Decision No: C1/03-04(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 November 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by the Legally Qualified Panel Member, by the claimant against a Tribunal decision dated 13 November 2002.  That decision disallowed the claimant’s appeal against a Departmental decision dated 20 May 2002 which decided, for the purposes of incapacity credits, that the claimant’s capacity for work was to be tested using the personal capability assessment (PCA)	and that he could not be treated as incapable of work in accordance with that assessment from and including 20 May 2002. He was therefore not entitled to the credits from that date.  There was no issue raised at any stage, including before me, that capacity for work was to be tested in any other way than under the PCA nor that the claimant could be entitled to the credits if he did not satisfy the PCA.  Before me the claimant was represented by Mr. Hatton BL of the Law Centre (Northern Ireland) and the Department by Mr Fletcher of the Decision Making and Appeals Unit.  I am grateful to both representatives for their considerable assistance.  I held a hearing which the representatives attended but which the claimant did not attend.  My decision is given in the final paragraph.   

2.	The claimant’s grounds of appeal were contained in an OSSC1 form received in the Commissioners’ Office on 28 March 2003.  The initial grounds were five fold but at hearing two of the grounds were dropped, in my view correctly.

3.	The remaining grounds which I shall call 1, 2 and 3 related to the manner in which the Tribunal had dealt with the evidence.  Ground 1 related to the claimant’s evidence in relation to possible referral to physiotherapy.  The record of proceedings records the claimant as stating that he had suffered a recent assault in October 2002 and states: -

“He is going to go for physiotherapy at the Mater Hospital as a result of this incident, he believes.”

There is no other evidence that the claimant was going for physiotherapy.  It is further recorded that the observations of the examining doctor (EMP), which were to the effect that the claimant was exaggerating his condition, were put to the claimant who responded by asking why was he being referred to physiotherapy.  

4.	In its reasons for decision the Tribunal stated: -

“… We noted the recent referral to physiotherapy and we consider it fair to assume that [the claimant’s] referral to physiotherapy was only a recent addition designed to enhance his prospects of success at this appeal hearing.”

5.	Both at hearing and in the grounds of appeal Mr Hatton submitted that he did appreciate that the claimant’s evidence as to referral to physiotherapy was vague but the Tribunal did seem to accept that he was referred to physiotherapy.  This referral was a matter for the claimant’s doctor.  The claimant had no control over it and he considered that the Tribunal’s conclusion in relation to that evidence was an unfair one.

6.	Mr Fletcher submitted that the claimant appeared to be referring to physiotherapy arising from an assault in October 2002.  The Tribunal could not take into consideration this assault as it could not take into consideration circumstances after the date of the decision under appeal (20 May 2002).  The matter of physiotherapy appeared to arise in relation to the Tribunal seeking to test the claimant’s veracity – it had generally found him to be an unreliable witness.  It was fairly apparent from the reasons that the Tribunal thought that the claimant had either made up the reference to physiotherapy or had promoted the reference in an attempt to obtain benefit.

7.   Grounds 2 and 3 related to a letter dated 9 September 2002 from the claimant’s General Practitioner (GP).  The letter was in the following terms: -

“[The claimant] is extremely anxious and depressed at present.  It is causing significant disability at present.  He is unable to freely move around Belfast because of paramilitary threat – very active.”

There then followed a list of the current medication.  The doctor then stated: -

“I feel this gentleman should be considered a medical exemption due to current mental state.”

8.	Mr Hatton submitted that the Tribunal had treated this evidence in a very harsh manner.

9.	Commenting on this evidence the Tribunal stated: -

“We looked to the General Practitioner’s letter dated 9 September 02 from Dr McN….  There is no clinical diagnosis made by Dr McN… in accordance with the International Classification of Diseases.  His report seeks to lend weight to this man obtaining benefits rather than assessing the situation as a clinical doctor.  His report is virtually useless in this regard.  He adds more weight to his view that the threat of criminal violence upon this man is “very active”.  Again this is outside the scope of a doctor’s remit.  There is of course referral to the medication but he does not explain why the medication is prescribed or what value or use it may be to this Appellant.  It does not assist us greatly.”

