.
5. Claimant also said that as far as her condition was concerned, that she had good days and bad days and that no consideration was given to that fact. She also said that the Tribunal recorded the Medical Referee observed her raising her arms, but said that this did not happen.
6. Mr McAvoy argued that the Tribunal was entitled to prefer the report of the Medical Referee from all other reports and said that this was a classic ME case and that some doctors laid more weight than others.
7. I have considered all that has been said and I have considered the reasons for the Tribunal's decision. In the record of the Medical Referee's report on claimant's clinical history he records that claimant said the fatigue started about 1980 and that she went to a Neurologist in 1985 and that she got no better. She now suffers all the time from fatigue, has muscle wasting all the time in her knees, legs and shoulders. She has weakness in her legs, pains in both feet when walking. She has pains in her right shoulder this last two years and pains in her left shoulder for the last one year. I have considered the report of Dr W… the Consultant Rheumatologist. He sets out the fact that claimant was referred to him by her GP and also by a Dr J B McConnell a Consultant in Antrim Hospital. Dr W… found that claimant had two major problems, one was her shoulders and that she had severe limitation and movement of the right shoulder and she cannot move her hand to twist it back to find her head. Her left shoulder was not quite as limited but that the movements are limited by tight joint capsule and not by pain. He said she attempted to inject her shoulder but without much success. He then went on to record:-

"Her other problem unrelated to her shoulder problem is that of

overwhelming fatigue during every day activities. She has had

this problem for probably around 15-20 years since the birth of

her second child but much worse over the last four years.

Ordinary daily activities leave her profoundly exhausted such

that she has to rest during the day. She can walk short distances

only. I believe this condition to be one of ME and I also believe

her disability to be quite a genuine one...."

The Tribunal preferred the evidence on the clinical findings of the Medical Referee. The Medical Referee records that on physical examination of her back there was no abnormality, and that sensation in her lower limbs were normal, no physical incapacity from standing, her knee joints were normal on examination with full range of pain free movement. He said she had no back problems and there was no physical findings to correlate with claimants alleged incapacity, but recorded that she had some limitation of abduction in her left shoulder joint today but only 10%, otherwise no physical problem and recorded:- "Reached each hand to back of head." I have considered this document and attempt to relate it to claimant's complaint of overwhelming fatigue and profound exhaustion and find that the Medical Referee took no cognisance at all of those complaints and the Tribunal just dismissed them out of hand. As far as Dr W…'s report was concerned it merely said that it did not accept it, or assumed that there had been an improvement in the range of shoulder movement.

8. The Tribunal gave one of its reasons for its finding as - "... the Medical Referee observed her raising her arms. ..." I can find no evidence of that in the Medical Referee's report. The Medical Referee recorded, "Reached each hand to back of head", which is a long way from saying that the Medical Referee observed her raising her arms. There are many ways of touching the back of your head with your hand without raising your arms. Claimant says that she did not nor was she asked to raise her arms.
9. All in all I am satisfied that the complaint that claimant has good days and bad days and that the evidence before the Tribunal was that the bad days out weigh the good ones was not taken into account at all and that the intermittent problems which claimant has was not examined. I am satisfied that the Tribunal erred in law in not examining the intermittent and good-day and bad-day complaint by the claimant. I therefore 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. If that Tribunal is to reject strong medical evidence then it should say more than that it does not accept that evidence, it should say why it does not accept it and what evidence it prefers to it. It should also consider whether the absence of clinical findings by the Medical Referee is inconsistent with an ME sufferer, suffering from overwhelming fatigue which is a feature of the disease.

(Signed): C C G McNally

COMMISSIONER

14 November 1997