Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C75/98(IB) (14 July 1999)

 


Decision No: C75/98(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT

(NORTHERN IRELAND) 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) ACT

(NORTHERN IRELAND) 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to the Social Security Commissioner

on a question of law from the decision of

Craigavon Social Security Appeal Tribunal

dated 30 July 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, with leave of a Chairman, against the decision of a Social Security Appeal Tribunal whereby it was held that the claimant had failed to satisfy the all work test from and including 12 May 1998.
2. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
3. The claimant became unfit for work on 3 February 1997 and claimed and was awarded Incapacity Benefit. A doctor's statement received in support of the claim referred to mitral valve prolapse. As the claimant had been incapable of work for more than 196 days the Adjudication Officer decided that the all work test should be applied from 18 August 1997. In order to assess the all work test the claimant was requested to complete the usual questionnaire giving details of how her illness affected her ability to perform various activities. This form was completed on 15 September 1997 and returned along with a statement from her general practitioner. On 18 March 1998 the claimant was examined by a medical officer of the Department. The Adjudication Officer then considered all the available evidence, applied a descriptor to each relevant activity, decided the claimant scored zero points and accordingly failed the all work test. The Adjudication Officer then reviewed the decision awarding Incapacity Benefit from 6 February 1997 and gave a revised decision which disallowed Incapacity Benefit from and including 12 May 1998. The claimant then appealed to an Appeal Tribunal.
4. The Appeal Tribunal made the following findings of fact material to its decision:-

"1. The claimant, a 41 year old receptionist became unfit for work February 1997. She suffers from a mitral valve prolapse - described by the Tribunal's Medical Assessor as a "dropping" of the valve on the left side of the heart.

2. The claimant did not attend the Tribunal for an oral hearing. The Tribunal considered all the written evidence before it and the evidence of the Medical Assessor at the hearing.

3. In her questionnaire the claimant only claimed points for the 'Vision' Descriptor. However in her letter of appeal she also raised the issues of 'standing' and 'walking'.

4. The Medical Assessor advised the Tribunal the condition in question was one that could exist without symptoms. People could be unaware they had the valve prolapse. Those that did have symptoms commonly suffered from shortness of breath, tiredness and irregular heart beat. There was no treatment for the prolapse, only for the symptoms.

5. Indural was used to show the heart beat and shortness of breath was a side effect sometimes suffered with Indural. The Medical Assessor specifically indicated that overworking of the heart valve was not an issue with this condition. He also advised there was no connection between the condition and a persons vision. It was also advised to the Tribunal that the condition should not affect standing and walking. It was noted there were no ongoing investigation or referrals to suggest a significant illness. The claimant apparently last saw a cardiologist in 1991.

6. Taking all the evidence into account the Tribunal were unable to award any points to the claimant and the all work test was failed."

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

"The Tribunal, whilst sympathetic to the claimant, were unable

to find in her favour. The medical evidence of the Examining

Medical Officer and the Medical Assessor at the Tribunal were

fully considered along with the evidence of the claimant by way

of questionnaire and letter of appeal. The medical evidence did

however not support the claimant's assertions that she had

limitations in the areas of vision, standing and walking.

There were no ongoing investigations or referrals according to

the papers, with no visit to a cardiologist for some 7 years.

There was a reference to palpitations suffered but this was

apparently once a month for a few seconds with no history of

chest pain or breathlessness.

The Tribunal Medical Assessor did not connect the claimant's

condition with limitations in respect of vision, standing or

walking."

The all work test assessment sheet attached to the decision set out, in relation to physical health descriptors, that zero points were appropriate in relation to the activity of walking (walking on level ground with a walking stick or other aid if such aid is normally used) in relation to descriptor 1(g), zero points in relation to the activity standing (standing without the support of another person or the use of an aid except a walking stick) in relation to descriptor 4(g), and zero points in relation to the activity vision (vision in normal daylight or bright electric light with glasses or other aid to vision if such aid is normally worn) in relation to descriptor 12(f). No other activities were given a score by the Tribunal in relation to physical health descriptors. Also no score was given in relation to mental health descriptors.