Later in the reasoning the Tribunal stated: -

“The Tribunal accepted that there were some mental difficulties supported by the view that medication tended to be prescribed, albeit in a minimal form.  These difficulties are reflected in the scoring.”

10.	In relation to the second and third grounds Mr Hatton submitted that the Tribunal had treated the letter from Dr McN… very harshly.  He submitted a letter sent in fax form on 1 September 2003 from a Dr R…, Medical Epidemiologist with the Office of National Statistics. This letter, a copy of which was given to Mr Fletcher, consisted of certain information concerning the International Classification of Diseases (the ICD classification referred to by the Tribunal).  This letter stated that the term “depression” on its own would be coded to C32.9 as described on page 335 of Volume 1 of ICD-10.  Mr Hatton submitted that it was reasonable to assume from Dr McN…’s letter that the claimant suffered from depression.  He submitted that the medication would indicate a state of depression and that the claimant had been on this medication for some time, it being mentioned in his claim form.  He acknowledged that it was unfortunate that the GP did not state that the claimant was suffering from depression but the opening statement and the medication prescribed would indicate this.

11.	With relation to ground 3 Mr Hatton submitted that the Tribunal seemed to require Dr McN… to indicate why he was prescribing medication. In Mr Hatton’s view this seemed a somewhat perverse requirement given that there was a medical member on the Tribunal and that the drugs in question were commonly prescribed.  He submitted that the threat of paramilitary violence was the cause of the claimant’s anxiety and depression and that the evidence suggested that he was anxious and depressed and the reasons for this.  In Mr Hatton’s submission it was unfair to conclude that the doctor’s letter was virtually useless.  

12.	Mr Fletcher submitted that when looking at the assessment of Dr McN…’s letter it was important to note that the letter was dated 9 September 2002 some 4 months after the decision under appeal.  In several sentences the doctor made reference to the situation “at present”.  He submitted that the Tribunal was going back to the situation in May 2002 and in that context it was entitled to its conclusion that Dr McN…’s letter was not of great assistance.  In addition the Tribunal went on to refer to the claimant having attended two General Practitioners and it would seem that the claimant had changed practice, he being under the practice of a Dr B… until December 2001 and then changing to another practice.  The indications were that he did not attend his previous General Practitioner often.  

13.	As regards the question of clinical diagnosis the Tribunal’s words were not, in Mr Fletcher’s submission, well chosen but the Tribunal was entitled to conclude that the letter left doubts as to whether the claimant was clinically depressed.  The Tribunal had expressed the view that the medication was in “minimum form”.  The Tribunal’s conclusion that the General Practitioner’s letter did not help it to assess the claimant’s functional ability as at 20 May 2002 was reasonable.

14.	Mr Hatton here conceded that the Tribunal’s reference to medication being prescribed in minimal form might be enough to enable the Tribunal to conclude that there was no clinical diagnosis of depression but he still expressed the view that the treatment of the said doctor’s letter and the demands made on it were unfair and unreasonable.

15.	As regards ground 5 which related to descriptor 10(e) in the activity of “speech” in the PCA, this descriptor reads: -

	“Strangers have some difficulty understanding speech.”  

If fulfilled, this descriptor earns 8 points.  Mr Hatton and Mr Fletcher had no directly relevant case law to cite.  Mr Hatton submitted that the Tribunal members were essentially strangers to the claimant and that he was paranoid and fearful of strangers in case they were paramilitaries.  As he became aware that the Tribunal members were not paramilitaries he became more at ease.  Mr Hatton submitted that the essential question was whether a stranger would take the time to understand the claimant (this was in relation to the question of whether the claimant’s speech was difficult to understand or merely that his enunciation of words was slow).  He stated that to satisfy this requirement it was not necessary that the claimant’s speech be incomprehensible.  Mr Hatton submitted that the Tribunal did not deal with the issues of who was a stranger, what was meant by “some” difficulty, etc.  This in his view indicated that the Tribunal had not applied the correct test.  Mr Hatton submitted that the Tribunal had unfairly based its findings on the descriptor of speech solely on its own observations and that an error of law also arose from that.

