Decision No:  C4/05-06 (IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 11 November 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This case begins as an application, by the claimant, for leave to appeal against a decision, dated 11 November 2004, of an appeal tribunal sitting at Belfast.  That tribunal had disallowed the claimant’s appeal against a Departmental decision dated 19 July 2002 to the effect that the claimant did not satisfy the personal capability assessment, could not therefore be considered incapable of work and was not entitled to incapacity benefit from and including 19 July 2002.  Before the tribunal the only issue was whether or not the claimant satisfied the personal capability assessment.  The tribunal concluded that he did not satisfy that test.   It awarded him 4 points on the mental health descriptors.  He needed 10 to pass the test.

2.	It is clear from the tribunal’s reasons for decision that it found the claimant to be an unreliable witness.  It rejected his criticisms of the Examining Medical Practitioner’s (EMP) report.  After giving its assessment of the claimant’s functional impairment as measured by the personal capability assessment the tribunal stated:

“Furthermore, he did not look and present as mentally depressed or mentally ill.  He concentrated fully, his responses were quick and appropriate, he needed no prompting or other assistance, he showed no signs of distress at this ordeal and change in routine and he closely followed and participated fully in the hearing.

We feel that he is now as he was at the date of decision, 19 July 2002, when he was off medication, having responded well to it and in need of no further psychological therapies.”

3.		The claimant, through his representative, Ms Carty of the Law Centre (Northern Ireland), appealed.  The grounds of appeal were set out on an OSSC1 form received in the Commissioners’ Office on 18 March 2005.  The grounds of appeal were as follows:

1.	that the tribunal’s decision was based on a mistake as to a material fact, the claimant having been on medication from June 2002 till October 2004.  This had been mentioned in the claimant’s appeal letter dated 31 July 2002.

2.	that the tribunal had erred in failing to consider the application of descriptor 16(e) in the personal capability assessment, “Sleep problems interfere with his daytime activities.”

4.		By letter dated 30 May 2005 from Mr Hinton of Decision Making Services Branch, the Department supported the application.  Mr Hinton submitted, based on R5/99(IB) a decision of the Chief Commissioner in Northern Ireland, that it was not apparent that the tribunal had considered the evidence in relation to the claimant being back on medication from June 2002 nor as to the sleep problems.  He therefore submitted that the tribunal had erred in law.

5.		I grant leave.  Both parties to the appeal have consented to my treating the application as an appeal and so determining the matter.  I consider that the tribunal did err in law in that it reached a conclusion (that the claimant was off medication at 19 July 2002) without considering all the evidence before it.  The tribunal has referred to this conclusion in the context of relating its observations on the day of the hearing to the situation at 19 July 2002.  It has concluded that the situation delineated in the observations was the same at 19 July 2002 in part because the claimant was off medication at both dates.  Against that background I must conclude that the tribunal’s error vitiates its decision.  I set the decision aside for that reason.

6.		This issue of when the claimant re-commenced medication had previously been mentioned in an earlier decision of a Tribunal of Commissioners (C3/03-04(IB)(T)), on appeal from a tribunal decision dismissing the same claimant’s appeal from the same Departmental decision. It is, therefore, regrettable that the tribunal did not address its mind to it especially as the Department, in the addendum (dated 9 June 2004) to its submission to the instant tribunal, had included a copy of the above decision.  It was therefore before the tribunal.  It is unfortunate that the tribunal does not appear to have given full consideration to that decision and in particular paragraphs 19 and 20 thereof.

7.		As regards the second ground of appeal, I am not prepared to conclude that the tribunal erred as claimed. It is not necessary that I comment in detail on this ground save to say that the descriptor requires not merely that there be sleep problems but that they interfere with day to day activities. It is also clear that evidence relating to this descriptor as to the other relevant descriptors was taken into account and that the tribunal’s assessment of the claimant’s functional impairment as measured by the personal capability assessment was based on its view of the claimant’s evidence.  It did not allow certain descriptors (including 16e) because it did not believe the claimant.  That view was one which the tribunal was entitled to hold.  It will be a matter for the new tribunal, to which I am remitting this matter, to reach its own view of the evidence.

8.		I do not consider that this is a case where I can give the decision which the tribunal should have given.  There are evidential issues and the tribunal, with the claimant before it and its medical member, is the better body to do that.  I therefore remit the case to a differently constituted tribunal for re-hearing and re-determination.

9.		The new tribunal should make clear findings based on evidence as to whether or not the claimant was on medication at the time of the decision under appeal.  It is not bound to conclude that the claimant satisfied the test if he was on medication nor that he did not satisfy the test if he was not.  It may be of assistance to the tribunal if the claimant can obtain from his general practitioner a statement of the medication he was on at that time but that is a matter for the claimant.

10.		The tribunal should also make clear its views on the claimant’s criticisms of the EMP’s report.  It should have before it the decision in C3/03-04(IB)(T) and this decision and should bear in mind the views expressed therein.

11.	The claimant wins his appeal.

(Signed):  Moya F Brown

Commissioner

6 July 2005