C6/01-02(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 April 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by myself, by the claimant against a decision dated 13th April 2000 of an Appeal Tribunal sitting at Belfast.  That Tribunal had disallowed the claimant’s appeal in connection with Incapacity Benefit.  The Tribunal considered that the claimant had failed the “All Work Test” in connection with that benefit and was not entitled to the benefit from and including 27th January 2000.  The claimant’s appeal to me was out of time and I extended the time.  The grounds of appeal were as follows:-

“The medical referee overlooked the problem with my right hand which was not mentioned either in the examination or the assessment of the points system.  This could make a considerable difference to my points assessment the hand as you can see affects the way in which I now write and pick up things and handle things.”

2.	Observations on the application were made by the Department by letter dated 20th March 2001.  This letter was from Mr Fletcher of the Decision Making and Appeals Unit.  Mr Fletcher opposed the appeal.  Mr Fletcher referred to the claimant’s appeal letter to the Tribunal dated 2 February 2000 wherein he had commented about his right hand not being addressed by the medical examination which took place on 2 December 1999 and had set out the difficulties which he had in connection with his hand.  Mr Fletcher further referred to the All Work Test questionnaire in which the claimant had given details of his operation and his problems with his shoulders and neck and had indicated the activities with which he claimed functional limitations.  He referred further to the examination of 2nd December 1999 during which interview the claimant was recorded as telling the doctor that he experienced pain in both shoulders particularly the left worsened on certain movements.  He had also stated that he had no other complaints.  The Medical Examiner had recorded observations of the claimant using both hands normally and a clinical examination.  In Mr Fletcher’s submission the doctor basing his views on these matters considered that the claimant had some difficulty with reaching but no other limitations within the prescribed activities of the All Work Test.  The Department accepted this evidence and scored the claimant accordingly.

3.	Mr Fletcher stated that the claimant had not attended the hearing of his appeal nor submitted any medical evidence to support his appeal contentions.  He therefore submitted, based on C32/98(IB) paragraph 10 that it was difficult to envisage how the claimant hoped to discharge the burden of proof relevant to his appeal.  However, based on C37/98(IB) paragraph 12 Mr Fletcher submitted that this did not lessen the Tribunal’s duty to give an adequate explanation as to why it reached the decision it did.  This involved, in Mr Fletcher’s submission, the Tribunal’s decision making it apparent from what it stated by way of reasons that it had considered the points at issue between the parties and that the Tribunal should indicate the evidence on which it had come to its conclusions.  Mr Fletcher therefore submitted that it was incumbent on the Tribunal to deal with the claimant’s stated grounds for appeal and make apparent in the reasons for its decision that it had done so. 

4.	He submitted that the Tribunal had done this.  The Tribunal had indicated that it had carefully considered the submission in full and the submission obviously included the contentions of the claimant.  He noted further that the Tribunal had made findings on all the contested activities and considered that there were no limitations other than with reaching.  Mr Fletcher submitted therefore that while the Tribunal had made no specific reference in its reasons to the claimant’s alleged problems with his right hand those reasons could not be read in isolation and had to be read in conjunction with the evidence presented to the Tribunal.  As authority for this Mr Fletcher cited C20/99(IB) paragraph 17.  He submitted further that it was quite apparent that the Tribunal accepted the Examining Medical Practitioner’s report as an accurate assessment of the claimant’s limitations and rejected the claimant’s assertions because they were not supported by medical evidence.  Mr Fletcher therefore supported that the reasons were sufficient to meet the minimum statutory requirements and he therefore opposed the appeal.

5.	The claimant was given an opportunity to comment on the Department’s observations but did not do so.

6.	I think it worth setting out in this case the claimant’s grounds for appeal to the Tribunal.  They are as follows:-

“The reason I am appealing the decision I do not think the medical test was sufficient in that it did not address all the problems like my right hand which had a dybitrons [sic] operation now the little finger goes across the next finger which causes major problems i.e. writing lifting and carrying was not addressed if you check the medical records of my case you will see there is also a weakness in the right shoulder arm and hand as well as the left.”