16.	Mr Hatton submitted that after a period of time the Tribunal was no longer composed of strangers.  The claimant’s stutter, coming from the fear of paramilitary violence, after a while disappeared and the Tribunal could no longer be classed as strangers.  It was there that the error arose.  In Mr Hatton’s submission a stranger was someone who was being met for the first time.  The descriptor had to be construed as if the claimant was employed and had to meet people for the first time and the question had to be asked would they be able to understand him the first time they met.

17.	Mr Fletcher stated that the interpretation of the word “Strangers” was important.  It was only sensible that the interpretation to be given to this was of someone who was unfamiliar with the claimant’s speech pattern.  Mr Fletcher contended that in evaluating the claimant’s speech pattern the Tribunal was entitled to use its observations.  The Examining Medical Practitioner had expressed the opinion that strangers would have some difficulty in understanding the claimant’s speech but examining doctors were not familiar with the law and box 21 of the Examining Doctor’s report (where the observed behaviour was recorded) stated: -

“Stammered throughout interview, easy to understand, just slow.”

18.	In Mr Fletcher’s submission the Examining Doctor would qualify as a stranger.  The finding as to whether or not a stranger would have difficulty in understanding the claimant’s speech was for the Tribunal to make and provided it was based on evidence it could not be upset. 

19.	With regard to the meaning of the word “some” in the said descriptor, in Mr Fletcher’s submission the dictionary meaning of “some” could extend to a little or to a considerable amount.  Eight points could be awarded if the descriptor was satisfied and in Mr Fletcher’s contention this indicated that more than a minimal disability was required.

20.	I begin by observing that the assessment of evidence as to credibility, weight, etc, is a matter for the Tribunal as the fact-finding body.  I can upset it only if it is perverse.  As regards the evidence in relation to the physiotherapy I begin by observing that there was no evidence of any actual referral having been made though the Tribunal appeared to accept that one was made.  It was here dealing with a situation where the claimant had been complaining for a very substantial period of time that his ability to walk was extremely limited (in his questionnaire he limits it to 55 yards or less without having to stop or without severe discomfort).  He also made a complaint that his ability to sit, to use stairs, to stand, to bend and kneel were all very limited.  The claimant himself was putting forward the fact that he had been sent for physiotherapy as a reason for counteracting the Examining Doctor’s view that he was exaggerating his conditions.  As the referral to physiotherapy, if it actually took place, appears to have been in relation to an assault suffered some 5 months after the date of the decision under appeal, it appears to me quite obvious that the Tribunal was looking at this matter only from the view point of assessing the claimant’s credibility.  The claimant was putting forward as evidence for his entitlement at the time of the Departmental decision a referral to physiotherapy unassociated with the conditions which he contended entitled him to incapacity credits. The referral was instead associated with an assault which took place after he was disallowed those credits.  In that connection therefore I do think that the Tribunal was entitled to express its view on the referral to physiotherapy and that that view, while robust, was one which the Tribunal was entitled to hold.  Essentially the referral was irrelevant but mention was made of it by the claimant and the Tribunal was entitled to deal with it.

21.	With regard to ground 2 and 3 the Tribunal was, in my view, entitled to its view that Dr McN… had not made a clinical diagnosis of depression.  The tenor of his letter would indicate that the claimant felt depressed and anxious and that this was related to a paramilitary threat.  There was not any reference to the International Classification of Diseases and while this is by no means essential it would have helped.  In addition there was no indication of the criteria observed by the doctor in expressing the view that the claimant was extremely anxious and depressed.  Merely feeling anxious and depressed as those words are often used in everyday speech is not necessarily sufficient to qualify a person.  These feelings can be a perfectly normal response to adverse events (such as a threat of paramilitary violence).  If these feelings are short of a clinical illness of depression and/or anxiety state the feelings themselves may not amount to a specific mental illness or disability as required by regulation 25(3) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.  It does appear to me that that was the distinction which the Tribunal was making and that it was entitled to the view that there was not a clinical diagnosis of depression or anxiety state made in accordance with the relevant classification.

