Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C12/99(IB) (3 June 2000)

 


Decision No: C12/99(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to the Social Security Commissioner

on a question of law from the decision of

Newtownards Social Security Appeal Tribunal

dated 10 September 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, with the leave of the Chairman, against the decision of the Appeal Tribunal which upheld, in substance, the decision of the Adjudication Officer dated 12 February 1998 and disallowed the claimant's claim for Incapacity Benefit for the period from 22 September 1997.
2. The claimant became unfit for work on 21 November 1996 and claimed and was awarded Incapacity Benefit. A doctor's statement received in support of his claim referred to musculoskeletal chest wall pain and chest wall pain. On 17 January 1997 the claimant completed a questionnaire on which he described difficulties in the activities of sitting, reaching and lifting and carrying. Received along with the questionnaire was form Med 4 completed by the claimant's doctor on 16 January 1997. According to the form the doctor diagnosed the claimant's main condition as chest wall pain and stated that the claimant was awaiting an appointment at the pain clinic. The claimant was examined by a medical officer of Medical Support Services on 24 February 1997. The medical officer diagnosed his conditions as pain anterior left chest wall, left shoulder and upper arm and erythematous rash to left side of face and anterior neck. The medical officer expressed the opinion that the claimant had no problems sitting, could not raise his arm above his head to reach for something and could not pick up and carry a 0.5 litre carton of milk with one hand. On 18 March 1997 the adjudication officer assessed the All Work Test and decided the claimant scored 6 points for the activity of lifting and carrying, thereby failing the test. The adjudication officer also reviewed the award of Incapacity Benefit and disallowed benefit from and including 18 March 1997.
3. The claimant's subsequent appeal against the adjudication officer's decision was heard by a Tribunal on 4 June 1997. The Tribunal disallowed the appeal awarding the claimant (as the adjudication officer had done) 6 points for the activity of lifting and carrying. The Tribunal's decision was subsequently set aside by a different tribunal on 16 July 1997. The appeal was eventually heard by a Tribunal on 29 August 1997 which disallowed the appeal, awarding the claimant 6 points for the activity of lifting and carrying.
4. On 22 September 1997 the claimant made a claim for Incapacity Benefit from 18 March 1997. Doctor's statements submitted in support of his claim refer to muscular and chest wall pain, neck and lumbar pain, numbness in left arm and hand, leg pains and chronic fatigue and muscular rheumatism. On 12 February 1998 the adjudication officer disallowed the claim as follows -

(1) from 18 March 1997 to 21 June 1997 because the claim had not been made within the 3 month time limit for claiming as provided for by regulation 19 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987;

(2) from and including 22 June 1997 because the claimant could not be treated as incapable of work under the provisions of regulation 10 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995;

(3) from and including 22 June 1997 because the claimant could not be treated as satisfying the All Work Test pending assessment under the provisions of regulation 28 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 because there had been a determination within the 6 months preceding 22 June 1997 that the claimant was capable of work and he was not suffering from a specific disease or bodily or mental disablement which he had not suffering from at the time of that determination and that that disablement had not significantly worsened;

(4) from and including 22 June 1997 because the claimant did not satisfy the All Work Test having scored 6 points for the activity of lifting and carrying.

The claimant then appealed to a Tribunal.

5. A submission was prepared for the Tribunal pointing out that the adjudication officer's decision dated 12 February 1998 was incorrect. This was because the Tribunal who decided a previous appeal on 29 August 1997 would have been deciding the appeal down to that date, in accordance with Commissioner's decision C55/97(IB), at paragraph 10, and the adjudication officer should have decided that he could not decide the claim for the period from 18 March 1997 to 18 August 1997 (this should have been 29 August 1997). The Tribunal was invited to decide the question at (2), (3) and (4) above from and including 29 August 1997 (this should have been 30 August 1997).
6. On 10 September 1998 the Tribunal upheld the decision of the adjudication officer dated 12 February 1998 and disallowed the claimant's appeal. On the same date the Tribunal corrected its decision and disallowed the appeal from and including 29 August 1997 (should have been 30 August 1997).
7. The Tribunal made the following findings of fact material to its decision:-

"1. The claimant is aged 50 and last worked as a sales representative in 1994.

