C54/99-00(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND)

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 27 July 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant (leave having been granted by the Chairman) against a decision dated 27th July 1999 of a Social Security Appeal Tribunal (hereinafter called “the Tribunal”) sitting at Strabane.  That Tribunal had disallowed the claimant’s appeal against a decision of an Adjudication Officer dated 11th May 1999.  The Adjudication Officer had reviewed an earlier determination that the claimant was incapable of work on the grounds that there had been a relevant change of circumstances, the change being that the claimant was no longer incapable of work.  Essentially this depended on whether or not the claimant continued to score the relevant number of points on the All Work Test.

2.	The claimant appealed to the Tribunal and on appeal the Tribunal considered that he scored less than the requisite points and upheld the Adjudication Officer’s decision to the effect that the claimant was not either incapable or to be treated as incapable of work from and including 11th May 1999.

3.	The claimant appealed to me by means of an OSSC1 (NI) form dated 5th January 2000.  He sought a hearing of the appeal but having perused the papers in the case I consider that I can properly decide the appeal without a hearing.  A hearing has been held by the Tribunal.

4.	My decision is given in the final paragraph.

5.	The claimant had four grounds of appeal:-

1.	That the Tribunal had given inadequate reasons for its decision.  In support of this he stated that the Tribunal had relied mainly on its view that he exaggerated.

2.	That the Tribunal had not taken an overall view of the evidence but had taken an unbalanced view.

3.	That the Tribunal had relied on inadequate medical evidence and should have asked more of the medical assessor.  The medical report from the Medical Referee Service Doctor was alleged to be inadequate as the examination lasted only 25 minutes, the techniques used to reach the findings were not known and there was no mention of a large gash suffered in an accident.

4.	That he had not given evidence to the Tribunal regarding the depression from which he suffered.

6.	Observations on the appeal were made by the Decision Making and Appeal Unit by letter dated 20th April 2000 from their Mr Fletcher.  Mr Fletcher opposed the appeal on all the grounds stated and was of the view that there was no error in the Tribunal’s decision.

7.	As regards the first ground of appeal I am not of the view that there is any merit in it.  It appears to me that the Tribunal has stated clearly the reasons behind its decision.  As an adjudication body it is entitled to make its own assessment of the evidence before it and it has clearly stated that it found the claimant to be exaggerating.  This was also the view of the doctor who examined the claimant on behalf of the Medical Referee Service.  

8.	In relation to the second ground of appeal it is quite apparent and indeed the Tribunal has recorded that it has taken into consideration all the evidence and the record of proceedings indicates that was the case.  I can see no indication that the Tribunal did not consider the evidence in a balanced manner.  It has obviously considered that the claimant had some difficulties but that they were not as great as he stated and in fact were not so great as to satisfy the All Work Test.  It appears to me that the Tribunal has properly investigated this matter.  If a Tribunal finds evidence to be unreliable it cannot be expected to rely on it and in this case, having found the claimant’s evidence to be unreliable, the Tribunal could not rely on it.

9.	As regards ground three I am in agreement with Mr Fletcher in his observations that the extent to which a Tribunal wishes to make use of the medical assessor is for that Tribunal and that there was no error in law in that respect.  In this case it is obvious that the Tribunal did consult the medical assessor where it felt that this was necessary and it has recorded his comments.  I can find no error of law in that respect.

10.	As regards the medical report, it is based on a clinical examination, history, observation and the expertise of the examining doctor.  The examining doctor did ascertain some problems with the right hip, but was clear that the range of movement was normal, the left leg normal, the spine normal, blood pressure (as tested) normal and no evidence of cardiac or respiratory disease.  While it would have been better to have a fuller record of the examination carried out, the claimant was given an opportunity to comment and produce his own evidence, which he did.  The Tribunal was entitled to accept the Examining Doctor’s clinical findings and his assessment in so far as it did so.  In any event it has not based its assessment of the claimant’s evidence solely on that doctor’s report but also on its own observations and the fact that the claimant can live alone and get in and out of a car.  There was sufficient evidence for the Tribunal to reach the conclusions which it did and there was no challenge to the clinical findings. 

11.	I can similarly find no error in relation to the fourth ground stated by the claimant i.e. that he did not give any evidence as to his stated depression.  There was no indication in any of the papers that the claimant suffered from any mental disability and he made no such allegation to the Tribunal.  As Mr Fletcher says, the claimant had mentioned in the questionnaire that he sometimes suffered from panic or anxiety attacks when outdoors due to the fear of tripping or falling.  There was no indication, indeed the medication was to the contrary, that the claimant suffered from any mental disablement.  I agree with Mr Fletcher that there appears to be no failure of the inquisitorial role in relation to this matter.  It has been previously stated by Commissioners (in decisions CIB/14202/96 and C53/98(IB)) that matters of mood are not of themselves sufficient to constitute mental disabilities but can be taken into account only when they relate to a recognisable mental disablement.  In this case there was no indication of treatment for a mental disablement and the claimant himself did not raise the matter.  It therefore appears to me that there was no failure of the inquisitorial role in the Tribunal not investigating this matter further.  The primary duty lies on the claimant to give such evidence and make such contentions as he wishes and he had ample opportunity to do so at the hearing.

12.	My decision is that the appeal is dismissed, the Tribunal not having erred in law in the manner alleged by the claimant or in any other way.

(Signed):  M F BROWN

COMMISSIONER

9 JANUARY 2001