Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C18/98(IB) (20 March 1998)

 


Decision No: C18/98(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT (NORTHERN IRELAND) 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 INCAPACITY BENEFIT Application for leave to appeal and appeal to the Social Security Commissioner on a question of law from the decision of Newry Social Security Appeal Tribunal dated 8 May 1997 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This case was originally an application for leave to appeal by the claimant against a decision of the Appeal Tribunal given on 8 May 1997 to the effect that the claimant is not entitled to incapacity benefit from and including 6 January 1997. In the circumstances I grant leave to appeal and, the necessary consents having been given in accordance with regulation 5(3) of the Social Security Commissioners Procedure Regulations (Northern Ireland) 1987, I proceed to determine the questions of law arising on the application for leave as though they arose on appeal and though the application were an appeal. Having considered the circumstances of the case and the reasons put forward in the request for an oral hearing, I am satisfied that the application and the appeal can properly be determined without such a hearing.
2. The Appeal Tribunal made the following findings of fact material to its decision:-

"1. The appellant is a 38 year old formerly employed bus driver.

2. The appellant became unfit for work on 24 February 1992 by reason of headaches. He was paid Statutory Sick Pay up to18 August 1992, then claimed and was awarded Invalidity Benefit.

3. Later doctor's certificates received in support of the claim refer to headaches under investigation.

4. On 28 July 1995 the appellant was examined by a Medical Officer of the Department who invoked a non-functional descriptor with a recall in 12 months. The appellant was treated as incapable of work pending further assessment.

5. On 28 October 1996 the appellant completed a further questionnaire providing details of how his illness affects his ability to work.

6. On 28 November 1996 the appellant was examined by a Medical Officer of the Department. The Tribunal accept the evidence of the Medical Officer in relation to the opinion of his report concerning the descriptors to be applied in relation to each of the physical descriptors except sitting and standing.

7. Having heard from and seen the appellant, the Tribunal accepts his evidence, concerning his limitations, in relation to sitting and standing.

8. The Tribunal also does not accept his evidence, concerning his significant limitations, in relation to lifting and carrying and reaching."

3. The Tribunal gave the following reasons for its decision:-

"The Tribunal accept the evidence of the Medical Officer in relation to the opinion in his report concerning the descriptors to be applied in relation to each of the physical descriptors except sitting and standing.

Having heard from and seen the appellant, the Tribunal accepts his evidence, concerning his limitations, in relation to sitting and standing.

The Tribunal also does not accept his evidence, concerning his significant limitations, in relation to lifting and carrying and reaching.

The Tribunal, having considered all the available evidence, and based on clinical findings and behaviour observed, applied a descriptor to each relevant physical activity as set out in Form AT3 (AWT) A/B/C/. The application of these descriptors to these activities means that the appellant scores 10 points. The appellant therefore fails to satisfy the All Work Test in that he is not incapable, by reason of some specific disease of bodily or mental disablement to perform certain of the activities as prescribed in the relevant legislation.

Section 5(1)(c), (d) and (e) and 20(1) Social Security Administration (Northern Ireland) Act 1992.

Section 167A(1), 167C(1) and (2) and 167D(1) Social Security Contributions and Benefits (Northern Ireland) Act 1992.

Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995."

4. The claimant was refused leave to appeal by the Chairman of the Appeal Tribunal. In seeking leave of the Commissioner the claimant put forward the following grounds of appeal:-

"I wish to appeal on the following point of law. The Tribunal failed to give an adequate statement of the reasons for its decision and the findings of fact on which it was based. It also made a decision based on insufficient evidence. From reading the decision I do not understand why I was disallowed."

These particular grounds of appeal, as set out in the Notice of Application for leave to appeal, were entirely inappropriate insofar as they did not give any proper guidance as to what the substantive grounds of appeal really were.

5. In the circumstances I asked the Central Adjudication Services to comment on the claimant's application for leave to appeal. Mr S J McAvoy made the following observations by letter dated 18 November 1997:-

"Mr D... 's representative does not specify precisely how the Tribunal erred in the various general ways to which he refers. However the Commissioner may wish to consider the following observations covering mainly the relevance of regulation 27 of the Social Security (Incapacity for Work)(General) Regulations (NI) 1995.

All Work Test and 15 points

1. From the outset the Medical Officer, Adjudication Officer and Mr D... all agreed that a score of 15 points was not appropriate.

