Decision No: C9/03-04(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 23 January 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of the Legally Qualified Member, against the decision of an Appeal Tribunal.  The Tribunal had disallowed the claimant’s appeal against a decision to the effect that the claimant was not incapable of work in accordance with the personal capability assessment from and including 10 September 2002 and is not entitled to credits on the basis of ongoing incapacity for work.

2.	A hearing of the appeal before me was arranged at which the claimant, who was not present, was represented by Mr Hatton of the Law Centre (NI), while the Department was represented by Mrs Gunning of the Decision Making and Appeals Unit.

3.	The claimant became unfit for work and claimed incapacity benefit (IB) from 27 January 1999 by reason of fibromyalgia.  The personal capability assessment applied from 27 January 1999.  The claimant was not entitled to IB as he did not satisfy the contribution conditions for the receipt of that benefit.  However, he was awarded a National Insurance contribution credit for each complete week that he was incapable of work.  The claimant was examined by a Medical Officer of the Department on 20 December 2000.  Following this examination the Department considered all the available evidence and decided that the claimant was incapable of work in accordance with the personal capability assessment.  However, the Department decided that it was appropriate to determine the incapacity question afresh.  Accordingly the claimant was requested to complete the usual questionnaire giving details of how his illness affected his ability to perform various activities.  On completion of this form and after a further medical examination by a Medical Officer of the Department on 16 July 2002, the Department considered all the available evidence and decided that the claimant scored one point in relation to the personal capability assessment.  Accordingly the Department determined that the claimant was not incapable of work in accordance with the personal capability assessment from and including 10 September 2002 and was not entitled to credits on the basis of ongoing incapacity for work.  On request this decision was looked at again but on 17 September 2002 it was decided that the decision of 10 September 2002 should stand.  Thereupon the claimant appealed to a Tribunal.

4.	On appeal the Legally Qualified Member of the Tribunal set out, at length, what appears to be a very full record of the Tribunal proceedings and also gave full reasons for its decision.  However, it is noteworthy that in the record of proceedings it is stated that the following documents were considered: -

	“Decision Maker’s submissions and addendum.
	General Practitioner’s letter 16/1/2003.
	Disability Living Allowance report 18/1/01.”

5.	Mr Hatton submitted that (1) the Tribunal failed to give an adequate assessment of the evidence before it and (2) the Tribunal failed to take into account the issues raised by the claimant’s letter of appeal and his written submission to the Tribunal.

6.	As a preliminary point at the hearing I asked the advocates to deal with the issue of whether the Tribunal ever actually had sight of the written submissions of the claimant that were sent to the Tribunal.  It is noteworthy that these submissions were not sent to the Appeals Service office but, in error, had been sent to the Social Security Agency at Castle Court, Belfast.  However, it is clear that this office forwarded the documentation to the Appeals Service office.  The submission is in an unusual form.  It consists largely of photocopies of papers that were already before the Tribunal with pages of commentary written and typed by the claimant interpolated between copy pages of the original appeal papers.  In addition pages  photocopied from a treatise on fibromyalgia were attached.

7.	A person named as W… W… is referred to as the “appellant’s representative” although, from examination of the record of proceedings, it appears that Ms W… in reality, was acting more as a witness than as a representative.  The claimant gave oral evidence during which Ms W… interposed various comments.

8.	The record of proceedings does not indicate any direct reference to the voluminous written submission and commentary that ought to have been made available to the Tribunal.  In addition, neither the claimant nor the representative appear to have referred to this documentation either.  Furthermore, the Tribunal has made no reference to this documentation in the reasons for its decision.  Mrs Gunning, in her submissions to me, proffered the suggestion that the reference to “addendum” in the list of documents considered by the Tribunal – noted in the record of proceedings – was a reference to the claimant’s written submission/commentary.  If this is so it is a somewhat unusual way of referring to a claimant’s submissions. 

9	The major concern that I have is whether the Tribunal actually ever dealt with the claimant’s written submissions/commentary which ought to have been before the Tribunal at the hearing.  There is a possibility that the Tribunal did deal with these submissions but it is noteworthy that there is no objective reference in any of the papers before me to suggest that the Tribunal did in fact take these submissions into account.  

10.	Consequently I conclude, for similar reasons to those set out in Commissioner’s decision C14/00-01(DLA), that the claimant might reasonably be under the impression that the relevant document had not been taken into account when the Tribunal came to its decision.

11.	Therefore I find that the Tribunal has erred in law because I am not satisfied that it ever dealt with the written submissions/commentary of the claimant that was or ought to have been made available to the Tribunal at the Tribunal hearing.  Therefore I allow the appeal, set aside the Tribunal’s decision and remit the case for rehearing before a differently constituted Appeal Tribunal.  That Tribunal may find a reference in Commissioner’s decision C11/01-02(DLA) (in paragraph 13) of some assistance as therein it is recognised the difficulties that Tribunals have when dealing with documents “of doubtful standing” and which contain “a mixture of evidence and submissions of a legal nature”.  It will be necessary for the fresh Tribunal to separate out any relevant evidence from legal submissions and it must do its best to deal with the relevant issues accordingly.

12.	At the hearing before me both advocates agreed that if I were to come to the conclusion that the Tribunal erred in law in the respect set out above, no other substantive issues would remain to be decided.  I agree and, accordingly, I do not consider it constructive to deal with any other points which, in any event, have become academic in light of my decision on what I consider to be the main point in the case.  However, in the circumstances, the fact that this appeal has been allowed should not be taken as an indication as to the ultimate success of the claimant’s appeal to a Tribunal.

(Signed):  J A H Martin QC
Chief Commissioner

1 March 2004