Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C35/02-03(IB) (6 March 2003)

 


Decision No: C35/02-03(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 23 April 2002 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by myself, by the claimant against a Tribunal decision dated 23 April 2002. The Tribunal had decided, by a majority decision, that the claimant's appeal in connection with Incapacity credits was disallowed as the claimant was not incapable of work on the basis of the Personal Capability Assessment. The disallowance was from 14 November 2001. No one has contended that the claimant could be considered incapable of work on any basis other than satisfaction of the Personal Capability Assessment and I proceed on that basis.
2. The grounds of appeal were contained in an OSSC1 form dated 9 October 2002 and a letter dated 19 December 2002 from Miss Loughrey of the Law Centre (Northern Ireland) representing the claimant. The Department was represented by Mrs Gunning of the Decision Making and Appeals Unit who made observations on the appeal by letter dated 18 November 2002. I am grateful to both representatives for their assistance in this case. My decision is given in the final paragraph.
3. The Tribunal consisted of a legally qualified Chairman and a medical member. There was considerable agreement between the members of the Tribunal, both considering that the claimant exaggerated the effects of this condition. However, the medical member is recorded as considering that the claimant satisfied descriptor 6 (c) on the Bending and Kneeling Activity. She also considered that he satisfied descriptor 7 (e) on the Manual Dexterity Activity. It is recorded that the medical member considered that the claimant "may have difficulty bending kneeling from time to time, and that his fine movements (hands) may be effected by the psoriasis under his finger nails".
4. The Chairman and majority are recorded as considering that the claimant's condition was not such that those descriptors were satisfied. The majority is recorded as accepting the MSS doctor's report. It appears that the medical member also agreed with these clinical findings but disagreed in relation to the opinion on Manual Dexterity and Bending and Kneeling. It is recorded that the medical member considered that Dr Smith's report (the claimant's General Practitioner) dated 14 May 2002 recited an award of points as above in the areas of manual dexterity and bending and kneeling. The Chairperson is recorded as disagreeing and preferring the clinical findings of the MSS doctor regarding those activities.
5. The reasons for the decision go on to recite that the claimant could dress and undress himself although he may have difficulty from time to time with buttons, that he does housework and prepares meals at home, that he completed the questionnaire himself and that since stopping work the psoriasis on his fingers has improved, that he can cut up his own food and uses a knife and fork without any difficulty whatsoever.
6. Both members of the Tribunal were in agreement that an award of 3 points should be made as the claimant satisfied descriptor E on the walking activity. It is therefore obvious that, had the views of the medical member been shared by the Chairman the claimant would have satisfied the Personal Capability Assessment. The Chairman has a casting vote in the matter and there is no doubt that the majority decision of the Tribunal prevails.
7. The two descriptors which have been the subject of dispute are as follows:

Descriptor 6(c) is:

"Sometimes cannot either bend or kneel, or bend and kneel as if to pick up a piece of paper from the floor and straighten up again."

Descriptor 7(e) is:

"Cannot tie a bow in laces or string."

8. The MSS doctor made the following clinical findings: -

"has very large plaque of psoriasis right and left elbow and around navel. Neck and behind ears. Thickened tips all finger nails. Large plaques both knees and marked thickening of toe nails right and left feet. Good muscle bulk arms and legs, no arthritic joints, full function right and left arms and legs. Good back muscle, normal spinal contours. Full neck and back movement. Normal heart lungs and BP 120/80. Good balance and co-ordination. No central nervous system defect.

9. These are described as being the features of the clinical examination relevant to bending and kneeling. As regards the features of clinical examination described as being relevant to manual dexterity these are as follows.

"The plaques at elbows are by no means cicatrical. Full function right and left shoulders, elbows, wrists, hands. No small muscle wasting hands."

10. The claimant's own General Practitioner had provided evidence by means of reports dated 28 April 2001 and 14 April 2002. In the report of 28 April 2001 the General Practitioner described the claimant as suffering from psoriasis and stated:

"Effects all over body. Skin dry and cracked. Did not tolerate last dose of UVB therapy. To be reviewed by dermatologists next week."

11. The report of 14 April 2002 described the claimant as suffering from severe psoriasis and stated:

"He is presently using Methotrexate oral therapy and attends Dr P..., Consultant Dermatologist. He has found Methotrexate causes him fatigue and requires to have his blood checked every week. His psoriasis effects his knees, hands and the nails of his hands and feet. This restricts his mobility and ability to use his hands.

He gets depressed and embarrassed by his skin condition. Does not like to mix in company and stays at home rather than go out, again restricting his ability to work".