6. The record of evidence [sic] from the medical assessor was in the following terms:-

"MITRAL VALVE PROLAPSE - left side of heart has different

kind of valves, mitral and aortic valves. Mitral valves are

between atrium and vertrical (sic).

Prolapse - or "dropping" of the valve. Can exist without symptoms.

People can have it and have no idea. No real treatment for this -

symptoms treated. Symptoms can be - shortness of breath, tiredness,

irregular heart rate. These would be the mostly reported symptoms.

Indural - beta-blocker 40mgs twice daily standard dosage. Palpitations

not qualified fully on papers. Treadmill was done. No qualified

diagnosis made on palpitation investigations.

Indural would slow heart rate down. Shortness of breath can be a side

effect of Indural.

Overworking of heart valve is not an issue.

No connection between condition and vision. Likewise standing and

walking.

She may believe there is a connection.

A significant illness would normally require on-going investigations

and referrals."

7. The unanimous decision of the Appeal Tribunal was in the following terms:-

"Appeal disallowed.

The claimant fails to satisfy the All Work Test from and including

12 May 1998."

8. The claimant sought leave to appeal to a Commissioner and leave was granted by the Chairman on 12 November 1998.
9. The claimant appealed on the following grounds:-

1. The Tribunal erred in law by making a decision that was supported by no or insufficient evidence in that it -

(a) Made a decision concerning the claimant's illness without evidence of her condition when it was at its worst;

(b) Overlooked the report of the medical support service's doctor and the claimant's own doctor's report; and

(c) Had insufficient evidence in relation to the degree of prolapse and in relation to standing and walking;

2. The Tribunal erred in law by wrongly interpreting the legislation in that it failed to apply correctly this legislation to the problems

the claimant had in relation to the activities of walking and standing.

10. I had the benefit of the submissions of Mr S Toner, the Adjudication Officer now concerned with this case, set out in a letter dated 31 December 1998. The claimant also was given an additional opportunity to expand on her grounds of appeal by making further written submissions but did not take the opportunity to do so.
11. The relevant test in this case that decides whether she is entitled to Incapacity Benefit is the All Work Test (see Part III of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995). The All Work Test is applied by measuring prescribed activities using descriptors which have to reach a total of 15 points for physical descriptors, 15 for combined physical and mental disability descriptors or 10 for mental disability descriptors. In this case the relevant threshold was 15 points for physical descriptors.
12. It is clear from the Tribunal's decision that it had before it the questionnaire completed by the claimant (dated 15 September 1997), her general practitioner's statement dated 17 September 1997, the report of the medical support service's doctor dated 18 March 1998 and the claimant's grounds of appeal and her written submissions.
13. The record of the Tribunal's decision, in my view, clearly demonstrates that the Tribunal took considerable care to consider all the available evidence, took into account the views of the medical assessor, and also took into account any variations there may have been in the claimant's condition. Accordingly the Tribunal in my view, has not erred in coming to its decision that was supported by no or insufficient evidence.
14. In relation to the second ground of appeal I do not consider there is any reason to conclude that the Tribunal has wrongly interpreted the relevant legislation or applied it in an incorrect manner. I therefore conclude that the Tribunal has not erred in law in this respect.
15. However, Mr Toner has drawn my attention to an interesting point which has relevance in this case. He has submitted that the reason given by the Tribunal for its decision - namely that "The Tribunal Medical Advisor did not connect the claimant's condition with limitations in respect of vision, standing or walking" suggests that the medical assessor had wrongly participated in the Tribunal's fact finding process and, accordingly, such involvement might amount to an error in law. In particular Mr Toner referred me to the decision of Deputy Commissioner Ramsey in the Great Britain decision CIB/157/1997 at paragraph 7 in which the following (inter alia) was stated:-

"...the medical assessor does not tell the tribunal what evidence to

accept and what evidence not to accept. That is a task for the

tribunal alone..."

