Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C44/99(IB) (9 March 2000)

 


Decision No: C44/99(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

Appeal to the Social Security Commissioner

on a question of law from the decision of

Belfast Social Security Appeal Tribunal

dated 11 May 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the Adjudication Officer, now the Department, with the leave of a Commissioner, against the decision of an Appeal Tribunal whereby it was held that the claimant satisfied the All Work Test from and including 8 March 1999.
2. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
3. An Adjudication Officer set out the facts in submissions dated 12 April 1999. In substance the facts are as follows:-

The claimant became unfit for work, claimed Incapacity Benefit

from 2 November 1996 by reason of Angioneurotic oedema and was

paid the benefit from 5 November 1996. As she had been incapable

of work for more than 196 days an Adjudication Officer decided

that the All Work Test was applicable from 17 May 1997. In order

to assess the All Work Test the claimant completed the usual

questionnaire giving details of how her illness affected her

ability to perform various activities. On 22 February 1999 the

claimant was examined by a Medical Officer of the Department.

An Adjudication Officer then considered all the available

evidence, applied a descriptor to each relevant activity,

decided the claimant scored eight points on the All Work Test

and accordingly ruled that she failed the All Work Test. An

Adjudication Officer reviewed the decision awarding Incapacity

Benefit from 5 November 1996 and gave a revised decision

disallowing Incapacity Benefit from and including 8 March 1999.

The claimant then appealed to a Tribunal. In the meantime it

was discovered that the Adjudication Officer's decision was

erroneous and a submission was set out for the Tribunal to the

effect that the original decision ought to have included a

review of the incapacity for work question.

4. The Tribunal made the following very brief findings of fact material to its decision:-

"See record of proceedings."

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

"In the light of the Tribunal accepting the life threatening

condition, [claimant] was found to satisfy the All Work Test.

This condition was previously undiagnosed."

6. The unanimous decision of the Tribunal was in the following form:-

"[Claimant] satisfies the All Work Test from and including

8 March 1999 - as per previously undiagnosed life threatening

disease under Regulation 27(b) of the Social Security

(Incapacity for Work) (General) Regulations (NI) 1995."

7. The Chairman's record of proceedings was in the following terms:-

"In the light of the medical report of 30th April 1999 Mr

McMaster made a concession, which was accepted by the Tribunal

that [claimant] has a potentially life-threatening condition

under Regulation 27(B) (sic) of the Social Security (Incapacity

for Work) General (sic) Regulations (NI) 1995. This condition

was previously undiagnosed."

8. Mr Toner, then the Adjudication Officer, sought leave to appeal to a Commissioner but leave was refused by the Chairman on 27 August 1999. However leave was granted by a Commissioner on 1 November 1999.
9. The Adjudication Officer's grounds of appeal were set out in a letter dated 17 September 1999 which contained the original application for leave. It is appropriate to quote the relevant submissions of Mr Fletcher, the Adjudication Officer, which were in the following terms:-

"PRIMARY GROUNDS FOR APPLICATION

The findings of fact relevant to the decision make reference to

the record of proceeding where it is recorded -

"In the light of the medical report of 30th April

1999 Mr McMaster made a concession, which was accepted

by the Tribunal that [claimant] has a potentially life-

threatening condition under Regulation 27(B) [sic] of

the Social Security (Incapacity for Work) General [sic]

Regulations (NI) 1995. This condition was previously

undiagnosed."

The medical report referred to by the tribunal appears to be a

note from Dr C H McK… which states -

"This lady has Angioneurotic odoema (sic) which has in

the last week flared up as bad as ever. This is a

potentially life threatening condition."

It is apparent the tribunal's reference to "regulation 27B"

should read 27(2)(b) of the Social Security (Incapacity for Work)

(General) Regulations (Northern Ireland) 1995. This regulation

provides as follows -

"27 (1) A person who does not satisfy the all work

test shall be treated as incapable of work if

any of the circumstances set out in paragraph

(2) apply to him.

(2) The circumstances are that -

(a) .....

(b) he suffers from a previously undiagnosed

potentially life threatening condition which

has been discovered during the course of a

medical examination carried out for the

purposes of the all work test by a doctor

approved by the Department (my underlining);"

I submit that this regulation has two elements, both of which

must be satisfied before it can be applied. These are that the

potentially life threatening condition must -

(i) be discovered during the course of a medical examination

carried out for the purposes of the all work test by a

doctor approved by the Department and

(ii) was not previously diagnosed.

I further submit the tribunal's decision was perverse as it is

evident from the evidence presented that neither of these

elements were satisfied ie -

(i) the Medical Support Services doctor who carried out the

all work test examination on 22.2.1999 did not discover

a previously undiagnosed potentially life threatening

condition (form IB85, page 58 refers). Furthermore

Dr C H McK…'s note dated 30.4.1999 was completed after

this medical examination and cannot form the basis of

a finding that regulation 27(2)(b) applies;

(ii) the adjudication officer's submission to the tribunal

indicates [claimant] had been diagnosed as suffering

from "angioneurotic odoema" (sic) as far back as November

1996. The term "anaphylaxis" used by the Medical Support

Services doctor (box 2, page 2 of form IB85) is simply

different terminology for "angioneurotic odoema" (sic)

(see "Black's Medical Dictionary" pages 46 and 50 (...).

SECONDARY GROUNDS FOR APPLICATION

In the reasons for the decision it is recorded -

"In the light of the Tribunal accepting the life

threatening condition, [claimant] was found to satisfy

(my underlining) the All Work Test. This condition was

previously undiagnosed."

Similarly, on form AT3 (A) it is recorded -

"[Claimant] satisfies the all work test (my underlining)

from and including 8/3/99 - as per previously undiagnosed

life threatening disease under Reg 27(b) of the Social

Security (Incapacity for Work) (General) Regulations

(NI) 1995."

I submit this is a prima facie error in law in that regulation 27

cannot be applied to satisfy the all work test. It can only be

applied to treat a person as incapable of work after it is decided

that a person does not satisfy the all work test."

10. I have taken the word "perverse" mentioned in the previous paragraph to have the legal meaning, "against the weight of the evidence."
11. Neither the claimant nor her representative, Mr Fairfield, has made any submissions or observations on the appeal although an opportunity was given for each of them to do so.
12. Having considered Mr Fletcher's submissions in relation to the primary grounds of appeal, I conclude that he is correct in every respect. For the reasons stated by Mr Fletcher the Tribunal has clearly approached the case on the wrong basis and, accordingly, its decision is perverse, in the legal sense, as it is clear that the potentially life threatening condition was (i) neither discovered during the course of the medical examination carried out for the purposes of the All Work Test by a doctor approved by the Department (ii) nor was it not previously diagnosed.
13. Mr Fletcher, in my view, is also correct in his secondary ground of appeal in that regulation 27 cannot be applied to satisfy the All Work Test, as it can only be applied to treat a person as "Incapable of Work" after the adjudicating authorities have decided that a person does not satisfy the All Work Test.
14. For the reasons stated I conclude that the Tribunal's decision is erroneous in point of law. I therefore set the decision aside and remit the case for rehearing and redetermination to an entirely differently constituted Appeal Tribunal.

(Signed): J A H Martin

CHIEF COMMISSIONER

9 March 2000