Decision No: C14/03-04(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 28 February 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 28 February 2003 of an Appeal Tribunal sitting at Craigavon.  That Tribunal had disallowed the claimant’s appeal against a Departmental decision dated 3 December 2002 superseding an earlier decision awarding incapacity benefit (IB).  The Department decided that the claimant was no longer incapable of work from and including 3 December 2002 and was not entitled to IB from and including that date.  The claimant appealed to the Tribunal.  Included amongst her grounds of appeal and reiterated again at hearing was that her health had not improved in any way since she had been medically examined and found unfit for work.  The Tribunal disallowed the appeal.  Included amongst its reasoning was the following: -

“We appreciate in the past she has passed the test on appeal.  However looking at the available evidence in the present assessment we find that the decision maker has discharged the burden of proof.”

2.	The claimant appealed to me, her grounds of appeal being set out on an OSSC1(NI) form received in the Commissioners’ Office on 8 August 2003.  In essence the grounds were as follows: -

(1)	The Tribunal had erred in law in failing to consider the relevance of the fact that the claimant had passed several previous personal capability assessments [this is the assessment under which the claimant’s capacity for work was to be measured].  As the claimant had asserted that her condition had not improved this matter was relevant.  In support of this contention the following decisions were cited – C11/01-02(IB), R5/99(IB) and C21/01-02(IB). 

(2)	That the Tribunal had erred in failing to set out its grounds for supersession and in this case the Department had previously found the claimant capable of work.  [It appears to me that this is a misprint for incapable of work].

(3)	That the Tribunal had failed in its inquisitorial role in relation to the physical activity of sitting.

(4)	That the Tribunal had erred in failing to set out an adequate statement of its reasons in relation to this activity.

3.	The claimant, throughout the appeal to me, has been represented by Mrs Carty of the Law Centre (NI) and the Department by Mr Fletcher of the Decision Making and Appeals Unit.  I am grateful to both representatives for their considerable assistance in this case.  Mr Fletcher made observations on the appeal by letter dated 23 September 2003.  He did not support the appeal.  In relation to ground (1) he submitted that it was clear from the reasons for the decision that the Tribunal was aware that the claimant had previously passed the relevant test of incapacity.  It had dealt with that ground of appeal in the last sentence of its reasons for the decision.  He submitted that that reasoning met the requirements of C11/02-03(IB) and R5/99(IB).  He therefore opposed that ground of appeal.

4.	As regards the second ground of appeal Mr Fletcher submitted that it was clear from the Department’s submission that supersession was carried out under the provisions of regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.  He submitted that it was clear from the evidence to the Tribunal that these grounds were in fact made out and that while it would have been better had the Tribunal specifically referred to the grounds of supersession it was apparent that the Tribunal knew it was dealing with the supersession issue and that the reasons for its decision were adequate.  He therefore opposed this ground of appeal and ground (4).

5.	As regards ground (3) Mr Fletcher submitted that the Tribunal had not failed in its inquisitorial role in relation to any of the physical health activities as the reason for the decision clearly indicated that the claimant was specifically given the opportunity to raise any of those activities but declined to do so.  He therefore opposed this ground of appeal.

6.	By letter dated 30 October 2003 Mrs Carty further commented that the part of the reasoning extracted above suggested that the Tribunal believed that the claimant only succeeded previously in passing the personal capability assessment on appeal.  However, in section 4 of its submission the Department sets out that she had most recently been examined by an Examining Medical Practitioner (EMP) on 11 August 1999 and had passed the personal capability assessment on the basis of that evidence.  The claimant confirmed that and that since she became unfit for work on 28 August 1990 she had passed all tests of incapacity for work except one which she had successfully appealed.  Mrs Carty submitted that, from the reasons, it appeared that the Tribunal was unaware that the most recent EMP report had been favourable to the claimant and that this might have influenced its decision whether any relevant evidence from the earlier assessment would have been available to it.  She continued to submit that the Tribunal erred in failing to give due consideration as to whether it should request a copy of the evidence on which the earlier award was based in light of the claimant’s contention that her condition had not improved.

7.	Mrs Carty further commented that the Tribunal had failed to clarify the nature of the personal capability assessment to the claimant and in so doing had failed in its inquisitorial role.  Mrs Carty referred to the Record of Proceedings and in particular the following passages where the claimant is recorded as stating: -

“I feel none of the physical points are relevant to my stress disorder.  I just filled them in.  I don’t think they are relevant.  I was never off work for physical reasons.  I was a civil servant.  Off for stress.”
and
“I feel the physical side is not relevant – that only because I disagree with doctor.  It not about scoring points.”

She submitted that it was apparent that the claimant clearly misunderstood the nature of the personal capability assessment.  This, Mrs Carty submitted, was all about scoring points and not about focusing simply on the original or main cause of incapacity for work.  She submitted that the Tribunal should have made clear to the claimant that she was gravely prejudicing her appeal by not proceeding with the descriptor of “sitting” [in her questionnaire she had selected a descriptor which would have carried 7 points had it been awarded].  This Mrs Carty submitted was especially in light of the fact that the claimant had mental health problems and was unrepresented.  She submitted that in the written evidence before the Tribunal the activity of sitting was clearly at issue.

