[2006] NISSCSC C12_05_06(IB) (30 June 2006)

Decision No:  C12/05-06(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 7 July 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 7 July 2005 of an appeal tribunal sitting at Armagh.  My decision is given in the final paragraph. That tribunal had disallowed the claimant’s appeal against a Departmental decision dated 8 February 2005 superseding an earlier decision which had given the claimant entitlement to incapacity credits.  The supersession decision was that the claimant was not and could not be treated as incapable of work from and including 8 February 2005.  The decision was reached following receipt by the Department of medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995. It was common ground that the Personal Capability Assessment was applicable.

2.	The claimant appealed.  The grounds of appeal were set out in an OSSC1 form received in the Commissioners’ Office on 16 November 2005.  The grounds of appeal were essentially as follows:

(a)	That the tribunal had overlooked various matters in evidence to the effect that the claimant was in receipt of ongoing treatment for her epileptic symptoms.

(b)	That alterations had been made to the IBB Score Sheet (Tabbed 5 in the documents before the tribunal) in relation to descriptor 14 without the claimant’s knowledge or consent.

(c)	There were inconsistencies throughout the record of proceedings and certain issues were incorrectly recorded.

(d)	That the tribunal was hostile to the claimant and that she was ignored and intimidated into giving answers that would be incorrect.

(e)	That the Departmental representative at the tribunal had asked her to state her answers again.   When asked he stated that her accent was difficult for him to understand and this could be interpreted as racist and the cause of an error in law.

3.	I granted leave on the ground that it appeared that the tribunal may have erred in failing to consider the claimant’s evidence in her appeal letter as to there having been four seizures in the three years prior to the date of the superseding decision.  The tribunal appeared to have relied on the evidence to the Examining Medical Practitioner of there being three siezures – in October 2002, January 2004 and June 2004 and had not followed up on the latest statement by the claimant that there had been four seizures in the last three years.  This indicated that there was a possible issue of the Examining Medical Practitioner’s report pre-dating a subsequent seizure and the date of the decision under appeal to the tribunal (8 February 2005).

4.	The Department was represented in the appeal by Miss Bradley of its Decision Making Services branch.  In a letter dated 10 February 2006 Miss Bradley conceded that the tribunal had erred in law by failing to establish whether the claimant had any seizures in the period between the date she was examined by the examining doctor (16 November 2004) and the date of the decision on her claim (8 February 2005).  Miss Bradley opposed the other grounds.  However she went on to submit that even if I were to accept that the tribunal had erred in law as indicated it would not affect the overall decision of the tribunal.  If it was accepted that the claimant did in fact have a seizure between those dates a score of eight points under descriptor 14(e) would be appropriate but such a score would not result in entitlement to incapacity benefit (IB). She therefore asked me to set the tribunal’s decision aside, make findings of fact as to whether or not the claimant did suffer a seizure between the above dates and give the appropriate decision based on those findings. 

5.	The claimant was afforded an opportunity to make comments on the Department’s observations but she did not avail of same.

6.	I am in agreement with the Department that the tribunal erred in not exploring whether or not there had been a fourth seizure after the date of the examining doctor’s report but before the date of the Departmental decision under appeal to the tribunal.  I am also in agreement with the Department that even had such a seizure taken place it would not entitle the claimant to IB.  The activity (activity 14) in the Personal Capability Assessment under which the claimant’s epileptic symptoms could be considered was as follows:

“Remaining conscious without having epileptic or similar seizures during waking moments.”
	The various descriptors were set out within that activity and 15 points were required to satisfy the Personal Capability Assessment.  Only satisfaction of descriptors (a), (b) or (c) could lead to an award of 15 points.  Even accepting that there had been a seizure between the medical examination and the date of the Departmental decision this could only have led to satisfaction of descriptor (c) and to eight points being awarded.  Fifteen points were needed to satisfy the assessment. Even on the assumption that there was another seizure this would not alter the decision.  The error of not exploring the possibility of another seizure could not therefore vitiate the decision.

7.	I turn now to the other grounds of appeal.  I am not of the view that there is any merit in any of these grounds.  With relation to the matter of the fairness of the hearing, it does not appear to me that the hearing was in any way unfair.  Both the claimant and her husband were given adequate opportunity to answer questions and to put forward any points they wished to put forward.  The claimant had brought her husband there to accompany her and raised no objection to him giving evidence on her behalf.  It does not therefore appear to me that it was in any way unfair of the tribunal to ask him questions on that evidence and to take it into consideration.  Similarly, while it is unfortunate that the claimant felt the tribunal was hostile to her, it does not appear to me that it was so.  It did not ignore her.  Indeed it recorded and considered evidence which she gave and which her husband gave on her behalf.

8.	As regards the matter of medication, I do not think that the tribunal made any finding that the claimant was not receiving any treatment at all.  Her husband referred to her taking medication as did the IB medical report upon which the tribunal relied.

9.	As regards the alleged change to the scoring on the Personal Capability Assessment report, it does not appear that the medical report on which the scoring was based was itself changed.  The Department has changed its scoring which was based on that report.  It is a matter for the Department what score it puts in relation to the Personal Capability Assessment and the Department has obviously considered that the amended score was more reflective of the evidence than was the earlier score.  There is no error of law in that matter and no unfairness.  The claimant had the opportunity to appeal against the Department’s decision and did so.

10.	As regards the allegations in relation to the Departmental Presenting Officer, I consider that these are without merit.  As Miss Bradley submits if the Officer was unable to understand what the claimant was saying he was perfectly entitled to ask that she repeat her evidence. If he could not understand her accent this is not a matter of racism but simply a matter of fact. There is nothing racist in finding an accent difficult to understand. It is unfortunate that the claimant felt offended by that but I can see no reason why she should do so.

11.	As regards the record of proceedings, I am unable to ascertain any inconsistencies or defects in same.  Other than a broad allegation that same exist no details have been supplied and it does not appear to me that there was an error in that respect.  It must also be remembered that a note of evidence is merely that.  It is not required to be a word for word record of the evidence.  If there is an inconsistency in the evidence this may be reflected in the note without the note itself being inconsistent.

12.	Apart from ground one I can ascertain no error in the decision.  I consider that the error in ground one is not such as to vitiate the decision.  In short while the decision does contain an error, the decision itself is not in error of law.  Were I to set it aside for the reason of the error made I would simply be substituting my own decision to the same effect even if I were to accept that there had been a seizure between the examining doctor’s report and the date of the Departmental decision.  I do not consider that it is necessary that I make any finding of fact in relation to that matter as it would not alter the decision.

12.	I therefore dismiss this appeal.

(signed):  M F Brown

Commissioner

30 June 2006