Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC A37/98(IB) (20 November 1998)

 


Application No: A37/98(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 above-named claimant for

leave to appeal to the Social Security Commissioner

on a question of law from the decision of the

Cookstown Social Security Appeal Tribunal

dated 19 January 1998

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by Mrs W... for leave to appeal against a decision dated 19 January 1998 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Cookstown. I held an oral hearing of the application which was attended by the claimant and at which she was represented by Mr B... BL instructed by Messrs J... Solicitors. The Adjudication Officer was represented by Mr Toner.
2. The application for leave is dismissed.
3. The Tribunal by unanimous decision had disallowed the claimant's appeal against an Adjudication Officer's decision dated 24 July 1997. That decision was to the effect that the All Work Test for Incapacity Benefit could not be treated as satisfied as there had been a determination within the 6 months preceding 24 July 1997 that Mrs W... was capable of work. She was not suffering from a specific disease or bodily or mental disablement which she was not suffering from at the time of that determination nor had her condition significantly worsened since the previous determination. The decision also stated that Mrs W... did not satisfy the All Work Test from and including 24 July 1997 because on the balance of probabilities she had not reached 15 points for physical descriptors arising from a specific bodily or mental disablement and did not reach 10 points for mental descriptors arising from a specific mental illness or disablement. The decision was dated 13 August 1997. The Tribunal decision stated "Appeal Disallowed. The claimant has failed the All Work Test from and including 24 July 1997." The Tribunal awarded Mrs W... no points on the physical health descriptors and one point on the mental health descriptors.
4. By her letter of appeal and at hearing essentially two grounds were put forward for the claimant's contention that the Tribunal had erred in point of law. These grounds were as follows:-

(1) The Tribunal should have adjourned to obtain a full psychiatric

report. There was a breach of the rules of natural justice in the

Tribunal's not obtaining same and Mrs W... did not get a fair

hearing.

(2) The Tribunal was in error of law in not giving credence to what

was said on behalf of the claimant or to the fact that she suffered

from apathy, disinterest and depression.

5. Mr Toner opposed the application and stated in so far as the ground relating to adjournment was concerned, the Tribunal evidently decided that it had sufficient evidence upon which to make a decision. He submitted that there was no breach of the rules of natural justice. The Tribunal went into the case in some depth. There was no evidence of a new incapacity. This was a second claim and regulation 28 of the Incapacity for Work (General) Regulations could have been used to disallow the claim.
6. As regards the diagnosis of depression, Mr Toner submitted that this would not necessarily lead to the award of any points. The All Work Test is not a test based on someone suffering from certain conditions, it is based on the ability to carry out certain descriptors within an activity.
7. As regards the natural justice point, it is for the claimant to produce evidence in support of her claim. The Tribunal does of course have the power to adjourn to obtain further evidence and indeed that had been done by an earlier Tribunal in this case. There was no breach of the rules of natural justice in this case in the Tribunal not obtaining further evidence. It had information from the Examining Medical Doctor which it specifically accepted and had further before it the letter dated 20 November 1997 from Dr I…. It was presumably on the basis of this letter that the Tribunal took on board the issue of mental disablement at all. It awarded one point for this. The Tribunal did not therefore ignore the issue of mental disablement, rather the reverse. The record of the hearing indicates a thorough exploration of various mental health descriptors.
8. It would be worth in this connection mentioning the terms of Dr I… letter. He stated:-

"Mrs W... was commenced on an antidepressant (Prozac) on 27.8.97

for treatment for a depressed mood. She described poor sleep,

feeling depressed and was tearful when I saw her. She told me on

10.11.97 that she in fact had been feeling depressed since 1986,

when her husband left her. She also commented that she didn't like

troubling her GP about this and on reviewing her notes from 1986,

I can see no reference to depression."

The attendance on the GP post-dated the Adjudication Officer's decision of 13 August 1997.

9. Against this evidential background I can see no breach of the rules of natural justice in the Tribunal not pursuing further the matter of psychiatric evidence and it was not asked to do so. On the date of the hearing the claimant's representative stated "I am asking the Tribunal today to do the All Work Test with regard to her mental health." No request for adjournment was made.
10. As regards the second ground that the Tribunal erred in not giving credence to what was said on behalf of the claimant or the fact that she suffered from apathy and disinterest and depression, the assessment of evidence is a matter for the Tribunal. It is not in error of law in not giving credence to a particular piece of evidence. The Tribunal has clearly explained its findings in relation to the claimant's abilities and has clearly explained the reasons for its decision. The reasons are adequate and the findings sustainable in the light of the evidence given to the Tribunal and it is quite clear that the Tribunal conducted the mental health test.
11. Mr B... made a point as to the Tribunal not having made a specific diagnosis of depression. It is not in error of law for not so doing in this case, it being quite apparent that it examined mental health descriptors on the basis of Dr I… letter. It did accept that the claimant had a mental health disablement and did award a point in relation to that. As mentioned above, the All Work Test is the test of the claimant's capacity across a range of descriptors within certain activities. In this case the Tribunal evidently accepted that the claimant had a mental disablement and having taken evidence with regard to mental activities in the test made its assessment and findings accordingly. As I stated earlier it does not appear to me that the Tribunal in any way ignored Dr I… letter - quite the reverse as it explored mental health descriptors where it would scarcely have done without that letter.

I can find no error of law in relation to this ground of appeal.

12. Mr Toner made the point that the Tribunal could have rejected the case on regulation 28 of the Incapacity for Work (General) Regulations (Northern Ireland) 1995 alone. In general terms that is correct, at least up until the date of actual assessment. Regulation 28 in essence provides that where the All Work Test applies (as there appeared to be no dispute that it did in the claimant's situation) the test can be taken as satisfied until the person has been assessed (in the claimant's case the test could therefore have been taken as satisfied from 24 July 1997 until 13 August 1997), had

certain conditions been satisfied. Amongst those conditions was one that it had not within the preceding 6 months been determined that the person was capable of work. In this case it obviously had been so determined. The only exception to this would be if the claimant could have established that she was suffering from some specific disease or bodily or mental disablement which she was not suffering from at the time of that determination or if the disease or bodily or mental disablement had significantly worsened. There was no evidence that either of these exceptions applied and indeed no case was made for the claimant in this respect. Indeed in relation to the complaint of mental disablement the claimant stated specifically to her GP that she had been suffering from this disease for at least 12 years and therefore by her statement had been suffering from same at the time of the previous determination.

13. While therefore I would have preferred the Tribunal to have referred specifically to regulation 28 I can find no error of law in its not doing so, nor indeed in any other respect. I therefore dismiss this application.

(Signed): M F Brown

COMMISSIONER

20 November 1998