Decision No: C41/99(IB)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

	INCAPACITY BENEFIT

	Appeal to the Social Security Commissioner
	on a question of law from a Tribunal's decision
	dated 20 April 1999 

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by myself, by the claimant against the decision dated 20th April 1999 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") siting at Ballymena.  No hearing was requested and I consider that I can decide the case without such hearing.  My decision is given in the final paragraph.

2.	The Tribunal had disallowed the claimant's appeal in relation to Incapacity Credits.  The appeal was against a decision dated 13th October 1997 of an Adjudication Officer.  There had been an earlier Tribunal decision dismissing the claimant's appeal which he appealed to me.  I allowed his appeal on the basis that neither the Adjudication Officer of the 13th October 1997 nor the earlier Tribunal had conducted a review.  I remitted the matter to a new Tribunal.  Prior to that new Tribunal's hearing the Adjudication Officer submitted, correctly, that the earlier decision was incorrect as it had not conducted a review.  He asked the Tribunal to substitute the corrected decision for the one currently under appeal (ie the decision of the 13th October 1997).  The Adjudication Officer also set out to the Tribunal the background to the case.  This included the history of the appeal to me and the reason why I had remitted the case.

3.	The new Tribunal disallowed the claimant's appeal and determined that he had failed the All Work Test from and including 13th October 1997.  The claimant appealed again to a Commissioner.  His ground of appeal was that the Tribunal had not awarded him eight points for his hearing loss in the right ear whereas, when he was in receipt of the benefit he had been awarded eight points for this.

4.	Unfortunately despite repeated requests by this office the claimant did not furnish a copy of the record of proceedings.  I am not in the position to ascertain exactly what took place at the hearing.  

5.	Observations on the appeal were made by letter dated 26th February 2000 from Mr Fletcher of the Decision Making and Appeals Unit, representing the Adjudication Officer.  I am obliged to Mr Fletcher for his thorough letter.  The claimant was given an opportunity to comment on this letter but did not do so. 

6.	Mr Fletcher opposes the appeal.  He does, however, accept that there were errors in the decision recording but states that those were not such as to render the actual substantive decision in error of law.  He refers particularly to the fact that the Tribunal has not recorded that it was reviewing the Adjudication Officer's decision of 13th October 1997.  With relation to that Mr Fletcher states:-

		"In a written submission to the reconstituted tribunal dated 
		17 April 1999, [the claimant] indicated that he "cannot hear 
		someone properly, talking in a normal voice on a busy street" 
		and pointed out that this had previously been accepted by an 
		adjudication officer.  He specifically stated that this was 
		in total contrast to the situation in which he found himself 
		at the Medical Support Services examination.  He also made 
		reference to Commissioners decision C52/97(IB) as authority 
		for the proposition that grounds for review must be established 
		in order to stop an award of benefit.

		An undated minute headed "Adjudication Officers Further 
		Submission", prepared for the reconstituted tribunal, 
		highlighted that the decision dated 13 October 1997 had been 
		corrected to contain a review of the incapacity for work 
		question.  The submission also referred the tribunal to 
		Commissioners' decisions C4/99(IB) and C52/97(IB) (copies 
		attached).  I therefore submit that the tribunal was aware it 
		was necessary to establish grounds for review and that the onus 
		of proof rested with the adjudication officer to do so.  It 
		would have been preferable, particularly in the circumstances of 
		this case, if the tribunal had made it clear it had dealt with 
		the review issue in its findings and reasons for the decision.  
		However, the fact that it did not do so is not of itself fatal 
		to the decision given that the adjudication officer's corrected 
		decision incorporated a review (see C65/98(IB), paragraph 27 
		(...)."

7.	Mr Fletcher also commented further:-

		"I also note, and would accept any criticism in this regard, 
		that neither the corrected decision, nor the further submission, 
		adequately address the need to show a change in functional 
		ability in order to establish grounds for review (see C65/98(IB), 
		paragraphs 23-25 (...)).  Nevertheless, I submit that it is 
		apparent from the tribunal's scoring of the all work test that 
		such a change was established.  This can be illustrated by 
		comparing the adjudication officer's all work test assessment 
		dated 26 February 1996 (represented by a score of 15 points) 
		with the Tribunal's assessment (represented by a score of 3 
		points).

		It seems possible to suggest there were some deficiencies in 
		the manner in which the tribunal addressed [the claimant's] 
		hearing problems.  It was presented with two conflicting Medical 
		Support Services reports (one accepts [the claimant] "Cannot 
		hear well enough to understand someone talking in a normal voice 
		on a busy street"; the other indicates "No problem with hearing").  
		It also had evidence from [the claimant] that he had been deaf 
		in the right ear since 1-2 years old (see IB50 questionnaires) 
		and that he had to turn to the left to hear (see IB85 dated 
		12.2.1996 (box 6)).  This contention was supported to some 
		degree by medical evidence from Dr R… diagnosing 
		"Deafness (anilateral)" (form Med 4 dated 12.12.1995 refers).  
		Given the tribunal's view that the latter report contained no 
		clinical findings in relation to hearing, the reasons for the 
		decision may not adequately explain why the latter doctor's 
		report was accepted in preference to the other, conflicting, 
		evidence presented.  Also, as it is unlikely [the claimant's] 
		hearing improved between medical examinations, perhaps the 
		matter required further consideration e.g. was it necessary for
		[the claimant] to adjust position, and if so to what extent, to 
		hear at either examination (a relevant consideration following 
		C76/98(IB), paragraph 9 (...))?"

	Despite these criticisms Mr Fletcher continues:-

		"Although I submit there are some deficiencies with the tribunal's 
		decision in relation to hearing, I nevertheless submit that even 
		if [the claimant] had received the 8 points sought for activity 
		11(e), his total score would have been only 11 points.  In such 
		circumstances I would continue to submit that a change in 
		functional ability, sufficient to conclude [the claimant] failed 
		the all work test, has been established and therefore the 
		tribunal's decision can be sustained.

		If it is accepted that the tribunal erred in failing to properly 
		deal with hearing, the Commissioner may wish to set the decision 
		aside and award 8 points for activity 11(e).  The effect of this 
		would mean that [the claimant] scores 11 points on the all work 
		test and is therefore capable of work."

8.	I accept Mr Fletcher's criticisms of this decision.  Particularly in light of the previous history it was incumbent upon the Tribunal to make it abundantly clear that it was dealing with a review issue.  It did not do so.  Against the background of this case I find that omission a matter of concern.

9.	I have, however, no real doubt that the Tribunal did conduct a review and was aware of the onus of proof in the case.  I also agree with Mr Fletcher's submission that it is apparent from the Tribunal's scoring of the All Work Test that a change in functional ability was established.

10.	I do, however, consider that there was an error in the manner in which the Tribunal addressed the hearing problems.  Mr Fletcher has amply set out the conflicting medical evidence with relation to this matter.  The Tribunal had before it conflicting medical reports and the claimant's evidence.  It could not, in light of the background, make its decision comprehensible without dealing with this matter and its explanation bearing in mind that there were no clinical findings does not do so.  For this reason I think the decision was in error of law.  However the Tribunal, even if it had awarded the number of points which the claimant was seeking would not have been able to pass him on the All Work Test.  

11.	The error is not, therefore, fatal to the decision which was the only possible one which could have been made on the accepted evidence and had the claimant been awarded the points he was seeking on the activity of hearing.  I therefore dismiss the appeal.

(Signed):  M F Brown

	COMMISSIONER

	2 June 2000