16. Mrs Commissioner Brown has recently given assistance to Tribunals sitting with medical assessors in the recent decision C27/98(IB). At paragraph 6 onwards she stated the following:-

"6. With regard to the role which the Medical Assessor played

in this case, while I would not go so far as to say that

the Tribunal erred in law in relation to the questions it

put to the Medical Assessor, I am of the view that it would

have been preferable not to ask him for an opinion on which

activities applied to the claimant. That was for the Tribunal

to decide and a direct opinion was not necessary (save in

unusual circumstances which do not seem to be present in this

case). I do not wish to be unduly critical of the Tribunal in

this respect as there is a narrow dividing line between what is

and is not the province of the Medical Assessor. Looking,

however, at the section "Reasons for decision" in the

Tribunal's decision, it seems that the Assessor was asked to

comment on the applicability of certain activities to Mrs

D...'s particular case as opposed to the generality of

persons with her type of complaint. The Chairman has

recorded "Dr Hinds, our medical assessor, was asked if he

could comment, having seen Mrs D... and the papers and

heard Mrs D...'s evidence, about which descriptors would

be consistent with Mrs D...'s complaint of neck pain

and immobility. Dr Hinds replied - sitting, rising from

sitting, standing, walking, lifting and carrying and manual

dexterity." It appears that this opinion was part of the

reason for the Tribunal's decision.

7. It seems appropriate to try to give some guidance in relation to

the role of the Assessor. I would begin by saying that the

Assessor is a Medical Assessor. He is to assist the Tribunal

on medical matters. He is not a witness. Secondly it is for

the Tribunal alone to decide, on the evidence as assessed,

which activities are applicable to the particular claimant

and which descriptors best fit the claimant's limitations

within those activities.

8. As the Great Britain Commissioner stated in R(I)14/51:-

"The assessor must not be regarded as a witness, for he cannot

be cross-examined by the claimant or the local Insurance Officer

(see per Viscount Simon, L.C. in Richardson v Redpath Brown

and Co., Ltd., 36 B.W.C.C. 259 at page 265). He is not a

member of the tribunal and has no judicial powers or duties;

the tribunal alone must decide all the issues in the case and

must not accept the advice of its assessor on any medical matter

unless they are satisfied that having regard to all the evidence

of the case the advice is correct."

9. How therefore should this be applied in practice? A main part

of the Medical Assessor's role is to assist the Tribunal to

understand and appreciate the significance of medical evidence

and he may give general medical background to enable the

Tribunal to do so. He can, for example, explain and indicate

the significance of clinical data and findings or the lack of

same, indicate the strength, dosage and likely side effects of

medication, indicate the treatment normally given to

various conditions, the likely success of such treatments

and indicate further treatments that are available. He can

also indicate what limitations, findings on examination and

treatment could usually be expected in cases of the level and

type of complaint being made by the claimant. The above list

is not exhaustive or prescriptive. It is quite evident that in

the proper discharge of his function he may be of

considerable assistance to the Tribunal in its functions of

assessing and evaluating evidence (both from medical and

non-medical sources) and in the resultant fact finding. It

is, however, for the Tribunal to evaluate the evidence and

make the relevant findings of fact. In so doing it may, of

course, take into account the information supplied by the

Medical Assessor. It must, however, make up its own mind

on the issues which it has to decide. In Incapacity Benefit

cases this will often involve the evaluation of evidence and

scoring on the All Work Test based on the accepted evidence.

It is not for the Medical Assessor to decide on the weight

to be given to any particular piece of evidence nor what

activities or descriptors are appropriate in a particular

case. It follows therefore, as the Commissioner stated in

R(I)14/51 that "it is preferable not to invite an assessor

to give a direct opinion upon a crucial issue in the case."

10. It may be, at times, that a Tribunal is forced to do this but it

can usually be avoided by the Tribunal obtaining full medical

data and drawing its own inferences. In the unusual

circumstances, however, where either invited or uninvited, a

Medical Assessor does express an opinion on a crucial issue in

the case, this does not per se render the Tribunal's decision in

error of law. Provided that the Tribunal does not consider

itself bound by that opinion and adopts it only if it thinks it

correct, the Tribunal's decision will not for that reason be in

error of law. The central question is whether or not the

Tribunal has made up its own mind on the questions before it

based on its own assessment of the evidence. The Medical

Assessor's views on any particular case are not, of course,

evidence."