8.	Later Mrs Carty submitted an EMP report dated 11 August 1999 on the basis of which the claimant had been found to be incapable of work.  

9.	As regards ground 2 it appears to me to be quite clear that Mr Fletcher is correct.  The Tribunal was dealing with a supersession on the basis of regulation 6(2)(g).  The Department’s decision was made on those grounds and the Tribunal’s decision was also obviously made on the basis that the claimant had been medically examined and no longer satisfied the personal capability assessment.  The Tribunal specifically recorded that the Department had discharged the burden of proof on it to show that the claimant no longer satisfied the personal capability assessment.  That being so I find no merit in the assertion that the Tribunal failed to set out its grounds for supersession.  There is no particular formula by which these grounds must be set out.  The grounds are quite clear from the decision. 

10.	As regards ground 3 I am not prepared to conclude that the Tribunal failed in it inquisitorial duty in relation to the physical activity of sitting.  It does not appear to me looking at the correspondence and in particular at the appeal letter that the claimant did not consider that the test itself was to do with scoring points.  She makes considerable mention of the points which she should have received.  In addition the Tribunal’s reasons record that the claimant was asked on two occasions about the physical health activities and she indicated quite clearly that physical reasons had never caused her to stop work as a civil servant.  That being so it does not appear to me that the Tribunal should, despite the claimant on two occasions declining to offer any further evidence, have pursued the activity of sitting.  It fulfilled its inquisitorial role.  I do not consider that it is part of the Tribunal’s duty to make it clear to the claimant that she was gravely prejudicing her appeal by not proceeding on the issue.  The Tribunal is an adjudicating body not an advisory one.  It was a matter for the claimant whether she wished to dispute this descriptor.  I am not of the view that the claimant in this case misunderstood in any way the nature of the personal capability assessment.  Her mental health problems do not appear to interfere in any way with her understanding.  She appears to have made it clear to the Tribunal that she did not wish to proceed with any of the physical points.  I do not think that this was because she did not consider that these points were relevant to the personal capability assessment, simply that they were not relevant to the case that she wished to make.  I note that in her appeal letter she makes no issue that she was incorrectly assessed in relation to physical activities.  The Tribunal certainly gave her the opportunity to raise the physical activities.  That being so I am not prepared to conclude that there was any breach of the inquisitorial role by the Tribunal.

11.	As regards ground 4 I do not consider that there is any merit in this ground.  The Tribunal had clearly set out its reasons for decision, including that the claimant was correctly assessed by the EMP, save where the Tribunal had indicated differently.  It records specifically: -

	“In all other regards we felt she had been scored appropriately.”
12.	I come now to ground 1.  I am not prepared to conclude that the Tribunal believed that the claimant had only succeeded previously in passing the personal capability assessment on appeal.  It has recorded specifically that it has read the decision maker’s decision.  It appears much more likely to me that because it was hearing an appeal the Tribunal referred to a previous appeal.  As regards the remaining part of ground 1 (that the Tribunal should have given consideration to seeking the medical evidence on which the previous award was based), that evidence not being already before it, I do consider that there is some merit.  I do not say that the Tribunal in every case where there has been a previous award must adjourn or even consider adjourning to obtain earlier medical evidence.  However, the claimant in this case was asserting that she was no better than she had been when last examined.  It would have been helpful in this case and in other similar cases (where the grounds of appeal assert there has been no improvement since the last medical examination) if the report of that medical examination had been produced to the Tribunal.  It is not, of course, necessary for the Tribunal to actually reach a conclusion as to whether or not there are any differences in the examination findings, nor indeed as to the medical opinions.  The Tribunal’s duty in looking at regulation 6(2)(g) is to determine, bearing in mind the burden of proof on a supersession whether or not the claimant is incapable of work.  That does not entail making a comparison between two medical examinations even where the claimant contends that she has not improved.  In this case, however, as the claimant did not have access to the relevant medical examination report and as she was obviously placing considerable reliance on the outcome of that examination, the Tribunal should have given consideration to whether it should adjourn in order to attempt to gain sight of the previous EMP report.  In considering whether or not to adjourn in  such circumstances a tribunal may put the matter to the claimant who may of course not wish for an adjournment.  Obviously whether or not the claimant wishes for the adjournment will be a factor which a tribunal is entitled to consider.  However, the matter is for decision by a tribunal.  The Tribunal did not give consideration to an adjournment and it erred in not so doing in light of the claimant’s contentions and the reliance she was putting on the previous medical.

13.	As I have mentioned previously I think it would be helpful, in cases where a claimant has asserted that the situation is no different than it was at the time of the previous examination, if the report of that previous examination could be put before the Tribunal.  This would avoid adjournments.

14.	I set the Tribunal’s decision aside as in error of law because it did not, in this case, give consideration to adjourning to obtain the relevant medical report. 

(signed):  M F Brown

Commissioner

15 March 2004