Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC A170/99-00(IB) (20 June 2000)

 


Decision No: A170/99-00(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Application by the above-named claimant for

leave to appeal to the Social Security Commissioner

on a question of law from a Tribunal's decision

dated 7 October 1999

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against a decision dated 7^th October 1999 of a Social Security Appeal Tribunal sitting at Londonderry. That Tribunal had disallowed the claimant's appeal against a decision of an Adjudication Officer reviewing an earlier determination that the claimant was incapable of work and determining that the claimant was capable of work from and including 3rd August 1999.
2. I held a hearing of the application which the claimant attended and at which he was represented by his solicitor Mr H… and at which the Adjudication Officer was represented by Mr Toner of the Decision Making and Appeals Unit. Mr Gallagher, who had represented the claimant at the Tribunal also attended. Both in correspondence and before me the claimant's appeal grounds were as follows:-

1. That the Tribunal went against the weight of the evidence in its finding.

2. That the Chairman of the Tribunal descended into the arena and did not give each side ample opportunity to present their respective cases.

3. That the Tribunal Chairman did not keep a proper note of the evidence by way of transcript.

3. At hearing the claimant's solicitor amplified ground one by saying that an advice note from the Incapacity Benefits doctor (tab 4A on the documents before me and before the Tribunal) set the tone for the entire theme and gave the impression of a professional man covering himself. The claimant felt that the doctor was dismissive. He had wanted to talk about his complaints and the doctor wanted "yes or no" answers. In addition the claimant was hurt during the examination by his leg being lifted into the air. He shouted out at the time and things deteriorated from there. The doctor awarded him no points. This had to be looked at against the background of previous medical evidence from Dr … the claimant's General Practitioner and Dr …. Certain reports were mentioned by Mr … but as these were in connection with the Disability Living Allowance claim which the claimant had made I queried whether the Tribunal had been handed any of these reports. The person who represented the claimant at the Tribunal, Mr Gallagher who also attended before me very honestly stated that the reports had not been handed in to the Tribunal. Mr Gallagher informed me that he had told the Tribunal that he had these reports available if they wished to see them but the Tribunal had not asked for them.
4. Mr H… informed me that he had not previously been aware of the fact that the Tribunal did not have the reports before it but he thought that the Tribunal had erred in not taking the reports and that Mr Gallagher had proffered them. In response to further questions to Mr Gallagher as to why he had not handed in the reports in, Mr Gallagher said that there was no reason, no one had told him that he could not hand the reports in.
5. In relation to the second ground Mr Gallagher stated in reply to a question from Mr H… that he had felt that he did not get a full opportunity to make his case. In reply to further questions from myself he informed me that he was not stopped from making his case or from asking questions. The Tribunal did not stop from making any point that he wanted to make.
6. Mr H… then asserted that the Chairperson had entered into the arena and that she had not let one of the representatives speak. I asked which representative this was and Mr H... said it was Mrs O'Connor who had represented the Adjudication Officer having been stopped from asking questions. Mr Gallagher said that he felt that Mrs O'Connor had been asking specific questions but was stopped from going on and did not understand why.
7. As regards ground three Mr H… stated that Mr Gallagher at the Tribunal had raised the question of irritable bowel syndrome and mentioned Commissioners decisions CIB15487/96 and C39/97. He submitted that these decisions should have been looked at.
8. Mr H… further submitted in general terms that he had not realised that the Tribunal had not had the medicals associated with Disability Living Allowance and that many of his points were no longer viable because of that.
9. Mr Toner opposed the appeal. He stated that as regards the presenting officer's questions it was noted that the presenting officer did ask questions and may possibly have been covering ground already covered. In response to my question he informed me that he knew of no complaint being made by Mrs O'Connor in relation to the matter.
10. Mr Toner said that he didn't feel that he could comment on what was being alleged but the Tribunal had the examining doctors report which specifically addressed the All Work Test which was what was in question in this matter. The Tribunal was entitled to accept the examining doctor's opinion on any particular matter and to proceed accordingly. Had the Tribunal had other reports it could have rejected them as they were not specifically referable to the criteria in question.
11. In response to this Mr H... said that if the Tribunal had had the other medical reports it might have had to conclude that the Incapacity Benefit doctors report was "jaundiced".
12. Neither had anything further to add.
13. As regards the matters alleged I am unable to find any arguable ground that the Tribunal erred in relation to any of these matters. The record of the decision indicates and Mr Gallagher has confirmed that the DLA medical report were not before the Tribunal. These reports could have been handed in and were not. I do not consider that the Tribunal was in any way in default of its inquisitorial role in not seeking these reports. It already had a medical report dealing directly with the All Work Test and it did not stop the representative from handing them in. In addition, as Mr Toner has stated, the Incapacity Benefit doctor's report is specifically related to the criteria which the Tribunal was dealing with. The Tribunal appears to have accepted that the claimant has a variety of medical complaints. It is the assessment of the effect these complaints have on his functions within the All Work Test that the Tribunal was considering. It did this quite properly on the basis of the evidence before it.
14. As regards the second ground of the appeal I find the assertion that the Chairperson did not give each side an ample opportunity to present their cases to be without foundation. The record indicates quite clearly that the matter was explored thoroughly and it appears that both sides were given an opportunity to present their cases fully. The fact that the Chairman or indeed any other member of the Tribunal questions a claimant closely is not indicative of an error of law but rather that that member of the Tribunal is acting quite properly in seeking to ascertain whether or not the conditions of entitlement are satisfied. This will often entail close exploration of evidential issues.
15. I similarly can find no indication that there was not a proper note of evidence kept and indeed the amplification of the contention at hearing did not relate to a record of the evidence but simply to the two said Commissioners decisions mentioned above. In view of the Tribunal's assessment of the evidence (which I consider it was quite entitled to reach) I do not think that it was necessary for the Tribunal to go any further into the matter of these two decisions. It quite obviously and clearly stated that it considered the claimant was overstating his case and it was entitled to that view. It accepted the examining doctor's assessment of the claimant's functional ability. The two decisions were not therefore relevant. The claimant was not found to be in the situation of pain or discomfort delineated in CIB14587/96. Nor was he found to have any problems with continence which was the point raised with relation to the decision cited as C39/97. The Tribunal's reasons clearly explain its decision.
16. As I stated above I am unable to find any ground on which it may be reasonably argued that the Tribunal's decision is error of law. I therefore dismiss this application.

(Signed): M F Brown

COMMISSIONER

20 June 2000