Decision No: C5/94(IVB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

INVALIDITY BENEFIT

Application by the claimant for leave to appeal
and appeal to the Social Security Commissioner
on a question of law from the decision of the
Londonderry Social Security Appeal Tribunal
dated 25 October 1993

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal which withdrew his invalidity benefit from 29 June 1993.

2.	I arranged an oral hearing at which claimant was represented by Mr Breslin and the Adjudication Officer was represented by Mr McAvoy.  At the hearing I granted leave to appeal and with the consent of both parties I treated the application as the appeal.  I allowed the appeal for the reasons which are set out below.

3.	Briefly the facts are that the claimant, who is a 40 year old unemployed clerk, suffers from myalgic encephalomyelitis (commonly known as ME) and he has been receiving sickness benefit from 27 February 1991 followed by invalidity benefit from 20 June 1991.  He submitted medical reports and on 3 separate occasions in September 1991 and in February 1992 and in February 1993 Medical Officers for the Department considered that they were satisfied he was incapable of work.  He was examined again by a Medical Officer on 17 June 1993 who considered he was capable of work including his usual occupation.  As a result of that decision the Adjudication Officer disallowed his claim from 29 June 1993 to 20 July 1993 and against that decision claimant appealed to a Social Security Appeal Tribunal.

4.	That Tribunal by a majority decision upheld the decision of the Adjudication Officer withdrawing claimant's invalidity benefit and recorded under the heading "Findings of fact material to the decision" the following:-

"Claimant aged 40.
Clerk for 2 years before viral infection.
Post viral syndrome and ME.
Had been active athletically.
Good academic background.
Previous work history varied student and various other jobs.
Can drive short distances."

and recorded "reasons for its decision" as:-

"Mrs K… dissenting felt that the complaints were such to render
claimant incapable of his usual occupation for the period in question.

The majority felt that whilst they had sympathy with the claimant's
complaints which he outlined quite clearly, felt they were not such
as to make him incapable of his usual occupation."

5.	At the hearing before me Mr McAvoy on behalf of the Adjudication Officer said that this was the first case of its kind to come before a Commissioner after the change of procedure where one medical report was all that was obtained before the claim was referred to an Adjudication Officer who would decide whether or not to withdraw the benefit on the strength of that one report.  He also drew attention to the fact that the format of the medical report had been changed, it required the medical examiner to comment on the claimant's ability to perform certain functions.  Mr McAvoy accepted that the form was badly drawn but said that the form has been improved.  Mr McAvoy said that although case law did not prevent the Adjudication Officer from disallowing on one medical report nevertheless one would expect that that report would be completed to a very high standard.  He drew attention to the fact that claimant's complaint was that he suffered from ME but that in the medical report there is no mention of ME at all, and conceded that the AO would not have had enough evidence on the basis of that one report to disallow the claimant.  He also suggested that there was little point in referring the case back to be reheard by a differently constituted Tribunal and urged that I should exercise the powers vested in me to give the decision which that Tribunal should have given.

6.	Mr Breslin concurred with Mr McAvoy's arguments.  He said that as far as some doctors were concerned ME did not exist, he said that there was a report from Dr M… from the RVH concerning claimant's ME and the letter from his General Practitioner and that the weight of medical evidence was in claimant's favour and the claimant had given a long and detailed account of his problem and that this clearly had not been taken into account by the Tribunal.

7.	I have considered all that has been said and I accept the concession by Mr McAvoy.  If an Adjudication Officer is to disallow a claim for benefit on the strength of one medical report then that medical report must be very strong and comprehensive, but the report in this case is neither.  Consequently I am satisfied that the Tribunal erred in law in concluding that there was sufficient evidence to support the Adjudication Officer's decision.

8.	Also if one looks at the history of this case where the previous two medical officers were perfectly satisfied that claimant was incapable and in the third medical the doctor recorded that there was no real change in claimant's condition in the past 6 years.

9.	Also when one considers the findings of fact made by the Tribunal there is no finding of fact relating to claimant's medical condition other than that he suffers from post viral syndrome and ME.  There is no finding of fact on the medical evidence and in the reasons for the decision they merely record a conclusion that the majority felt that the claimant's complaints were not such as to make him incapable of his usual occupation.  It has been held frequently that merely to record a conclusion is not sufficient.  I am satisfied that the Tribunal erred in law again in that regard also.

10.	I allow the appeal for the reasons set out above and I am satisfied that it is a proper case in which I should exercise the powers vested in me as urged by Mr McAvoy to give the finding which the Tribunal should have made.  I am satisfied that there is no change in claimant's condition over the years, and that there is no evidence to support the finding that claimant is capable of work.  I set aside the decision of the Tribunal and find that claimant is entitled to invalidity benefit from 29 June 1993 to 20 July 1993 and also for the referred period from 21 July 1993 to 25 October 1993.

(Signed):  C C G McNally

COMMISSIONER

28 April 1994