2. In September 1996 he developed a respiratory infection. He has subsequently referred to the Ulster Hospital for 2 days and for tests and observation. An ECG was performed which was inconclusive. Chest X-rays were normal.

3. He claimed Incapacity Benefit from 21 November 1996 due to musculoskeletal chest wall pain and was paid Incapacity Benefit. The All Work Test applied from 24 November 1996. He completed a questionnaire which was received on 20 January 1997. In this he complained of pain in his chest, his left arm and shoulder. He complained of pain in his chest, his left arm and shoulder. He complained of problems in sitting and in lifting and carrying and reaching.

4. A med 4 dated 16 January 1997 referred to chest wall pain and that he experienced pain on lifting his left arm or on stretching. He attended the Pain Clinic at Ulster Hospital Dundonald on 12 February 1997 and was given acupuncture. He was also given Zydol but stopped same due to side effects and he was started on Amytriptalyn and Kapake.

5. He was examined by a Medical Officer on 24 February 1997. He was complaining of pain at his chest wall and in his left shoulder and upper arm. On examination he was found to have a full range of neck movements. Muscle wasting was noted in his left arm with elevation reduced by 45 degrees. Elbow wrist and hand movement was normal with a good grip. Sensation in his fingers was reduced. It was also noted that he had red blotches on his left side. His right domination arm was normal.

6. On 18 March 1997 an Adjudication Officer scored him 6 physical points on the All Work Test and disallowed him from that date. By letter dated 8 April 1997 the claimant indicated a wish to appeal the decision and pointed out that an exact diagnosis of his condition had not been made but his General Practitioner thought he might be suffering from fibromyalgia.

7. On 4 June 1997 the claimant's appeal was heard in his absence and the Adjudication Officer's decision was affirmed. This appeal was subsequently set aside on 16 July 1997 as same had been heard in his absence.

8. On 29 June 1997 a Social Security Agency (sic) tribunal sitting at Newtownards heard the claimant's appeal. The claimant and his representative attended the appeal. At the appeal the claimant referred to having a problem with chronic fatigue which had worsened and that he was having trouble digesting and tests for cancer were ongoing. He attributed his condition to organophosphoros poisoning. The Tribunal adjourned so that the claimant could obtain evidence as to the recent tests for cancer and to obtain a report from his General Practitioner. The appeal was relisted on 29 August 1997 and disallowed. The scoring of the Adjudication Officer was affirmed, viz, 6 points for lifting and carrying (8e), problems reaching above his head with one arm (9(f) and no problems sitting (3(f).

9. The claimant made a further claim for Incapacity Benefit on 22 September 1997 seeking to claim from 18 March 1997 being the date of the disallowance of his original claim. Later certificates from his General Practitioner refer to muscular rheumatism. On 12 February 1998 the Adjudication Officer disallowed this second claim (...) and that decision is the subject matter of the present appeal. In the claimant's letter of appeal dated 25 March 1998 (...) the claimant stated that his symptoms seems to change on a weekly basis the most recent being nosebleeding and diarrhoea.

10. The Tribunal finds that there has not been a change of incapacity since the previous determination nor has his condition significantly worsened.

11. There has been ongoing investigation of the claimant's complaint but a definite diagnosis has not been made. His symptoms would indicate muscular rheumatism. He has a good range of mechanical movement though he experiences pain and discomfort at varying sites and experiences fatigue. He is however capable of performing the All Work Test activities as scored. He has a Baker's cyst but same does not impede function of his leg.

12. He has no mental health disability."

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

"The chronology of this appeal is rather complicated as is the nature of the disability complained of.

We are dealing with the Adjudication Officer's decision of 12 February 1998. On 22 September 1997 the claimant made a fresh claim for Incapacity Benefit seeking to claim from the date of his first disallowance, viz, 18 March 1997. The period 18 March 1997 to 21 June 1997 is out of time as it is outside the 3 month time limit for claiming. However, the corrected decision in the Adjudication Officer's submission is that the period 18 March 1997 to 28 August 1997 was already adjudicated upon by the Social Security Appeal Tribunal on 29 August 1997.

