Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C23/01-02(IB) (5 February 2003)

 


Decision No: C23/01-02(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 the Appeal Tribunal dated 12 June 2001 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal (leave having been granted by the Legally Qualified panel member) by the claimant against a decision dated 12 June 2001 of an Appeal Tribunal sitting at Londonderry. That Tribunal had dismissed the claimant's appeal against a Departmental decision disallowing the claimant Incapacity Benefit from and including 23 March 2001. The Tribunal upheld the decision and found that the claimant could not satisfy the Personal Capability Assessment and that regulation 27 (2) (c) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 was not applicable. With relation to the latter the Tribunal reasoned that there was no evidence that a major surgical operation or therapeutic procedure was due to be carried out within 3 months of the medical examination carried out for the purposes of the Personal Capability Assessment. My decision is given in the final paragraph.
2. The grounds of appeal were set out in a form dated 19 September 2001 addressed to the Legally Qualified Panel Member. The grounds were as follows:

(1) The Tribunal had given no reasons for rejecting the letter dated 4 April 2001 from the claimant's General Practitioner nor any specific points raised in that letter.

(2) The claimant's representative had informed the Tribunal that the reason why her cardiac surgery had been delayed was due to increased waiting lists in the National Health Service. Both the examining doctor (for the Department) and the General Practitioner were agreed that surgery was pending. The Tribunal having rejected the claimant's waiting list argument was in breach of the rules of natural justice. This argument appears to have related to the fact that surgery was expected but delayed because of National Health Service waiting lists.

3. With regard to the final point it is important to note that the claimant's representative accepted at the hearing (and it appears quite correctly) that there was no evidence of surgery being likely within the relevant 3 month period. Regulation 27 (2) (c) provides that a person who is not incapable of work in accordance with the Personal Capability Assessment test (the test which the claimant was found to have failed by the Tribunal) shall be treated as incapable of work if:

"there exists medical evidence that he requires a major surgical operation or other major therapeutic procedure and it is likely that that operation or procedure will be carried out within 3 months of the date of a medical examination carried out for the purposes of the Personal Capability Assessment."

4. The relevant medical examination in this case had taken place on 6 March 2001. There was in fact no evidence from any source that the surgery was likely to take place within 3 months of 6 March 2001.
5. The Department opposed the appeal by letter dated 18 February 2002 from Mrs Gunning of the Decision Making and Appeals Unit. With regard to the first ground, Mrs Gunning submitted that the record of proceedings indicated that the Tribunal had read and considered the said General Practitioner's letter. That letter contained details of the claimant's condition. It did not express any opinion regarding her functional ability. There was nothing in the letter which conflicted with any of the other medical evidence held in the papers. Mrs Gunning further submitted that, while she accepted that the Tribunal made no reference to the General Practitioner's letter in its reasons, the reasons nonetheless adequately explained the decision. Mrs Gunning considered that there was no merit in this ground.
6. With regard to the second ground, Mrs Gunning submitted that to avail of regulation 27 (2) (c) there would have had to be in existence medical evidence that the claimant was likely to undergo surgery within 3 months of 6 March 2001. In this connection she referred to paragraphs 11 and 14 of decision R4/01(IB), a decision of my own. Mrs Gunning submitted that this 3 month period was absolute and there was no provision for extending it. She submitted further that by the time the appeal was heard by the Tribunal on 12 June 2001 the claimant still had not had surgery and more than 3 months had gone past. She referred to decision CIB/17570/1996, a decision of Mr Commissioner Pacey in Great Britain, as authority for the proposition that the Tribunal was entitled to take account of the fact that the claimant had not had the surgery as not to do so would have meant "closing their eyes to reality". Mrs Gunning referred in particular to Mr Commissioner Pacey's statement that:

"A purposive construction is to my mind consistent with the spirit of the regulation and on such a construction the claimant could and should have taken account of relevant events after the examination. Additionally and in any event there is authority for the proposition that hindsight can be applied."

