Decision No: C11/94(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 by the claimant for leave to appeal
and appeal to the Social Security Commissioner
on a question of law from the decision of the
Omagh Social Security Appeal Tribunal
dated 27 May 1994

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal which disallowed his claim for a disability premium to be included in his income support from 14 August 1993.

2.	I arranged an oral hearing at which claimant was present and was represented by Mr M... and the Adjudication Officer was represented by Mrs McRory.

3.	The facts briefly are that the claimant is a man aged 53 who was a mechanic and has been receiving sickness benefit and income support from November 1991.  He was found capable of work by a Medical Officer who examined him on behalf of the Department in August 1993, as a result of which on 19 October 1993 an Adjudication Officer decided claimant was capable of work.

4.	Claimant appealed to a Social Security Appeal Tribunal and that Tribunal made the following findings of fact:-

"a.  As per Tribunal's decision of 22 April 1993.

  b.  Has been receiving physiotherapy.

  c.  Doctor K… refers to early osteoarthritis changes.

  d.  Medical officers 9 July 1992 and 10 August 1993 found  claimant capable of work."

and gave reasons for its decision as:-

"Claimant has not proved incapacity for work by reason of some specific disease or bodily or mental disablement."

5.	At the hearing before me Mr M... said that the Tribunal did not refer to the medical evidence which was before the it and said that it made no findings of fact which were in any way relevant to the matter before it.  He said the Tribunal relied on medical evidence that was irrelevant and outside the period and it also did not consider the hypertension which was a new complaint.  There was no record that it had taken it into consideration.

6.	Mrs McRory on behalf of the Adjudication Officer agreed with the remarks made by Mr M... and in a written submission prior to the hearing submitted that the Tribunal erred in law in the following manner:-

"1.  Taking account of the medical officer's report dated 9 July 1992 when this along with a medical report dated 5 August 1992 had been considered by an appeal tribunal on 22 April 1993 and had therefore no bearing on the decision of the adjudication officer dated 19 October 1993 which was before the tribunal.

2.  Failing to make clear what was meant in their findings by stating:- "As per Tribunal's decision of 22 April 1993".  In any case as indicated above this was not relevant to their decision.

(The Tribunal may have been misled on the above by the presenting officer at the hearing on 27 May 1994 as she was relying on the medical officer's reports dated 9 July 1992 and 10 August 1993.)

3.  Failing to make any findings on the medical evidence produced at the hearing from the claimant's GP which stated that Mr L… was newly diagnosed as having hypertension.

For the above reasons I submit that the tribunal failed to comply with regulation 25 of The Social Security (Adjudication) Regulations (Northern Ireland) 1987."

7.	I accept what Mrs McRory and Mr M... say.  I have considered the single medical report which was used in this case.  I find that it also is of little assistance because in the comments on the grading of functions it said "These symptoms are unchanged and finds are the same as when he was seen on appeal".  It also records that he is medically capable of work including the above occupation, and no occupation is recorded above.  Also the report recorded that claimant complained of pains in the back of his neck and the sensation of pins and needles in his right hand and this is not commented upon in the medical report and it is very difficult to see how any Adjudication Officer could submit, as was done in this case, that the weight of medical evidence no longer supported Mr L… being incapable of work, because the medical evidence which supported the Adjudication Officer's decision is of little or no value.

8.	It is clear that the errors of law in this case require the decision to be set aside.  

9.	At the hearing I granted leave to appeal and with the consent of both parties treated the hearing as the hearing of the appeal.  For the reasons set out above I allow the appeal and refer the matter back to be reheard by a differently constituted Social Security Appeal Tribunal, that Tribunal should take account of all the medical evidence and make proper findings of fact before reaching a decision.

(Signed):  C C G McNally
COMMISSIONER

4 January 1995