[2006] NISSCSC C3_06_07(IB) (23 October 2006)

Decision No:  C3/06-07(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 12 October 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of an appeal tribunal sitting in Belfast on 12 October 2005 (the tribunal) is wrong in law.  I therefore set the tribunal’s decision aside and return the appeal for a new hearing.

2.	The Department opposed the application but leave was granted by Chief Commissioner Martin.  In my view, the erroneous approach in law of the tribunal which I conclude has been established is best summed up by the proposition that, in all the circumstances, the tribunal’s reasoning has been unclear and inadequate.

	Error of law

	Inadequate reasons

3.	The appellant had previously been in receipt of incapacity benefit (IB) from 28 December 2001 by reason of depression.  In an IB questionnaire dated 6 September 2004, the appellant gave a description of his mental health very different from that drawn by the Examining Medical Practitioner (EMP) in his report of 13 December 2004.  In particular the EMP notes “no clinical signs of anxiety”.  In his appeal letter to the tribunal, the appellant again stressed:

“… my daily depression and anxiety I feel so bad and down that I get sueicidal [sic] I am attending a CPN …”

4.	In issue before the tribunal was the supersession adverse to the claimant based on the above EMP’s report. The onus of proof on all matters thus lay on the Department.  Yet the tribunal gives no indication in its reasoning of why it prefers the EMP’s findings to the evidence given by the appellant.  No reference is made by the tribunal, for example, to the data from which the EMP drew his conclusions with respect to the mental health descriptors nor to the impression gained by the tribunal after questions it put to the claimant utilising the expertise of the medical member.

5.	A particular gap is with respect to descriptor 17(b), “Frequently feels scared or panicky for no obvious reason”.  One of the reasons given by the EMP for rejection of the applicability of this descriptor is “clearly defined situations”.  This is not, however, what matters.  As was noted by Chief Commissioner Martin in C47/97(IB) at paragraph 15, “for no obvious reason” involves a consideration of whether “… the fear or panic was outside the normal range of reaction that a human being would have.”  The point is important because if the appellant raises his score for mental health descriptors to six, this counts as nine points when added to that for physical health descriptors and the tribunal raised the score in the latter respect to six.

6.	Further, I accept that the tribunal’s reasoning was at best ambiguous as to how it concluded as it did with respect to the activities of walking up and down stairs, sitting, standing and bending and kneeling.  All these were put in contention by the appellant’s claim form and he was unrepresented at the hearing.

7.	The tribunal’s full statement of reasons read as follows:

	“We adopt the report of the Medical Officer […] as findings of fact.

Appellant by his own account can walk at least 800 metres unaccompanied and use stairs with a banister rail.  He suffers stiffness when standing and probably needs to move around.  4(f) applies.  Sometimes he could not rise from armless chair.

Appellant over estimates some of his disabilities.  We accept that mental health descriptors 15(e), 17(f) and 18(b) apply.

In total Appellant scored 10 points.  Descriptors 4(f), 5(c), 15(e), 17(f) and 18(b) apply.  X-rays of back:  No abnormality.  May be some wear and tear.  Advised to exercise ankle.  Not seeing Community Psychiatric Nurse.  He is not incapable of work in accordance with the Personal Capability Assessment.”

8.	It is suggested on behalf of the Department that, reading the reasons as whole, the tribunal does not confirm the appellant’s complaint that he only uses stairs with a banister rail and this, combined with their adoption of the EMP’s report, adequately explains the tribunal’s decision not to award any points in relation to walking up and down stairs.  I disagree.  In the second paragraph of the tribunal’s statement, the tribunal seems rather to be referring only to those disabilities which it accepts and the more obvious inference, as the representative on behalf of the appellant puts it, is that the tribunal did accept that the appellant can only use the stairs when holding on but failed to set out the consequence of that in terms of an applicable descriptor.

9.	A similar ambiguity arises relating to the tribunal’s choice of descriptor 4(f) in relation to the activity of standing.  The EMP’s report, which the tribunal accepted in its findings of fact, indicated that there was no problem with standing.  In his questionnaire, the appellant said that he could not stand for more than 30 minutes before having to sit down (descriptor 4(d)).  The tribunal chose a descriptor in-between:  it was fully entitled to do so but must give some brief indication of why.  The comment that the appellant “… probably needs to move around” begs the question; all the tribunal needed to do was to refer to the clinical findings which suggested exaggeration in the appellant’s account.  Similar references to specific medical findings or observations might well have correctly and adequately disposed of the two other disputed activities.  

	Summary

10.	Given the sketchy and incomplete reasoning by the tribunal, I do not regard it as appropriate, as suggested by the Department, that I substitute my own decision in the case.  In particular, I am not satisfied that the mental health descriptors were dealt with properly, given that they were the original basis of the IB award and a superseding decision of 14 March 2005 is what is again under appeal to a tribunal.  The appeal is therefore returned to a new tribunal to begin again.  It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them.  Although the claimant has been successful in his appeal limited to issues of law, the decision on the facts in his case remain open.

11.	Finally, for the avoidance of doubt, I make clear that there is no conceivable error of law in a tribunal accepting most of a report but allowing modification of it in some respects, provided that a tribunal’s reasons for doing so are clearly explained.  Mere inconsistency in the use and assessment of evidence is not erroneous in law but only becomes so if it is insufficiently explained or such explanation lacks cogence.

(signed):  T Parker

Deputy Commissioner

17 October 2006