From 29 August 1997 the claimant cannot be treated as incapable pending assessment as there was a determination in the previous 6 months, viz, 18 March 1997 unless there has been a significant deterioration or a new incapacity (Reg 28 Social Security (Incapable for Work) (General) Regs (Northern Ireland) 1995).

On behalf of the claimant we have been presented with a large number of medical reports.

There is a report from Dr F…, Consultant Rheumatologist dated 15 May 1997 who was unable to make a diagnosis. The complaints of generalised aches and pains he thought may be muscular rheumatism or a connective tissue disorder. Reference was made to tests for viral infection and the possibility of chronic fatigue syndrome. (...) in a further report of 12 March 1998 he was found not to have sufficient trigger points to meet the criteria for a diagnosis of fibromyalgia and his symptoms were felt to be more akin to muscular rheumatism. The report also states that referrals to a consultant about his rash diagnosed eczema and not lupus.

Next in time is a report from the claimant's General Practitioner, Dr B… dated 27 August 1997. The doctor refers to a continuous deterioration since October 1996. The diagnosis appeared to be muscular rheumatism or fibromyalgia. There is a further report from the General Practitioner dated 18 August 1998. She refers to further referrals to Dr F… and as the claimant did not fulfil the necessary trigger points to meet the criteria for diagnosis fibromyalgia the diagnosis of muscular rheumatism was preferred. A list of symptoms is given.

There is a report from Dr H… FFARCS consultant in pain management dated 9 December 1997 where the limitations of pain management for fibromyalgia is explained.

There is a letter for MR (sic) K… FRCS dated 20 July 1998 who was of the opinion that there was no evidence of any sinister pathology. The claimant referred to a chest lump which the consultant could not locate and was unable to comment on the question of any sensitisation or organophosphates. Reference is made to a baker's cyst behind his left knee and a small fatty presence above the right knee. The Tribunal feels function would be unlikely to be compromised by the above.

We have also been provided with medico legal report from Dr D… FRCS dated 12 May 1998 which deals with the possibility of his complaints being linked to a substance which he had been treating his cats with which apparently was a organophosphorous compound. Clinical examination was unremarkable. The consultant felt unable to comment on whether there was any connection.

We have been provided with results of lab analysis which the medical assessor stated was very technical.

Finally, there is a report from Dr M… General Practitioner who has a particular interest in organophosphorous problems. The report is technical and appears to feel there is some contamination from phosphates plus a viral infection which could result in chronic fatigue.

We are not really concerned with trying to find if there is any connection with organicophoispahate exposure or what the precise diagnosis is. We ultimately are concerned with how the claimant is affected. Overall his complains appear to be of generalised joint pain and fatigue which commenced in or about October 1996. We do not feel that there has been any new incapacity between the second claim and the first determination. We also do not feel that there has been a significant deterioration but felt that there is most likely a regular shift in the sites of discomfort which has been ongoing. Consequently, the Adjudication Officer was correct in holding that the claimant could not be treated as incapable pending assessment.

The Adjudication Officer went on then to state that on the balance of probabilities the claimant failed the All Work Test and adopted the score of the previous determination. We note that throughout the report supplied the physical findings have been unremarkable. We must have regard to whether a person can perform the activities reliably and with degree of repetition. Turning to the activities in the All Work Test it should be pointed out that they are relatively light. In applying the descriptors we must have regard to the notion of overall reasonableness in the performance of the activities. The issue is whether taking an overall view of the claimant's capacity to perform the activity he should reasonable be considered incapable of performing it. The fact he might occasionally perform it would be of no consequence if most of the time in most circumstance he could not do so. Consequently there must be an overall requirement of 'reasonableness' as to whether the activity can be performed most of the time save for the 2 descriptors allowing for sometimes problems. (CI/95(IB)). The Tribunal's opinion of working capacity is irrelevant. (A40/96(IBB)). The claimant may well be unfit for his old job but we however are looking purely at the activities in the All Work Test.

Having regard to the fairly short period of time which has elapsed between the first tribunal's adjudication and having regard to the apparent nature of the claimant's condition we feel that the Adjudication Officer was correct in finding on the balance of probabilities the claimant fails the All Work Test. In this new claim the claimant has no underlying title to benefit and he must show continuing incapacity under the All Work Test. There is no evidence to suggest his condition is life threatening and that Regulation 27 could apply."

