Decision No: C49/98(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 24 July 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by myself, against a decision dated 24 July 1997 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast.  That Tribunal had disallowed Mr T...'s appeal against a decision of an Adjudication Officer that Mr T... was not incapable of work from and including 6 May 1997.

2.	Mr T...'s grounds of appeal were contained in an OSSC1 (NI) form dated 10 March 1998 and a submission enclosed with Messrs T... & Company's letter dated 9 December 1998.  The Adjudication Officer, Mr Fletcher, opposed the appeal and made observations on same by letter dated 30 September 1998. 

3.	My decision is that the decision of the Tribunal is in error of law and is hereby set aside.  I remit the matter to a differently constituted Appeal Tribunal which should rehear the case.  In the submission referred to above the claimant's solicitors put forward various ways in which they considered that the Tribunal had erred in point of law.  The first of these was that the Tribunal had not considered the activities of "standing" and "manual dexterity".  I find no merit in this submission.  The Tribunal having completed the document known as the "score sheet", has clearly indicated that it considered that no points were merited against the activities of standing and manual dexterity on that sheet.  It is true that the Tribunal has separately recorded as part of the main body of the decision its scoring on the activities where it considered that scores were to be awarded but that does not mean that it did not consider the other activities, rather the reverse as it has referred to same in the score sheet.

4.	With regard to part 2 of the applicant's submission, I again do not think that there is any error by the Tribunal in this matter.  There is nothing recorded in the record of evidence that the claimant gave evidence at the hearing that he had a problem turning a tap with his left hand though he did mention same in the questionnaire which he completed for DHSS.  The verbal evidence given in relation to this descriptor was not rejected and I can find no error in this respect.  It is quite clear that the Tribunal did not consider that scores were merited for the activities of manual dexterity and standing.  As I mentioned in decision C19/98(IB) the score sheet is to be considered as part of the findings of fact.  It appears to me quite clear (and I suspect it would be clear to any reasonable person reading the decision) that the Tribunal, on the score sheet, set out its findings on all the descriptors and under the findings of fact heading set out again the descriptors where it had considered points merited.  There is no error of law in so doing.            

5.	The claimant's submission has made considerable mention of C19/98(IB).  At paragraph 16 thereof I stated that in my view paragraph 8 of decision C5/98(IB) was obiter and not binding and also that I did not understand the Commissioner in C5/98(IB) to be stating that a Tribunal must spell out individual reasons for selecting each descriptor in every case.  In this case I consider that the findings of fact were quite adequate and were sustainable on the evidence before the Tribunal.  The only way in which I can see that the Tribunal erred was in relation to its reasons.  It may be, as Mr Fletcher has stated, that the Tribunal preferred the evidence given at the hearing.  In relation to many of the disputed descriptors the evidence given at the hearing was of much less limitation than the claimant stated in the questionnaire.  The Tribunal would be perfectly entitled to prefer the oral evidence and to reject inconsistent documentary evidence.  There would not necessarily have been an error of law had the Tribunal done this without expressly so stating.  It could have been clear by implication, though clear rejection of the written evidence would have been preferable. The Tribunal is also perfectly entitled to take its own observations and the demeanour of the witness into account in its assessment of evidence.  However, in relation to the activity of walking up and down stairs the Tribunal has evidently not accepted what the claimant stated in oral evidence.  I cannot therefore deduce that the Tribunal did in fact accept the claimant's oral evidence in contrast to what was being stated in the claim form as it is quite apparent that not all the oral evidence was accepted.  In the light of that I do not consider that the Tribunal's reasons for its decision in this particular case were adequate.  The claimant was left in a position of speculating as to the Tribunal's assessment of his evidence.  The reasons did not adequately explain either expressly or by clear implication to a reasonable person reading same why the Tribunal reached the decision it did.  Had the Tribunal stated that it found the claimant's evidence unreliable in light of the inconsistency between documentary and oral evidence and in light of its observations it would not have been in error.  I suspect this was what it meant to say but I cannot be sure and neither could the claimant.  He should not be left in a speculative position as to the assessment of his evidence.  The assessment of evidence at the rehearing will be a matter for the new Tribunal which must consider the matter afresh.

6.	I would, however, reiterate what I stated in decision C19/98(IB) at paragraph 18 citing with approval R(SB)5/81:-

		""It is not possible to lay down a general rule for recording 
		findings and reasons since that depends on the nature of the 
		evidence and the case before them.  I have already stated that 
		a tribunal is not expected to record a reasoned judgement such 
		as might be expected of a court.  So long as their findings of 
		fact relevant to their decision are clear as also their reasons 
		for leading them to their conclusion, that is compliance with 
		the regulations.  Findings and reasons need not be lengthy: 
		indeed brevity clearly indicating them is often to be 
		preferred to a lengthy and possibly ambiguous record.""

	And at paragraph 19:-

		"It cannot be over emphasised however that the requirements of 
		adequate reasoning are that a person reading the decision should 
		understand why it was made (not necessarily agree with it).  The 
		application of that standard to each case will usually be very 
		dependent on the evidence and what took place at the hearing 
		and the requirement for adequate reasons cannot be read in a 
		vacuum divorced from these matters.  The application of the 
		standard of adequate reasoning will thus usually be very 
		dependent on the circumstances of each particular case."

7.	I consider it a mistake to elevate into a legal rule the application of that standard of reasoning to a particular case.  The matter is dependent on the individual case, on the evidence and on what took place at the hearing.  The overall standard remains the same.  Its application to a particular case should not become a legal rule.

8.	I do not consider that this is a case where I can give the decision which the Tribunal should have given.  There are evidential issues to be explored and the Tribunal is the more appropriate body to do so.  I therefore remit this matter to a differently constituted Tribunal for rehearing.

(Signed):  M F Brown 

COMMISSIONER

14 April 1999