Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C20/00-01(IB) (14 August 2001)

 


Decision No: C20/00-01(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 Londonderry Appeal Tribunal dated 2 May 2000 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by the Chairman, by the claimant against a decision dated 2^nd May 2000 of an Appeal Tribunal sitting at Londonderry. The Tribunal had disallowed the claimant's appeal in relation to Incapacity Benefit and had decided that she was not entitled to that benefit from and including 6^th January 2000 on the basis that she failed to satisfy the All Work Test from and including that date. The Tribunal also found that the Decision Maker was entitled to revise and review the earlier decision which had awarded the benefit.
2. The claimant appealed, the grounds of appeal were contained in an OSSC1 form dated 14^th September 2000 and were as follows: -

1. The Tribunal failed to consider the evidence from two GP's in reaching its decision.

2. The Tribunal failed to state why it rejected the evidence.

3. Observations were made on the appeal by letter dated 21^st February 2001 from Mr Toner of the Decision Making and Appeals Unit of the Department and comment on these observations was made by Mr Breslin of the Law Centre (NI) by letter of 14^th March 2001. Mr Breslin was representing the claimant. In that letter he stated that on examination of the Tribunal's decision under the heading "DOCUMENTS CONSIDERED" the letters from the General Practitioner dated 9^th March 2000 and from Dr H… dated 19^th January 2000 were considered by the Tribunal. Mr Breslin stated, however, that both these letters made specific reference to the claimant's complaint of severe Latex allergy and that this was not mentioned anywhere in the record of proceedings or in the reasons for decision.
4. Mr Breslin submitted that in her letter of appeal dated 14^th February 2000 the claimant stated: -

"I would have breathing difficulties due to an allergy which I will explain in detail to the Tribunal."

He stated further that on the day of the hearing the claimant described to the Tribunal her condition of severe Latex allergy and how it affected her health and daily activities. He further stated that in addition to the above mentioned two General Practitioner letters she handed in to the Tribunal a document entitled "MEDICAL CONDITION: SEVERE LATEX ALLERGY."

5. Mr Breslin submitted that the Tribunal was aware of the severe Latex allergy it having been pointed out to it in the two letters from the General Practitioner's dated 19^th January 2000 and 9^th March 2000 and by direct evidence from the claimant on the day of the hearing. He therefore submitted that the Tribunal's record of proceedings and reasons for decision were inadequate as they lack mention of or consideration of this severe condition.
6. Mr Breslin then added a further ground which was that the Department in its submission had drawn attention to the fact that Regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 as amended was considered as an issue in the case but was deemed not appropriate. Mr Breslin submitted that as the issue had been raised the Tribunal should have considered its relevance. Regardless of whether it was applicable to the case in question he considered that it was incumbent on the Tribunal to give reasons as to why regulation 27 was not appropriate in the claimant's case given the nature of her condition of severe Latex allergy.
7. The document in relation to Latex allergy to which the claimant's representative refers is a document which is included amongst the batch of papers which it appears were before the Tribunal. This document is unsigned and is in the form of a pro-forma in that part of it is typed and appears to be standard and the remainder (relating to names, addresses and contact numbers) is for filling in in relation to each individual person. The document is also undated. It sets out that the claimant has a type one allergy to natural rubber Latex proteins and that equipment used on her must be Latex free and it gives symptoms which may (my underlining) occur if there is an allergic reaction and indications of treatment and that the claimant carries an Epipen. It also sets out medical equipment which may contain natural rubber Latex and Latex free equipment which is carried by the claimant. All of these matters are standard it is only the claimant's name and address, date of birth and emergency contact numbers which are individual. It appears that the document is issued by the Latex Allergy Support Group. The document does not indicate what reactions the claimant herself suffers from nor how frequently she has suffered from them.
8. Mr Toner opposed the appeal. He states that it is clearly recorded under documents considered that the Tribunal considered letter from the General Practitioner dated 9^th March 2000 and a letter from Dr H dated 19^th January 2000. He therefore submits that the Tribunal did take into account the letters from the two General Practitioners when making its decision. Mr Toner submitted that while the Tribunal had not, in its assessment of evidence, made reference to the letters from the two General Practitioners it has clearly preferred the report and findings of the Medical Referee Service doctor as representing an accurate assessment of the claimant's capacity to perform the activities associated with the All Work Test. He therefore opposed this ground of appeal.
9. The two doctors letters referred to set out conditions from which the claimant suffers but they do not deal in any way with the activities set out in the All Work Test though both expressed the view that she suffers incapacity.
10. In the record of proceedings the Tribunal dealt very fully with the claimant's complaints and with the asthma which she stated developed in 1994 from the Latex. It dealt very fully with how the claimant was affected in terms of the activities of the All Work Test which was a large part of what the Tribunal had to determine. It is quite clear from the record of proceedings that the claimant was stating that the Latex allergy affected her in that she developed asthma as a result of it. The claimant did not give evidence of being affected by the allergy in any other way.
11. In its reasons for decision the Tribunal accepts that the claimant suffers from bronchraetasis and asthma. It finds her condition to be mild and states what it considers to be her limitations from that condition and other conditions regarding the All Work Test. It is of particular note that the Tribunal records:-