22.  	I consider that it was also entitled to the view that the doctor’s letter was lending weight to the claimant obtaining benefits.  Indeed the doctor has expressed a view that the claimant should be exempt from the PCA.  The Tribunal was expressing its view as to the weight which should be attached to the doctor’s report.  It was not, in my view, attacking the doctor’s integrity nor was it stating that his letter, so far as it went, was inaccurate.  I do consider that the Tribunal was entitled to its conclusion that the letter was not of great assistance to it.  In addition, as Mr Fletcher has mentioned, there does not appear to have been very frequent attendance by the claimant on his previous General Practitioner despite the indication by the claimant of very serious disability.  I do not consider that there is any error of law in this respect.

23.	I then come to ground 5 – the ground relating to descriptor 10(e).  I am not prepared to substitute language of my own for that of the legislature.  It would, however, seem evident that the descriptor indicates a level of difficulty less than “great” as this is the next descriptor up.  It would also seem that the substantial number of points awarded for it are likely to indicate that something more than minimal difficulty is necessary to satisfy the descriptor.  It is also important to note that the descriptor refers to the difficulty of the listener in understanding speech rather than to slowness of speech per se.  A person with a stammer or a stutter is often quite intelligible but perhaps rather slower in speaking.  In this case the Tribunal has obviously considered, as the Examining Doctor noted, that apart from some hesitancy at the beginning the claimant was easily understandable.  I do not say that a person with a stammer or stutter can never as a result of it satisfy this descriptor, only that in this case the Tribunal was entitled to conclude that the descriptor was not satisfied.

24.	The Tribunal was quite entitled to use its own observations in this matter.  However, it was not solely reliant on those, it also had the observations of the Examining Doctor.  Mr Hatton seeks to lessen the relevance of those observations by contending that the Tribunal after some period of time had elapsed were no longer strangers.  Mr Hatton submitted that the claimant’s fear of paramilitary violence brought on the speech problem and that when this fear was removed by his being aware that people were not associated with paramilitaries, he no longer suffered so badly from the speech problem.  Again, I do not intend to substitute my own words for those of the legislature in relation to the word “Strangers” as used in the descriptor.  It does seems to me however that strangers are likely to be those who are unfamiliar with the claimant and therefore with the claimant’s speech.  This will be those met for the first time but it can include others also. Growing ease on a claimant’s part may as Mr Hatton has contended, improve speech.  However, in this case, the accepted evidence was not to the effect that there was ever at any stage a substantial speech problem in speaking to either the Tribunal or the Examining Doctor.  The Examining Doctor indeed did observe that the claimant stammered throughout the interview but stated that he was “easily understood”.  The Tribunal observed that initially the claimant spoke slowly and was hampered slightly [my underlining] by a stutter but that part way through the hearing he was speaking fluently and without bother.  It described his processes and communication skills as being “more than adequate”, this, despite quite intense questioning.  The Tribunal formed the view, and I consider that it was entitled to form the view, that the claimant’s evidence was unreliable.  That being so it was entitled to use its own observations and indeed the observations of the Examining Doctor in order to assess where the claimant fell in the activity of speech, there being no indication that, at the date of hearing his speech had improved on what it was at the time of the disallowance – rather the reverse.  I consider that the Tribunal was, on the accepted evidence, supported by its own observations, entitled to assess the claimant as it did.  Any difficulty with speech, and it was acknowledged that there was some slight difficulty, appears not to have affected the understandability of the claimant’s speech.  I agree with Mr Fletcher that “some” in the relevant descriptor must be more than minimal.  There is no indication here that there was even minimal difficulty in understanding the claimant’s speech.  I therefore consider that there is no error of law in this respect.

25.	I am unable to ascertain any error of law whether as contended by the claimant or otherwise and I therefore dismiss this appeal.

(signed):	M F Brown
Commissioner

26 November 2003