9. The All Work Test sheet gave a total of 6 points for physical health descriptors [Descriptor 8(e) (Cannot pick up and carry a 0.5 litre carton of milk with one hand but can with the other) having been assessed as the appropriate descriptor for Activity 8 (Lifting and carrying ...)] and zero points for mental health, giving a total score of 6 points.
10. The unanimous decision of the Tribunal was in the following terms:-

"The claim made on 22/9/97 for the period 18/3/97 to 21/6/97 inclusive is out of time and the period 18/3/97 to 28/8/97 has already been disallowed by a Social Security Tribunal sitting on 29/8/97 in respect of an earlier claim dated 12/12/96.

For the period from and including 29/8/97 he cannot be treated as incapable as he is not exempt from the All Work Test. The All Work Test cannot be treated as satisfied as there has been a determination within the preceding 6 months and he is not suffering from a new incapacity nor has there been a significant worsening of his condition. From and including the 29/8/97 he fails the All Work Test. All Work Test score 6 physical. There are no exceptional circumstances."

11. The claimant, who is represented by the Law Centre (NI) appealed for leave to appeal to a Commissioner. The grounds relied on were as follows:-

"I respectfully submit that the decision of the tribunal was erroneous in law as follows:

The Tribunal was considering the claim for benefit made on 21 September 1997, following a disallowance decision of 18 March 1997 and an unsuccessful appeal of 27 August 1997.

It is respectfully submitted that the Tribunal erred in holding that six month period in reg. 28 IFW Regulations ran from the date of decision of the appeal Tribunal as opposed to the date of the original disallowance."

12. A Chairman, although not the Chairman of the Tribunal, purported to grant leave to appeal by stating in writing on 23 February 1999 the following:-

"Allow this appeal to the Commissioner by the adjudication officer to go forward."

In my view it is preferable for Chairmen (and now also legally qualified panel members in accordance with recent changes in law and procedure) to grant leave specifically rather than "allow (the) appeal ... to go forward." Also in the present case the adjudication officer did not apply for leave but the application was made by or on behalf of the claimant. In the circumstances I am prepared to accept that the reference to "the adjudication officer" is merely a verbal slip and that the Chairman intended to grant leave to the claimant. I am reinforced in this conclusion by the fact that neither representative involved in the present appeal has taken any point arising out of this most unfortunate and regrettable error which is clearly apparent on the documents before me.

13. A hearing of the present appeal took place on 20 October 1999. Mr Stockman of the Law Centre (NI) represented the claimant, who was not present, whilst the Adjudication Officer, now the relevant Departmental Official, in attendance was Mr Toner. In addition to the submission made at the hearing I have had the benefit of the original submission made by Ms Loughrey of the Law Centre (NI) and set out in the application of leave to appeal, Mr Toner's written submissions dated 26 May 1999, 21 August 1999 and further (post hearing) written submissions dated 30 October 1999 and 20 April 2000, and also Mr Stockman's written submission dated 2 July 1999 and further (post hearing) written submissions dated 4 November 1999 and 15 May 2000. The post hearing submissions were made at my request.
14. Mr Stockman, the Assistant Director of the Law Centre (NI), who now represents the claimant, by letter dated 2 July 1999 succinctly set out main issue in the present case in the following terms:-

"... When a fresh claim for incapacity benefit is made following a previous determination that a person is capable of work, is the relevant date of determination the date of the adjudication officer's disallowance of the claim or, as the tribunal in this case decided, the date of a subsequent tribunal decision on an appeal from that disallowance?"

Therefore the question in the present case is, when applying the portions of regulation 28(2)(b) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 to a fresh claim, whether the relevant date of determination is the date of the Adjudication Officer's decision (18 March 1997) or the date the Tribunal decided the subsequent appeal (29 August 1997).

15. It is helpful to set out the relevant legislation at this stage. The Social Security (Adjudication) Regulations (Northern Ireland) 1995 (the then relevant legislation which has been superseded in a different form by the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999) sets out, inter alia, the procedure whereby Tribunals adjudicate upon matters within their jurisdiction. In particular regulation 23 sets out the mechanics of the adjudication process in the following terms:-

"Decisions of appeal tribunals

23-(1) The decision of the majority of the appeal tribunal shall be the decision of the tribunal, but, where the tribunal consists of an even number, the chairman shall have a second or casting vote.

