Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C22/99(IB) (18 June 1999)

 


Decision No: C22/99(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 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 INCAPACITY BENEFIT
Application by the claimant for leave to appeal and appeal to a Social Security Commissioner on a question of law from a tribunal's decision dated 22 October 1998 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application by Mr G... for leave to appeal against a decision dated 22 October 1998 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. I held an oral hearing of the application which Mr G... attended and which Mr Toner of Central Adjudication Services attended to represent the Adjudication Officer. I grant leave to appeal and with the consent of both parties treat the application as an appeal and determine any questions arising thereon as though they arose on appeal. My decision is that the Tribunal's decision was not in error of law and the appeal is therefore dismissed.
2. In essence Mr G...'s grounds of appeal were that he considered the Tribunal's decision to be perverse in light of the evidence which he had given at the Tribunal and in light of its reliance on the medical report which he considered to be misleading and full of discrepancies. In his OSSC1(NI) form dated 12 January 1999, Mr G... set out a long list of factors where he considered that the medical examination and report were inadequate
3. Mr Toner opposed the application. He stated that the Tribunal had very carefully investigated the case, had made adequate findings of fact and given adequate reasons for reaching its decision. He considered that Mr G... in his application for leave was attempting to have the issues reopened and opposed the application on the grounds raised.
4. Mr Toner also considered that there was no error of law on the Tribunal's part in dealing with the grounds for review. Mr G... had had an earlier award of Incapacity Benefit so that review was necessary if that award was to be terminated. In this connection Mr Toner referred to a decision of my own C65/98(IB) to the effect that a change in functional limitations constituted grounds for review and then referred to a decision of Great Britain Commissioner Mesher, in CIB/3899/97, which advocated a comparison between past and present findings on the All Work Test. Mr Toner stated that Mr G...'s earlier score on the All Work Test must have been above 15 points and that the reasons and the score sheet drawn up by the Tribunal indicated that there must have been functional changes since then. He stated that it was implied throughout the reasons and explicit on the score sheet that there had been functional changes and he therefore submitted that there was no error in the Tribunal's decision.
5. On reading the Tribunals decision it is quite apparent that it investigated this matter extremely thoroughly. It had detailed evidence from the claimant and sought background medical information from the medical assessor. It also took into consideration the other medical documents which the claimant produced. Its decision was one which it was entitled to reach on the evidence and I therefore consider that the decision was not perverse.
6. Mr G... obviously feels aggrieved with relation to the medical report and he set out in considerable detail in his application to me his reasons for feeling that the medical report was incorrect. He had made some representations to the Tribunal with relation to that though it does not appear that he set out the detailed areas which he set out to me. I am not in the situation of rehearing this case but simply of deciding whether or not the Tribunal which did hear it erred in law.
7. At the Tribunal hearing Mr G... did make some mention of the medical report being unsatisfactory. He indicated that the doctor in question had not recorded his blood pressure and had listed his medication incorrectly. He also indicated that reflexes on his left arm had not been tested. He also mentioned that he had told the doctor he could lift to a certain height with his left arm but not with his right. The Tribunal appear to have taken all this evidence into account. It explored the matter further with the medical assessor and then reached, as it was entitled to do, its own conclusions. It in fact raised the score from that which the Adjudication Officer had come to based on the examining doctor's opinion. It did not however raise the score to 15 points, which was what the claimant would have required to succeed in passing the All Work Test.
8. I can see no indication whatsoever that the Tribunal has failed to take on board the evidence and submissions made to it. The fact that it placed some reliance on a doctor's report is not an error of law. What the Tribunal had to do was to take into consideration all the evidence presented to it and consider the submissions made to it. It then had to make an assessment of that evidence and decide what it accepted and what it rejected (and it is quite possible for a Tribunal to accept a part of a medical report while rejecting another part). In this instance it is quite apparent that the Tribunal did not uncritically accept the medical report. It has as I mentioned earlier altered the scoring and it has also accepted that the claimant had high blood pressure. I should however mention that the examining doctor also appeared to accept this. He has recorded it under the diagnosis section of his report although he does later record that the blood pressure was normal on very minimal pressure. Mr G... is correct in that the examining doctor did not take a full blood pressure reading so I am not certain of the significance of the actual testing that the doctor did do. It is quite apparent however, that the Tribunal investigated this matter in that it made copious notes in relation to same and took information from the medical assessor to assist it to ascertain the extent of the claimant's blood pressure problems.
9. As regards the issues mentioned by Mr Toner and the two cases cited by him -C65/98 (a decision of my own) and CIB/3899/97 a decision of Great Britain Commissioner Mesher. At paragraph 23 of my decision I stated:

"It is essential to the determination of whether or not there were grounds for review in this case that there be a relevant change of circumstances. Essentially it appears to me that [representative] was arguing that without an actual change of clinical findings or medical condition there could not be a relevant change of circumstances. I do not agree. The relevant circumstances for purposes of the All Work Test and therefore for purposes of whether or not the claimant is to be considered capable of work include functional limitations. Leaving aside the issue of whether or not there was a change in clinical findings here and, having compared the two clinical findings it seems to me there may in this case have been a change in clinical findings in terms of the claimants arm functions, the essential matters for the purposes of the All Work Test are the claimant's functional limitations. If there is a change in those functional abilities, whether or not reflected in a change in clinical findings, this will be a relevant change of circumstances".

I have not altered my view. If there is a change in functional capacity as measured by the All Work Test this may be a relevant change of circumstances. If it is such as to bring a claimant's score on the All Work Test below 15 points then that may lead to a revisal of the decision on entitlement to Incapacity Benefit. If it does not bring the score to below 15 points it may not lead to such revisal.

10. As regards CIB/3899/97, while I do not share certain parts of the reasoning in paragraphs 11 - 14 (particularly paragraph 14) it is apparent from the reasoning at paragraph 15 that Commissioner Mesher considers if an improvement in the claimant's abilities is established by the evidence this may indicate a relevant change of circumstances.
11. I consider the abilities in question are functional abilities comprised in the All

Work Test. Any change in those functional abilities will therefore usually be reflected

in a change in assessment of that test.

12. Initially I had concern whether or not the correct onus of proof had been applied. As part of its reasons the Tribunal had recorded:

"The claimant is subject to the all work test. The burden of showing that the claimant is no longer entitled the benefit is on the AO (R(S)3/90).

If the claimant fails the all work test this is a change of circumstances justifying review of the award of benefit (see CSIS/137/94)"

It appears to me that in a case of review such as the present (where previous entitlement was based on actual satisfaction of the All Work Test) the onus is on the Adjudication Officer to show that the All Work Test is not satisfied. My concern was as to whether the Tribunal had adopted this stance in coming to its decision. It is not simply a matter of an All Work Test being conducted and the claimant failing to satisfy same (the onus being on him to do so) and the Adjudication Officer treating this as a relevant change of circumstances and thereby establishing ground for review. The failure to satisfy the All Work Test does in my view constitute a relevant change of circumstances (ie it indicates changes in the claimant's functional ability as measured by that test). However it is for the Adjudication Officer to show that a relevant change of circumstances has taken place ie. that claimant has ceased to satisfy the test. As a Tribunal of Commissioners in Great Britain said in the Appendix to CSIS/137/1994 (to be reported as R(IS)2/98) at para 47:

"(2) The tribunal should determine first whether it has been shown to their satisfaction that the claimant was at the date of the review no longer incapable of suitable work, by the relevant test"

Further in that Appendix the Commissioners state at para 25:

"In particular we are unable to see how the requirements for entitlement under an award, having initially been satisfied, could cease to be so without this also representing a relevant change of circumstances within the normal provisions for review"

As it is for the Adjudication Officer to establish that there has been a relevant change of circumstances, he must show that the claimant no longer satisfies the test ie. that his functional limitations as measured by the test now no longer reach the level of 15 points.

The Tribunal has not expressly stated that it applied this onus to the satisfaction of the test and I would have preferred it to have done so. It has, however, already indicated that the onus of showing there is no longer entitlement to the benefit is on the Adjudication Officer and this in the context where entitlement had to be based on satisfying the All Work Test. It has also clearly indicated that failure of the All Work Test is a relevant change of circumstances. It is also implicit from its reference to CSIS/137/94 that it was aware of the onus of proof throughout. The Adjudication Officer in paragraph 28 of his submission to the Tribunal referred to that decision and set out the following extract from it:

"The tribunal should determine whether it has been shown to their satisfaction that the claimant was at the date of the review no longer incapable of suitable work, by the relevant test...If the answer is yes, they should check the terms of the current award to confirm that it was based on an assumption of continuing incapacity, so that the change in the claimant's condition represents a change of circumstances to justify a review."

13. It therefore seems to me that the Tribunal did apply the correct onus throughout and that there is no error of law in that respect.
14. I am unable to ascertain any other error of law in the Tribunal's decision and I therefore dismiss the appeal.

(Signed): M F Brown

COMMISSIONER

15. June 1999