[2006] NISSCSC C7_06_07(IB) (13 November 2006) 

Decision No: C7/06-07(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 5 December 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of an appeal tribunal sitting in Belfast on 5 December 2005 (the tribunal) is wrong in law.  I therefore set the tribunal’s decision aside and return the appeal for a new hearing. 

2.	This is an appeal, leave having been granted by me, which the Department opposed.  

Error of Law

Inadequate reasons 

3.	In R(A)1/72, the Great Britain Commissioner Temple set out the appropriate test in the social security context for sufficiency of reasoning.  At paragraph 8, the Commissioner said:

“The obligation to give reasons for the decision … imports a requirement to do more than only to state the conclusion, and for the determining authority to state that on the evidence the authority is not satisfied that the statutory conditions are met, does no more than this … the minimum requirement must at least be that [a party], looking at the decision should be able to discern on the face of it the reasons why the evidence has failed to satisfy … a decision based, and only based, on a conclusion that the total effect of the evidence fails to satisfy, without reasons given for reaching that conclusion, will in many cases be no adequate decision at all.”

4.	A tribunal is not obliged to prefer any one particular item of evidence to another but it has a duty to assess all of the evidence, reach a reasoned view on which it prefers and why and briefly to explain to the parties the process by which it has analysed the evidence in the way it has when applying the statutory tests.  

5.	As it was entitled to do, the tribunal relied heavily on a report from the examining medical practitioner (EMP) dated 4 December 2003.  However, it is apparent from the letter of appeal to the tribunal, endorsed by the claimant at the tribunal hearing, that the appellant made various specific complaints about the EMP’s examination and the accuracy of the ensuing report.  

6.	Nowhere does the tribunal state what view it takes with respect to the appellant’s assertions about the reliability of the EMP’s report.  I sympathise with the tribunal.  Not infrequently, claimants complain about reports made on behalf of the Department by doctors.  Nevertheless, the tribunal must address those complaints and assess whether or not there is substance in what is stated which affects the quality of the evidence criticised.   What is required will depend upon the circumstances: for example, the nature of the complaint (whether focused or vague) against the background of all the evidence, including the written terms of such report, the doctor’s professional qualifications and the impression the appellant makes as a witness of truth.  However, sufficient reasons (which may be brief) require the tribunal to address what the appellant says about the inadequacy or impropriety of the EMP’s approach and to provide a reasoned response, whether in agreement or disagreement.  

7.	Additionally, the appellant lodged a letter from his general practitioner (GP) dated 23 November 2005, describing him as “… genuinely unwell”.  It was incumbent on the tribunal to indicate to the appellant what view it took of that evidence.  Evaluation of the evidence and determination of the merits is a tribunal’s exclusive function provided its approach is adequately explained.  The tribunal is entitled to accept or reject any particular item of evidence but it should have given some explanation (which could be short and in general terms) to underpin its overall assessment.  Without this explanation the reasons were, in my view, insufficient.  I set the decision aside for that reason.

Summary

8.	The appeal is therefore remitted to a new tribunal to begin again.  It has emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits it is entirely for them.  Although the claimant has been successful in his appeal limited to issues of law, the decision on the facts in his case remains open.  

9.	I am in agreement with the submission made on behalf of the Department, that there was no error by the tribunal in failing to consider whether to adjourn the hearing to obtain an earlier medical report by an EMP (dated 11 December 2001) which had been favourable to the appellant.  No contention was made by the appellant at any stage either that he had not improved since the last medical examination or that he wished the prior EMP’s report to be produced.  The appellant even asked for a postponement of the hearing at one stage but it was not for the purpose of the previous medical report being made available. 

10.	I also wish to emphasise that, while a tribunal must deal with serious criticisms of the EMP’s report, as said by a Tribunal of Commissioners at paragraph 16 of R2/04(IB)(T):

“… it is for the appellant to make good before the Tribunal his criticisms of the examining medical practitioner’s report and to demonstrate the flaws which he says exist in it.  The onus is on him and not on the Tribunal.”

L T Parker

Deputy Commissioner

13 November 2006