(2) Every decision of an appeal tribunal shall be recorded in summary by the chairman in such written form of decision notice as shall have been approved by the President, and such notice shall be signed by the chairman.

(3) As soon as may be practicable after a case has been decided by an appeal tribunal, a copy of the decision notice shall be sent or given to every party to the proceedings who shall also be informed of -

(a) his right under paragraph (3C); and

(b) the conditions governing appeals to a Commissioner.

(3A) A statement of the reasons for the tribunal's decision and of its findings on questions of fact material thereto may be given -

(a) orally at the hearing; or

(b) in writing at such later date as the chairman may determine.

(3B) Where the statement referred to in paragraph (3A) is given orally, it shall be recorded in such medium as the chairman may determine.

(3C) A copy of the statement referred to in paragraph (3A) shall be supplied to the parties to the proceedings if requested by any of them within 21 days after the decision notice has been sent or given, and if the statement is one to which sub-paragraph (a) of that paragraph applies, that copy shall be supplied in such medium as the chairman may direct.

(3D) Where a decision is not unanimous, the statement referred to in paragraph (3A) shall record that one of the members dissented and the reasons given by him for dissenting.

(4) A record of the proceedings at the hearing shall be made by the chairman in such medium as he may direct and preserved by the clerk to the tribunal for 18 months, and a copy of such record shall be supplied to the parties if requested by any of them within that period." [My emphasis]

16. The Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 set out the provisions affecting determination as to capacity for work for the purposes of the Social Security Contributions and Benefits (Northern Ireland) Act 1992. In particular regulations 19 and 20 set out the effect of a determination as to incapacity for work and a Adjudication Officer's jurisdiction to determine certain questions. These regulations are in the following terms:-

"19. A determination as to whether a person is, or is to be treated as, capable or incapable of work, which is made for the purpose of determining his entitlement to any benefit, allowance or advantage, shall be treated as conclusive for the purposes of his entitlement to any other benefit, allowance or advantage in respect of any day or any period to which that determination relates.

20. Where, in relation to a determination for any purpose to which Part XIIA of the Contributions and Benefits Act applies, a question arises as to -

(a) whether a person is, or is to be treated as, capable or incapable of work in respect of any period; or

(b) whether a person is terminally ill,

that question shall be determined by an adjudication officer notwithstanding that other questions fall to be determined by another authority." [My emphasis]

17. Regulation 28 sets out the conditions whereby the All Work Test shall be treated as satisfied until a person has been assessed or, as the case may be, until he is treated as capable of work. This regulation is in the following terms:-

"28.- (1) Where the all work test applies, the test shall, if the conditions set out in paragraph (2) are met, be treated as satisfied until a person has been assessed or until he falls to be treated as capable of work in accordance with regulation 7 or 8.

(2) The conditions referred to in paragraph (1) are -

(a) that the person provides evidence of his incapacity for work in accordance with the Medical Evidence Regulations; and

(b) that it has not within the preceding 6 months been determined, in relation to his entitlement to any benefit, allowance or advantage which is dependent on him being incapable of work, that the person is capable of work, or is to be treated as capable of work under regulation 7 or 8, unless -

(i) he is suffering from some specific disease or bodily or mental disablement which he was not suffering from at the time of that determination;

(ii) a disease or bodily or mental disablement which he was suffering from at the time of that determination has significantly worsened, or

(iii) in the case of a person who was treated as capable of work under regulation 7 (failure to provide information), he has since provided the information requested by the Department under that regulation."

18. Mr Stockman contended as follows (and I summarize):-

(i) Regulation 20 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 specifically placed the statutory responsibility on the adjudication officer to make a determination in relation to Part XIIA of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

(ii) Regulations in the Social Security (Adjudication) Regulations (Northern Ireland) 1995, such as regulation 23 use the term "decision" as opposed to the term "determination".

(iii) Therefore regulation 28 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 only is applicable to initial determinations by an Adjudication Officer and is not applicable to Tribunal decisions on appeal.

