Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C52/99-00(IB) (5 April 2000)

 


Decision No: C52/99-00(IB)

SOCIAL SECURITY ADMINISTRATION (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 18 February 1999 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is a late application by the claimant for leave to appeal against a decision dated 18 February 1999 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Newry. That Tribunal had disallowed the claimant's appeal in relation to an Adjudication Officer's determination that she was capable of work. I held a hearing of the application which the claimant did not attend but at which she was represented by Mr Brady and at which the Adjudication Officer was represented by Mr Fletcher of Central Adjudication Services. I am obliged to both gentlemen for their assistance in the matter.
2. I accept the late application for special reasons. I grant leave to appeal and with the consent of both representatives proceed to treat the application as an appeal and to determine the matter as if it was an appeal.
3. My decision is that the Tribunal's decision is in error of law and is set aside. The matter is remitted for rehearing before a differently constituted Tribunal which should bear in mind the views expressed below.
4. The claimant's grounds of appeal were set out in a letter which was undated but received on 13 May 1999. The letter stated amongst other things "... I cannot understand why the Tribunal ignored descriptors DLC and DLE as these are two particular areas where my condition affects me on a daily basis and I feel points could have been awarded."
5. Mr Fletcher supported the appeal on the basis that the Tribunal had not adequately dealt with descriptor DL(e). That is descriptor 16(e) in the All Work Test and is as follows:-

"Sleep problems interfere with his daytime activities."

6. The Tribunal had awarded no points for that descriptor in this case. The claimant had attained nine points on the mental health descriptors and consequently had come very close to passing the test. There was confusion in the case in relation to the score sheets which the Tribunal completed and which formed part of its findings of fact in relation to the All Work Test. The sheet which contained only the mental health assessment had included points under the activity of daily living but those points were not included in the summary of the decision where they appeared to have been entered under the activity of "Coping with pressure". This was obviously confusing for the claimant and the Adjudication Officer reading the decision. I think it would be good practice if the Tribunal could write in not merely the number of the descriptor for which it is awarding points, but the actual descriptor itself as opposed to merely indicating the appropriate descriptor by letter. In any event there would appear to be some confusion in this matter. That confusion might not of itself have lead to the decision being set aside as the number of points awarded did not alter and in fact it does seem likely that the entry of the descriptor under daily living was incorrect.
7. I have indicated in earlier decisions that I do not consider that a Tribunal has to deal in every case with every descriptor individually when setting out the reasons for its decision and I am still of that view. However the reasons must explain the decision. In this particular case the descriptor DL(e) was crucial to the success or failure of the claimant's appeal. She had been assessed as having a problem in that respect by the Medical Examiner but the Adjudication Officer's assessment, apparently based on a detailed reading of the medical report, found her to have no problem in that respect. At hearing the claimant gave evidence of having difficulties sleeping and of having to take a nap during the day as a result. The Medical Examiner confirmed that sleep disturbance was a common feature of "ME" from which the claimant was said to suffer. The Tribunal in its findings of fact stated "On the evidence presented, Tribunal accepts that this appellant has significant problems in the following areas." There then followed a list of problem areas which did not include sleep difficulty. Under the 'Reasons for decision' the Tribunal had recorded "Appellant appeared genuine but given to exaggerating her condition and its effect."
8. The Tribunal of course is entitled to its view of the claimant's evidence or to the view that the accepted evidence did not satisfy the descriptor. However I find the findings of fact and the reasons somewhat inadequate. The claimant had presented evidence in relation to sleep disturbance and there had been some support for that by the Medical Assessor. In addition as I mentioned above the descriptor was crucial to the success or failure of the claimant's appeal. In those circumstances I do not consider that the Tribunal's reasons were adequate to explain its decision in this case and I therefore set the decision aside.
9. As I mentioned above I do not consider that this is a case where I should give the decision which the Tribunal should have given and accordingly I remit the matter to a differently constituted Tribunal for rehearing.

(Signed): M F Brown

COMMISSIONER

5 April 2000