Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C4/97(IVB) (24 June 1998)

 


Decision No: C4/97(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

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Newcastle Social Security Appeal Tribunal

dated 19 November 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 claimant was capable of work from and including 1 June 1991 and as a result was not entitled to Invalidity Benefit.
2. Claimant had been receiving Invalidity Benefit from 1990 having previously been receiving Sickness Benefit. His complaint was psoriatic arthropathy. He was examined by a Medical Officer on behalf of the Department in 1993 and was found capable of suitable alternative work. However that decision was overturned on appeal and the claimant's benefit was reinstated. Central Benefits received anonymous information that claimant was working and an Officer of the Department carried out observations on the claimant for 3 days: 17 18 and 20 November 1995. These observations lasted on 17 November for 50 minutes, on 18 November for 41 minutes and on 20 November for 47 minutes. As a result of those observations claimant was asked to explain why he was carrying out the activities he was allegedly observed to be doing. He was interviewed and denied doing any work but admitted driving his father's tractor. However in reply to further questions, he confirmed that he helped out with general farm duties on his father's farm on a part-time basis due to his inability to carry out a full days work. He added "My father cannot afford to pay me as for some time the farm has been working at a loss. I do 14 hours a week. The work is therapeutic. I am claiming Income Support as I have no other income." He further elaborated on that by enclosing a letter from his GP dated 10 April 1996 which confirmed that he had longstanding history of psoriatic arthropathy and is unable to carry out heavy work but light general farm work is within his capabilities and therapeutic for him. In a further certificate of May 1996 the doctor certified that he had advised his patient to undertake work doing general light work for medical reasons. In reply to a further question "... what specific objectives do you expect to achieve in relation to the future progress of y our patient's medical problem(s)?", claimant's doctor answered "Able to do light farm work better for joints to remain mobile."
3. Claimant subsequently wrote to say that he had previously stated that the work was therapeutic and he had been doing this for a number of years. He had sent a letter from his own doctor, Dr C…, regarding this. It would not be possible for him to confirm the number of hours per day or days per week as there were times when he was confined to the house for days, and times his feet were so painful he could hardly stand. Only on good days would he be capable of doing some light duties on his father's farm for which he received no payment. He said he was just lounging about doing very menial tasks in order to put in the long day for himself and felt as if he was accomplishing something, ie therapeutic work. He confirmed that the duties included feeding dogs, moving animals from one field to another, keeping an eye on the livestock and driving the tractor. He "would go to animal auctions and sales for the crack" and the change of surroundings for a couple of hours did him good. When he subsequently had been pressed to be more specific he said that he rang the office and advised that he had no record of the date of the original letter which Dr C… had sent but it was approximately over 4 years ago. He had gone to his GP and asked him to refer back through the medical notes but they were not available. In a further reply he said "With reference to our conversation ... I wish to advise that the month and year was approximately May '91."
4. Claimant appealed to a Tribunal against the Adjudication Officer's decision that he was not incapable of work since 1991. That Tribunal upheld the decision of the Adjudication Officer and recorded reasons for its decision as follows:-

"The claimant has said he was getting depressed being about the

house and asked his Doctor, Dr C… was he entitled to do any

work? Apparently according to him, Dr C… wrote a letter saying

work in a limited capacity would be therapeutic. The claimant

says he worked from May 1991. The letter was not found. There is

no record of it in his medical file. We do not believe the

claimant asked his doctor for such a letter. If necessary he could

have approached Dr C… for confirmation. The letter of therapeutic

work was not mentioned when interviewed.

The claimant has been very vague about what therapeutic work he did.

He said he might drive a tractor into a field and open a gate or

carry a bucket. He denies feeding animals. He says he would only

use the tractor at home for local transport. He denies being

present when silage was being gathered in November 1995. He says

his father's silage was in earlier and suggests the observer must

have confused him with his cousin who was having silage collected.

Apparently a contractor is employed as the equipment is expensive.

We find the claimant was in the field as noted at Tab 2 on

17 November 1995. We have not heard from his cousin. He did not

mention this when interviewed. We do not accept the claimant only

used a tractor for personal transport. He had a car. We feel he

was working on the tractor. The claimant as has been said was

reluctant to specify what work he did from May 1991. If one

accepted he did as little as he claims one wonders why he would

have apparently have gone to his doctor and asked him for a letter.

In response to queries from the Department the claimant has said he

worked from May 1991 but that it was therapeutic and approved by

his doctor. We have not accepted his doctor so approved the work.

This leaving the claimant with having stated he did work from May

1991. We have considered the extent of his disability. He probably

was unfit for heavy work involving much working. We feel he did

however do lighter work about the family farm such as driving the

tractor and working various implements and feeding and tending

animals. The claimant has said the family have a modern tractor

with power assistance and we feel he could so operate such a machine.

We note he wears a support which fixes the foot and ankle solid.

