Decision No: C16/97(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

	Appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Belfast Social Security Appeal Tribunal
	dated 5 August 1996

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal which held that claimant was not incapable of work from and including 10 June 1996.  One must presume from that that she therefore is not entitled to Incapacity Benefit despite the fact that Incapacity Benefit was not mentioned in the Tribunal's decision.

2.	Briefly the facts are that the claimant is a lady who is now 46 years of age who became unfit for work in January 1996 by reason of depression and arthritis.  She was medically examined by a Medical Officer of the Department and upon receiving his report, the Adjudication Officer awarded claimant no points in the All Work Test. A subsequent application for review was refused.

3.	Claimant then appealed to a Social Security Appeal Tribunal but unfortunately she did not appear at that Tribunal owing to a misunderstanding on her part.  The Tribunal proceeded in her absence and awarded her 9 points for mental health descriptors but no points for physical descriptors.  The Tribunal recorded the following findings of fact:-

		"1.	The appellant is 43 years old.

		 2.	The appellant became unfit for work on 15 January 1996 by reason
			of depression and arthritis.  Her doctor's certificates refer to
			depression and arthritis.

		 3.	On 23 February 1996 the appellant completed a questionnaire
			providing details of how her illness affects her ability to
			work.

		 4.	On 13 May 1996 the appellant was examined by a Medical Officer
			of the Department.  The tribunal accept the evidence of the
			Medical Officer in relation to the opinion in his report 
			concerning the descriptors to be applied in relation to each 
			of the physical activities.  The tribunal accept the evidence 
			of the Adjudication Officer in relation to his opinion 
			concerning the descriptors to be applied in relation to the 
			mental descriptors.

		 5.	The tribunal does not accept the evidence of the appellant, as
			contained in her questionnaire, concerning her (sic) significant 
			limitations, in relation to walking, walking up and down stairs,
			sitting, standing, rising, bending and kneeling, reaching, 
			lifting and carrying and manual dexterity."

	and gave reasons for its decision as:-

		"The tribunal accept the evidence of the Medical Officer in relation
		to the opinion in his report concerning the descriptors to be applied
		in relation to each of the physical activities.  The tribunal accept
		the evidence of the Adjudication Officer in relation to his opinion
		concerning the descriptors to be applied in relation to the mental 
		descriptors.  The tribunal does not accept the evidence of the 
		appellant, as contained in her questionnaire, concerning her (sic) 
		significant limitations, in relation to walking, walking up and down
		stairs, sitting, standing, rising, bending and kneeling, reaching,
		lifting and carrying and manual dexterity.

		The tribunal, having considered all the available evidence, and 
		based on clinical findings and behaviour observed, applied a 
		descriptor to each relevant physical activity as set out in form
		AT3(AWT) A/B/C.  The application of these descriptors to these
		activities means that the appellant scores 9 points.  The appellant
		therefore fails to satisfy the all work test in that she is not
		incapable, by reason of some specific disease or bodily or mental
		disablement to perform certain of the activities as prescribed in
		the relevant legislation."

	What is recorded as the evidence from the Assessor is set out as:-

		"There are pains and aches, joint pains, fibromyalgia and arthritis.
		
		Co-proxamol is a distalgesic painkiller.  Arthrotec is an NSAID.
		Feldene Gel is an NSAID with topical application of doubtful 
		efficacy.

		It is for a moderate level of pain.  It is appropriate for that 
		level.

		Naprosyn is a non-steroidal which is different to Arthrotec.  It is
		possible that it has been substituted for Arthrotec.

		Lustral is an anti-depressant commonly prescribed.  50mg twice per
		day may be above average.  It could have that effect.

		Diazepam is Valium.  It is a small, small dosage.  I would be
		surprised if it made her sleepy.  There would be absolutely,
		definitely no alcohol with Lustral."

4.	I arranged an oral hearing having granted leave to appeal, and at that hearing the claimant was present and was represented by Mr McVeigh.  The Adjudication Officer was represented by Mr McAvoy.  Mr McVeigh argued that there was a breach of natural justice because the Tribunal went ahead without claimant's presence.  He wondered how the Tribunal satisfied itself that claimant had been properly notified as it had recorded in the refusal to set the decision aside.  In any event, Mr McVeigh argued that the Tribunal made no adequate findings.  He said there was a conflict of evidence between the parties and that the Tribunal made no effort to resolve that.  It merely accepted what was said by the Examining Medical Practitioner and apparently rejected everything that the claimant said in her questionnaire.  It also rejected the evidence contained in the claimant's doctor's certificate in that she suffered from fibromyalgia and arthritis.

5.	Mr McAvoy said that the claimant did not signify her intention of attending.  The Tribunal appeared to accept some, and rejected other findings of the Examining Medical Practitioner.  He said that the Adjudication Officer and the Tribunal were entitled to accept the physical and mental descriptors or reject them, but it would have been an advantage if claimant had attended the hearing.

6.	I have read all the documents in this case and I have considered all that has been said. Claimant suffers from arthritis and fibromyalgia and it is recorded by the Examining Medical Practitioner that she has crepitus in her knees.  The Medical Assessor records there are pains and aches, joint pains, fibromyalgia and arthritis.  If one reads the decision of the Tribunal, as far as claimant's physical condition is concerned one would think that she had neither a pain nor an ache.  

7.	I am satisfied that the Tribunal did not make any proper findings of fact relating to claimant's allegations of pains as one would expect to find in respect of someone suffering from fibromyalgia.  Also, it is understandable that the Examining Medical Practitioner in answering various questions would not deal with that condition. Consequently it is up to the Tribunal to deal with claimant's complaints rather than just dismissing them out of hand by saying it "does not accept the evidence of the appellant, as contained in her questionnaire".

8.	I am satisfied that no proper findings of fact were made in this case and that no effort was made to resolve the conflict between the medical findings and the claimant's own doctor's certificate relating to fibromyalgia and arthritis.  

9.	I therefore am satisfied the Tribunal erred in law.  I allow the appeal and set aside the decision and refer it back to be reheard by a differently constituted Social Security Appeal Tribunal.

(Signed):  C C G McNally

COMMISSIONER

30 April 1998