Application No: A25/96(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

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

INCAPACITY BENEFIT

Application by the above-named claimant for
leave to appeal to the Social Security Commissioner
on a question of law from the decision of the
Londonderry Social Security Appeal Tribunal
dated 22 August 1996

DETERMINATION 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 found the claimant did not satisfy the all work test and accordingly cannot be treated as incapable of work from and including 6 March 1996.

2.	The claimant sought leave to appeal against that decision on two grounds as follows:-

		"(1)	There has been a failure to set out the reasons for the decision
			in writing.  In particular the Tribunal should have stated why
			they preferred the medical evidence of the EMO to medical
			evidence of clients GP and report from Dr L..., and X-rays.

		 (2)	The decision is one which no reasonable Tribunal could have
			made, in that client gave evidence himself and has medical
			proof that he was in pain and discomfort carrying out physical
			descriptors and therefore satisfied all work test."

	Having received notice of grounds of appeal the Adjudication Officer replied as follows:-

		"Mr M... contends that the Tribunal failed to set out the reasons
		for their decision and in particular that they should have stated
		why they preferred the opinion of the medical officer to those of
		his doctors and that the decision was one that no reasonable
		Tribunal could have made on the evidence before them.  However,
		the Tribunal in arriving at their decision appear to have taken
		account of all the evidence before them and their record of 
		proceedings bears this out.  It is clear that the Tribunal 
		preferred the evidence of the MO stating that they believed it
		gave the more accurate assessment of Mr M...'s medical
		condition and ability to perform the various descriptors.  The
		weight to be attached to medical opinions and to Mr M...'s 
		own evidence was a matter for the Tribunal to decide - see
		paragraph 9 of unreported decision No C10/90(IVB) of the Northern
		Ireland Chief Commissioner, endorsing the views of the GB
		Commissioner in decision No CS/220/1988.

		Mr M... has referred to the fact that he was found to be 
		medically unfit to carry on with his job as a road sweeper and
		was retired from his job on that ground.  Whilst that is so,
		and may have been a reasonable decision given Mr M...'s
		condition, it has to be recognised that that is not the test 
		for Incapacity Benefit.  Since April 1995 it may be appropriate
		to measure a claimant's incapacity for work against his fitness
		for his own occupation but only during the first 28 weeks of
		incapacity.  Thereafter, as here, the appropriate test is the
		all work test which (subject to certain exceptions which do not
		apply in Mr M...'s case) is decided on a scored assessment
		of a person's fitness to carry out certain activities as laid
		down in statute.  Mr M...'s ability or inability to do his job
		or indeed any job is therefore of no significance.

		Although not specifically raised in the application I feel I
		should draw the Commissioner's attention to the fact that the
		record of the Adjudication Officer's decision in this case
		cites regulation 17(7) of the Social Security (Claims and
		Payments) Regulations (NI) 1987 as the authority for review.
		In Great Britain decision CSIS/137/94 a Tribunal of Commissioners
		held that regulation 17(4) (Regulation 17(7) in Northern Ireland)
		is not of itself a provision for review but rather a provision
		for invoking the normal systems for review.  Such provisions
		are contained in Section 23 of the Social Security Administration
		(NI) Act 1992.  The Commissioners also held that any review
		conducted because the events specified in Reg 17(4) (17(7) in
		NI) have arisen cannot be invalid on the sole ground that the 
		AO conducting it happens to refer to the Regulation as the 
		authority for it.

		In this case I submit that on consideration of the findings of the
		report of the examining doctor dated 22.2.96 and other relevant 
		information, the AO was entitled to assess that Mr M... did not 
		satisfy the all work test because he had not reached 15 points.

		Mr M... was treated as incapable of work until assessed while
		he provided appropriate medical evidence (Regulation 28 of the
		Social Security (Incapacity for Work)(General) Regulations 
		(Northern Ireland) 1995).  However, I submit that this provision
		ceased to have effect from the day of assessment when Mr M...
		was required to satisfy the all work test.

		I further submit that this change in the legal requirement for
		entitlement at the date of assessment constitutes a relevant
		change of circumstances for the purposes of Section 23(1)(b)
		of the Social Security Administration (NI) Act 1992.  
		Accordingly I submit that the Adjudication Officer was entitled
		to review the award of Incapacity Benefit under the provisions
		of Section 23(1)(b) of the Social Security Administration (NI)
		Act 1992 and that there was no error of law in the Tribunal
		upholding that review.

		For the reasons given above I do not consider that the Tribunal
		erred in law."

3.	I arranged an oral hearing of the application at which claimant was represented by Miss Stead of the Citizens Advice Bureau and the Adjudication Officer was represented by Mr McAvoy.  Miss Stead read from a prepared submission and argued that the Tribunal failed to state reasons for its decision and it was under a statutory obligation to do.  She said that the Tribunal stated that it preferred the evidence of the EMO but did not give any reasons why it did not accept the evidence provided by claimant's GP and also by Dr L..., especially when that evidence referred to X-rays.  She said that it was not sufficient to say that a person does not satisfy the conditions of entitlement; the Tribunal was obliged to explain why he did not satisfy those conditions.  She then went on to refer to the other medical evidence in the case of Dr B... and Dr L..., where it was agreed that claimant had chronic disc lesions and chronic osteoarthritis in his right hip and that the X-rays and clinical findings confirmed this.  He also had a prostate problem.  She said the evidence of Dr B... and Dr L... was based on examination, X-rays and hospital investigations and that the Tribunal did not give sufficient weight to that evidence, nor did it give sufficient reasons why it did not accept that evidence.  She said that the Tribunal should have adjourned to get an independent report or alternatively to obtain copies of the X-rays and the report commenting on X-rays.  She said that no reasonable Tribunal would have made the decision which the Tribunal made.

4.	Mr McAvoy argued that the Tribunal was correct in making the decision it did, in that it was within its rights to accept the evidence of the Examining Medical Practitioner.  Whether or not the Tribunal failed to say why it preferred the opinion of the EMO, it did say that it believed that it gave a more accurate assessment of the applicant's medical condition and his ability to carry out the various descriptors.  He said that the doctors were trained to use the question form in conjunction with a medical examination.  He also said that adjournments of Social Security Appeal Tribunals or Disability Appeal Tribunals can be very costly affairs and that there is great pressure on a Tribunal not to adjourn.

5.	I have considered all that has been said and I have considered the medical reports of Dr L..., Dr B... and of the EMO.  However, the Tribunal has a function and that is to assess all the evidence and to come to a decision.  If it considers it has not got sufficient evidence then it is entitled to take whatever steps it considers necessary to acquire that evidence.  In this case it did not consider it necessary.  It decided that the EMO gave a more accurate assessment of applicant's medical condition and his ability to perform various descriptors.  I am satisfied therefore that there is no error of law in either the findings of fact or the decision of the Tribunal.  The application therefore is refused.

	(Signed):  C C G McNally

	COMMISSIONER

	12 May 1997