[2006] NISSCSC C6_05_06(IB) (3 April 2006) 
Decision No:  C6/05-06(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 18 January 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against the decision dated 18 January 2005 of an appeal tribunal sitting at Belfast.  My decision is given in the final paragraph.

2.	The tribunal disallowed the claimant’s appeal against a Departmental decision dated 18 June 2004.  That decision superseded an earlier award of incapacity credits (the claimant having insufficient contributions to be entitled to incapacity benefit).  The reason for the supersession was that the claimant no longer satisfied the personal capability assessment.  It is not in dispute that he was required to satisfy that test before he could be entitled to the said credits.  On appeal the tribunal found that the claimant scored 12 points on the said assessment.  As this was insufficient to pass the assessment he was therefore not entitled to the said credits.

3.	In the appeal to me the claimant is represented by Mrs Carty of the Law Centre (NI) and the Department by Ms Fleming of its Decision Making Services unit.  I am grateful to both representatives for their considerable assistance.  

4.	The background to the case is that the claimant chose to have his appeal to the tribunal determined by way of a paper determination.  Had he sought to appear before the tribunal he would have been entitled to a hearing.  The grounds of appeal as indicated on the OSSC1 form received on 27 June, further comments dated 10 November 2005 and at hearing before me are essentially as follows:

	The tribunal erred in failing to consider whether this was a case in which it was appropriate for it to adjourn and direct an oral hearing.  
	In her submissions on this matter Mrs Carty made what I think to be a mistaken reference to regulation 39(5) of the Social Security and Child Support (Decision and Appeals) Regulations (Northern Ireland) 1999 as indicating the tribunal’s powers to adjourn.  That paragraph relates to powers of a legally qualified panel member not of a tribunal.  However the matter is of little importance as I consider (in agreement with Mr Commissioner Williams in CDLA/1552/1998) that although there is no express provision in the said Regulations dealing with the tribunal’s adjournment of paper hearings, a power to adjourn must exist in a tribunal.  If it did not, the direction making powers of the legally qualified panel member under regulation 78(2) which can be exercised “at any stage of the proceedings” could not be exercised once the hearing had begun.  It is, in my view, inherent in the exercise of this statutory power that there is an inherent power of adjournment in a tribunal conducting a paper hearing.

5.	Mrs Carty submitted that there should have been consideration of an adjournment because the claimant had, both in his appeal letter and in the history which he gave to the examining doctor (EMO) referred to suffering from a disease which he varyingly referred to as “kinbox disease” and “kynbox disease”.  The tribunal attempted to find a definition of this disease in medical dictionaries and on computer.  It was unable to do so because the claimant had misspelled the disease which should have been spelled “kienböck’s disease”.  The claimant had, in Mrs Carty’s submission, had major surgery as a result of this disease and the functional impact of this condition was relevant to the activity of lifting and carrying which was a disputed descriptor.

6.	Mrs Carty further submitted that the tribunal had only limited information before it in relation to the claimant’s problems arising from depression and that it should have considered adjourning to direct an oral hearing in relation to this matter also.

7.	Mrs Carty further submitted that the tribunal’s reasoning indicated that it was unaware of or ignored its powers to adjourn.  She placed some reliance on CDLA/1552/1998 where the Commissioner concluded that a tribunal had erred in law by not considering the use of its powers to adjourn.

8.	Mrs Carty withdrew, I consider correctly, the part of the grounds relating to the claimant having been awarded disability living allowance (DLA).

9.	Ms Fleming opposed the appeal.  She submitted, in written observations dated 10 October 2005 and at hearing, that remarks in the first and last paragraphs of the decision were merely statements of fact and referred in this connection to paragraph 12 of decision CDLA/1347/1999.  The remarks did not indicate an unawareness of the power to adjourn nor that that power was ignored by the tribunal at the time of the decision.

10.	As regards adjourning for purposes of getting further information in relation to kienböck’s disease, Ms Fleming posed the question, if the tribunal had considered adjourning where was it to go for further evidence?  The claimant himself misspelled the disease several times and had told the EMO that his general practitioner had no notes on the matter.  In any event, in Ms Fleming’s submission, the tribunal not knowing the exact nature of the disease was not fatal to its decision.  The tribunal was dealing with functional limitations as measured by the personal capability assessment.  The EMO had accepted that the claimant had problems with his left wrist and assessed his functional abilities.  The tribunal also accepted the problems with the left wrist and assessed the problems arising therefrom.

11.	As regards the mental health descriptors Ms Fleming submitted that the EMO report indicated that the EMO had given consideration to the mental health descriptors and based his report on evidence and observations.  Ms Fleming stated that she was not aware of whether or not the EMO did or did not ask the claimant specific mental health questions (Mrs Carty had contended that he did not).  The EMO had assessed the claimant on the test and there was enough evidence for the tribunal to reach its decision and nothing to indicate that the tribunal should adjourn.

