Decision No: C2/97(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 September 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 found that claimant was not unable to work.

2.	The Tribunal gave reasons for its decision as follows:

		"The claimant scored 3 points in the physical descriptors and
		as this is less than the required 15 points he failed the
		All Work Test.

		The tribunal did not assess the claimant in the area of mental
		health because he had informed the examining doctor that he had 
		no problem relating thereto.  It appeared to the tribunal that
		for it to assess the claimant thereon would be in breach of the
		principles of natural justice and totally unfair to the 
		Adjudication Officer.  The tribunal found assistance in the 
		Commissioner's decision CS/879/1995."

3.	Claimant sought leave to appeal against that decision on the grounds that the Tribunal erred in law "by not considering my mental health problems.  This despite having documentation to prove I have been attending a psychiatrist and on medication for nerves/sleeping tablets.  My GP can confirm any of the above."  

	When the Chairman of the Appeal Tribunal granted leave to appeal the Adjudication Officer made a written comment as follows:-

		"In his grounds of appeal, Mr L... states that the Tribunal were
		wrong in law by not considering his mental health problem, despite
		having documentation proving that he was attending a psychiatrist
		and that he was on medication for nerves/sleeping tablets.

		The Tribunal recorded evidence from Mr L... to the effect that he
		had been suffering from a depressive illness since 1993.  A letter
		dated 3 September 1996 from Mr L...'s GP was also before the
		Tribunal.  In additional to referring to his physical problems the
		GP also mentioned that Mr L... had developed a depressive illness.  
		They also recorded why he had not pointed out this illness to the 
		examining doctor. Although the Tribunal took evidence relating to the mental health descriptors they decided not to reproduce the evidence, or to assess Mr L... in the area of mental health.  They gave their 
		reasons for this decision as follows:-

			"The tribunal did not assess the claimant in the area of mental
			health because he had informed the examining doctor that he 
			had no problem relating thereto.  It appeared to the tribunal
			that for it to assess the claimant thereon would be in breach
			of the principles of natural justice and totally unfair to
			the Adjudication Officer.  The tribunal found assistance in
			the Commissioner's decision CS/879/1995."

		It is my submission that the Tribunal should have recorded the 
		evidence, assessed and scored the test in relation to the area of
		mental disabilities.  If the Tribunal felt that more medical 
		evidence was needed, eg as to the date of the onset of the 
		"depressive illness" referred to by the GP, it was open to them to
		adjourn and seek such evidence.  I do not agree that there would 
		have been a breach of natural justice, nor that the adjudication
		officer would in anyway have been treated unfairly, had the 
		Tribunal decided the case.

		It is not uncommon in all work test cases for claimants to suggest
		at the appeal hearing, and for the first time, that a particular
		descriptor was appropriate.  Tribunals are best placed to test 
		the veracity of such assertions.  At paragraph 9 of unreported
		decision C4/96(IB) (copy attached) the Chief Commissioner 
		commented on the issue of descriptors introduced for the first
		time at the appeal hearing -

			".... It is right to say that an allegation which is advanced
			at the outset of any fact-finding exercise will generally 
			carry more weight than one which comes at the last minute;
			but that is only common sense, and I have no doubt it is a
			factor which any Tribunal would bear in mind ...."

		For the reasons given above I submit that the Tribunal erred in law
		by failing to assess and score the all work test in relation to 
		mental disabilities.  I therefore do not oppose this appeal."

4.	I have considered the reasons for the Tribunals decision and I have considered the Adjudication Officer's comments.  I accept the concession made on behalf of the Adjudication Officer that the Tribunal erred in not considering claimant's mental condition in the light of the evidence before it relating to same.  The fact that he did not mention same to the Medical Examiner does not in any way preclude the Tribunal from considering all the evidence before it and must always bear in mind that the function of the Tribunal is inquisitorial and that it should have considered all the evidence.

5.	I therefore find that the Tribunal did err in law as indicated by the Adjudication Officer.  I therefore allow the appeal, set aside the Tribunal's decision and refer the matter back to be reheard by a differently constituted Tribunal.

	(Signed):  C C G McNally

	COMMISSIONER

	25 September 1997