Northern Ireland - Social Security and Child Support Commissioners' Decisions

Decision No:  C3/08-09(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 29 April 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.     This is an appeal by the claimant, with the leave of the legally qualified member (LQM), against the decision of an appeal tribunal.  The tribunal had disallowed the claimant’s appeal against a decision to the effect that the claimant was not incapable of work, in accordance with the personal capability assessment, from and including 3 March 2006.  Accordingly, the tribunal held that the claimant is not entitled to credits on the basis of ongoing incapacity for work from and including 3 March 2006.

2.     Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

3.     The claimant became unfit for work on 20 April 2000 and claimed incapacity benefit (IB) by reason of depression and blackouts.  Later statements from medical practitioners in support of the claim referred to a fracture of the left femur.  The personal capability assessment applied from 24 April 2000.  However, the claimant was not entitled to IB as he did not satisfy the contribution conditions for the receipt of that benefit.  Instead, he was awarded a National Insurance contribution credit for each complete week that he was incapable of work.  The claimant was examined by a medical officer of the Department on 11 November 2003.  Following this examination the Department considered all the available evidence and decided that the claimant was incapable of work in accordance with the personal capability assessment.  As is the usual practice, in order to reassess his capacity for work, the claimant was requested to complete a questionnaire giving details of how his illness affected his ability to perform various activities.  This form was completed and returned.  A medical officer of the Department examined the claimant on 29 November 2005.  The Department then considered all the available evidence and decided that the claimant scored three points in relation to the personal capability assessment.  Accordingly the decision giving entitlement to incapacity credits was superseded on 3 March 2006.  As the claimant was not incapable of work in accordance with the personal capability assessment, he was not entitled to credits on the basis of ongoing incapacity for work from and including 3 March 2006.  The claimant appealed on 13 March 2006.  As is the usual practice, the decision of 3 March 2006 was looked at again but, on 19 April 2006, it was decided that the decision should stand.  The claimant’s appeal to the tribunal was dealt with as stated in paragraph 1 herein.  The record of proceedings and the reasons for the tribunal’s decision demonstrate that the tribunal carefully considered all the evidence including the medical evidence.

4.     The claimant, represented by Mr Larry McLarnon (who also represented the claimant at the tribunal hearing) sought leave from the LQM to appeal to a Commissioner.  The grounds set out were “that the tribunal erred in law, in that it did not consider fully all of the medical evidence available to it, in reaching its decision with regard to (the) appeal”.  Leave was granted by the LQM on 6 August 2008.  The LQM ticked a box which stated:

“Leave to appeal granted.  I am satisfied that grounds have been established that the decision of the tribunal is, or may be, erroneous in point of law.

Point of law:”

         It is noteworthy that no point of law has been set out by the             LQM.  A further opportunity was given by a letter dated 26 November 2008 to the claimant’s representative to set out any additional points supporting the appeal.  However, no reply was received to that letter.

5.     Mr Michael Collins of Decision Making Services, on behalf of the Department, has opposed the appeal.  By letter dated 13 October 2008 he has set out his submissions in detail.  In particular he has stated as follows:

“The Tribunal’s Record of Proceedings shows that [the claimant] attended the hearing accompanied by his representative and both gave oral evidence.  [The claimant’s] representative detailed the physical and mental health descriptors which were in dispute.  He indicated that he had a factual report from July 2006 relating to a previous DLA award.  In addition the Tribunal considered the Department’s submission and in its Reasons for Decision recorded: -

“The Tribunal also considered the additional medical evidence submitted by the Claimant in the form of General Practitioner notes and records, Consultant letters, General Practitioner’s factual report dated 24.02.2006 submitted for Disability Living Allowance claim and General Practitioner’s report dated 16.05.2006.”

The Tribunal questioned [the claimant] about his incapacities and their effects and asked him about details of his typical day.  In relation to the GP report from 2006 it is recorded: –

“General Practitioner 2006 – factual report says 20 – 30 yards.  This has been accepted for Disability Living Allowance.”

At the end of the Record of Proceedings it is recorded that none of the parties had anything further to say.

The Tribunal, in evaluating the GP’s factual report stated: -

“The General Practitioner’s factual report indicates the Claimant can do all the activities of daily living but indicated a significant limitation with the Claimant’s walking ability.  This stated limitation however, we find to be inconsistent with the medical management and treatment of the claimant. We also find it inconsistent with the opinion of the Orthopaedic Consultant.  We reject said opinion.”

The Tribunal also considered a Casualty Department record from February 2008 but specifically rejected evidence given to the Tribunal by [the claimant] regarding the reason for his attendance there.  In concluding that [the claimant] was not incapable of work the Tribunal stated: -

“The Tribunal considered all of the evidence before it and found that it preferred the evidence of the Medical Officer and in particular his clinical findings and observations.  We find in particular the findings and opinions of the Medical Officer to be consistent with the orthopaedic opinions as outlined above on the Claimant.  We specifically reject the General Practitioner’s opinion in relation to the Claimant’s walking for the reasons set out above.”

I would submit that it is clear from the Tribunal’s Reasons that it considered a wide range of medical evidence much of which was provided by [the claimant].  Essentially the Tribunal accepted the medical evidence from the examining medical officer’s report and from orthopaedic reports provided by [the claimant], preferring this evidence to that of his GP and [the claimant’s] oral evidence on the day.  The Tribunal also gave clear reasons for rejecting various pieces of evidence that was before them.

In paragraph 4 of reported Northern Ireland Commissioner’s decision R3/04(DLA) (a decision that was subject to and approved by the Court of Appeal in Quinn v Department for Social Development [2004] NICA 22) Commissioner Brown held that the weight to be given to any piece of evidence is completely a matter for a Tribunal and can only be disturbed if the conclusion as to the weight is one which no reasonable Tribunal could have reached.  I would submit that it is clear from the Tribunal’s reasons that it weighed all the medical evidence before it and arrived at a conclusion to which it was entitled.  Therefore I can identify no error in law in [the claimant’s] grounds of appeal.”

6.     Mr Collins has convinced me that there is no merit in the claimant’s appeal.  It is clear that the medical evidence has been carefully considered and the tribunal has come to a conclusion to which it was entitled to come in light of the evidence.  It is clear that the tribunal has carefully weighed the medical evidence and has carefully given reasons why it accepted some evidence and rejected other evidence.  I can only interfere with the tribunal’s decision if it has got the law or procedure wrong.  In this case it has not done so.  Moreover, I cannot substitute my own view of the evidence for that taken by the tribunal.  Whether the claimant or his representative or a different tribunal or I or another Commissioner would take a different view of the facts is irrelevant.  The tribunal was entitled on the evidence before it to make the findings and the decision that it made.  They were neither perverse nor were they unreasonable. 

7.     In the circumstances I disallow the appeal and affirm the decision of the tribunal.

(signed):  J A H Martin QC

Chief Commissioner

16 February 2009