12.	The tribunal’s reasons for decision are relatively concise and I set them out below:

“This appeal was, at claimant’s option, dealt with by way of Paper Determination.  Consequently the Tribunal did not have the benefit of direct evidence from the claimant but had to rely upon the documents in the Submission.

Claimant is aged 43 and claimed Incapacity Benefit from 14th February 1994 by virtue of crushed bones to left arm and wrist.  He was not entitled to benefit because he did not satisfy the contribution conditions but was awarded contribution credits for weeks of incapacity.  As part of a periodic review he was required to complete a questionnaire which he returned to the Department on 9th December 2002.  He was examined by a Medical Officer on 8th January 2004.

It was agreed by the Claimant that in 8 descriptors in respect of physical activities there was no difficulty.  He claimed problems with sitting, standing, walking, climbing stairs, reaching and lifting & carrying.

Tribunal accepts that there are problems with claimant’s left wrist.  It also accepts, on the basis of the Medical Officer’s findings, that there are some problems with his low back which may to some extent affect the length of time for which he can sit or stand.  It is recorded that his legs are ‘neurologically normal’ and that his knees have ‘normal range of movement’.  (Tribunal notes that claimant is still able to drive a car).  Accordingly, the limitations cannot be great and are as set out in the Decision.  So far as reaching is concerned, Tribunal accepts that the injury to his wrist may have some residual effect (although it is now a good many years since the injury occurred).  It notes that claimant did not permit a full examination of the wrist and therefore cannot make any categorical findings in this respect but must rely upon the Medical Officer’s opinion based upon the examination which he was able to carry out.  Tribunal accepts that there is a degree of pain but the claimant’s description of his normal day shows a reasonable level of activity.

Claimant had also indicated that he suffered from depression.  There is no evidence of any clinical depression.  Claimant has not had any contact with psychiatric services.

In his letter to the Tribunal Claimant said that he has ‘kinbox disease which is a bone crumbling disease’.  That disease is not mentioned in any medical dictionary held by Appeal Service.  A computer search produced only one reference to it wherein it was described as an alcohol related heart disease.  He had mentioned this disease to the Medical Officer but there was no supportive evidence and he told the Medical Officer that his General Practitioner did not have any notes on it.

Tribunal feels that, on the evidence before it, the claimant scored 12 points on the Personal Capability Assessment and accordingly the decision awarding incapacity benefit should be superseded from 18th June 2004.  It may well be that the claimant could have elaborated on his alleged problems had he been present but he had elected for a paper determination and any Tribunal can only decide a matter on the evidence before it.”

13.	I am in agreement with Ms Fleming that there is nothing in the reasoning to indicate the tribunal was unaware of its powers to adjourn nor was there any need for the tribunal to expressly refer to those powers to indicate it was aware of them.  I would not usually regard a tribunal as having erred in law because no mention is made in its decision of any consideration of adjourning because there will not usually be any reason why a tribunal should adjourn a case where a claimant has chosen to have his appeal determined on the papers.  As Mr Commissioner Rowland stated in CDLA/1347/1999 at paragraph 12:

“Of course, he [the claimant’s representative] is right that mere non-attendance at a hearing is not, by itself, a ground for dismissing an appeal.  However, if a claimant does not attend a hearing, the tribunal cannot obtain from him or her the answers to any questions that they feel are raised by the evidence.  In some cases, they may conclude that the claimant has not attended for the specific purpose of avoiding having to answer such questions and so they may draw an adverse inference against the claimant.  In other cases, of which this is one, the tribunal is simply left in ignorance as to what the answers might be and whether they might have strengthened the claimant’s case.  In my view, a tribunal are perfectly entitled to make a comment to that effect in their reasoning.  That is all that was being stated in the present case.  If a tribunal are wholly unable to do justice without there being an oral hearing, they ought to adjourn the proceedings and direct that there be one, but in a case where a claimant has had notice of the relevant issues and has deliberately elected not to seek an oral hearing, as happened in this case, a tribunal are generally entitled to take the view that the claimant has had sufficient opportunity to put his or her case, even though there is a possibility that oral evidence might have strengthened it. “

14.	I consider that there is nothing in the remarks of the instant tribunal other than  those of the type indicated by Commissioner Rowland and that there is nothing to indicate that the tribunal operated in any way in ignorance of its powers to consider adjournment.

