Decision No: C8/99(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

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 22 September 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by myself, by the claimant, against a decision dated 22 September 1998 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast.  That Tribunal had disallowed claimant's appeal against the decision of an Adjudication Officer dated 8 June 1998 to the effect that claimant was subject to the All Work Test, could not be treated as incapable of work from and including 8 June 1998, did not satisfy the All Work Test from and including 8 June 1998 and therefore was not and could not be treated as incapable of work from that date.  Claimant's appeal was on the OSSC1 (NI) form dated 27 October 1998 and observations were made thereon in a letter from Central Adjudication Services, representing the Adjudication Officer, dated 19 May 1999.  Further comments on those observations was made by the Law Centre (NI), representing the claimant, by letter dated 17 June 1999.

2.	In essence claimant's grounds of appeal were as follows:-

That the Tribunal had based its assessment on incomplete evidence.  In support of this claimant submitted a medical report of 26 October 1998 which had not been before the Tribunal.

3.	I held a hearing of the appeal which was attended by Ms Loughrey of the Law Centre and by Mr McAvoy of Central Adjudication Services.

4.	At the hearing Mr McAvoy submitted that the Tribunal had not erred in law in not taking into consideration medical evidence which claimant had not produced to it.  Mr McAvoy is of course correct in that respect.

5.	However Mr McAvoy submitted that the Tribunal had erred in law in another respect ie. it had made no findings in relation to regulation 27(2) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.  That regulation provides that:-

"A person who does not satisfy the all work test shall be treated 
as incapable of work if any of the circumstances set out in 
paragraph (2) apply to him.

(2) The circumstances are that -

(a) he is suffering from a severe life threatening disease in 
relation to which -

(i) there is medical evidence that the disease 
is uncontrollable, or uncontrolled, by a 
recognised therapeutic procedure, and 

(ii) in the case of the disease which is uncontrolled, 
there is a reasonable cause for it not to be controlled 
by a recognised therapeutic procedure, and 

(b) he suffers from a previously undiagnosed potentially life 
threatening condition which has been discovered during the 
course of the medical examination carried out for the purposes 
of the all work test by a doctor approved by the Department".

6.	The situation was that claimant was examined by a doctor on behalf of the Department in connection with the All Work Test.  On the standard medical report form there was a section headed "Exceptional Circumstances" and in it the doctor is asked to give his advice based on the All Work Test medical examination he has carried out.  The doctor in this case ticked 'yes' in the box which indicated that the person was suffering from:-

"... a severe life threatening disease which is uncontrolled or 
uncontrollable by a recognised therapeutic procedure.  Where the 
disease is uncontrolled there is reasonable cause for it not to be 
controlled by a recognised therapeutic procedure".

In the box beneath this the doctor had indicated that there was a possibility that the anxiety state and severe episodes of diarrhoea which were not controlled might be caused by a rare adrenal tumour which needed to be excluded.  The Adjudication Officer had before the hearing very properly sought further medical advice on this matter and there was evidence which it appears was before the Tribunal that a Medical Officer in the Department had contacted the claimant's GP and the GP confirmed that the client's blood pressure had been within normal limits when measured recently.  Because the question of the rare adrenal tumour had been raised to the GP he would probably organise additional ultra sound scans for the sake of completeness.  However the GP acknowledged that the probability of the condition existing was very low.  That disease has now fortunately been excluded.  The exclusion was not, however, known to the Tribunal at the time when it reached its decision.

7.	In order to ascertain whether or not the Tribunal erred in law in this respect it is necessary to consider the terms of the relevant part of said regulation 27 as set out above.  Viewing the evidence as a whole, it appears to me that the Tribunal could not have reached the conclusion that the claimant was suffering from severe life threatening disease which was uncontrollable.  The disease had not been diagnosed, only the possibility of it had been raised and the evidence was that this possibility was remote.  In addition the Tribunal had had claimant before it and he had made no mention of any such tumour.  The evidence was that the panic attacks came on mainly through going out.  In those circumstances and while I would have preferred the Tribunal to have made a finding on the matter, I doubt if it could be said that there was any breach of the Tribunal's investigative duty or that any finding of fact on regulation 27 was required.  There was no realistic possibility of the claimant coming within regulation 27(2).

8.	Mr McAvoy however also raised a further matter.  The Tribunal had found as a fact:-

"Claimant suffers from chronic anxiety which to some degree affects 
his interaction with people especially in strange or new situations.  
He has no physical limitations.

While he has sometimes a frequent a need to go to the toilet this 
seems to be limited to times when he is going out and it would seem 
also to relate to a state of mind rather than a physical problem."

Under the heading "Reasons for Decision" the Tribunal has stated:-

"The medical evidence plus claimant's own evidence would 
indicate no physical problems..."

Mr McAvoy submitted that this was not correct in that the medical evidence (medical certificate dated 9 February 1998) showed that the claimant suffered from irritable bowel syndrome.  On the evidence the Tribunal may have had open to it its conclusion that any problem with continence did not come from the claimant's physical condition. However, it has found that he had no physical problems.  This was a conclusion which was not open to it on the evidence.  The claimant's GP, the examining doctor and the claimant all supplied evidence to the effect that the claimant suffered from irritable bowel syndrome.  I cannot be satisfied that this unjustified finding did not influence the Tribunal's eventual conclusion on the activity of continence.

9.	I agree with Mr McAvoy in this respect and for that reason I set the decision as being in error of law and remit the matter to a differently constituted Tribunal which should, if it finds that claimant has problems under the activity of continence, determine whether or not they come from a specific bodily disease or disablement.  If they do not, no points can be awarded under the activity of continence.

10.	That Tribunal will also be able to take into consideration any other issues which appear relevant and any additional medical evidence which claimant may wish to submit relevant to the period in question. 

(Signed):  M F Brown

COMMISSIONER

27 January 2000