Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Decision No: C2/06-07(SDA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
SEVERE DISABLEMENT ALLOWANCE
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 22 November 2005
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by a Commissioner, by the claimant against a decision dated 22 November 2005 of an appeal tribunal sitting at Belfast. The tribunal disallowed the claimant's appeal against a departmental decision dated 27 April 2005 to the effect that:

(1) an earlier decision dated 8 December 1995 awarding severe disablement allowance (SDA) was superseded on the grounds of relevant change of circumstances;

(2) the relevant change of circumstances was that the degree of disablement was reassessed at less than 80% (80% assessed disablement being a condition of entitlement to SDA) and in fact was re-assessed 20%;

(3) the claimant was not therefore disabled for purposes of SDA; and

(4) was not entitled to SDA from 27 April 2005.

2. The claimant had originally sought an oral hearing of her appeal to the tribunal. It appears that on 1 August 2005 she requested a domiciliary hearing but on learning what was entailed in this she was prepared for the tribunal to hold a non-domiciliary hearing in her absence. This the tribunal did. The Department did not send a representative to the hearing so the appeal was dealt with on the papers only.
3. The tribunal's statement of reasons is as follows:

"1. Appellant consented to our proceeding by way of an oral hearing in her absence and, having considered all the available papers, we decided to do so.

2. No Departmental Presenting Officer attended and we decided to proceed and to deal with the appeal on the papers only. We might have adjourned had a Departmental Presenting Officer attended in the appellant's absence.

3. The appellant is incorrect in claiming that in previous assessments she got 80% for agoraphobia. In 1995 she got 70% for this, in 1998 – 70%, in 2000 60%. She reached the 80% level because other conditions were available to be added on. She still has hypertension but she no longer has irritable bowel syndrome and right ear pain.

4. With regard to the hypertension this seems to be "white coat hypertension", as it was 200/100 when she was visited by the Department's Medical Officer but was normal when checked by her General Practitioner.

5. With regard to her mental health, the medical officer's report states:-

"Mental – Well groomed, home is neat and stylish;

In home alone;

Answered the door, showed us to seats, good eye contact;

Good spontaneity of speech;

Coped well. No obvious signs of anxiety, no crying, no reactive moods;

Memory, cognition, concentration good. Good historian.

Normal thought form, no delusions."

Her only medication was half Inderol and Diazepam.

We can see no reason to disagree with Dr McGuckin's conclusions that, "[the claimant] describes symptoms almost solely related to leaving home. She can however overcome her fears to leave home eg with family. Management suggest mild problems only. No signs of severe mental illness." Previous reports refer to her problem as "chronic". Others suggest it may improve with treatment. We feel it has improved."

4. The claimant appealed. She set out her grounds of appeal on an OSSC1 form received in the Commissioners' Office on 15 May 2006. She made further observations by letters received on 11 September 2006 and 29 January 2007. The Department opposed the appeal making comment on letters dated 3 August 2006 and (after I granted leave and with particular relevance to the reasons for the grant) on 15 January 2007.
5. The claimant's grounds of appeal were essentially twofold. The first related to the absence of a departmental presenting officer at the tribunal hearing. The claimant submitted that she had been told by a person in the Appeals Service that this official would represent her and stated that had she known no such official would have been present she would not have consented to the tribunal proceeding in her absence.
6. The second ground (within which several matters were raised) was essentially that the tribunal had not been entitled to its conclusions that (a) she could overcome her fears and go out; (b) she no longer suffered from irritable bowel syndrome and ear pain; and (c) her blood pressure was normal when checked by her GP and that her condition had improved.
7. The Department opposed the appeal. In her helpful and thorough submissions, Mrs Gunning of its Decision Making Services Branch pointed out that had a presenting officer attended the hearing, that officer's role would have been that of friend of the court. This, while not an adversarial role, would not have been one of representing the claimant. It would have been to assist the tribunal to assess the facts and apply the relevant law.
8. As regards the second ground Mrs Gunning essentially submitted that on the evidence the tribunal was entitled to its conclusions.
9. As mentioned earlier, I granted leave. My reasons for so doing were based on the possibility of there having been a breach of the rules of natural justice. The Department had decided that the relevant change of circumstances on which its superseding decision of 27 April 2005 was based was that the claimant's "degree of disablement was reassessed at less than 80%". In its submission to the tribunal the Department recited the claimant's grounds of appeal where she had sought an explanation of how the medical evidence in her assessment in 2000 differed from that on which the current assessment was based. She had stated inter alia:

"I can only conclude that the reason the decision to stop my allowance is a difference of opinion by two Doctors, this appears to be an unreasonable and unfair."

She denied that there had been any improvement in her condition.

