Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C22/98(IB) (20 November 1998)

 


Decision No: C22/98(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

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Belfast Social Security Appeal Tribunal

dated 22 July 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by Mr M..., leave having been granted by myself against a decision dated 22 July 1997 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. That Tribunal disallowed Mr M...'s appeal against an Adjudication Officer's decision dated 27 May 1997 disallowing Incapacity Benefit from that date.
2. The claimant's grounds for appeal were set out in the OSSC1 form dated 29 October 1997 and a letter dated 23 July 1998. Mr Fletcher of Central Adjudication Services made observations on those grounds by letter dated 22 June 1998.
3. My decision is that the decision of the Tribunal is set aside as it is in error of law. I do not consider that this is a case where I can appropriately give the decision which the Tribunal should have given. I therefore remit the matter for rehearing before a differently constituted Tribunal which should rehear the matter bearing in mind the reasons expressed underneath.
4. I set aside the decision for one reason only ie because the reasons given by the Tribunal are inadequate. In this case there was an evident conflict of evidence between the questionnaire completed by the claimant and the medical report. The Tribunal's reasons are expressed as follows:-

"1. Claimant has some restricted back movement - slipped disc.

2. Claimant suffers from irritable bowel syndrome/bowel disease.

3. Claimant can carry out all his own bodily functions.

4. No evidence of mental incapacity."

The Tribunal scored the claimant 12 points on the All Work Test. It therefore implicitly rejected, at least in part, the claimant's own assessment of his condition in the Questionnaire which he completed and that of the Medical Examiner on which the Adjudication Officer based his scoring. For certain of the activities viz - sitting and use of stairs it is obvious that the evidence of the claimant at hearing was different to that set out in the questionnaire and the reasons for the rejection of the claimant's written evidence on same is self-evident. It may have been that the Tribunal therefore considered the rest of the questionnaire unreliable or that it preferred parts of the medical assessment. The Tribunal would have been entitled to do either. However, without a reason being expressly stated or clearly implicit the claimant is left not knowing why substantial parts of his crucial evidence were rejected.

5. A Tribunal is, of course, entitled to use its own judgment as to the level of a claimant's functional limitations on the All Work Test. It may consider the true situation to be something between the claimant's own assessment and the medical report. It may consider part of the claimant's evidence reliable and part not, similarly with a medical report. It may consider the claimant totally reliable and therefore reject the medical assessment. It may consider the claimant unreliable. It may consider the medical report as giving a reliable assessment. These are all matters for the Tribunal which has the important advantage of seeing and questioning the claimant. The decision must, however, have reasons. This entails that either explicitly or by clear implication the decision should explain to the loser why he has lost. In this case I do not consider that the reasons did so. The claimant has been left in a speculative position as to why his evidence did not satisfy the Tribunal. The decision is therefore in error of law.
6. I would wish to deal with two further matters. Firstly, Mr M... had previously been in receipt of Incapacity Benefit. The decision of 27 May 1997 was the Adjudication Officer's decision which Mr M... appealed to the Tribunal. This was a decision reviewing the earlier award of benefit. The claimant's grounds of appeal asserted that the question of grounds for review under section 23 of the Social Security Administration (Northern Ireland) Act 1992 had not been dealt with. Mr Fletcher for the Adjudication Officer expressed the view, relying on CSIS/137/94 that while the Tribunal had omitted to specifically identify the basis for the review the Adjudication Officer's decision constituted a relevant change of circumstances and that there were valid grounds to review the Incapacity Benefit award. He submitted, relying on paragraph 32 of the Common Appendix to CSIS/137/94 that that omission did not by itself render the decision invalid.
7. While I consider it strongly preferable for a Tribunal to clearly set out that it is dealing with a review where the Adjudication Officer as in this case, has himself carried out a review and identified grounds where there is no indication that the Tribunal took the wrong approach and where the Tribunal is disallowing an appeal against the Adjudication Officer's review decision, it appears to me to be quite clear that the Tribunal is also reviewing. It has identified grounds by its findings on the All Work Test. This situation is in contrast to a decision where there has been no review carried out at any stage by either the Adjudication Officer or the Tribunal. In this case the Tribunal was affirming an existing review decision and did identify grounds. I would not go so far as to say that an Adjudication Officer's decision always constituted a relevant change of circumstances but to change findings on the All Work Test so as to bring the score below 15 points, certainly does constitute such a change for purposes of Incapacity Benefit. Such findings were made here initially by the Adjudication Officer and on appeal by the Tribunal.
8. I would also wish to deal with the other ground of appeal set out by the claimant ie that the decision was based on inadequate findings of fact. Mr M...'s representative stated "It is my opinion that no reasonable tribunal could reach a decision on a finding "while the claimant has some limitations in movement these are not of a kind sufficient to satisfy the all works test."" If these were the only findings made I would have agreed with him that the Tribunal was in error of law as regards findings of fact. However the document headed "Summary of the decision" and which has become known as the "Score Sheet" is a setting out of a number of findings of fact. These are the findings of material fact for purposes of satisfaction of the All Work Test. They are in fact the Tribunal's findings on where the claimant stands on the various descriptors within the activities which constitute that test. I therefore consider that the findings of fact were adequate. My sole reason for setting aside the decision is that the reasons were inadequate to explain the decision.

(Signed): M F Brown

COMMISSIONER

20 November 1998