7.	In the form e.g. “incapacity for work questionnaire” which was dated 30th September 1999 the claimant indicated that he could not tie a bow in string but made no mention of any inability to use a pen or pencil.  He made other complaints about reaching and lifting and carrying and as regards lifting and carrying stated that he could not lift or carry as his grip had been affected there being a weakness at the top of the back bone which affected the neck, shoulders and strength of grip.  There were other activities claimed to be affected.

8.	The doctor who had examined the claimant on 2 December 1999 had recorded, as Mr Fletcher states, that the claimant indicated problems with both shoulders the left being worse.  The claimant also told the doctor of an abnormal heart condition some five years previously for which the claimant was now on no medication though recalled regularly to the clinic.  The doctor recorded the claimant’s shoulder complaints as “There is pain in both shoulders – worse on (L) – worse on certain movements i.e. reaching up.  His shoulders are painful at night and would wake him up”.  He also recorded “No other complaints”.  The claimant’s typical day was recorded as being able to wash, dress and shave himself, making light lunch, looking after son, heating pre-prepared (by wife) meals, no longer driving, helping out with light housework.

9.	Among the documents which the Tribunal had before it was a record report dated 8 May 1997 which indicated reduced grip and pinching ability in each hand.  It also had a medical certificate from the claimant’s doctor dated 9 June 1997 stating that the claimant had had a frozen right shoulder and was now developing a frozen left shoulder. 

10.	The period which the Tribunal was dealing with was a period some two and half years after these latter reports i.e. the decision that the claimant was not incapable of work from and including 27th January 2000.

11.	Unfortunately the claimant failed to attend the Tribunal hearing.  The Tribunal decided to proceed in the matter and it apparently had before it all the documents attached to the Adjudication Officer’s submission.  I can see no indication that the Tribunal did not consider the medical evidence indicated, rather the reverse as it has specifically recorded that it did consider the Adjudication Officer’s submission in full and these documents were attached to that submission.

12.	Mr Fletcher is correct in his submission that it is usually more difficult for a claimant to succeed in an appeal if he does not attend but in this case, the decision being a supersession decision the onus of proof was on the decision maker though not necessarily in relation to satisfaction of the All Work Test.  The decision maker did attend and did produce evidence in support of his decision and grounds for supersession in the form of the medical referee’s evidence. 

13.	It is quite obvious from the reasons for the decision that the Tribunal placed particular emphasis on the report of the examining doctor and the fact that the claimant was taking no medication for pain and had had no referrals for shoulder or neck pain.  It made findings on all the disputed descriptors and I can find no indication that any evidence or contention was ignored.  

14.	The claimant, it is true, had sent in documentation in relation to his right hand and shoulder difficulties but other than the claimant’s own statements, which of course are evidence, this documentation was some two and a half years before the period which had to be dealt with by the Tribunal.  It is unfortunate that the claimant did not attend the hearing to put his case forward but the choice in relation to that was his.  The documentation being so out of date was not of great relevance but in any event I can find no indication that it was ignored rather the reverse as it was included with the submission.

15.	The Tribunal was entitled, as it clearly did, to rely on the medical referee’s report and the fact that the claimant was not taking medication for pain and had no referrals for the shoulder/neck pain.  Its findings are clearly supportable on the evidence and while I would have preferred rather more extensive reasoning in relation to the conflict of evidence it is quite clear that the Tribunal preferred the evidence of the Examining Doctor to that of the claimant.  Indeed the claimant’s own evidence was somewhat contradictory with relation to the right hand problem arising from the Dupuytren’s contracture he having indicated to the Examining Doctor that there was no problem in relation to that but having indicated in his questionnaire that there was a problem and similarly in the appeal letter.

16.	I consider that the Tribunal’s decision was supportable on the evidence before it, that it’s reasoning was, just, adequate and that it did not misdirect itself on the law.  I therefore dismiss this appeal.

MOYA F BROWN

COMMISSIONER

25 JUNE 2001