10. I considered that an issue arose as to whether the claimant should have been made aware that an issue would be raised and dealt with at the tribunal to the effect that her actual disablement had lessened as opposed to the percentage put upon it being reassessed.
11. Mrs Gunning commented on this matter in her letter of 15 January. In it she referred to the claimant having been contacted by the Department and given an explanation for the decision and to the claimant's letter of 5 May 2005 in which she denied any improvement in her condition. Mrs Gunning submitted that this indicated that the claimant was aware that the percentage had reduced because the extent of her disablement had lessened. She submitted further that the claimant had been assessed for SDA on four separate occasions and the papers relating to those examinations were included in the Department's submission to the tribunal. She submitted that when those documents were compared it was clear that the claimant's condition had changed. The tribunal considered the claimant's condition to have improved.
12. The claimant disputed having had the assessment process explained to her and said that she did not know how the assessment was reached or how percentages were reached, that she had not been given a fair opportunity to provide further evidence eg by way of an examination by the tribunal doctors. She stated that she was "unaware that an issue would be raised and dealt with at the tribunal regarding reassessment and the percentage put upon it."
13. I consider that there is no merit in the grounds of appeal originally put forward by the claimant. She did agree to the tribunal proceeding in her absence and was therefore well aware that there would be no examination of her at tribunal. I am not prepared to conclude that any member of staff in the Tribunal Appeals Service informed the claimant that a departmental official would represent her. The claimant may genuinely have had this impression but it is so obviously wrong that I doubt there was ever any basis for it. Mrs Gunning's explanation of the role of the presenting officer is the correct one.
14. I also consider that the tribunal had adequate evidence to entitle it to reach the conclusions which it did. The assessments set out in the papers do indicate the disablement upon which the percentages were based. I have not had this matter argued before me but am doubtful that a mere change in the percentage attributed to exactly the same disablement is a relevant change of circumstances for purposes of the supersession provisions. Equally, however, it is not necessary for there to be a change in the underlying condition (in this case agoraphobia). A change in the level of disablement can constitute a relevant change of circumstances. To take an example, if the level of disablement was originally a complete inability to go out of doors (whether accompanied or otherwise) and that reduced to being unable to do so alone, that could be a relevant change of circumstances. The disablement reduced even though the underlying condition of agoraphobia remained the same. It is of course possible for a disablement eg panic attacks to remain the same but to become more mild or less frequent etc and thus merit less of an assessment. However, if the original disablement remained the same in character, severity, frequency etc; I am doubtful (though mindful that section 68(6) of the Social Security Contributions and Benefits Act (Northern Ireland) 1992 refers to "assessed" disablement) that a mere change in the assessed percentage is of itself a relevant change of circumstances. My views are not however, concluded. I have not asked to be addressed on the matter as I do not wish to delay this decision further.
15. In this present case there is undoubtedly evidence to enable the tribunal to conclude that there was a difference in the actual disablement as assessed at 14 November 2000 (the last assessment before the present one) and the disablement on which the superseding decision is based. For example, on the basis of the evidence the tribunal was entitled to conclude that the claimant no longer had irritable bowel syndrome or ear pains and that there was some indication of a lessening in the severity of agoraphobic disablement.
16. There was adequate evidence before the tribunal to enable it to reach its conclusions though the very drastic drop in the percentage assessment perhaps merited more comment. There is however no merit in the claimant's second ground of appeal.
17. I return to the reason why I granted leave and to the question of whether there has been a breach of the rules of natural justice. This depends on whether the Department's submission to the tribunal and its accompanying documents adequately indicated the relevant change of circumstances (ie lessening of disablement) on which the superseding decision was based. The body of the submission itself does not actually set this out though the accompanying documents and, in particular, the medical reports do make the matter clear. In particular, they show that there was no longer considered to be any disablement from irritable bowel syndrome or ear pain and dizziness and that problems from agoraphobia were considered now to be mild. It does appear therefore that the relevant change in circumstances ie reduction in disablement was adequately identifiable from those documents. However neither the Department's decision nor its submission made any mention of any actual change in disablement being the relevant change of circumstances. Rather the change in percentage was put forward as the relevant change of circumstances. It is quite apparent from the letter of appeal that the claimant reasonably thought the matter was merely one of a change in percentages placed on the same disablement. It is unfortunate that she did not attend the tribunal when the matter could have been put right. I have no fault to find with the tribunal's conclusions on actual disablement and the matter is finely balanced. On balance, however, I consider that there has been a breach of the rules of natural justice in that there was a change in the alleged relevant change of circumstances which formed the basis for the supersession decision and the claimant was reasonably unaware of same. The tribunal should have considered adjourning to make her aware of same so she could make representations thereon.
18. This is not a case where it is expedient that I give the decision which the tribunal should have given. The tribunal with its medical expertise is the more appropriate body. I therefore remit this matter to a differently constituted tribunal for rehearing and re-determination.
19. The claimant should now be aware that what is contended is that her actual disablement has lessened, not merely the percentage attributed to it. She should give serious consideration to attending the tribunal, though that is a matter for her. If she does not do so she may wish to consider putting her case in writing to the tribunal. It is a matter for her to produce such evidence as she wishes in support of her case. She should not take my having set aside the decision of 22 November 2005 as any indication of the likely ultimate success of her appeal to the tribunal. That will be a matter for the new tribunal which will be considering the matter afresh.

(signed): M F Brown

Commissioner

5 April 2007