7. Mrs Gunning submitted that, applying that principle to the present case, it was her submission that the Tribunal was correct when it decided that the provisions of regulation 27 (2) (c) did not apply. She therefore submitted that there was no merit in the second ground.
8. The claimant's representative, Mr Murphy of the Citizens Advice Bureau, made further comment on the Department's observations by letter dated 12 March 2002. He conceded that the letter from the claimant's General Practitioner had not expressed any opinion regarding her functional ability but nonetheless it had stated that the claimant was not fit for remunerative employment, that she was anxious and depressed and that she was awaiting cardiac surgery. Mr Murphy accepted that the Tribunal's record of proceedings indicated that it had read and considered the General Practitioner's record but contended that the Tribunal had failed to state why it rejected same and specifically the opinion that the claimant was not fit for remunerative employment. The reasons did not explain to the claimant why the Tribunal chose not to prefer her General Practitioner's statement.
9. As regards the second ground Mr Murphy observed that, while he accepted that the 3 month limit was laid down by regulation 27 (2) (c), under the rules of natural justice the claimant would have had her major surgical operation had it not been for the undisputed long waiting list of the National Health Service. He contended that the heart surgery was major, that the claimant had informed the Tribunal in her verbal evidence that the relevant senior house officer had said that they would be taking her in as soon as possible and that her General Practitioner confirmed that she was awaiting cardiac surgery. The failure to have the operation within the relevant time was due to no fault of the claimant.
10. As regards ground one, I am in substantial agreement with Mrs Gunning. The General Practitioner's letter does not relate to the claimant's functional ability. I do not consider that the Tribunal rejected it but that much of it was not directly relevant to the Personal Capability Assessment. The Tribunal did award 3 points on the "sometimes" descriptor for rising from sitting. This took on board the points made in relation to light heads, weakness, etc. It did not accept that the claimant was affected for the length of time which she stated and her General Practitioner did not indicate any duration of the effects of the light heads and weak turns. The Tribunal's reasons for rejecting the claimant's evidence are clear. As regards the "reaching" activity, there is no provision for "sometimes" descriptors to apply here. The Tribunal has clearly indicated why it found that the Tribunal suffered from light heads on reaching occasionally rather than regularly. The General Practitioner does not state that the claimant suffers from these any more than once per week. The finding that the claimant was able to carry out the activities of reaching on most occasions was sustainable and the descriptor applied by the Tribunal, i.e. 9(g) seems appropriate. The Tribunal has awarded points for walking up and down stairs and walking on level ground.
11. I do not, as indicated above, consider that the Tribunal in any way rejected the General Practitioner's evidence. It accepted that the claimant did have a cardiac problem and accepted that it affected her. The General Practitioner's opinion on the claimant's general fitness for work is not of any direct relevance to the Personal Capability Assessment. That assessment is based on the functional activities included in it. It is perfectly clear why the Tribunal reached its findings on foot of that test. The above being so I do not consider that there was any need for the Tribunal to deal in a specific manner with the General Practitioner's general opinion on fitness for work.
12. One further point remains in relation to this matter. The General Practitioner did mention in his letter that the claimant was anxious and depressed. It is important that I indicate the terms in which that was set out –

"Patient also is anxious and depressed. Losing Incapacity Benefit has had a profound effect on her."

I did consider whether or not the Tribunal should have further pursued the question of the mental health descriptors. These were not contended for by the claimant's representative in the appeal and no evidence was laid in relation to them. There was no indication that the claimant had ever been treated for anxiety, depression or mental illness. Indeed the claimant had denied being treated for that in her Incapacity Benefit questionnaires. Against that background I do not consider that there was any breach of the Tribunal's inquisitorial role in not applying the mental health descriptors and indeed no contention has been made to me in that respect. It does appear quite a reasonable construction of the doctor's evidence that any depression and anxiety was short of actual mental illness or disablement and it was merely a use of those terms to indicate some low mood and understandable anxiety. It was also a reasonable construction of that evidence that this situation had arisen after the removal of the Incapacity Benefit.

