Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C8/98(IB) (28 April 1998)

 


Decision No: C8/98(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 Ballymena Social Security Appeal Tribunal dated 24 July 1996
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. Mr D... appeals with the leave of a Commissioner, against the decision dated 24 July 1996 of a Social Security Appeal Tribunal (hereinafter referred to as the Tribunal) sitting at Ballymena. Mr D... was granted leave by the Commissioner to make a late application.
2. An oral hearing of the appeal has not been requested and having considered all the circumstances of the case, I am satisfied that the appeal can properly be determined without such a hearing.
3. My decision is that the claimant's appeal is disallowed and that the decision of the Tribunal dated 24 July 1996 was not in error of law.

REASONS

4. Mr D... had been disallowed Incapacity Benefit from 28 April 1996 on the grounds that he had failed to All Work Test, the points awarded by the Adjudication Officer being 12 points. On Mr D...'s appeal to the Tribunal, the Tribunal also gave him 12 points on this test and disallowed the appeal. In general and summarised terms Mr D...'s grounds of appeal to the Commissioner were as follows:-

(1) The Medical Assessor, who he stated was a retired Ophthalmic Surgeon, had given incorrect information that the drug "Seroxat" would not make a patient drowsy.

(2) That Mr D... should have been awarded more points on the "sitting" descriptor.

5. In an earlier application for setting aside which was refused by the Tribunal Mr D... had made various complaints relating to the venue, persons attending the hearing, the Medical Assessor, waiting facilities being unequal for himself and the Adjudication Officer and Medical Assessor, the Tribunal having indicated a particular view of his evidence and a remark by an Adjudication Officer (which it appeared had been made after the decision).
6. Refusal to set aside is not appealable to the Commissioner but as the Commissioner has jurisdiction to deal with rules of natural justice, for completeness, and even though these grounds were not specifically stated before me, I have considered same.
7. In connection with the matters stated in the letter seeking setting aside none of these appear to me to indicate any violation of the rules of natural justice. It is apparent from the record of the hearing that both the claimant and the Adjudication Officer were given an adequate opportunity to present their respective cases and the Tribunal carried out very fully its inquisitorial and investigative role. As regards the comments about the Medical Assessor, there is no requirement other than that of being a qualified Medical Practitioner to be a Medical Assessor. The Assessor is not an expert witness, his role is to assist the Tribunal to understand and interpret medical evidence.
8. As regards the presence of what the claimant described as an Adjudication Officer's junior, the Social Security (Adjudication ) Regulations (Northern Ireland) 1995 provide that Tribunal hearings are to be in public unless a request is made otherwise or the Chairman otherwise so rules. No such request having been made in this case any member of the public was entitled to attend but as well as that there is a further right to attend of persons undergoing training as Adjudication Officers.
9. I am unable to find any violation of the rules of natural justice as regards the Tribunal hearing and its decision in any of the matters stated in connection with the application for setting aside.
10. As regards the other grounds of appeal there is no record in the hearing of the Medical Assessor having stated that the drug Seroxat would not make a patient drowsy. That does not necessarily mean that such a statement was not made, the Tribunal Chairman is not obliged to make a verbatim record of the evidence. More importantly, if any such statement was made, it does not appear to have contributed to the findings of fact or reasons and hence to the decision. Even if there was an omission it does not vitiate the decision.

It is also important to note that the Tribunal could not take on board evidence which was not before it at the time of the hearing. In this case the leaflet headed ""Seroxat" Patient Information Leaflet" was not before the Tribunal.

11. As regards the matter of the points awarded on the sitting descriptor. The awarding of points is a matter for the Tribunal. The observations of the Examining Medical Practitioner would be only part of what the Tribunal would take into account. There is no error in law in considering that a person is able to sit for a longer period than he has actually been observed sitting. There is therefore no error in law in awarding points accordingly.
12. I dismiss the appeal for the above reasons.

(Signed): M F Brown

COMMISIONER

28 April 1998