Decision No: C12/03-04(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 14 January 2003

	DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 14 January 2003 of an Appeal Tribunal sitting at Newry.  That Tribunal had disallowed the claimant’s appeal in relation to a Departmental decision on incapacity benefit (IB) dated 31 July 2002.  The Tribunal disallowed the appeal and decided that the claimant was not incapable of work from and including 31 July 2002.  There was no issue that the claimant’s capacity for work was to be measured other than on the personal capability assessment.  In the appeal to me the claimant was represented by the Elliott-Trainor Partnership, Solicitors and the Department was represented by Mr Toner of the Decision Making and Appeals Unit.  I am grateful to the representatives for their assistance in this matter.  My decision is given in the final paragraph.

2.	The grounds of appeal essentially related to the medical report of the Examining Medical Practitioner (EMP) dated 16 May 2002 and the Tribunal’s reliance on it.  The Tribunal had clearly set out in its reasoning that it accepted the clinical findings and observations of the EMP.  It is also quite apparent from the reasoning that the Tribunal did not accept the claimant’s evidence in its entirety.  I should say at the outset that the assessment of evidence is a matter for a Tribunal and same is not to be disturbed unless it is unreasonable or perverse.  

3.	The claimant’s grounds of appeal to me as contained in the OSSC1 form dated 17 June 2003 and amplified in the letter dated 7 October 2003 from his solicitors were that the Tribunal had erred in relying on the EMP’s report as the claimant, at the hearing, had relayed his concerns about that report which he submitted had inaccurately documented his medical history and wrongly estimated his walking distance.  This estimated distance was not, the claimant submitted, the distance which the claimant had told to the EMP.  
4.	The stated inaccuracy as regards the medical history appears to relate to two boxes in the EMP’s report.  At page 4 the EMP recorded: -

	“Father died of heart attack at 80.”

At box 15 the EMP recorded: -

	“He has no family history of heart disease.”

The Tribunal, to whom this matter was raised, did not comment on it.  

The Department by letter dated 23 September 2003, from Mr Fletcher of the Decision Making and Appeals Unit, opposed the appeal.  Mr Fletcher submitted that it was clear that the Tribunal had addressed the issue of the accuracy of the EMP’s record as to walking distance and assessed the evidence.  The Tribunal was quite entitled to prefer the EMP’s evidence.  Its assessment of evidence was clearly set out and it clearly did not find the claimant’s evidence reliable.  He submitted that the Tribunal’s reasoning adequately explained the decision.

As regards the apparent inconsistency regarding the family history of heart disease, Mr Fletcher submitted that this did not call into question the accuracy of the clinical findings in the EMP’s report.  Although the Tribunal had not commented on this matter it had focussed on the claimant’s functional abilities in terms of the personal capability assessment.  Its conclusions were, he submitted, sustainable on the evidence and the reasons adequate to explain the decision.

5.	As regards the 800 metres walking distance the EMP has recorded at box 7: -

	“Sometimes goes for a walk – half mile.”

At box 12 the EMP has recorded: -

	“He states he walks half mile (800 metres) to end of lane – but avoids hills.”

In his incapacity for work questionnaire (IB50) dated 6 March 2002 the claimant stated that: -

“I cannot walk more than 800 metres (about half a mile) without stopping or feeling severe discomfort.”

6.	That form also contains boxes which can be ticked if the walking distance is at various stages from a few steps to no problem with walking.  At the hearing before the Tribunal the claimant gave evidence that he would have to stop walking after 20 to 30 yards and stated that he could not explain why he completed the IB50 in the way he did but he was not well on the day he did it.  He stated that he did not think he had said half a mile to the EMP.  
7.	The Tribunal commented clearly on this matter in its reasoning and stated that the claimant’s evidence to it at hearing was: -

“Not entirely consistent with the evidence in claimant’s IB50 where he stated he could walk between 400 and 800 metres rather than the 20 - 30 yards he described to the Tribunal or the 800 metres recorded by the Examining Medical Officer.  As the Examining Medical Officer’s record is consistent with the IB50 the Tribunal prefers this evidence.”

8.	I can find no error of law in relation to the Tribunal’s findings on the walking distance.  It is entitled to reject the claimant’s evidence at hearing as same was not consistent with his earlier evidence in the IB50 and it was entitled to accept the EMP’s record in this matter as more consistent with the IB50.  I find no merit in this ground of the appeal.

9.	As regards the matter of the family history of heart disease, I would state at the outset that I would have preferred the Tribunal to have made a comment on this matter.  On the face of it there does appear to have been some inconsistency in the report.  The Tribunal did, however, make quite clear its preference for the EMP’s clinical findings and observations.  It also made clear its reasons for that preference in that the claimant was on minimal treatment (despite the very substantial complaints and disabilities claimed by him) and the Tribunal’s own observations.  I find the Tribunal’s assessment of the claimant’s evidence to be reasonable.

10.	I therefore have to decide whether the inaccuracy, if such it was, at box 15 with relation to the absence of a family history of heart disease was such as to render the Tribunal’s reliance on the EMP’s report unreasonable.  As I mentioned earlier the EMP had recorded that the claimant’s father had died of a heart attack at 80 years plus.  On the face of it there does appear to be some inconsistency though I have not sufficient medical knowledge to determine whether a heart attack can occur in the absence of previous heart disease.  However, even accepting that there may have been some inconsistency in the report, I do not consider that this invalidates the entire report or renders the Tribunal’s reliance on it unreasonable.  The EMP did not dispute that the claimant had angina and indeed neither did the Tribunal.  He did express the view that the claimant was exaggerating and the Tribunal also obviously formed this view.  I do not consider that the possible inconsistency in the EMP report renders the report valueless and I do consider that the Tribunal was entitled to rely on it.  The inconsistency does not appear to be a matter of great import since it was not disputed that the claimant did have angina and as I understand it from the correspondence from his own doctor that was as far as the diagnosis had gone.  That being so the possible inconsistency is not of great weight.  In particular it does not mean that the Tribunal’s reliance on the EMP report was unreasonable.

11.	One further point remains, however, in that the Tribunal, as mentioned above, did not allude to this particular factual inconsistency in its reasoning.  I do not know why it did not do so.  However, I have to ask myself whether, this matter being omitted from its reasoning, the reasons were adequate to explain the decision.  I consider that they were.  The Tribunal has clearly set out its view, which as I have indicated above I consider to be sustainable, that the claimant’s evidence was not reliable.  It has also clearly set out that it relied on the EMP’s clinical findings and observations.  These are different from the history. It has clearly set out what it considered to be the true fact situation and again, in my view, its findings of fact were sustainable.  They are embodied in the personal capability assessment.  It was accepted that the claimant had angina so the inconsistency had not affected the diagnosis.  While, therefore, I would have preferred some specific reference to the contention that there was a factual inconsistency in the EMP’s report, I, nonetheless, consider that the reasoning adequately explains the decision.

12.	I therefore dismiss the appeal.

(Signed):  M F Brown

COMMISSIONER

							 
14 January 2004