We feel that the claimant continued to work about the farm within

those limitations. In reaching these conclusions we have borne

in mind that the onus of proof is on the Adjudication Officer to

establish the claimant was working and that the activities undertaken

are evidence of capacity. In decision R(s)8/55 the Commission

in Great Britain indicated that whereas a claimant may start off

with strong prima facie evidence of incapacity in the form of

medical certificates and reports they are open to contradiction

by evidence of fact. We appreciate the Commissioner in Northern

Ireland held that where a person performs substantial work in spite

of his medical condition, the work itself may not negate the clear

inference to be drawn from the medical evidence that there is no

work he can reasonably be expected to do. (IS/79(IVB)). However,

the Commissioner in Great Britain said in R(S) 2/74 evidence of

incapacity in a certificate can be negated by evidence that the

claimant did a significant amount of work and was not therefore

incapable. We have considered the meaning of work (R(S)11/51).

We feel a farmer would be willing to pay for the type of work the

claimant was doing or it was work which would be gainful for a

self employed person. We are mindful of the mechanical advances

in modern farming. The claimant comes from a farming background.

He appears to prefer using the family tractor over the car. We

feel his skill on the tractor and his knowledge of farming make

lighter farm duties suitable alternative employment for him from

1 June 1991."

5. Claimant sought leave to appeal against that decision to the Commissioner and leave to appeal was granted. An oral hearing was arranged at which claimant was not present but was represented by Mr O'B… of Counsel instructed by Messrs R… McS… & Company, Solicitors and the Adjudication Officer was represented by Mr Toner. Mr O'B… made various points relating to grounds of appeal and argued that the Tribunal went beyond its task because it impinged upon another Tribunal's hearing relating to the same facts. He said that the Tribunal was inconsistent in that Dr C… had cast doubt on the statement that claimant had never asked his doctor for a letter. He referred to a later Tribunal hearing which dealt with to a claim for the refund of overpayment and failure to disclose a material fact. He said that the findings of this earlier Tribunal prejudiced the findings of the later Tribunal relating to the claim for repayment. It was also the same Chairman who sat on both Tribunals.
6. Mr Toner said claimant was observed working for 3 days in 1995 and that the Tribunal was entitled to decide that he was capable of work from May 1991 because that was the date in which he himself said he started to do the work on the farm. He said that the Tribunal then considered the therapeutic aspect. He accepted that there was a Tribunal seeking the repayment of alleged overpayments and that quite often the two were heard together. He said that when the claimant was interviewed under caution in respect of the 3 days he was seen working he failed to mention that what he was doing was therapeutic. He added that the Tribunal was entitled to consider whether or not a farmer would be willing to pay for the work which claimant admitted doing.
7. I have considered all that has been said and I have read all the documents in this case and considered the findings of fact and the reasons for the Tribunal's decision. One must remember that this is a daily benefit. The claimant was seen doing certain work 3 days in 1995 and on the basis of that, the Tribunal came to the conclusion that he was engaged in full-time work from 1991. It rejected any evidence which the claimant gave in relation to the doctor's letter in connection with therapeutic work. It found that it did not accept that his doctor approved the work. It did not believe the claimant asked for such a letter. What I find very strange is the selectiveness with which the Tribunal dealt with claimant's evidence. The only evidence relating to the period from 1991 up to 1995 was the evidence from the claimant himself which the Tribunal apparently had absolutely no difficulty in accepting. However, they had difficulty in accepting, in fact they rejected evidence, relating to the doctor's letter. This is despite the fact there was a letter from his current GP (Dr Ch…) to say that the work was therapeutic and evidence from the claimant that he had gone to Dr C… to seek confirmation. In any event the Tribunal was obliged to consider whether or not claimant had good cause for the work which he was doing. It did not make any finding on that at all. It did not accept claimant's evidence that he advised the Department he wished to engage in therapeutic work prior to March 1996 or that he forwarded a letter from his then General Practitioner Dr C…. The Tribunal mislead itself in thinking that claimant was obliged to inform the Department prior to March 1996 and I think that the reason for that is that they were mislead by the Presenting Officer who is recorded as having said:- "Department needs to be aware in advance"; that is not the true position. I am satisfied that the Tribunal erred in not making proper findings on whether or not claimant had good cause for doing the light work which he did about the farm and it seemed to misdirect itself in thinking that the all important question was whether or not a letter from Dr C… existed. The Tribunal should have explained why it was prepared to accept some evidence from the claimant which was against his claim, but reject any evidence from him which was in his favour. I therefore allow the appeal and set aside the Tribunal's decision. I refer the matter back to be reheard by a differently constituted Tribunal. The new Tribunal will be in a position to consider all the evidence which exists and will give the claimant an opportunity to produce whatever further evidence he now has in his possession.

(Signed): C C G McNally

COMMISSIONER

24 June 1998