Decision No: C19/01-02(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 13 December 2000

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, leave having been granted by the Tribunal Chairman, against a Tribunal decision dated 13 December 2000.  The Tribunal had disallowed the claimant’s appeal from an earlier decision of a Decision Maker and had found that the claimant scored 12 points on the Personal Capability Assessment, the relevant statutory test as to whether or not he was capable of work.  The Tribunal found that he was capable of work from and including 21 August 2000.

2.	The claimant had been represented by solicitors at the Tribunal hearing but before me his representation was from Miss Loughrey of the Law Centre (NI).  Before me the Department was represented by Mr Toner of the Decision Making and Appeals Unit.  I am grateful to Miss Loughrey and Mr Toner for their assistance in this case.

3.	The grounds of appeal were set out on an OSSC1 form dated 25 September 2001 and received in the Commissioners’ office on 26 September 2001.  The grounds were that the Tribunal had failed to exercise its inquisitorial role.  The evidence pointed to a need to apply the mental health descriptors in the Personal Capability Test and indeed the Decision Maker had awarded 2 points for this.  The Tribunal therefore needed to apply the mental health descriptors.  It was accepted by Miss Loughrey that the claimant’s then representative had indicated that mental health was not in dispute but Miss Loughrey submitted that the Tribunal should have exercised its inquisitorial role so that it could be satisfied that mental health was or was not in dispute.

4.	Observations on the appeal were made by Mr Toner by letter dated 17 November 2001.  Mr Toner opposed the appeal.  He reviewed the evidence in the case and referred to the claimant having been represented at the hearing by a solicitor.  In his submission the solicitor had advised the Tribunal that the only descriptors in dispute were the physical descriptors thereby either accepting the score allocated by the Decision Maker for the mental health activities or not seeking any score on those activities.  Mr Toner referred to decision CSIB/160/2000 where at paragraph 6 Commissioner May in Great Britain stated: -  

“the Tribunal as the claimant was represented was entitled to accept that the representative knew the case which is sought to be made and in particular which descriptors are sought to be established by the claimant.”

5.	Mr Toner submitted that, as the claimant’s then representative had advised the Tribunal that the only descriptors in dispute were the physical activities and taking into account the evidence, the Tribunal was entitled not to extend its inquisitorial function to the mental health activities.

6.	 Miss Loughrey, by letter dated 26 November 2001 requested that this matter be postponed until the decision was issued in case C12/01-02(IB) as, in her submission, the issue was identical.

7.	That decision was issued on or about 12 December 2001 and I asked for further observations following the issue of the decision.  Neither representative had any further observations to make.

8.	An oral hearing had originally been requested in this case but I consider that I can properly decide the case without such a hearing.

9.	My decision is that the decision of the Tribunal was not in error of law and that the appeal is therefore dismissed.

10.	I begin by referring to Article 13 (8)(a) of the Social Security (NI) Order 1998 which states: -  

“In deciding an appeal under this Article, an appeal tribunal – 

(a) need not consider any issue that is not raised by the appeal”.

11.	By that provision the Tribunal is empowered but not obliged to consider any issue that is not raised by the appeal.  It will not be in error of law for not considering any issue that is not raised by the appeal.  The question therefore has to be asked in this case whether the issue of the satisfaction of any further descriptors in the mental health aspect of the Personal Capability Test was raised by the appeal.  I am in agreement with Mr Toner that in view of the claimant’s representative having advised the Tribunal that the only descriptors in dispute were physical activities and in light of the evidence the Tribunal was entitled not to make further enquiries as to the mental health activities.  The Tribunal is entitled, in determining what issues are raised by the appeal, to rely on the statement of the claimant’s representative.  It is not bound by that statement but it is entitled to rely on it and this is particularly so where the representation comes from a firm of solicitors.  It is to be expected that the claimant’s representative will have contact with the claimant prior to the hearing and that the statement of that representative as to what issues are and are not in dispute can be relied on.

12.	In a case where the evidence clearly indicated that there were other issues which needed to be explored then the Tribunal might be in breach of its inquisitorial role in not exploring them as those issues could then be said to be raised by the appeal.  However an issue must be clearly raised.  Indeed, where there is conflicting written evidence pre-hearing, it may be that a statement at hearing by a professionally qualified representative that a particular issue is not in dispute may entitle the Tribunal to conclude that that issue, even though it may be raised by the evidence, is no longer being proceeded with and is no longer raised by the appeal.  I stress no concluded view on this matter however as it is not necessary for this decision. 

13.	In this case the evidence did not clearly raise any issue as to the applicability of any other descriptor in the mental health test.  The test itself was not an issue.  The issue was what descriptors were applicable.  The Tribunal, in its summary of the decision, made no actual recording of points in relation to the mental health descriptors.  However, this was not necessary in light of the information given by the representative and to have recorded the two points which had been awarded by the Decision Maker would have made no difference to the decision.  The omission to record these two points does not make the decision in error of law.

14.	I dismiss the appeal because there was no breach of the inquisitorial role and because I can ascertain no other error of law in the decision.  In this case, as Commissioner May stated in CSIB/160/00 the Tribunal “…was entitled to accept that the representative knew the case which is sought to be made and in particular which descriptors are sought to be established by the claimant”.  The evidence did not indicate that there was any other issue to be explored.  I therefore dismiss the appeal.

(Signed):  M F Brown

COMMISSIONER

14 March 2002