A40/96(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

INCAPACITY BENEFIT

Application by the claimant for leave to appeal
to the Social Security Commissioner
on a question of law from the decision of
Belfast Social Security Appeal Tribunal
dated 9 May 1996

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1.	In this case the claimant seeks leave to appeal against the decision of Belfast Social Security Appeal Tribunal; whereby it was held that she did not satisfy the all work test as from 8 February 1996.  

2.	The grounds of the claimant's application were set out in a letter dated 9 September 1996 from Belfast Unemployed Resource Centre, 45/47 Donegall Street, Belfast, in which it was submitted; (a) that the Tribunal failed to give an adequate statement of the reasons for their decision, and (b) that the interests of natural justice have not applied.  The proceedings before the Tribunal were reviewed in detail and it was argued that evidence provided by the claimant's doctors should have been accepted in preference to the evidence of the medical referee.  It was further pointed out that the Tribunal appeared to accept that, although the claimant failed the all work test, she was nevertheless incapable of work.

3.	In response to an invitation to comment upon the application Mr S J McAvoy, the Adjudication Officer now concerned with the case, by letter dated 20 December 1996 submitted that the Appeal Tribunal had been correct to consider whether or not the claimant satisfied the all work test.  Since April 1995 that had been the issue, and actual incapacity for work was no longer the test.  Mr McAvoy also referred to the fact that the Adjudication Officer who gave the initial decision in this case had cited regulation 17(7) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 as authority for review.  For the reasons given, Mr McAvoy submitted that, although reliance upon regulation 17(7) was incorrect, this did not invalidate the Adjudication Officer's decision on review.  I accept Mr McAvoy's argument on this technical point, as does the claimant's representative, and I do not consider that it requires any further comment.

4.	I held an oral hearing at which the claimant, who was present, was represented by Mr K O... of Belfast Unemployed Resource Centre.  The Adjudication Officer in attendance was Mr S J McAvoy.  

	Mr O... stated that his two principal points were that the Tribunal's decision was ambiguous and that it was based upon insufficient evidence.  At this stage it might be convenient to set out the Tribunal's "reasons for decision" in full.  They were as follows:-

		"The tribunal have considered all the evidence in this case.  We
		accept the claimant to be a genuine lady who has looked after her
		handicapped daughter for many years.  No doubt this has affected
		her health, and this coupled with her own physical problems have
		lead to a certain restriction in her ability to carry out the
		activities referred to in the Regulations.  We believe that she
		has greatly over-estimated the degree by which her medical condition
		would restrict her.  Having considered the Medical Referee's clinical
		findings and the facts of the examination, we believe that the
		Medical Referee's opinion is one based on the reality of the
		situation.  The claimant has certain restrictions which we have set
		out in our findings.  We differ from the Medical Referee in the
		areas of standing, sitting and bending.  Having heard the claimant
		we accept that there is a modest reduction in capacity in these
		areas.  We also believe that the claimant has a few mental health
		descriptors, but again we believe she has overstated her problems.
		We have considered the evidence of Dr L and Dr F.
		We accept their assessment that she, in her present state, may be
		incapable of work.  We, however, must deal with the legislation
		and look at the ability to undertake certain tasks.  We also do not
		doubt her truthfulness.  The main point, as it appears to us, is
		that her assessment of her ability does not conform with the 
		clinical facts on examination."

	Mr O... submitted that it was ambiguous of the Tribunal to accept the Medical Referee's opinion and then go on to record that they differed from him in the areas of standing, sitting and bending.  I pointed out that if there was any difference of opinion it had operated entirely in the claimant's interests, in that it had resulted in the award of points which she would not otherwise have received.  Mr O... agreed, but nevertheless maintained that there was apparent ambiguity in the decision.  So far as the insufficiency of the evidence was concerned Mr O... submitted that the Medical Referee's report was "fatally flawed" in that it had not been based upon an internal examination.  That omission was crucial and the absence of such examination affected the whole of the Medical Referee's report.  The claimant's own doctors were much more familiar with her condition and both had expressed the opinion that she was incapable of work.  That had not been taken sufficiently into account by the Appeal Tribunal.  Mr O... further maintained that, although the claimant had stopped work many years ago in order to look after her disabled daughter, she should nevertheless have been regarded as having been in employment as "a carer" up until the date on which her daughter went into a home.  If the Tribunal had accepted that the claimant stopped work at that date, it could have been held that mental stress was a factor in causing her to do so; in which event additional points would have been awarded.

	Mr McAvoy relied upon the observations in his letter of 20 December 1996.  The medical examination had lasted 1 hour 5 minutes and it was normal practice for the doctor's opinions to be based on clinical examination and questioning.

5.	I have every sympathy for the claimant in this case.  As is apparent from their "reasons for decision", the Tribunal accepted that she might be incapable of work, but nevertheless decided that she did not satisfy the all work test and therefore did not qualify for incapacity benefit.  I can well understand why the claimant should regard that as unfair; but, given the nature of the legislation, such a decision is entirely possible and in no way contradictory.  Any test which is based upon a fixed formula is open to the criticism that it may result in unfairness in some cases, and the conclusion which I have reached is that there is nothing to suggest that the decision of the Appeal Tribunal in this instance was or might be erroneous in law.  In particular, I do not accept that the Tribunal's decision was ambiguous in any material respect, or that it was based upon insufficient evidence.  Leave to appeal is accordingly refused.

	(Signed):  R R Chambers

	CHIEF COMMISSIONER

	15 April 1997