Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C26/00-01(IB) (23 May 2001)

 


Decision No: C26/00-01(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 INCAPACITY BENEFIT
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 4 July 2000 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by the Chairman, by the claimant against a Tribunal decision dated 4^th July 2000. The grounds of appeal as set out in an OSSC1 (Northern Ireland) form dated 16^th November 2000 were that the Tribunal had erred in law in that: -

"In the reasons for its decision, the Tribunal found that,

"Our medical member has indicated that it is very improbable that he [the claimant] would be attending the hospital three times per week for six months for treatment."

It is submitted that it is implicit within this statement that the Tribunal rejected [the claimant's] evidence on this issue which was in fact accurate."

It was submitted that the Tribunal erred in proceeding on an incorrect understanding of the facts and that having rejected the claimant's evidence on this crucial issue its weighing of his evidence on other issues would have been influenced and might have been fundamentally flawed.

2. The claimant was represented by Mrs Carty of the Law Centre (NI) and the Department who made observations by letter of 14^th February 2001, was represented by Mr Fletcher of the Decision Making and Appeals Unit.
3. The observations by Mr Fletcher did not support the appeal. Mr Fletcher submitted that the evidence varied with regard to the period for which the claimant attended hospital for his skin condition. However, he submitted that the period over which the treatment was to be administered had little relevance to the crucial issue to be decided in the case. This issue was the level of the claimant's functional limitation at 15^th May 2000 (the date of the decision under appeal to the Tribunal) as determined by reference to the various activities prescribed by the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.
4. Mr Fletcher further submitted that it was clear that the Tribunal had accepted the examining doctor's evidence that, despite ongoing hospital treatment, the claimant's psoriasis was found to be moderate on examination and that the clinical findings and observed behaviour indicated only slight limitations with functional ability. It was also clear that the Tribunal had had regard to the claimant's doctor's letter dated 30^th June 2000 which made no mention of his condition affecting the upper limbs and to its own observations of the claimant at the hearing. He submitted that it was on this basis that the Tribunal had reached the conclusion that the claimant was exaggerating the severity of his condition.
5. He submitted that the medical member's comments (recorded by the Tribunal) that it was very improbable that the claimant would be attending the hospital "3 times per week for 6 months" seem little more than an aside and he did not agree that the Tribunal's weighing of the evidence was unduly influenced by these comments and therefore he opposed the appeal.
6. When I came to consider this matter I found myself unable to find any record that the claimant had actually stated in evidence that he attended hospital 3 times per week for six months at a time for treatment. I therefore directed that letters be sent to the parties asking them whether any evidence had been presented to the Tribunal and if so what was the nature of such evidence that the claimant attended hospital 3 times per week for six months at a time for treatment. The Tribunal had recorded that the claimant informed it that he attended the Royal Victoria or the City Hospital for treatment and got "creamed down". He was due to go back for treatment in August his last course having been just after Easter. He informed the Tribunal that when he flared up he might get another course and that when he went in for treatment he would get treatment for 3 days per week. I have been unable to ascertain that the claimant informed the Tribunal that he attended hospital for treatment for six months at a time for 3 days per week. It is for that reason that I asked the representatives to supply the information referred to above. The responses were not altogether satisfactory.
7. The Law Centre stated "In response to your question [the claimant] gave oral evidence to the Tribunal regarding his attendance's [sic] at hospital and had the Tribunal carried out it's [sic] inquisitorial role in this matter, evidence could have been provided to the Tribunal in support of our client's assertions. There were also additional references to our clients hospital attendance's [sic] in his original application form."
8. The Decision Making and Appeals Unit replied that:-

"[The claimant] declared in writing that he attended a skin clinic 3 times a week for medical treatment (see IB50(NI) questionnaire, page 3 (TAB 2));

Dr P… (Medical Support Services) reported that [the claimant] was attending the Belfast City Hospital skin department and attends for about 3 months per year (see IB85 medical report boxes 4, 5 and 11);

This evidence is obviously at variance with the 6 month period referred to in the tribunal's reasons for its decision as I acknowledged in my previous letter dated 19 February 2001."

9. In the IB50 form referred to the claimant had stated that he had been in hospital for 11 nights as an inpatient in the 3 months prior to completing that form and that he attended hospital for 3 times per week at the skin clinic. The form was dated 1^st November 1999.
10. The IB50 medical report (dated 31^st March 2000) reported the claimant as attending Belfast City Hospital skin department and as having been referred to that skin department and attending there ever since and that he now went 3 days per week for special creams. I am therefore unable to find any record of the claimant actually having said that he attended the hospital 3 times per week for six months at a time for treatment.
11. The Tribunal is not, of course, required to keep a verbatim record of the evidence and it would not, necessarily, be in error if it did not have a specific record of this part of the evidence. Neither is it an error for the Tribunal to reject evidence which, had still further evidence been produced, could have been proven to be correct. It is a matter for a claimant to produce his evidence at the hearing. The fact situation is fixed at that time and is fixed by reference to the accepted evidence available to the Tribunal at that time. I do not fault the Tribunal in this case for not seeking attendance records, cards etc from the hospital. It is a matter for the claimant to produce these if he wishes to put them before the Tribunal.
12. It is not an error for an adjudication body such as a Tribunal to make its findings on the evidence before it and accepted. It is not an error of law for a Tribunal to make a finding of fact which is not actually correct provided that finding was sustainable on the accepted evidence. It would have been preferable if the medical member of the Tribunal had any specific knowledge of usual duration periods of outpatient treatment at a particular hospital (such knowledge not being necessarily an area of medical expertise) for the matter to be put before the claimant for comment. However as I am setting the decision aside for another reason I do not need to deal further with the matter here.
13. It is because I am not convinced that the claimant actually gave evidence that he had attended the hospital 3 times per week for six months at a time for treatment that I am setting this decision aside. As I indicated above it is not an error for the Tribunal not to make a verbatim record of the evidence given and indeed in this particular case it appears that the claimant's representative is contesting that he did go for six months at a time for treatment. However, in reply to my queries, neither of the representatives has actually contended that there was evidence before the Tribunal to that effect. Indeed the Law Centre has stated simply that the claimant gave oral evidence to the Tribunal regarding his attendances at hospital. They have not indicated what that oral evidence was nor that the Tribunal's record as regards that was in any way inadequate.
14. I therefore find myself forced to the conclusion that there was no evidence before the Tribunal that the claimant had stated that he attended hospital for six months at a time 3 times per week.
15. I set the Tribunal's decision aside as it appears to have relied on evidence, which was not before it, and because I am not convinced that this reliance did not influence its assessment of the other evidence. I did consider whether that error was sufficient to vitiate the decision of the Tribunal and in this particular case am satisfied that it was.
16. I do not consider that this is a case where I can give the decision which the Tribunal should have given and I remit this matter to a differently constituted Tribunal for re-hearing. At that Tribunal the claimant will have an opportunity to produce evidence of his attendances at hospital if he wishes to do so and he is now on notice of the need to produce all evidence which he wishes the Tribunal to consider.

Signed: M F Brown

COMMISSIONER

23 May 2001