Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C4/00-01(IB) (24 May 2000)

 


Decision No: C4/00-01(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 12 February 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against a decision dated 12th February 1999 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Londonderry. That Tribunal had disallowed the claimant's appeal against the determination of an Adjudication Officer that he was not incapable of work from and including 24th November 1998.
2. I held a hearing of the application which was attended by the claimant and Mr Fletcher of the Decision Making and Appeals Unit representing the Adjudication Officer (now the decision maker).
3. I grant leave to appeal and with the consent of the claimant and Mr Fletcher treat the application as an appeal and proceed to decide all questions arising thereon as though they arose on appeal.
4. Both at the hearing before me and in the papers the claimant based his grounds of appeal on the nature of the Tribunal hearing. He had many complaints against the Tribunal Chairman the chief of which was that the Chairman would not permit him to explain fully his situation as regards his health and would not let him answer questions fully. He considered that as a result of this he had been unable to present his case properly.
5. Mr Fletcher did not support this ground of appeal.
6. Having examined the papers and while I have no doubt that the claimant does genuinely feel aggrieved, I am unable to agree that he was prevented from making a full presentation of his case. The record is comprehensive and does appear to cover all the functional descriptors which the claimant wished to raise with relation to the All Work Test. In addition I notice that the parties were at the end of the hearing given an opportunity to add anything which they wished to add and none had anything to add.
7. A Chairman does have a duty to ensure that a claimant does have an opportunity to present his case fully but this does not prevent a Chairman from attempting to impose order on the hearing and to obtain answers to specific questions. Such answers may be relevant to the issues to be decided. It also does not mean that the Tribunal has to explore irrelevant matters.
8. I can find no error on the Tribunal's part in the manner complained of by the claimant.
9. Mr Fletcher opposed the application but he did make reference to one issue which is of concern to me. The Adjudication Officer's submission to the Tribunal omitted the fact that the claimant had previously succeeded in passing the All Work Test and the Adjudication Officer did not conduct a review. Nonetheless, Mr Fletcher submitted, the Tribunal obviously appreciated that this case involved a review issue. The case was a credits only case. The Tribunal has specifically recorded that the claimant had not satisfied the All Work Test and that this was a good reason to review and revise the former determination that he was incapable of work. Mr Fletcher submitted that the Tribunal had exercised its inquisitorial role and was obviously prepared to award more points on the descriptors than the Adjudication Officer had done or than would have been awarded on the basis of the medical report. The Tribunal had also specifically mentioned that it was dealing with a review case though it did not have the benefit of the previous score sheet from the All Work Test which the claimant had passed nor any reference to the matter in the submission.
10. In the second paragraph of the Tribunal's reasoning it stated that it "concluded that his [the claimant's] evidence was not sufficiently credible or convincing to justify changing the decision of the Adjudication Officer which was in turn based on the evidence of an Independent Medical Examiner." My concern was as to whether or not this indicated that some different onus of proof was being adopted than would have been relevant in a case where the onus lay on the Adjudication Officer. Mr Fletcher stated that had the Tribunal simply copper-fastened the Adjudication Officer's scoring he would have shared my concerns. However, the Tribunal did not do this and in Mr Fletcher's submission it had simply used a poor choice of words rather than applying the wrong onus of proof.
11. It is undoubtedly correct that the Tribunal was not aware of the fact that there had been previous satisfaction of the All Work Test. It is also correct that the Tribunal did carry out its inquisitorial duties and did review and revise the decision of 21st October 1996. It did not err in law in those respects. What is not clear to me, however is that the Tribunal applied the correct onus of proof in so doing. Had the Tribunal been informed that there had previously been an All Work Test I would have had no doubt that it was applying the correct onus of proof but the submission at paragraph 2 is misleading in that respect and having regard to the phraseology of the Tribunal's reasoning I am doubtful that it applied the correct onus of proof in relation to the All Work Test. Reading the reasoning it appears to me that the onus of satisfaction of the test was placed on the claimant whereas in fact the onus of proof of non satisfaction of the test should have been placed on the Adjudication Officer. At the end of the day this onus of proof may make little difference as the scoring on the All Work Test is to be based on the accepted evidence. However, I cannot be satisfied in this case that application of the incorrect onus of proof, would not have made a difference to the eventual result.
12. I set the decision aside for that reason alone and remit the matter to a differently constituted Tribunal. That Tribunal should have before it a submission from the decision maker setting out the full background of the case which should, if possible, include the scoring on the previous satisfied All Work Test. It is then for the decision maker to satisfy the Tribunal that the claimant has not passed the All Work Test. If he does so the Tribunal will then have grounds to review the determination that the claimant was incapable of work. It should then ascertain whether any of the other possible grounds for finding or treating the claimant as incapable of work are applicable in order to determine whether the decision of 21st October 1996 should be revised. The submission from the decision maker should cover these matters.

(Signed): M F Brown

COMMISSIONER

24 May 2000