Decision No: C3/97(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

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

INCAPACITY BENEFIT

Appeal to the Social Security Commissioner
on a question of law from the decision of the
Newtownards Social Security Appeal Tribunal
dated 30 August 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal which held that claimant was not entitled to Incapacity Benefit from 28 February 1996 and he did not satisfy the All Work Test.  

2.	Claimant is a man of 61 years of age who worked as an Industrial Cleaner but as there was no submission from the Social Security Agency and no representative appeared at the hearing I have no information about the claimant or his previous benefit history.  The Adjudication Officer awarded him 12 points in the All Work Test.  Against that decision claimant appealed to the Social Security Appeal Tribunal.  That Tribunal made the following findings of fact:-

		"We adopt the findings of the examining doctor and the Adjudication
		Officer's scoring based thereon.

		Mr S... is aged 59.  He has been claiming as unfit for work 
		since 14.7.94.  His score on the All Work Test has been 12 points
		since 28.2.96."

	and gave reasons for the decision of upholding the Adjudication Officer's award of 12 points as follows:-

		"We conducted a re-hearing.  Mr S... is required to satisfy the
		All Work Test before he can be entitled to Incapacity Benefit
		from 28.2.96.  He does not have polyarthritis.  There is no
		certification that he would be at risk nor would anyone else if
		he returned to work.  He has not done so, his score is 12 points.
		We have taken into account all the evidence produced and given
		orally on Mr S...'s behalf and Mr F...s submissions.  However
		we prefer the assessment of the examining doctor based as it is
		on a detailed objective and disinterested medical examination
		and the Adjudication Officer's scoring as it is based thereon.
		Inconsistencies were noted on medical examination which lead us
		to doubt the accuracy of the limitations stated by the claimant.

		All the above applies or 28.2.96.  We are unable to take into
		account the heart attack suffered on 17th May.  Mr S... has
		re-applied for benefit since that date."

3.	Claimant then sought leave to appeal to the Chairman of the Tribunal on the following grounds:-

		"I experienced a heart attack on 17 May 1996 subsequent to the
		adjudication officer's disallowance of 28 February 1996 but 
		prior to the tribunal hearing of 30 August 1996.  I therefore
		submit that the question of whether I satisfied the conditions
		of reg.27 of the Incapacity for Work Regulations (substantial
		risk to physical health if found capable of work) was a relevant
		one for the tribunal.

		I submit that the tribunal erred by failing to address the 
		questions of whether my heart condition after 17 May would have
		permitted me to be treated as satisfying the "all work test"
		and whether the underlying heart problem prior to that date,
		although not known to the adjudication officer on 28 February,
		would also have permitted me to be treated as satisfying the
		"all work test".  Specifically, the tribunal erred by not
		referring these issues for Departmental consideration or,
		subsequent to the Moule decision, by not deciding these issues
		themselves."

	The Chairman of the Tribunal granted leave to appeal.

4.	I arranged an oral hearing and at that hearing claimant was not present but was represented by Mr Stockman of the Belfast Law Centre and the Adjudication Officer was represented by Mr Toner. 

5.	Mr Stockman made two points, the first being that claimant should have been considered under regulation 27 and the second was that the Tribunal should have taken the matter down to the date of hearing of the Tribunal.  As far as regulation 27 is concerned, Mr Stockman said that claimant had a heart attack on 17 May 1996. The argument was that this must have been working on claimant for some time and that he suffered from previously undiagnosed life threatening condition.  He said there was evidence of this although it was unknown until May 1996.  The evidence existed and could have been produced.  The Tribunal should have considered this.  Also he argued that the Tribunal clearly erred in not going down to the date of hearing and taking into account claimant's heart attack.  He also criticised the findings of fact and said the Tribunal did not deal with claimant's complaints.

6.	Mr Toner accepted the fact that the Tribunal erred, that the Tribunal should have gone down to the date of hearing and should have taken into account claimant's heart attack.  As far as regulation 27 is concerned it only comes into play when the All Work Test is not satisfied.  He said from February to May 1996 would have been difficult to prove that 27(a) was satisfied because there was no evidence that it was.  He also accepted that if one reads the findings of fact that they are meaningless unless one has the Medical Examiner's report.

7.	I have considered all the documents and have taken account of all the arguments in this case.  I accept and the Adjudication Officer accepts that the Tribunal should have gone down to the date of hearing and should have taken into account claimant's heart attack.  I am also satisfied that the Tribunal erred in not making the proper findings of fact.  I also feel that the Tribunal misdirected itself in describing the Examining Doctor's report as being detailed, objective and disinterested because I find it difficult to see how a report which merely records his opinion on a limited examination can be detailed.  Clearly it is not.  Also the Examining Medical Doctor recorded that the claimant complained of what he had been put through at the end of the examination and noted, "At all times his discomfort was acknowledged and he was asked several times to make himself comfortable on the couch in which ever position he chose.  Also given a drink of water to take two Tylex tablets.  He complained this examination made his benefit "not worth it".  Encouraged to take a rest in waiting area outside at end of interview".  In fact it is recorded by the Tribunal that claimant claimed he had to sit for 2 hours in the waiting room before he could go home.  The record of time in the medical report puzzles me.  The doctor made some comments which she later struck out but recorded that the examination started at 12 midday and ended at 1.35 pm, yet also recorded "claimant left at 12.45 pm".  I got no satisfactory explanation of this.

8.	All in all, I am satisfied that the Tribunal did err in not making proper findings of fact and in not going down to the date of hearing.  I am satisfied that there is no merit in the argument relating to regulation 27.  I allow the appeal and set aside the decision of the Tribunal.  

9.	I consider this is an appropriate case for me to give the decision which the Tribunal should have given.  I have considered the three medical reports of Mr F... a Consultant Neurological Surgeon from the Department of Neurology in the Royal Victoria Hospital (wrongly referred to in the Record of Proceedings as Mr F...), also the report of Mr M..., Consultant Orthopaedic Surgeon.  These reports were handed in to the Tribunal and although they were referred to in the Chairman's notes of the proceedings as being handed in no reference was made to them by the Tribunal in either its findings or its reasons.

10.	These reports were obtained in relation to a civil claim arising out of injuries received by the claimant in a road accident.  However, Mr F... recorded that having considered the reports of Mr M..., Dr C.., Dr J... and the medical records of Mr McA... that claimant's elbow showed quite a marked restriction of extension on both sides, perhaps 40% on the left and 30% on the right.  However, he considered that claimant had suffered from a long standing problem with both elbows which were not related to the road traffic accident but which proceeded same and may well have been exacerbated to some degree by the injury.

11. 	Taking that into account and the evidence of the claimant at the Tribunal hearing I am satisfied that points should have been awarded for "reaching".  I am satisfied on the evidence that 9(c) is an appropriate descriptor, this merits 15 points.  I accept and endorse the 12 points awarded by the Adjudication Officer and by the Tribunal together with the 15 points in respect of 9(c) claimant scored a total of 27 points in the All Work Test.  He therefore past the All Work Test and is entitled to Incapacity Benefit from 28 February 1996.

(Signed):  C C G McNally

COMMISSIONER

	29 May 1998