Decision No: C20/95(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

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

INCOME SUPPORT

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
Omagh Social Security Appeal Tribunal
dated 20 December 1994

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 upheld the decision of an Adjudication Officer to withdraw claimant's disability premium from 27 September 1994.

2.	I arranged an oral hearing at which claimant was represented by Mr McL... and the Adjudication Officer was represented by Mrs McRory.

3.	Briefly the facts are that the claimant is a 50 year old lady who lives alone in a small flat and who was incapable of work.  She claimed sickness benefit from 15 April 1992.  As she did not satisfy the contribution conditions for sickness benefit she was awarded income support from 15 April 1992 and disability premium was awarded from 3 November 1992.  She was examined by a Medical Officer of the Department on 26 May 1994; he expressed the opinion that she was not incapable of work and as a result the Adjudication Officer responsible for incapacity benefit expressed the opinion that she was not incapable of work.  As a result an income support Adjudication Officer on 30 August 1994 gave a decision as follows:-

		"I have reviewed the decision of the adjudication officer awarding
		disability premium.  This is because from 4 July 1994 the claimant
		is not incapable of work by reason of some specific disease or bodily
		or mental disablement.  My revised decision pending receipt of appeal
		is that Mrs H... must register for employment to continue to receive
		income support.  The disability premium is no longer payable."

	Claimant appealed against that decision to a Social Security Appeal Tribunal.  Before the hearing claimant's solicitor sought an adjournment of the hearing on the grounds that claimant was waiting for a GP report from a Dr C....  There is a note on the file relating to a call to the Solicitor's office by a clerk in the Tribunal Service to say that the request was put to the Chairperson who requested calling the solicitors to see if the report had anything further to add to what was already in the submission.  The answer was that the GP's report had not been received, one did not know what was in it.  There is a further note which says:-

		"Tribunal is already aware that the applicant has depression,
		anxiety and diabetes.

		Is report from GP going to cover any other ailments?"

	The Chairperson of the Tribunal refused to adjourn the matter.  Neither claimant or her representative appeared at the hearing which proceeded in their absence.  The Tribunal made the following findings of fact:-

		"1.	Appellant aged 49, housewife.
		
		 2.	Medical complaints include diabetes, mellitus, anxiety,
			neurosis/manic depression.

		 3.	Diabetes controlled by diet and insulin twice daily.

		 4.	Appellant admitted to Doctor M… on 26.5.94 that she
			has had only an occasional hypoglycaemic turn which she can
			deal with on her own.  Attends diabetic clinic irregularly.
			Also admits that general and psychiatric health are good.

		 5.	Runs her own home.
		
		 6.	Examination revealed sugar in urine in keeping with diabetic 
			state.

		 7.	Full function of all limbs and as per paragraph B-2 of
			Doctor M…'s reports.

		 8.	Appellant does unpaid work for a charitable organisation.

		 9.	Doctor M… found no physical or psychiatric 
			abnormality on examination.

		 10.	No formal qualifications, that is, "O" or "A" levels.

		 11.	Disability Premium was awarded on 3.11.92 and removed
			from."

	and gave reasons for its decision as:-

		"(a)	Adjournment request referred as there was nothing therein to
			suggest that another General Practitioner report would add
			any new complaint or information to the medical evidence
			already held by the Tribunal.  The Appellant indicated on
			her AT6 that she was coming to the hearing.  We waited to
			allow time for her to arrive but she did not and no reason
			was furnished for this.  Given the detail in Mr M…'s
			report of the 26.5.94 together with General Practitioner
			certificates and Appellant's self certificate and noting
			that the Appellant did not turn up, the panel decided to 
			proceed.

		(b)	The weight of medical evidence indicates that diabetes is
			reasonably stable and Appellant admits to psychiatric and
			general health being good and Doctor M… found nothing
			on examination to indicate otherwise.  There is no evidence
			of previous occupation other than housewife.  Appellant can
			attend to running her own home.  Given this and the weight
			of medical evidence we see no reason why Appellant could 
			not do a wide variety of jobs.  One such example would be
			that of home help.  The functions are similar to those carry
			out by a housewife and can be done quite easily on a part
			time basis.  Qualifications would not be necessary and the
			job would give the Appellant breaks in between home helps."

