Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C41/99(IB) (2 June 2000)

 


Decision No: C41/99(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 a Tribunal's decision

dated 20 April 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal, leave having been granted by myself, by the claimant against the decision dated 20th April 1999 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") siting at Ballymena. No hearing was requested and I consider that I can decide the case without such hearing. My decision is given in the final paragraph.
2. The Tribunal had disallowed the claimant's appeal in relation to Incapacity Credits. The appeal was against a decision dated 13th October 1997 of an Adjudication Officer. There had been an earlier Tribunal decision dismissing the claimant's appeal which he appealed to me. I allowed his appeal on the basis that neither the Adjudication Officer of the 13th October 1997 nor the earlier Tribunal had conducted a review. I remitted the matter to a new Tribunal. Prior to that new Tribunal's hearing the Adjudication Officer submitted, correctly, that the earlier decision was incorrect as it had not conducted a review. He asked the Tribunal to substitute the corrected decision for the one currently under appeal (ie the decision of the 13th October 1997). The Adjudication Officer also set out to the Tribunal the background to the case. This included the history of the appeal to me and the reason why I had remitted the case.
3. The new Tribunal disallowed the claimant's appeal and determined that he had failed the All Work Test from and including 13th October 1997. The claimant appealed again to a Commissioner. His ground of appeal was that the Tribunal had not awarded him eight points for his hearing loss in the right ear whereas, when he was in receipt of the benefit he had been awarded eight points for this.
4. Unfortunately despite repeated requests by this office the claimant did not furnish a copy of the record of proceedings. I am not in the position to ascertain exactly what took place at the hearing.
5. Observations on the appeal were made by letter dated 26th February 2000 from Mr Fletcher of the Decision Making and Appeals Unit, representing the Adjudication Officer. I am obliged to Mr Fletcher for his thorough letter. The claimant was given an opportunity to comment on this letter but did not do so.
6. Mr Fletcher opposes the appeal. He does, however, accept that there were errors in the decision recording but states that those were not such as to render the actual substantive decision in error of law. He refers particularly to the fact that the Tribunal has not recorded that it was reviewing the Adjudication Officer's decision of 13th October 1997. With relation to that Mr Fletcher states:-

"In a written submission to the reconstituted tribunal dated

17 April 1999, [the claimant] indicated that he "cannot hear

someone properly, talking in a normal voice on a busy street"

and pointed out that this had previously been accepted by an

adjudication officer. He specifically stated that this was

in total contrast to the situation in which he found himself

at the Medical Support Services examination. He also made

reference to Commissioners decision C52/97(IB) as authority

for the proposition that grounds for review must be established

in order to stop an award of benefit.

An undated minute headed "Adjudication Officers Further

Submission", prepared for the reconstituted tribunal,

highlighted that the decision dated 13 October 1997 had been

corrected to contain a review of the incapacity for work

question. The submission also referred the tribunal to

Commissioners' decisions C4/99(IB) and C52/97(IB) (copies

attached). I therefore submit that the tribunal was aware it

was necessary to establish grounds for review and that the onus

of proof rested with the adjudication officer to do so. It

would have been preferable, particularly in the circumstances of

this case, if the tribunal had made it clear it had dealt with

the review issue in its findings and reasons for the decision.

However, the fact that it did not do so is not of itself fatal

to the decision given that the adjudication officer's corrected

decision incorporated a review (see C65/98(IB), paragraph 27

(...)."

7. Mr Fletcher also commented further:-

"I also note, and would accept any criticism in this regard,

that neither the corrected decision, nor the further submission,

adequately address the need to show a change in functional

ability in order to establish grounds for review (see C65/98(IB),

paragraphs 23-25 (...)). Nevertheless, I submit that it is

apparent from the tribunal's scoring of the all work test that

such a change was established. This can be illustrated by

comparing the adjudication officer's all work test assessment

dated 26 February 1996 (represented by a score of 15 points)

with the Tribunal's assessment (represented by a score of 3

points).

It seems possible to suggest there were some deficiencies in

the manner in which the tribunal addressed [the claimant's]

hearing problems. It was presented with two conflicting Medical

Support Services reports (one accepts [the claimant] "Cannot

hear well enough to understand someone talking in a normal voice

on a busy street"; the other indicates "No problem with hearing").

It also had evidence from [the claimant] that he had been deaf

in the right ear since 1-2 years old (see IB50 questionnaires)

and that he had to turn to the left to hear (see IB85 dated

12.2.1996 (box 6)). This contention was supported to some

degree by medical evidence from Dr R… diagnosing

"Deafness (anilateral)" (form Med 4 dated 12.12.1995 refers).

Given the tribunal's view that the latter report contained no

clinical findings in relation to hearing, the reasons for the

decision may not adequately explain why the latter doctor's

report was accepted in preference to the other, conflicting,

evidence presented. Also, as it is unlikely [the claimant's]

hearing improved between medical examinations, perhaps the

matter required further consideration e.g. was it necessary for

[the claimant] to adjust position, and if so to what extent, to

hear at either examination (a relevant consideration following

C76/98(IB), paragraph 9 (...))?"

Despite these criticisms Mr Fletcher continues:-

"Although I submit there are some deficiencies with the tribunal's

decision in relation to hearing, I nevertheless submit that even

if [the claimant] had received the 8 points sought for activity

11(e), his total score would have been only 11 points. In such

circumstances I would continue to submit that a change in

functional ability, sufficient to conclude [the claimant] failed

the all work test, has been established and therefore the

tribunal's decision can be sustained.

If it is accepted that the tribunal erred in failing to properly

deal with hearing, the Commissioner may wish to set the decision

aside and award 8 points for activity 11(e). The effect of this

would mean that [the claimant] scores 11 points on the all work

test and is therefore capable of work."

8. I accept Mr Fletcher's criticisms of this decision. Particularly in light of the previous history it was incumbent upon the Tribunal to make it abundantly clear that it was dealing with a review issue. It did not do so. Against the background of this case I find that omission a matter of concern.
9. I have, however, no real doubt that the Tribunal did conduct a review and was aware of the onus of proof in the case. I also agree with Mr Fletcher's submission that it is apparent from the Tribunal's scoring of the All Work Test that a change in functional ability was established.
10. I do, however, consider that there was an error in the manner in which the Tribunal addressed the hearing problems. Mr Fletcher has amply set out the conflicting medical evidence with relation to this matter. The Tribunal had before it conflicting medical reports and the claimant's evidence. It could not, in light of the background, make its decision comprehensible without dealing with this matter and its explanation bearing in mind that there were no clinical findings does not do so. For this reason I think the decision was in error of law. However the Tribunal, even if it had awarded the number of points which the claimant was seeking would not have been able to pass him on the All Work Test.
11. The error is not, therefore, fatal to the decision which was the only possible one which could have been made on the accepted evidence and had the claimant been awarded the points he was seeking on the activity of hearing. I therefore dismiss the appeal.

(Signed): M F Brown

COMMISSIONER

2 June 2000