"In general the Tribunal found that the claimant overstated her complaints and that, in general, these complaints were not sustained by the medical evidence. Furthermore the Tribunal accepted the evidence of the Examining Medical Officer in relation to the claimant's health and its effect on her ability to carry out the activities of the All Work Test."

12. The Examining Medical Officer had set out in his report: -

"Since about 1994 has had chest problems diagnosed as asthma due to allergy to Latex. Not currently under specialist review. No recent use of nebuliser or oral steroids. Claim shortness of breath on exertion all the time. No variation in disability."

13. Having perused the all the papers in the case it appears quite clear to me that the Tribunal did take into consideration the claimant's Latex allergy. It did not reject the evidence of her doctors, accepting as it did that she suffered from bronchraetasis and asthma and menorrhagia and accepting also that she had some slight walking limitation. I do not therefore think that the Tribunal did reject the evidence of the doctors. That evidence simply did not lead to satisfaction of the All Work Test.
14. The evidence which was directly on point as relation to the All Work Test was that of `the Examining Medical Practitioner and this the Tribunal has clearly recorded that it accepted. It was perfectly entitled to do so and it is also clearly set out its assessment of the claimant's own evidence. This assessment again it was entitled to make.
15. I can find no error of law in the manner with which the Tribunal dealt with the evidence of the doctors produced by the claimant.
16. As regards the leaflet from the Latex allergy self help group, other than recording that the claimant has this allergy and symptoms which may arise as a result of same and that the claimant carries a Epipen the leaflet is of no great probative value. The Tribunal has accepted that the claimant has the allergy and therefore though I would have preferred that the Tribunal had specifically mentioned this leaflet, the leaflet was not crucial evidence and the omission of it from the Tribunal's reasoning is not in my view indicative of an error of law so as to vitiate the decision. There is no indication anywhere as to who completed the leaflet nor as to whether that person had any medical expertise. It must also be borne in mind that there is a doctor on the Tribunal and most importantly that the Tribunal did accept that the claimant suffered from the Latex allergy which produced asthma. The claimant had stated that she would explain at hearing how the latest allergy affected her and she did so. Her health situation including the actual effects of the allergy on her was very fully considered by the Tribunal.
17. As regards regulation 27, I had some difficulty in understanding the point which the claimant's representative was making in relation to that regulation. There was no submission that any severe life threatening disease in relation to which there was medical evidence that the disease was uncontrollable or uncontrolled by a recognised therapeutic procedure was applicable in this case. The claimant's representative did not raise the matter and I can find nothing in the evidence which was before the Tribunal which indicated that the matter should have been raised by the Tribunal. It must be remembered that the primary duty of raising any issue is on the claimant and that the inquisitorial role of the Tribunal extends only to exploring issues which are either clearly raised or clearly apparent on the evidence. I do not consider that the issue was clearly apparent in this case. There was no indication that the claimant's Latex allergy had ever led to anaphylaxis which can be potentially life threatening. I do not consider that there was any breach in the Tribunal's inquisitorial role in not dealing with regulation 27. It was not raised as an issue in the Department's submission but only mentioned as part of the background law to all incapacity for work cases.
18. I am unable to ascertain any error of law in the Tribunal's decision either as mentioned on behalf of the claimant or in any other manner and I therefore dismiss the appeal.

(Signed): M F Brown

COMMISSIONER

14 August 2001