Application No:  A4/07-08(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABLEMENT BENEFIT

Application by the above-named claimant for
leave to appeal to a Social Security Commissioner
on a question of law from a tribunal's decision
dated 23 July 2007

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

	Having considered the circumstances of the case I am satisfied that the application can properly be determined without a hearing.

	I refuse leave to appeal.

REASONS

	There is no arguable case that the tribunal’s decision was wrong in law.

	The tribunal was properly constituted.  The tribunal analysed the evidence rationally and in accordance with common sense.  It made all necessary findings of fact material to its decision.  There was evidence to support each of those findings.  On those findings of fact, the tribunal was entitled to make the decision that it did.  There is nothing to suggest that the tribunal misunderstood or misapplied the law.  The full statement of the tribunal’s decision contains a detailed explanation of the reasons why the tribunal made the decision that it did.  There was no breach of the principles of natural justice or Human Rights.

	In particular:

(i)	The claimant submits that his most recent hospital notes were not produced and that the hospital wrongly implied that he had not attended the hospital since the 1980s.  However, the tribunal considered the evidence available to it and, in particular, relied on the medical assessment of 6 November 2006.  This ensured that relevant and up-to-date evidence was available and that a sustainable decision on the facts was made.  In light of the availability of this report, there was no requirement in law obliging the tribunal to adjourn the case to seek further evidence.

(ii)	The claimant has submitted that he has been treated unfairly but there is no indication that this is the case.  The tribunal noted his complaint about the medical examination but properly focused its attention and decision making process upon the objective findings of improvement.  In light of these findings of improvement, it is not reasonably arguable that the tribunal erred in law in coming to its conclusion of the assessment of the degree of disablement.

(iii)	The claimant has argued against the use of a pro forma refusal of the application for leave to appeal by the tribunal chairman/legally qualified member.  However, the use of such a form does not prevent the chairman from exercising his discretion in a judicial manner.

(iv)	The tribunal has made an assessment of 20% rather than 15%.  This, on the face of things, is in contradiction to the finding of 15% made by the decision-maker.  However the relevant band is from 11% to 20% so there is no effective error of law made by the tribunal in confirming the decision of the decision-maker.

	It must be borne in mind that, in this and every similar case, a tribunal is entitled to draw its own inferences and reach its own conclusions and however profoundly a Commissioner, as an appellate tribunal on an appeal from a tribunal on a point of law, may disagree with its views of the facts, he or she is not able to upset that tribunal’s conclusions unless:

(a)	there is no or no sufficient evidence to found them – which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal, or

(b)	the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse.

	In this case I neither express disagreement nor agreement with the tribunal’s inferences and conclusions.  However, even if I were in disagreement, that does not render the decision erroneous in point of law as the tribunal’s conclusions are based on sufficient evidence, its assessment of the evidence was reasonable and the primary facts found justify the conclusion.

	It must also be borne in mind that the tribunal was not entitled to take into account any circumstances not obtaining at the time when the decision appealed against was made, namely 21 November 2006, by reason of the provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998.

	I have also considered whether there is any other ground for holding that the decision of the tribunal is or may be erroneous in point of law and have reached the conclusion that there is not.

(signed):  J A H MARTIN QC

CHIEF COMMISSIONER

(Dated):