Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2005] NISSCSC C1_0304(II) (27 May 2005)

Decision No: C1/03-04(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABLEMENT BENEFIT
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 4 October 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, with the leave of a Commissioner granted on 2 June 2003, against the decision of the Tribunal affirming the decision of the decision maker, as corrected by the Department, to the effect that the claimant is not entitled to disablement benefit (II) from and including 23 September 1995 as the extent of the relevant disablement resulting from the relevant loss of faculty amounts to less than 14 per cent. The decision maker had decided that the claimant was suffering from a loss of faculty as a result of the relevant accident and that the relevant loss of faculty was an impaired and painful left knee. The degree of disablement was assessed at 7 per cent and the period of assessment commenced on 23 September 1995 and continued for life. The assessment was a final one.
2. Having considered all the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
3. The Tribunal gave the following reasons for its decision:-

"Mr G… appeals the 7% assessment of disablement made on 6.9.2001 and relies on the report from Dr Grey 5.5.1999, Mr Price 21.6.1999 and Mr Caldwell 9.10.2000. As explained in Document 11, these really add nothing to the information available to the Medical Officer on 6.9.2001.

The assessment takes into account the injuries sustained in the accident on 9.10 June 1995 and his description of how he has been affected on a daily basis, but we also have to take into account the Medical Officer's clinical findings including no muscle wasting, which would indicate that he is not leading as sedentary a life as he states, and that he lives alone, does his housework, walks and drives. The assessment for an unlimited period seems reasonable to us.

We would agree with the Medical Officer, having considered Dr Grey and Mr Price's report that the right sided sciatica and low back pain in 2000 is not connected to the accident in 1995 and cannot be taken into account in the assessment of disablement."

4. The legally qualified member of the Tribunal made the following record of proceedings:-

INDUSTRIAL ACCIDENT ON 9-10.6.1995

Appeal from the decision of the Departmental Officer made on 24.3.2002.

1. DOCUMENTS CONSIDERED:

Departmental submission, scheduled documents, appellant's letter of 23.9.2002 and AT6.

2. RECORD OF PROCEEDINGS [including evidence considered and details of the adjournment application (if any)]

With the available papers and his letter of 23.9.2002.

We feel able to proceed in his absence.

3. MEDICAL EXAMINATION:

None – he did not attend."

5. The relevant sequence of events in relation to this case is as follows. On 3 October 2001 the decision maker decided that II was not payable from and including 23 September 1995. The claimant was notified of this decision on 10 October 2001. On 17 October the claimant asked for the decision to be looked at again. Following reconsideration it was decided on 23 March 2002 that the decision of 3 October 2001 should not be changed. Although the decision recorded by the decision maker shows that a decision called "revised decision – no change" was made, the notification to the claimant stated that the original decision could not be changed and that the claimant had the right of appeal against that decision. The claimant was notified of this on 17 April 2002. The claimant subsequently appealed against the decision issued to him on 17 April 2002. As stated earlier in this decision the Appeal Tribunal dismissed the appeal and confirmed the decision of 24 March 2002 – as corrected by the Department.
6. The claimant, who is not represented, has made the following grounds of appeal: -

(1) He has submitted that the Examining Medical Officers' findings are unrealistic, given that the examination took place at home and not in a work or other environment.

(2) He submits that the Examining Medical Officers were wrong to conclude that the claimant's sciatica was unrelated to the incident.

(3) His loss of earnings has been erroneously ignored.

7. The substance of the claimant's complaints are in essence factual disputes and disputes as to the opinions of the Medical Officers. It is not entirely clear to me what point the claimant is making about his earnings loss but it is manifest that it cannot found a sustainable argument that the Tribunal has erred in law in this respect.
8. It must be borne in mind that a tribunal is entitled to draw its own inferences and reach its own conclusions and however profoundly a Commissioner, as an appellate tribunal on an appeal from a tribunal on a point of law, may disagree with its views of the facts, he or she is not able to upset the tribunal's conclusions unless:

(a) there is no or no sufficient evidence to found them – which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal, or

(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse.

In this case I neither express disagreement nor agreement with the Tribunal's inferences and conclusions. However, even if I were in disagreement, that does not render the decision erroneous in point of law as the Tribunal's conclusions are based on sufficient evidence, its assessment of the evidence was reasonable and the primary facts found justify the conclusion.

9. Mr Sloan, of the Decision Making and Appeals Unit of the Department, has however made a specific submission in relation to the applicability of the present appeal to the guidance set out by the Great Britain Tribunal of Commissioners in the composite decision CIB 4751/2002, CDLA 4753/2002, CDLA 4939/2002 and CDLA 5141/2002. Mr Sloan has specifically drawn my attention to paragraphs 53, 54 and 55(3) of that decision. These paragraphs are in the following terms: -

"53. In our judgment, the parties are correct in submitted (as they do) that, when faced with an appeal following a decision under Section 9 or Section 10, an appeal tribunal must start by identifying the decision under appeal. The legislation is clear in providing that, in the case of a decision under Section 10, it is the Section 10 decision itself which is the subject of the appeal. In the case of a decision under Section 9, whatever the substance of the position may be, it is the original decision which is required to be treated as under appeal. The identification of the decision under appeal is vital because, in deciding the appeal, the appeal tribunal cannot take into account circumstances arising after the date of that decision (Section 12(8)(b)).

54. In the case of an appeal following a revision or refusal to revise where no ground for revision was required, the appeal is in both form and substance an appeal against the original decision …

55(3) Turning to the position on an appeal following a decision to revise (or not to revise), or to supersede (or not to supersede), that decision will either have changed or have left unchanged the claimant's entitlement to benefit. The reality is that the concern of the claimant (and indeed the Secretary of State) on such an appeal will be with whether the claimant's entitlement to benefit ought or ought not to be changed, … Parliament intended that the appeal tribunal should have the power to decide the question of substance as whether the claimant's entitlement to benefit should be changed, and if so how…."

Taking into account these statements set out in the Tribunal of Commissioner's decision, it is clear that the Tribunal in the present case has erred by failing to identify the decision under appeal. The appeal is against the decision as revised. Accordingly in the present case it ought to have been against the decision of 3 October 2001 rather than, as it purported to be, against the revision of 24 March 2002.

10. However, it is also clear from paragraph 55(3) of the decision of the Great Britain Tribunal of Commissioners that the Tribunal in the present case has dealt with the issues and questions of substance and the Tribunal's error must be classified as one of minor significance. In my view the Tribunal has correctly dealt with the issues of substance and has come to an entirely sustainable decision.
11. Therefore I hold that the decision appealed against was erroneous in point of law. Accordingly I must set the decision aside. However, exercising the powers set out in Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998, I give the decision which I consider the Tribunal ought to have given, namely, that the decision of 3 October 2001, as revised on 24 March 2002, is confirmed. Accordingly, while the claimant has been technically successful in his appeal, he gains no benefit from this decision.

(signed): John A H Martin QC

Chief Commissioner

12. October 2004