A16/95(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

INCOME SUPPORT

Application for leave to appeal to the
Social Security Commissioner
on a question of law from the decision of
Belfast Social Security Appeal Tribunal
dated 7 July 1994

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of Belfast Social Security Appeal Tribunal; whereby it was held that, in relation to his claim for income support, he was not entitled to disability premium from 4 February 1993.  

2.	It is unnecessary for me to set out the background facts or the relevant and somewhat complicated legislative provisions in any detail.  Briefly, the claimant was entitled to disability premium from 4 February 1993 if he was incapable of work for a continuous period of not less than 28 weeks prior to that date.  He had been examined on 1 October 1992 and 9 November 1992 by different Medical Officers of the Department, who had both expressed their opinions on his capacity for work.  In the light of the information at his disposal, the Adjudication Officer decided that from 16 November 1992 the claimant had not proved that he was incapable of work and it was, in effect, from that decision that the claimant appealed.  The first hearing of his appeal was adjourned to enable "independent specialist medical opinion" to be obtained, and at the hearing on 7 July 1994 the Tribunal had before them a report dated 19 May 1994 from Mr C, FRCS, Consultant Orthopaedic Surgeon.  The concluding paragraphs of that report read as follows:-

"As the result of an assault in July 1992 this young man suffered
a laceration to the left side of his neck with damage to accessory
nerve on that side.   By virtue of this he has lost some bulk in the
musclature on the left side of his neck particularly the sternomastoid
muscle and part of the trapezius muscle.

Mr K suffered a knife injury to the left side of his neck in
July 1992.  This resulted in the underlying damage described.  Mr
K informs me that prior to this incident he had not at any
time since leaving school held a full-time job.  He has 
undoubtedly some mild disability in the left shoulder area arising
out of this injury, however, the residual affect of the injury 
would in no way leave him incapable of employment.  He would
certainly be fit for many light forms of work although I would
obviously deem him unfit for heavy labouring activity."

3.	The grounds of the claimant's application for leave to appeal to the Commissioner are:-

"The Tribunal failed to apply the correct law, namely Commissioner's
Decision (RS) 11/51 which states "that a person is incapable .....
if having regard to his age, education and experience, state of 
health and other personal factors, there is no work or type of work
which he can reasonable be expected to do"

Therefore, state of health is only one factor to be considered in
the test for incapacity.  However, this test was not correctly 
applied by the Tribunal, whose sole focus was on the medical 
evidence presented.

The Tribunal made a decision supported by insufficient evidence, in
that although the onus in proof is on the application to establish
his incapacity for work there is a duty on the Department of Social
Security to suggest to the Tribunal the type of work that the 
Department considers the applicant capable of, together with job
description.  This was neither done in writing in the submission
papers to the Tribunal or orally during the Tribunal hearing as
such, there was a breach of natural justice, applicant did not 
receive a full hearing."

4.	I have considered the grounds set out in paragraph 3 above and have reached the conclusion that they are without foundation.

There is in my opinion nothing to suggest that the Tribunal failed to take account of all relevant factors in reaching the conclusion that the claimant was not incapable of work.  As the record of the proceedings clearly shows, the points now raised regarding the claimant's age, education, work experience, health or other personal factors were all advanced on the claimant's behalf at the hearing, and the Tribunal were not under any obligation to list or refer to them in their "reasons for decision".

I am also unable to accept that there was any duty on the Department of Social Security to suggest to the Tribunal "the type of work that the Department considers the applicant capable of, together with job description."   There is in my opinion no such general requirement in law.  It is correct to say that in a number of decisions of the GB Commissioners, (many of them dating back to a time when there was a right of appeal to the Commissioner on the merits of the case as well as on a question of law), the view was expressed that in certain circumstances the Adjudication Officer should assist the Tribunal or the Commissioner by providing descriptions of jobs which he considered the claimant could reasonably be expected to do.  It has, however, never been held that job descriptions are necessary, or for that matter desirable, in all cases, and in my opinion it is for the Tribunal to decide whether they have sufficient information before them to enable them to reach a reasoned conclusion on the question of the claimant's capacity for work.  There may be cases where job descriptions would be required but there are clearly others where they would be quite unnecessary.

5.	For the reasons given in paragraph 4 above I do not consider that the Appeal Tribunal erred in law in the respects set out in the claimant's application for leave to appeal.  I have also considered whether there are any other grounds for holding that the decision of the Appeal Tribunal is or may be erroneous in point of law, and have reached the conclusion that there are not.  Leave to appeal will accordingly be refused.

6.	The claimant requested an oral hearing of this application; but having considered the circumstances of the case and the reasons put forward for the request, I am satisfied that a hearing is not required.  The request has accordingly been refused.

(Signed):  R R Chambers

CHIEF COMMISSIONER