Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C29/00-01(IB) (17 January 2001)

 


Decision No: C29/00-01(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 9 February 2000 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application, by the claimant, for leave to appeal against a decision dated 9^th February 2000 of an Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. That Tribunal had disallowed the claimant's appeal in relation to Incapacity Benefit. A Departmental Officer (known as the decision maker) had made a decision reviewing and superseding a previous decision that the claimant was entitled to Incapacity Benefit. The grounds for review were that there had been a relevant change of circumstances and that the claimant was no longer incapable of work. Essentially the matter hinged on whether or not the claimant continued to score the requisite number of points on the All Work Test. The claimant appealed to the Tribunal and the Tribunal, though raising her score on that test, nonetheless considered that she had scored below the requisite number of points and disallowed the appeal.
2. The claimant sought leave to appeal, the grounds for appeal being set out in an OSSC1 (NI) form dated 23^rd May 2000. She was represented by Miss Loughrey of the Law Centre (NI). The grounds of appeal were that the decision of the Tribunal was not adequately reasoned. The claimant stated that she could not understand why the Tribunal had not accepted her evidence with relation to her limitations on the activity of walking. She further submitted that the Tribunal had made insufficient findings in relation to the limitations imposed by reason of her low back pain and mental health problems.
3. Comment on the application was made by Mr Toner of the Decision Making and Appeals Unit. Essentially Mr Toner supported the appeal stating that with regard to the activity of walking, in the absence of an assessment of the evidence by the Tribunal, it was difficult to understand how the Tribunal reached the finding which it did. Mr Toner did not support the application on the basis of insufficient findings in relation to the limitations imposed by reason of the claimant's low back pain and mental health problems.
4. I grant leave to appeal and with the consent of both representatives treat the application as an appeal and proceed to determine any question arising on that application as if it arose on appeal. Having perused the papers I consider that I can properly decide this matter without a hearing.
5. I begin by stating that the evidence before the Tribunal as to the claimant's walking ability varied from the 400 metres without stopping or severe discomfort assessed by the Medical Support Services doctor to the 50 metres stated by the claimant herself. The evidence also included the results of an exercise treadmill test on 2^nd December 1999 (which post-dated the decision under appeal) and an undated letter from her General Practitioner stating that she got angina on mild exertion and had to take GTN before leaving the house. The General Practitioner stated that her exercise distance before using GTN was 50 yards but does not clearly deal with the alleviating effect of taking medication before walking.
6. There does, however, appear to be some variation in the evidence on the claimant's walking ability and Mr Toner and Miss Loughrey are correct in that the Tribunal has given no evidential assessment relating to this. The Tribunal has found the claimant to be unable to walk more than 200 metres without stopping or severe discomfort. This is greater walking ability than the claimant assessed herself as having and less than the Medical Referee Service doctor assessed her as having. That is not an error of law. The Tribunal is entitled to take into consideration all the accepted evidence and to exercise its own judgment as to the level of the claimant's impairment. It is not bound by any estimate of walking ability. It should, however, indicate that it has done this, if that is in fact the case and briefly indicate why. This may be because it considers that neither estimate is wholly reliable or for some other reason. In this case, however, the claimant could not ascertain because the Tribunal's decision did not explain why her statement of 50 metres of walking without stopping or feeling severe discomfort had not been accepted by the Tribunal.
7. I set the Tribunal decision aside for that reason alone. I do not consider that there are any merits in relation to the other contentions made by the claimant as regards the limitations stated to be imposed by her suffering from low back pain and mental health problems. The Tribunals conclusion in relation to those matters is clearly set out, clearly reasoned and sustainable on the evidence.
8. As I do not consider that this is a case where I can give the decision which the Tribunal should have given I remit this matter to a differently constituted appeal Tribunal. That Tribunal should bear in mind the views expressed above and if it appears that there are conflicts in the evidence, it should also clearly indicate its evidential assessment.
9. I would however mention one further matter. It does not appear that there was any exploration by the Tribunal of the apparent discrepancies in the evidence and particularly of the claimant's statement that her walking was limited to 50 metres without stopping or severe discomfort and the statement she is recorded to have made to the examining doctor of walking 5-10 minutes to the local shops. I do not know why this was not explored. In addition it does not appear to have investigated the significance of the treadmill testing results. Though these results were obtained after the date of the decision under appeal they may, nonetheless reflect the situation at the time of that decision. I do not know but if that is so, it is to be hoped that the new Tribunal will investigate both the above matters.

(Signed): M F Brown

Commissioner

17 January 2001