4.	At the hearing before me Mr McL... argued that it was manifestly unjust and unfair for the Tribunal to proceed after the solicitor had requested an adjournment and that in the interests of justice an adjournment should have been granted.  He also took issue with the finding of fact that claimant runs her own home which is a direct quotation from the medical report and said that there was no indication as to the extent to which claimant was able to run her house.  He said it was completely and utterly misleading to refer to her as a housewife because she lived alone, her flat was small and she managed on her own.  He drew attention to the fact that the suggestion that she could act as a home help was unrealistic for two reasons, that the Presenting Officer had said that she could do an hour in the morning or in the afternoon and he questioned whether or not that would be considered work and secondly he drew attention to the fact that home helps work on a time and motion approach which would not be suitable to the claimant.

5.	Mrs McRory said that the Tribunal was entitled to go ahead but that it would have been better if the Tribunal had detailed what housework she was entitled to do.

6.	I have considered all that has been said and I have considered all the papers.  Turning to the request for an adjournment where the reason given for refusing to adjourn was as I have quoted above that the Tribunal was already aware that the applicant had depression, anxiety and diabetes, that certainly would not be apparent from the findings of the Tribunal because the only mention of depression and anxiety is "appellant admits to psychiatric and general health being good."  The reasons for the Tribunal's decision then went on to say "appellant can attend to running her own home.  Given this and the weight of medical evidence we see no reason why Appellant could not do a wide variety of jobs.  One such example would be that of home help.  The functions are similar to those carried out by a housewife and can be done quite easily on a part time basis."  Before one can give that as a reason one must make a finding of the extent of claimant's ability to do any housework and the finding of fact that she runs her own home could mean something or nothing.  It could well be that what she does is only what a sick single lady who lives alone would do to keep her home together.  To suggest that that is a test of whether a person is able to work or not is to go back to the old housework test which was abolished many years ago.  It would be completely wrong for any Tribunal to suggest that because a single lady is able to survive on her own that she is able to work and that is what the Tribunal did.  The Tribunal also linked that with what it called "the weight of medical evidence".  I have sought hard to find this weight of medical evidence, and could only find a single report from a doctor which concludes that she is capable of work as against claimant's GP certificates which certify her as unfit for work.

7.	Also this is a case where claimant was in receipt of benefit and the Adjudication Officer sought to review her entitlement.  However nowhere in the decision of the Tribunal is it apparent that any consideration was given to whether or not there was any entitlement on behalf of the Adjudication Officer to review the matter.  He merely considered he was entitled to review it on the grounds of that one medical opinion showed she was not incapable of work, which brings us back once more to the Chief Social Security Commissioners decision in C9/94(IVB) from which I now quote:-

		"I do not however consider that a mere change of medical opinion,
		based upon the same medical findings and background, and judged
		by reference to the same yardstick by which a claimant's capacity
		for work should be assessed, could ever in itself be accepted as 
		proof that he no longer satisfied the conditions of entitlement
		to benefit.  Indeed, the decision in R(S) 6/78 indicates that,
		while a further medical opinion may constitute evidence that the
		requirements for payment have not been satisfied, it is not in
		itself a finding that those requirements have not been satisfied,
		and in my opinion it would be a brave Adjudication Officer who 
		would seek to terminate an award on that ground alone.  In my
		experience, unless there has been some further change, for 
		example - an improvement in the claimant's condition, or the 
		extension of the yardstick by which his capacity for work was 
		to be judged, or a widening of the scope of alternative 
		employment to include additional suggested occupations - you do
		not find Adjudication Officers deciding that the conditions of 
		entitlement are no longer satisfied.  Were they to do so their
		prospects of being upheld on appeal would in my opinion be slim
		indeed.  Accordingly, while it may be correct to say that there
		is no rule that a different medical opinion does not justify a
		review under regulation 17(7) I consider that revision by way 
		of termination of an existing award on that ground alone would
		never be appropriate.  Without some further change, ... an
		Adjudication Officer would not in my view be able to discharge
		the onus of proving that a claimant who had previously satisfied
		the conditions of entitlement no longer did so."

	So the first thing which the Tribunal should have done was to decide whether or not in the light of C9/94(IVB) the Adjudication Officer discharged the onus of proving that a claimant who had previously satisfied the conditions of entitlement no longer did so.  

8.	Also the Tribunal erred quite clearly when it decided that the disability premium was to be removed but gave no date for the removal.

9.	At the hearing I granted leave to appeal and with the consent of both parties treated the application as the appeal.  I allow the appeal for the reasons stated above and I therefore set aside the decision of the Tribunal.

10.	I am satisfied this is a case in which I should give the decision which the Tribunal ought to have given, namely that claimant continues to be incapable of work and that the disability premium is still payable.

(Signed):  C.C.G. McNally

COMMISSIONER

21 November 1995