17. Viscount Simon, L.C. stated the following in the House of Lords in Richardson -v- Redpath, Brown & Co., Ltd (a Workmen's Compensation Act case) reported at 36 B.W.C.C.:-

"But to treat a medical assessor, or indeed any assessor, as though

he were an unsworn witness in the special confidence of the judge,

whose testimony cannot be challenged by cross-examination and

perhaps cannot even be fully appreciated by the parties until

judgement is given, is to misunderstand what the true functions

of an assessor are. He is an expert available for the judge to

consult if the judge requires assistance in understanding the

effect and meaning of technical evidence. He may, in proper cases,

suggest to the judge questions which the judge himself might put to

an expert witness with a view to testing the witness's view or to

making plain his meaning. The judge may consult him in case of

need as to the proper technical inferences to be drawn from proved

facts, or as to the extent of the difference between apparently

contradictory conclusions in the expert field. In Hall v. British

Oil and Cake Mills [(1930), 23 B.W.C.C.529] Scrutton, L.J., in

several passages of his judgment, treats a medical assessor's

answers to the judge's inquiries as "evidence," and even speaks

without objection of a medical assessor or a nautical assessor

giving "evidence of facts." But I cannot agree that this is within

the scope of an assessor's legitimate contribution. Lord Loreburn's

judgment in Woods v. Wilson (Thomas), Sons & Co. [(1915),

8 B.W.C.C. 288] puts the medical assessor's functions as high as

they can properly be put. Lord Parmoor in that case ...., at p.311,

aptly defines the medical assessor's function as being "not to supply

evidence but to help the judge or arbitrator to understand medical

evidence"- a view in which Lord Parker concurred."

These words, which relate to duties, powers and functions of medical assessors in a Workmen's Compensation Act case, are, in my view, equally apposite to the position of a medical assessor vis-a-vis the members of a Social Security Tribunal in a hearing involving Incapacity Benefit before such a Tribunal.

18. Accordingly, I conclude that the medical assessor's views on any particular case are not evidence. Therefore, strictly speaking, the Tribunal was incorrect in referring to the evidence of the medical assessor in its reasons for decision. It seems to me unfortunate that the standard forms made available to the Tribunal refer to "record of evidence from assessor" as this might well mislead a Tribunal to approach the advice of an assessor on a medical matter on the wrong basis.
19. Manifestly the Tribunal has considered all the relevant medical evidence. The Tribunal also has considered "the advice" of the medical assessor even though it might wrongly have labelled it as "evidence".
20. At first sight the reasons for the Tribunal's decision and, in particular, the position of the statement that "the Tribunal medical assessor did not connect the claimant's condition with limitations in respect of vision, standing or walking" might suggest that the Tribunal was permitting the medical assessor to decide an issue in the case. However, in my view, this specific reference at the end of the reasons for decision merely explains that the Tribunal was making it clear that it was taking into account and considering fully the assessor's view that he did not connect the claimant's medical condition with some of the claimant's physical problems. The counsel of perfection might have required the Tribunal to make entirely clear that the decision was the decision of the Tribunal alone and not, perhaps, the decision of the medical assessor. However, in my view, when one considers all of the reasons for the Tribunal's decision, it seems to me that there is no doubt that the Tribunal has come to its own decision in light of the claimant's evidence, the medical evidence and the advice of the medical assessor.
21. Therefore, in the circumstances, I do not consider that the involvement of the medical assessor in this case has been such to suggest that there might have been an error in point of law in the Tribunal's approach.
22. In all the circumstances I am satisfied that the decision of the Tribunal is not erroneous in point of law. Accordingly I dismiss this appeal.

(Signed): J A H Martin

CHIEF COMMISSIONER

14 July 1999