Decision No: C6/96(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
	Strabane Social Security Appeal Tribunal
	dated 10 April 1995

	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 held that claimant was not incapable of work from and including 16 March 1994.

2.	The facts are that the claimant is a 47 year old concrete finisher became incapable of work in February 1991, he received incapacity benefit and an additional disability premium until he was medically examined on behalf of the Department in March 1994.  That Medical Officer found him capable of work and as a result his incapacity benefit was withdrawn.  Claimant appealed against that decision to a Social Security Appeal Tribunal, that Tribunal adjourned the hearing on the following grounds:-

		"Tribunal require a submission on alternative work in this case.
		Having regard to the nature of claimant's usual occupation and
		his complaints of Epigastric pain, shortness of breath, pain in
		right knee and low back pain Tribunal are of the opinion that
		claimant's usual occupation is not suitable and wish to consider
		possibilities of the alternative work being suitable herein."

	At this point there would appear to be a discrepancy between the submission to that Tribunal by the Adjudication Officer in which he said that the Medical Officer was of the opinion that he was capable of his usual occupation but in other documents and in the opinion of the claimant the Medical Officer found him capable of light work.  I am at a loss to comment upon this because of the lack of proper documentation in the file given to me.  There are no medical reports on the file so I cannot verify what in fact the Medical Officer found.  In any event a further submission was made to the Tribunal in respect of alternative work as directed and a complete rehearing took place before the same Chairperson but differently constituted Tribunal, that Tribunal held that claimant was not incapable of work having found the following facts material to that decision:-

		"Claimant is 48 years of age.  Usual occupation that of concrete
		finisher.

		Claimant unfit since 11.2.1991.

		General Practitioner's statements site low back pain and
		gastritis.

		Claimant was examined by a Medical Officer on 15.3.1994 who was
		of the opinion claimant was capable of his usual occupation.

		Claimant's usual occupation necessitates bending and stooping.

		The Medical Officer who examined claimant on 15.3.1994 recorded
		full function in all aspects.

		The claimant is on medication for his back pain in the form of
		Diclofemac.

		The claimant has also been prescribed Zinrovene as a sleeping
		tablet.

		The claimant can cook for himself, do housework, gardening,
		watch television, walk the dog and drive a motor vehicle.

		The claimant has no formal educational qualifications.

		The claimant takes Gaviscon when required for his epigastric
		pain.  He has had no specialist referral by his General
		Practitioner for this condition.

		The claimant has pain in his right knee.

		The claimant is currently attending a chiropodist for treatment
		to the sole of his foot.

		The claimant has not had any recent referral by his General
		Practitioner for his back pain.

		The claimant's General Practitioner has not considered or
		recommended a course of physiotherapy."

3.	Claimant sought leave to appeal against that decision and as his application was late I granted the late application for special reasons.  At the hearing claimant was represented by Mr Hyland and the Adjudication Officer was represented by Mrs McRory.  The grounds of appeal as set out in his application were as follows:-

		"I feel the AT3 is in breach of the requirement to give adequate
		reasons for the decision "the minimum requirement must at least
		be that the claimant looking at the decision should be able to 
		discern on the face of it the reasons why ... evidence has failed
		to satisfy the authority"  From the AT3 I am unable to understand
		why my appeal was disallowed considering the first appeal was
		adjourned for an alternative work submission."

4.	At the hearing before me Mr Hyland said that taking into account the fact that this was a second hearing and that the Tribunal had adjourned to obtain a submission from the Agency in respect of alternative work one would have expected the Tribunal to have dealt with the question of alternative work.  He said however the record of the proceedings does not contain any information relating to alternative work or whether or not the Tribunal considered it at all and argued that it failed to give adequate reasons for the decision if alternative work was an issue and that it failed to make findings as required by the Adjudication Regulations and said that the findings of fact made no comment at all on the work or claimant's ability to work.

5.	Mrs McRory on behalf of the Adjudication Officer agreed that the Tribunal had erred in that it did not consider the additional submission made relating to alternative work and that the Tribunal had previously been adjourned to consider that one point and it completely ignored the question of alternative work.  

6.	I accept that the Tribunal erred in law as stated, I therefore allow the appeal and refer the matter back to be reheard by a differently constituted Social Security Appeal Tribunal.  That Tribunal shall make proper findings of fact relating to  alternative work and shall also make a finding as to whether or not the Adjudication Officer was entitled to review and revise the previous decision awarding the benefit in the light of the Chief Commissioner's decision C9/94(IVB) in which he said:-

		"I do not however consider that a mere change of medical opinion,
		based on the same medical findings and background, and judged
		by reference to the same yardstick by which a claimant's capacity
		for work should be assessed, can ever in itself be accepted as
		proof that he no longer satisfies the conditions of entitlement
		to benefit.  Indeed, the decision in R(S) 6/78 indicates that,
		while a further medical opinion may constitute evidence that the
		requirements for payment have not been satisfied, it is not in
		itself a finding that those requirements have not been satisfied,
		and in my opinion it would be a brave Adjudication Officer who
		would seek to terminate an award on that ground alone."

(Signed):  C C G McNally

COMMISSIONER

10 May 1996