Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C3/98(II) (29 January 1999)

 


Decision No: C3/98(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

DISABLEMENT BENEFIT

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Belfast Medical Appeal Tribunal

dated 3 November 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, leave having been granted by myself against a decision dated 3 November 1997 of a Medical Appeal Tribunal (herein after called "the Tribunal") sitting at Belfast.
2. My decision is that the decision of the Medical Appeal Tribunal is in error of law and that the matter is remitted for hearing by a differently constituted Appeal Tribunal which should bear in mind the views expressed below.
3. The appellant's grounds of appeal were set out in the OSSC1 form dated 3 March 1998 and were as follows:-

"(1) The decision is one which no reasonable tribunal could have

come to.

Mrs McI...'s appeal was against the Adjudicating Medical Authority's decision that the percentage disablement resulting

from the relevant loss of faculty be 10% from 14.4.93.

She felt that the percentage was insufficient. The tribunal

appeared to concentrate on whether or not she had a prescribed

disease at the date of hearing. In their reasons for decision

the tribunal state "we do not accept that she still has

tenosynovitis. She has apparently fibromyalgia which is not a prescribed disease nor a sequela of a prescribed disease.

Likewise with her osteoarthritis.

(2) Inadequate findings of fact and reasons for decision.

The findings of fact contain no information to support the decision

that 10% disablement was reasonable".

4. By letter of 11 August 1998 the Department opposed the appeal. With regard to the diagnosis question [ie whether or not the claimant suffered from a prescribed disease and if so for what period] the Department stated:

"The record at part 1 of MAT 9 of 3 November 1997 sets out all the documents which were before the tribunal. In recording its findings

of fact material to the decision the Tribunal recorded that Mrs

McI... probably suffered from this prescribed disease for a period

of time in view of the report from the Examining Medical Practitioner

(ie. Mr M...'s report) and the Adjudicating Medical Authority's

report but that she now does not have the prescribed disease. In

their reasons for the decision the Tribunal has relied on its own

expertise and findings on examination and have accepted that although

Mrs McI... suffered from the prescribed disease from 1.1.93 to

1.11.96 she no longer has tenosynovitis but has fibromyalgia and osteoarthritis, which are not prescribed industrial diseases or

sequelas of prescribed diseases.

For these reasons the Department submits that the Medical Appeal

Tribunal has set out clearly what facts it found and has not erred

in law in reaching its decision on the diagnosis question".

5. 5. I am in agreement with the Department that there is no error in relation to the diagnosis question and would add further that the Tribunal also made reference to Dr McK… s report which also found no evidence of tenosynovitis at the time of the report.
6. It is in relation to the determination of the disablement question that I consider the Tribunal erred in law. In her observations on the appeal Miss Brown, on behalf of the Department stated:-

"Having decided the diagnosis question in favour of Mrs McI...

for the period from 1.1.93, the disablement questions then arose for consideration.

The principles of assessment are set out in Schedule 6 to the Social

Security Contributions and Benefits (Northern Ireland) Act 1992.

Prescribed degrees of assessment are set out in Schedule 2 to the

Social Security (General Benefit) Regulations (Northern Ireland) 1984.

These are for amputations, loss of limbs or parts of limbs or loss of

vision.

The Adjudicating Medical Authority on 10.4.96 had assessed the extent

of disablement at 10% and it was for the Tribunal to decide whether

this percentage was reasonable, too low or too high. In their

findings of fact the Tribunal recorded that typically tenosynovitis

clears up once the person has left the occupation and went on to say

that the 10% assessment appears to be reasonable for a period. They

went on to give the unanimous decision to finally assess the extent

of disablement at 10% for the period 16.4.93 to 10.11.96.

In the circumstances of this case it is submitted that the

Tribunal has dealt fully with the requirements of regulation

38(4) of the Social Security (Adjudication) Regulations

(Northern Ireland) 1995 and has not erred in law".

7. I am unable to agree with the final paragraph of the above extract. The Tribunal has made no findings of fact whatsoever with relation to the claimant's disablement. These findings are obviously material to the conclusions on the disablement question. Unless therefore the findings are clear by necessary implication or are not necessary to any issue before the Tribunal, their absence must be in error of law. It appears from the record of the proceedings that Mrs McI... was of the view that her disablement coming from the prescribed disease of tenosynovitis and during the period when she was found to suffer from same was greater than that found by the Adjudicating Medical Authority. I therefore had to ask myself whether the findings were clear by necessary implication. It does not appear to me that they were so clear. The Tribunal has made no reference whatsoever to the findings on disablement of the Adjudicating Medical Authority, disablement being the manner in which the claimant is handicapped in the ordinary activities of life by the relevant loss of faculty.
8. It is true that the Tribunal made mention of the percentage of 10% being reasonable but this refers only to the percentage. There is no indication on the Tribunal's findings as to whether or not it accepted Mrs McI...'s contention that her actual disablement due to tenosynovitis was greater than the Adjudicating Medical Authority had found. This is completely within the ambit of the Medical Appeal Tribunal and had it actually adopted the findings on disablement of the Adjudicating Medical Authority I would have not considered the decision should be disturbed. However it did not and in the absence of findings on disablement it is impossible for Mrs McI... to know whether and indeed why the Tribunal disagreed with her contention that the disablement was greater than that found by the adjudicating Medical Authority. The new Tribunal dealing with this matter should indicate its findings on disablement either expressly or if appropriate by adoption of the adjudicating Medical Authority findings, and should also indicate the percentage to be attributed to same. I find no fault in the reasons for the 10% assessment. The Tribunal was entitled to exercise its judgment. The attribution of a percentage in Industrial Disablement Benefit cases (outside those where the prescribed percentages are relevant) is very much for the judgment of the relevant adjudicating authority. It is quite apparent that the Tribunal exercised that judgment and there is no indication that it erred in law in relation to the attribution of a percentage.
9. It appears to me that the decisions on diagnosis and disablement are all part of one decision in light of the subsequent reference by the Department and the entire decision must therefore be remitted to a newly constituted Appeal Tribunal. The above remarks are of course subject to the diagnosis question being determined in favour of Mrs McI... at least for a period. That will be a matter for the new Tribunal.

(Signed): M.F.Brown

COMMISSIONER

29 January 1999