Regulation 27

2. In an earlier assessment of the All Work Test made on 15.9.1995 the Adjudication Officer decided Mr D... scored 6 points on physical activities and consequently failed the All Work Test. Having so decided the Adjudication Officer went on to consider the provisions of regulation 27 of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995 (as then in force). When considering incapacity under this regulation the Adjudication Officer was, at that time, bound by the opinion of the doctor approved by the Department. As the doctor was of the opinion that Mr D... suffered from:-

"a severe uncontrolled or uncontrollable disease"

the Adjudication Officer on 15.9.1995 decided Mr D... should be treated as incapable of work and the award of incapacity benefit was allowed to continue.

3. Regulation 27 was amended from 6 January 1997, coincidentally the same date as the reassessment of the All Work Test scoring Mr D... nil points. Having decided that the All Work Test was not satisfied the Adjudication Officer was again obliged to consider regulation 27. Primarily regulation 27 was amended to take account of R v Secretary of State for Social Security ex parte Moule although it was also clearly substantially re-drafted.

Old version of Regulation 27 -

Exceptional circumstances

27. A person who does not satisfy the all work test shall be treated as incapable of work if in the opinion of a doctor approved by the Department -

(a) he suffers from a previously undiagnosed potentially life-threatening condition;

(b) he suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work;

(c) he suffers from a severe uncontrolled or uncontrollable disease; or

(d) he will, within 3 months of the date on which the doctor so approved examines him, have a major surgical operation or other major therapeutic procedure.

New version of regulation 27 effective from 6 January 1997 -

Exceptional circumstances

27.- (1) A person who does not satisfy the all work test shall be treated as incapable of work if any of the circumstances set out in paragraph (2) apply to him.

(2) The circumstances are that -

(a) he is suffering from a severe life threatening disease in relation to which -

(i) there is medical evidence that the disease is uncontrollable, or uncontrolled by a recognised therapeutic procedure, and

(ii) in the case of a disease which is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure;

(b) he suffers from a previously undiagnosed potentially life threatening condition which has been discovered during the course of a medical examination carried out for the purposes of the all work test by a doctor approved by the Department;

(c) there exists medical evidence that he requires a major surgical operation or other major therapeutic procedure and it is likely that that operation or procedure will be carried out within three months of the date of a medical examination carried out for the purposes of the all work test.

4. It being common case that Mr D... did not score 15 points, his only way of satisfying the All Work Test was through the easements in regulation 27. Having previously satisfied leg (c) of that provision the AO and the Tribunal should, in my opinion, both have given more careful consideration to whether or not any leg of the new provision (and particularly (2)(a)) might be satisfied; albeit that Mr D... 's representative is recorded by the Tribunal as saying "Regulation 27 was giving a lifeline to cases like this", perhaps implying that he no longer relied on that provision. In that respect the main obstacle for Mr D... under the new provisions would appear to be the need to show that he "suffered from a severe life threatening disease", and if he could do that it may well have been possible for him to satisfy leg (2)(a). Conspicuous by its absence in my view was medical opinion on this point.

5. The Commissioner may therefore wish to consider whether the Tribunal decided this case on insufficient evidence relating to regulation 27, and without explaining why it was not satisfied, thereby erring in law on both counts."

6. In my view Mr McAvoy is correct in his submissions. The Tribunal in the circumstances of this case was obliged to consider the potential relevance of the new regulation 27, but this it did not do and made no attempt to explain why it did not do so. It is possible that the Tribunal was misled by the claimant's representative's apparent concession that regulation 27 was no longer relevant. However, the reference by the claimant's representative to regulation 27 (mentioned by Mr McAvoy in his observations at paragraph 4) is somewhat ambiguous and I am far from being satisfied that it was clear that the claimant's representative was making any such concession. In any event, the adjudicating authorities should have given careful consideration as to whether the new regulation 27 applied in light of the fact that the claimant had previously satisfied regulation 27(c) as originally enacted.
7. For the reasons stated I conclude that the decision of the Tribunal was erroneous in point of law. As stated in paragraph 1 of this decision I considered it appropriate to grant the claimant leave to appeal the decision of the Appeal Tribunal. I allow the appeal and set aside the decision of the Appeal Tribunal and remit the case for rehearing and redetermination to an entirely differently constituted Social Security Appeal Tribunal. It will be a matter for that Tribunal to decide the case in light of the evidence before it but it seems likely that it will wish to hear relevant medical evidence on the issue whether the claimant is suffering from a severe life-threatening disease.

(Signed): J A H Martin

CHIEF COMMISSIONER

20 March 1998