Decision No: C22/01-02(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 the decision of the Appeal Tribunal
dated 4 July 2001.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by the Legally Qualified Panel Member, by the claimant against a decision dated 4 July 2001 of an Appeal Tribunal sitting at Newtownards.  That Tribunal had disallowed the claimant’s appeal in relation to a claim for Incapacity credits.  It decided that the claimant was not incapable of work from and including 21 February 2001 as measured by the Personal Capability Assessment.  It awarded him nil points on that assessment.  The Tribunal decided further that the operation which the claimant was due to have at the time of the decision under appeal was not a “major surgical operation or therapeutic procedure”.  Its reasoning with respect to the said operation was as follows: -

“The Tribunal did not regard the proposed operation expected by the claimant which in effect amounted to a release of a tightened tendon sheath in the right hand, as a “major surgical operation or therapeutic procedure”, as required by the legislation.  Given the site of the problem, the degree of invasiveness required, the degree of likely trauma, the length of time involved and, arising out of the foregoing, the degree of risk, it must be regarded as not major”.

2.	The claimant appealed.  His grounds of appeal were contained in an OSSC1 form dated 23 November 2001.  They were amplified by a letter received in the Commissioner’s office on 4 December 2002 from the claimant’s representative Mr Moore.  Observations on the appeal were made by letter dated 2 February 2002 from Mr Toner of the Decision Making and Appeals Unit of the Department.  Mr Toner opposed the appeal.  

3.	The main ground for appeal related to the question of the operation.  Essentially the claimant contended that the operation was major.  In support of this Mr Moore submitted that the claimant’s own doctor held the opinion that the operation was major enough to stop the claimant doing manual work.  He also mentioned that this was the third operation which the claimant had had because the first two operations had not given him full dexterity.  This, in Mr Moore’s submission would make any employer hesitant to offer the claimant a job and this led him to the conclusion that he had a major problem.

4.	Mr Moore also made mention of an adjournment and stated that he and the claimant were still in the dark as to what happened during the adjournment.  He referred also to the Tribunal Chairman having twice asked the Departmental representative whether the Department would accept the Tribunal decision and the representative having replied on two cases that he would not.

5.	Mr Toner, in his letter of 2 February 2002, referred to regulation 27(2)(c) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 which provide that a person who is not incapable of work in accordance with the Personal Capability Assessment should be treated as incapable of work if: -

“there exists medical evidence that he requires a major surgical operation or other major therapeutic procedure and it is likely that that operation or procedure will be carried out within three months of the date of a medical examination carried out for the purposes of the Personal Capability Assessment.”

6.	Mr Toner submitted that 12 January 2001 was the key date for the application of this provision as that was the date when the medical examination was carried out for the purposes of the Personal Capability Assessment.  He submitted, on the authority of decision R4/01/(IB) that the claimant was required to show that medical evidence existed that a major surgical operation or other major therapeutic procedure was likely to have been carried out within three months of 12 January 2001.  Mr Toner also referred to decision CIB/14667/1996, a decision of a Great Britain Commissioner wherein the Commissioner accepted that the guidance from the Incapacity Benefit Handbook accurately summarised the position as follows:

“22.  There is no legal definition of “major surgical operation” or “major therapeutic procedure”.  Your opinion has to be reasonable and based upon the facts relating to the individual case.

23. It is not possible to give a definitive list of “operations” and “procedures” which would medically be thought of as major since other circumstances such as the diagnosis, the form of operation and presence of any other related treatments would reasonably need to be considered.”

7.	Mr Toner submitted that the Tribunal had made no finding regarding whether medical evidence existed as to the date of the proposed operation but it had moved on to consider whether that operation amounted to a major surgical operation or other major therapeutic procedure.  In so deciding, in Mr Toner’s submission, the Tribunal had taken into account the site of the problem, the degree of invasiveness involved, the degree of likely trauma, the length of time involved and the degree of risk.  Mr Toner therefore submitted that the Tribunal’s decision that the proposed operation was neither a major operation nor therapeutic procedure was a reasonable one based on the facts of the case.  He therefore opposed the appeal.

8.	I have perused the record of proceedings.  It does not appear that the Tribunal actually adjourned in terms of postponing the hearing to another day.  It does appear to have taken some time to deliberate and reach a conclusion that the operation in question could not be described as a major surgical operation or other major therapeutic procedure.  The Tribunal is quite entitled to conduct this deliberation in private.  It is no indication of an error of law that it did so and it does not have to set forth to the parties everything that took place in its deliberations.  I reach no conclusion as to whether or not the Chairman asked the above-mentioned questions as to Departmental acceptance of the decision.  The asking of such a question while unusual is not an error of law. Neither is it an error for the Tribunal to deliberate in private.  Indeed the Tribunal, having taken time to reach what was one of the central conclusions of the case, is indicative of a careful approach.  What the Tribunal does have to do is to ensure that there is a fair trial of the issues and that the reasons for the decision adequately explain it.  I can find nothing to indicate that there was not a fair trial of the issues in this case. Furthermore, the reasons for the decision adequately explain it. I can find no error in the Tribunal’s decision in that respect.  I can similarly find no error in relation to the assessment in the Personal Capability Assessment.

9.	There is no issue raised or apparent that any of the other exceptional circumstances in regulation 27 arises.  The only possible exception is the one at issue. As Mr Toner has submitted there is no definition of what constitutes a major surgical operation or other major therapeutic procedure.  The word “major” is an ordinary English word and its application to the facts of any particular case will not be an error of law unless it is unreasonable.  I also consider that the paragraphs quoted above from the Incapacity Benefit Handbook for Medical Services Doctors accurately summarises the position.  I must therefore ask if the Tribunal’s application of the terms “major surgical operation” in this case was reasonable.  In my view it was.  The Tribunal has obviously taken into consideration the facts of the particular case.  The claimant has made considerable point of the fact that the claimant’s General Practitioner considered him not fit for manual work.  The fitness for manual work is not what is being considered. Similarly the fitness or otherwise for work does not of itself determine the nature of the surgical operation or therapeutic procedure.  More importantly it is the Tribunal’s opinion as to the question of whether or not a surgical operation or therapeutic procedure is major which is binding.  The Tribunal is not bound by the opinion of any person, whether a doctor on the claimant’s side or on the Departmental side, as to the nature of the operation.  The Tribunal must take into consideration the facts relating to the individual case.  In this case the Tribunal has obviously done that.  Its conclusion that the expected operation was not major appears to me to be reasonable.  That being so I can ascertain no error of law in the Tribunal’s decision.  I therefore dismiss the appeal.

(Signed):  M F Brown

COMMISSIONER

21 January 2003