12. The General Practitioner had expressed no views as to where, on the various activities and descriptors in the Personal Capability Assessment the claimant should fall. The MSS doctor had expressed such views and in relation to walking had opined that the claimant's walking was limited to being unable to walk more than 400 metres without stopping or severe discomfort. As regards the bending and kneeling and manual dexterity descriptors the MSS doctor had considered that the claimant had no problem with either. In his summary of functional ability he had stated:

"Some micro-function of fingers could be lost but not a major problem. Has excellent muscle bulk all groups so problems not expected in this area."

13. The grounds of appeal were that the Tribunal had failed to give adequate reasons for disallowing the appeal and in particular had not explained why the medical evidence for the claimant was not accepted. It was also contended that the Tribunal decision was in error of law in that it had not explained why the opinion of the medical member was rejected in favour of the findings of the MSS doctor. Miss Loughrey suggested that the medical member's opinion should be treated as "opinion evidence". She submitted that notice had not been given to that evidence in the reasons. She submitted further that the Tribunal had erred by failing to explain why it rejected the opinion of the medical member in favour of the findings of the MSS doctor.
14. Mrs Gunning opposed the appeal. She stated that the claimant's General Practitioner's evidence did not address his functional ability in relation to the Personal Capability Assessment. She submitted that the Tribunal considered the evidence from the General Practitioner and it clearly explained the reasons for its decision.
15. As regards the opinion of the medical member Mrs Gunning submitted that there was no legal obligation to state why the chairman had exercised his casting vote. Regulation 53(5) of the Social Security and Child Support Decisions and Appeals Regulations (Northern Ireland) 1999 specified that when a decision was not unanimous the reasoning must record that one of the members dissented and give the reasons why the member dissented. The decision in this case complied with that. The Tribunal had considered the relevant evidence and the decision indicated that there was disagreement on the bending and kneeling and manual dexterity descriptors. It also indicated that both members considered that the claimant exaggerated the effects of his condition and that the chairman preferred the clinical findings of the MSS doctor on all the activities. Mrs Gunning submitted that the reasons for the decision clearly explained why the Tribunal decided as it did and that the reasoning met the standard required by law and that there was no merit in the grounds.
16. In essence there are three issues for me to deal with in relation to this matter. The first of these is how the opinion of the medical member should be classified. I do not consider that this is opinion evidence. The medical member is not a witness. He brings his expertise and knowledge to bear on the evidence before him as a member of the Tribunal. There is therefore no evidence given by him and therefore no obligation on the Tribunal to explain why it might reject any such evidence. I find no merit in the grounds based on the view of a medical member being classed as giving evidence.
17. The second issue relates to the standard of reasoning to be adopted in a majority decision, this standard is no different than it is in any other decision with the exception that the requirements of the said regulation 53(5) must be complied with. The decision must record that one of the members dissented and the statement of reasons is to include the reasons given by the dissenting member for so doing. The decision in this case obviously records that the medical member dissented and the reasons for so doing are also recorded i.e. that member's views on the fact situation.
18. The third issue relates to the overall adequacy of the reasons. In relation to the reports by the General Practitioner it is noteworthy that these records do not contain any assessment of where the claimant fell on the Personal Capability Assessment. I do not consider that the Tribunal has rejected the General Practitioner's evidence. It has rather given more weight to the MSS doctor's report. The reasons refer specifically to preferring the clinical findings of that report. The reasons refer also to the medical member considering that the GP's report of 14 April 2002 would justify an award of points in the areas of manual dexterity and bending and kneeling. The Chairperson disagreed preferring the opinion of the MSS doctor on those activities. While the General Practitioner's report does refer to restriction in the ability to use the hands it does not give any assessment specific to the Personal Capability Test descriptors. The General Practitioner refers to the psoriasis restricting the claimant's mobility.
19. The majority reasons refer to the various activities that the claimant can carry out and these were obviously influential in the majority view as to the scoring on the Personal Capability Assessment. It was also considered, unanimously, that the claimant exaggerated the effects of his condition. It is also worthy of note that at the hearing the claimant, who was represented, did not give any evidence relating to any restrictions in Manual Dexterity. He did so in relation to Bending and Kneeling.
20. I consider that the reasons do adequately explain the Tribunal's decision. The Tribunal is required to explain its decision, not to defend it. The reasons indicate the view of the reliability of the claimant's evidence, they indicate which medical evidence was relied on (that of the MSS doctor) and they indicate why – the clinical findings and the activities which the claimant can carry on. That being so, I consider that the reasons explained the decision. The decision is sustainable on the accepted evidence.
21. I can find no error in the decision whether as indicated by the claimant or otherwise and I therefore dismiss the appeal.

(Signed): M F BROWN

COMMISSIONER

6 MARCH 2003