Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2009] NISSCSC C1_08_09(II) (19 March 2009)

Decision No: C1/08-09(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 15 December 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, with the leave of the Commissioner granted on 3 November 2008, against the decision of the tribunal affirming the decision of the decision-maker to the effect that the claimant is not entitled to disablement benefit (II) from and including 16 May 2007 because the extent of the loss of faculty amounts to less than 14%.
2. Having considered all the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
3. The claimant was working as a crane operator on 28 February 1997 when he was injured. The claimant made a claim on 11 July 1997 for II. Various provisional assessments were made between 1997 and 2007. These assessments are not directly relevant to the issues in this case. On 17 July 2007 the claimant was examined by a medical advisor who advised that the accident had caused a musculo-ligamentous back injury and a sprained left ankle, that there was still a relevant loss of faculty, that the resulting disablement should be assessed at 8% and that the period of the assessment should be from 15 May 2007 to 17 July 2009 and should be final. In light of all the available evidence a decision-maker of the Department on 21 July 2007 decided that the claimant is suffering from a loss of faculty as a result of the relevant accident, the relevant loss of faculty is impaired spinal function and impaired lower limb function, the degree of disablement is 8%, the period of assessment commenced on 15 May 2007 and continues until 17 July 2009, the assessment is final and, finally, the claimant is not entitled to II from and including 16 May 2007 because the extent of the loss of faculty amounts to less than 14%. The decision was notified on 23 July 2007. The claimant then appealed to an appeal tribunal on 6 August 2007. On 22 August 2007 the claimant was informed that the Department had looked again at the decision but had not changed it.
4. The tribunal gave the following reasons for its decision:

"1. There were no objective findings on clinical examination to support his claims of restriction.

2. We rely on our own objective findings on examination.

3. We do not believe the appellant's evidence. We think that at a conscious level he is exaggerating his problems.

4. We did note that his gait was variable when distracted. He was able to sit on a very low stool to put on his socks which is quite inconsistent with his claims.

5. We have arrived at our own assessment, independently of the Department's medical advisers, and relying on our own knowledge, experience and expertise. He has queried the qualifications etc of the medically qualified members and OPAT should be asked to reply to this."

5. Leave to appeal to a Commissioner was sought by the claimant. However, leave was refused by the legally qualified member (LQM) on 9 April 2008. However, on a renewed application to a Commissioner, leave was granted on 3 November 2008 for the following reasons:

"It is arguable that the decision was wrong in law, because the tribunal did not have before it a letter from the claimant's general practitioner dated 22 August 2007 concerning the claimant's condition – the letter being a potentially relevant letter which was made available to the Social Security Agency on 3 December 2007, some 12 days before the hearing of the appeal (date of appeal 15 December 2007)."

6. The claimant has conducted his own appeal. Mr Hinton of Decision Making Services (DMS) has made relevant written submissions on behalf of the Department.
7. In his written submissions on the application for leave to appeal, the claimant has drawn attention to an issue concerning letters from medical practitioners and, in particular, which letters the tribunal actually took into account when coming to its decision.
8. Mr Hinton has taken up this issue and has pointed out that under the heading "documents considered" in the record of proceedings, there is a record that the tribunal considered the Departmental submission and the schedule of documents. The schedule of documents consisted of the tabbed documents which would have included the original claim form, all the medical assessments and the claimant's letter of appeal. Mr Hinton has pointed out that there is no reference of any letters from a specialist or general practitioner (GP) or any evidence to suggest that these were presented to the tribunal on the day. Mr Hinton also pointed out that if they had been handed in it would have been expected that some form of reference to them would have been contained in the record of proceedings. He therefore submitted that the only written medical evidence considered by the tribunal was contained in the documents mentioned in the record of proceedings, along with the additional medical evidence obtained from the medical examination carried out on the day of the hearing. Mr Hinton has concluded that any reports or letters from the specialist or GP, which have been alluded to by the claimant, were clearly not before the tribunal.
9. The claimant has submitted that the tribunal's decision has clearly implicitly taken issue with the evidence from the specialist and the GP, without giving good reason so to do.
10. The claimant has submitted a copy of the GP's letter. It was date stamped as being received in Castle Court, the Industrial Injuries Branch, on 3 December 2007. Further researches by or on behalf of DMS has revealed that Industrial Injuries Branch did receive the letter but there is no record of it being forwarded to The Appeals Service (TAS). Therefore, it was not available to the tribunal on 15 December 2007.
11. There is no doubt that it would have been preferable if the claimant had submitted this relevant evidence to the tribunal or even sent copies to TAS. However, it is noted that the claimant is conducting the case on his own behalf and some little latitude must be allowed in these circumstances.
12. Mr Hinton has conceded that the evidence contained in the letter that was sent to Industrial Injuries Branch might have had a bearing on the tribunal's decision. Accordingly, he has submitted that there has been an inadvertent breach of the rules of natural justice. Therefore, he submits that, through no fault of the tribunal, the decision is erroneous in point of law.
13. I consider that Mr Hinton's submissions on this point are correct. Accordingly, I come to the conclusion that the claimant is correct in his submissions that the tribunal has erred in law. I also conclude that the error has been made through no fault of the members of the tribunal.
14. The claimant has also submitted that the medical officer's recommendations, following the examination on 17 July 2007, were based solely on the fact that he was able to travel to Bulgaria on holiday and, therefore, his recommendations were not based on objective clinical findings or diagnosis. Therefore, he has submitted that there was an invasion of his privacy resulting in an infringement of his human rights.
15. The only conceivable human right involved is that set out in Article 8 of the European Convention on Human Rights which provides in Article 8(1) "everyone has the right to respect for his private and family life, his home and his correspondence."
16. However, Mr Commissioner Jacobs in a Great Britain decision (R(DLA) 4/02) has made clear that this point has no substance in relation to claiming benefits. He stated as follows:

"7. Article 8(1) does not guarantee a right to a private life. It guarantees only "respect" for private life. The reason for that limitation is obvious. It is a feature of everyday life that our private lives are continually impinged upon by others. Life in a community is only possible because measured interference with our private lives is tolerated. That interference is accepted by us as individuals (to a greater or lesser extent, depending on our temperament). It is recognised, and sometimes imposed, by domestic law.

17. The claimant has also submitted that the tribunal erred by basing its conclusions on a medical examination alone as he had taken painkillers prior to the medical examination and such a factor was not taken into account.
18. Perusal of the record of proceedings, however, demonstrates that the tribunal took the claimant's own evidence into account and, in light of all the evidence, the tribunal was entitled to come to the conclusion to which it came.
19. The claimant also has stated that the tribunal erred by stating that he, the claimant, was able to put on his own socks at the medical examination when he, the claimant, has contended that his wife was required to help him to put on the socks.
20. In my view, bearing in mind all the issues in this case, this was a peripheral matter and no error of law has been demonstrated. Nevertheless, in light of the fact that I have come to the conclusion that the tribunal has erred in law in another respect, this matter has become somewhat academic.
21. The claimant has also contended that the tribunal erred by not believing his evidence.
22. The tribunal has made it clear that it did not believe the appellant's evidence. It also concluded that he was exaggerating his problems at a conscious level. A tribunal of Commissioners in R3/01(IB)(T) at paragraph 23 has dealt with this issue by stating as follows:

"A court is not usually required to enter into detailed reasoning as to why it believes or disbelieves evidence … . A Tribunal is entitled to exercise its judgment on the veracity of evidence put before it. In many instances it must do so to ascertain the facts. There is no rule that it must explain its assessment of credibility … ."

In light of this guidance from the Tribunal of Commissioners, it is clear that the tribunal is entitled to come to such a conclusion in light of the evidence before it.

23. The claimant also queried the qualifications of the medically qualified members. The tribunal was properly constituted in accordance with regulation 36 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999. There is no requirement that the medical member has to be a specialist in a field of medicine relevant to the particular case before it. As Mr Hinton has pointed out, the words of Commissioner's decision in C11/01-02(DLA) at paragraph 8 are especially relevant. In that decision I stated as follows:

"… As Mrs Gunning has pointed out, there is no specific requirement to include panel members with a qualification in the disability suffered by the particular claimant. Whilst it might be desirable in a particular case to have a panel member who has such a qualification, it is not a legal requirement. The members of Tribunals will obviously have experience in assessing care and mobility needs across a range of disabilities … and, I am confident, take these responsibilities seriously … ."

Accordingly I come to the conclusion that the constitution of the tribunal in itself is not an error of law.

24. For the reasons stated at paragaraphs 7 to 13 I hold that the tribunal's decision is erroneous in point of law. I therefore allow the appeal. I set aside the decision of the tribunal and refer the case back to a differently constituted tribunal for a rehearing. The fact that this appeal has been allowed should not be taken as an indication that the claimant's case will ultimately be successful. That is entirely a matter for the fresh tribunal.

(signed) J A H Martin QC

Chief Commissioner

19 March 2009