(iv) If the conclusion at (iii) was not accepted it would result in injustice as a claimant on the one hand, who was determined to be capable of work and chose not to appeal, could, if he made a further claim 6 months later, be treated as incapable of work, whilst on the other hand a claimant has appealed to a Tribunal (and perhaps later to a Commissioner or the Court of Appeal or beyond) would have to await the outcome of the appeal process, which might take years, before being treated as incapable on a fresh claim.

(v) The significance of the change in the law brought about by the introduction of the new section 20(8) of the Social Security Administration (Northern Ireland) Act (now article 13(8)(b) of the Social Security (Northern Ireland) Order 1998) from 1 July 1998 is that a Tribunal cannot now have regard to circumstances not pertaining at the time of the original adjudication officer's determination which is the subject of the appeal. This effectively rules out a role for a tribunal in considering regulation 28(2) factors, which include deterioration or new incapacity since the original determination. The implication of this is that the tribunal has no jurisdiction under regulation 28 and, since that regulation has not been amended, that this was also the case prior to 1 July 1998. It was submitted that this also tended to support the contention that regulation 28 matters were purely first tier considerations for an adjudication officer and that any intervening decision by a tribunal did not fall to be considered as a determination under regulation 28.

19. Mr Toner contended as follows (and I summarize):-

(i) When a Tribunal in this type of case is adjudicating upon a matter, in accordance the Social Security (Adjudication) Regulations (Northern Ireland) 1995, it is deciding an appeal against a decision of an Adjudication Officer who has determined that a person is capable of work, not having satisfied that All Work Test.

(ii) Therefore the Tribunal's decision of 29 August 1997 is a determination that the claimant was capable of work for the purposes of regulation 28(2)(b) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.

(iii) Regulation 19 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 provides that a determination in relation to incapacity in relation to any claim to any benefit (etc) shall be treated as conclusive for the purposes of any other benefit (etc). Therefore regulation 20 is, in substance, a safeguard to ensure that all such determinations are properly for the Adjudication Officer.

(iv) However these determinations carry the same right of appeal as any other

decision of an Adjudication Officer (as provided by section 20(1) of the Social Security Administration (Northern Ireland) Act 1992) and any subsequent adjudication on appeal by a Tribunal must be regarded as a determination for the purposes of regulation 28 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.

(v) From 1 July 1998, by reason of a new provision, section 20(8) of the Social

Security Administration (Northern Ireland) Act 1992, Tribunals are no longer permitted to "take into account any circumstances not obtaining at the time when the decision appealed against was made." However before 1 July 1998 a Tribunal was bound to decide an appeal down to the date of its decision in accordance with Commissioner's decision C55/97(IB) (paragraph 10 in particular) and the composite decision of a Great Britain Tribunal of Commissioners CIB/14430/96, CIS/12015/96, CS/12054/96. Therefore the Tribunal, as at 29 August 1997, was required to adjudicate on all relevant matters down to that date, and, in doing so, was making a decision on an appeal which is a determination that the claimant was capable of work.

20. It seems to me that the meaning of "decision" and "determination" (and any words devised from these terms) in the relevant legislation must be interpreted in light of the context. It is important to note that regulation 28(2)(b) does not contain the word "decision" or "determination", but the word "determined" has been used. In my view "a decision" by a competent Tribunal on appeal from "a determination" of an Adjudication Officer has the effect of "determining" on appeal the relevant issues. Therefore I take the view that the decision of the Tribunal on 29 August 1997 must be considered to be the relevant date for assessing, if another claim is subsequently made, whether or not there has been a regulation 28(2)(b) assessment within the preceding 6 months. I am reinforced in my conclusion by the following point. Section 20(1) of the Social Security Administration (Northern Ireland) Act 1992 (now superseded in different terms by Article 13 of the Social Security (Northern Ireland) Order 1998) refers to where an Adjudication Officer "has decided a claim" a claimant shall have a right to appeal. The use of the word "decided" means that the Adjudication Officer must make "a decision". The words "decision" or "deciding" must include "a determination" or "determining" by an Adjudication Officer, otherwise there would never have been a right of appeal to a Tribunal.
21. One point that has in particular concerned me is the matter raised by Mr Stockman and set out at paragraph 18(iv). In effect he has pointed out the potential injustice that might arise. However Mr Toner has drawn my attention to paragraph 15 of the common appendix to the Great Britain Tribunal of Commissioners decisions CIB/14430/96, CIS/12015/96, CS/12054/96 which, before the change in statute law (by the Great Britain equivalent of subsection (8) to section 20 of the Social Security Administration (Northern Ireland) Act 1995 inserted by schedule 5 para 3(1) of the Social Security (Northern Ireland) Order 1998) held that Tribunals were obliged to decide cases "down to the date of decision." The Tribunal of Commissioners specifically considered at paragraph 15 the anomalies that might arise when applying this rule in situations where the identical regulation 28(2)(b) in Great Britain was relevant. While the Tribunal perhaps did not definitively rule on the matter, it did state as follows:-