13. I come then to regulation 27 (2) (c). It appears to have been agreed by all parties that there was no evidence that the claimant was likely to have her surgery (whether classed as major or otherwise) within 3 months of the 6 March 2001. It is important to note that the provision of regulation 27 (2) (c) is that it must be likely that the surgery will take place within that time. Mrs Gunning has indicated in her letter of 18 February that for the claimant to avail of regulation 27 (2) (c) there would have had to have been in existence medical evidence that the claimant would undergo surgery within 3 months of 6 March 2001. Mrs Gunning has cited a decision of my own R4/01(IB) as authority for this and in particular has mentioned paragraphs 11 and 14.
14. The said decision is not, in my view, authority for that proposition. Paragraphs 11 and 14 are as follows:

"11. It will be seen from the structure of the regulation that regulation 27 (1) sets out that if certain circumstances apply a person who does not satisfy the All Work Test [the predecessor of the Personal Capability Assessment] is to be treated incapable of work. Regulation 27(2)(a), 2(b) and 2(c) delineate the circumstances. It is only if he satisfies either regulation 27 (2) (a) or 2 (b) or 2 (c) that a person can be treated as incapable. The circumstances relate only to a person who does not satisfy the All Work Test. The circumstances (a) and (c) include the existence of medical evidence. The existence of that evidence is itself a condition. For example with relation to regulation 27 (2) (c) the condition is clearly that there exists medical evidence as to the requirement for a major surgical operation etc.

14. With regard to regulation 27 (2) (c) the Tribunal will have to consider whether medical evidence existed at the time of the Adjudication Officer's decision on 23 February 1999 that the claimant required a major surgical operation or other major therapeutic procedure and if so whether it was likely that that operation or procedure would be carried out within three months of the date of medical examination carried out for the purposes of the All Work Test. So the Tribunal must find whether the medical evidence existed on 23 February 1999. If it did not the Tribunal need move no further in relation to this sub-paragraph. If it did exist the Tribunal would have to determine whether or not the relevant operation or any other therapeutic procedure could be classed as major and if so whether it was likely that the said operation and procedure would be carried out within 3 months of the date of the medical examination i.e. within 3 months of 9 February 1999".

15. This is not authority for the proposition that the medical evidence must have been to the effect that the claimant would undergo surgery within 3 months. It is relating to the likelihood of surgery not to the certainty. I suspect this is what Mrs Gunning meant. However, more fundamentally, the above decision is not authority for the proposition that there must be medical evidence that the surgery is likely within the relevant 3 month period. The matter has not been argued before me and my views are not concluded, however, the absence of a second "that" in regulation 27 (2) (c) does indicate to me that there is no requirement for medical evidence to cover the likely time of surgery. Obviously the mere possibility of surgery is not sufficient, there must be a likelihood of surgery. That being so, unless the Tribunal itself has some knowledge (which is highly unlikely as it is unlikely to know a particular surgeon's waiting lists), some evidence is likely to be necessary. The evidence is likely to be medical evidence but it could be evidence from a hospital administrator or some other person in a position to judge. In practical terms the evidence is most likely to come from a doctor but I am not convinced that the statutory requirement is for that. I have not sought to be addressed further on the matter and as stated I express no concluded view on it. It is not relevant in this particular case, there being no evidence whatsoever from any source that the claimant was likely to undergo surgery within the relevant 3 month period.
16. I come then to Mr Murphy's natural justice argument. I consider that there is no merit in it. While on an initial perusal it may seem somewhat unfair that a claimant cannot comply with regulation 27 (2) (c) because of waiting lists, much of this unfairness disappears when the provision and its content are examined in detail. To begin with regulation 27 applies only to persons who have not passed the Personal Capability Assessment. That being so these are persons who have been found capable of work and can therefore be expected to seek and hopefully obtain work. Regulation 27 provides exceptions to that. In particular regulation 27 (2) (c) provides an exception where major surgery or a major therapeutic procedure is imminent. Persons expecting major surgery within the relevant 3 months could not reasonably be expected to make themselves available for and undertake work. Unless such surgery is expected within a relatively short time scale I can find nothing unfair in expecting a person who does not satisfy the Personal Capability Assessment to be available for work. If a person's condition was so bad that he or she satisfied the Personal Capability Assessment there would be no need for reliance on regulation 27.
17. I consider that there is no merit in this second ground and can ascertain no other error in the decision. For the reasons set out above I dismiss the appeal.

Signed: M F BROWN

COMMISSIONER

5 FEBRUARY 2003