"15. We ought lastly to mention that (Counsel for the Adjudication Officer) in relation to the Incapacity Benefit case, indicated that a problem might arise if "the down to the date of decision" approach were adopted, where regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995, S.I. 1995 No. 311 applies. (Counsel) submitted that a claimant might be disadvantaged if a tribunal were able to rule on his claim of e.g. deterioration in his health, in that the claimant would not then be able to take advantage of the "6 months' rule" in regulation 28(2)(b). If the point is correctly taken, it would seem to us to be a necessary consequence of the claimant having instituted an appeal in the first place. In any event we do not think that this is to be likely to be a substantial disadvantage. It would be of the claimant's own volition, if for example, he wishes to assert before the tribunal that his condition has deteriorated."

22. This approach taken by the Great Britain Tribunal of Commissioners confirms my conclusion that the potential injustice point is not as great as at first sight it might seem and, in the circumstances, I do not consider that I am justified in taking any other view in cases affected by the law in existence before the addition of the new section 20(8) to the Social Security Administration (Northern Ireland) Act 1992.
23. There is also some force in Mr Stockman's point (v) set out at paragraph 18. However I consider that it is important for the adjudicating authorities to try to interpret the law as it is at the relevant time, and I consider that it is relatively clear. Therefore the subsequent enactment of section 20(8) which might suggest that, from 1 July 1998, it is unlikely that "a decision" of a Tribunal will ever be actually considered, for regulation 28(2)(b) purposes, as "a determination", does not in my view mean that before 1 July 1998 "a decision" of a Tribunal on an appeal cannot be "a determination".
24. Mr Stockman also argued (at the hearing and more thoroughly in his submission of 4 November 1999) that the Tribunal's decision was irrational or, in the alternative, was based on no, or insufficient, evidence. He submitted that if the date of determination was in fact the date of the Tribunal decision (as I have held), the Tribunal ought to (and in fact did) have regard to the factors set out in regulation 28(2) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 (see paragraph 11 herein). Therefore the Tribunal was required to consider whether the claimant was "suffering from some specific disease or bodily or mental disablement which he was not suffering from at the time of the determination; or whether the "disease or bodily or mental disablement which he was suffering at the time of that determination has significantly worsened".
25. I noted that Mr Stockman at the hearing acknowledged that a change in medical diagnoses (between chest wall pain on 26 November 1996 and muscular rheumatism on 3 April 1998) in itself does not necessary indicate a change in the claimant's condition. It seems to me that, in the circumstances, it is a change of diagnosis of the original condition, and I do not consider that the Tribunal has erred in law in coming to this conclusion. However there certainly is an issue in the case whether the claimant's condition has worsened (regulation 28(2)(ii)).
26. The Tribunal dealt with this issue by considering in great detail the evidence, which was voluminous, and made a specific finding of fact that his condition had not significantly worsened. As Mr Toner has pointed out, the Tribunal found that, rather than there being a significant deterioration in the claimant's condition, there had been a regular shift in the sites of discomfort and this had been ongoing.
27. I conclude that the Tribunal, as the judge of fact in this case, was entitled to come to that conclusion and that the conclusion is not irrational in law and is not based on no, or insufficient, evidence.
28. Therefore for the reasons stated I conclude that the decision of the Tribunal is not erroneous in point of law. Accordingly I dismiss the appeal.

(Signed): J A H Martin QC

CHIEF COMMISSIONER

6 June 2000