15.	I come then to decide whether there was anything which should have indicated that the tribunal should have considered adjourning.  In this connection Mrs Carty placed some emphasis on decision CDLA/1552/1998.  I am in agreement with Commissioner Williams where he states that a tribunal conducting a paper hearing because the claimant has not requested an oral hearing is not bound to decide the appeal only on the papers.  I am also in agreement with him that:

“… the waiver by a claimant of the right to an oral hearing is not the only determinant that the appeal will have a paper hearing. …” [Paragraph 10]

16.	However the fact that the claimant has not sought an oral hearing is a factor which must be taken into consideration.  I am also in agreement with Commissioner Williams that fairness may “in some cases” require that there be an oral hearing even when the claimant does not ask for one.  I do not consider that the tribunal need even consider adjourning unless there is something to indicate that the appeal should not be heard on the papers.  It therefore follows that unless there is some such indication the tribunal need not consider adjourning and need not refer to having considered adjourning.  In other words the claimant’s choice in this matter can be relied on unless there is something to indicate that it may not be proper to determine the matter on the papers.  As Mr Commissioner Williams stated at paragraph 20 of the above decision:

“… A tribunal conducting a paper hearing must have these powers in mind and must consider their use in any appropriate case. …”

	The tribunal’s duty is to conduct a fair hearing, this can be done either on the papers or by way of an oral hearing.  If there is no indication that determination on the papers would not lead to a fair hearing the tribunal need not adjourn nor even consider adjourning.  To use Commissioner Williams’ words the case is not an “appropriate case”.

17.	I come then to the circumstances of this particular case.  I consider there is no merit in the contentions relating to the mental health descriptors.  The tribunal had adequate evidence upon which to reach its decision and there was nothing to indicate that the claimant’s attendance or any further information was needed to enable it to do so.  The appeal letters dated 26 July 2004, 4 August 2004 and 3 December 2004 are written in a coherent way and it is obvious therefrom that the claimant was well aware of the issues in the case.

18.	As regards the submissions relating to the “kienböck’s disease” this is mentioned in the appeal letters and was listed by the EMO in quotation marks as “kinbox disease”.  It was not mentioned as such in the general practitioner’s certificate dated 15 April 2002 which merely states under the heading:

“Diagnosis of your disorder causing absence from work”

“Surgery 2 L wrist”.

19.	I find parts of the EMO report, of which I have only a copy, somewhat difficult to read but it appears that the claimant informed the EMO that he was “exempt in England because of ‘kinbox disease’”.  The EMO has noted:

“No supportive evidence”

	and it appears that the claimant informed the EMO that his general practitioner did not have notes about the disease.  The claimant would not permit full examination of his wrist by the EMO.  The EMO found him to have normal grip right and left hands and to have neurologically normal upper limbs and scarring of the left wrist.  He found also that the claimant’s reach was normal, though slower on the left side and that there was a decreased range of movement on the left wrist.  The EMO stated that he found it difficult to quantify the left wrist problem because the claimant did not permit full examination but found the history consistent with the claimant being unable to lift heavy things with his left hand and the EMO therefore considered descriptor 8(f):

“Cannot pick up and carry a 2.5kg bag of potatoes with one hand but can with the other.”

	to be appropriate.

20.	The history given to the EMO was of the claimant living alone, making tea, using the computer, driving to the shops, shopping, though sometimes being helped to shop by a friend, washing clothes by machine, self-dressing, making meals for himself, doing housework and smoking.  In his appeal letters the claimant had mentioned that a friend changed his bed, washed and ironed for him, that he sometimes had problems lifting a full kettle and could hardly use his left hand because of pins and joints from the operation and that he could not lift a cup with his left wrist.

21.	The tribunal accepted that there were problems with the claimant’s left wrist but relied on the EMO’s opinion.  It accepted that there was a degree of pain but stated “the claimant’s description of his normal day shows a reasonable level of activity.”

22.	There was therefore a conflict between the claimant’s evidence as to his limitations and the EMO’s report on which the tribunal relied.  That does not, however, mean that the tribunal could not decide the matter.  It could, without any need for adjournment, assess the reliability and weight to be given to the evidence before it.  

23.	The tribunal was concerned with the claimant’s functional limitations as measured by the personal capability assessment.  Ms Fleming is correct that this, not diagnostic labelling, was the tribunal’s focus. It did accept that there was a continuing problem with the claimant’s wrist and reduced function of the wrist.  It relied, as it was entitled to do, on the EMO’s assessment of functional limitation.  

24.	This case is, however, unusual in that the claimant was contending that he had an ongoing problem with the wrist by virtue of the kienböck’s disease process.  The tribunal found him to have had an injury which had occurred “a good many years since”.  It tried to ascertain what kienböck’s disease was but could not do so because of the claimant’s misspelling of his condition.  It only found one reference, to “kinbox disease”, which it described as “an alcohol related heart disease”.  It is quite apparent that this is not what the claimant was suffering from.  The claimant had put some emphasis on the fact that the disease process, not merely previous injury, was affecting him.  He was contending that he had an ongoing disease process with a diagnostic name which he stated to the EMO had been diagnosed at Bristol Royal Infirmary.  Against that total background I consider that the tribunal should have adjourned to afford the claimant an opportunity of producing additional information in relation to this matter.  True, it was dealing with functional limitation, but in so doing verification or otherwise of the claimant’s contentions was relevant and the existence or otherwise of this disease process was a salient feature of the claimant’s appeal.

25.	I therefore set aside the tribunal’s decision as in error of law.  This is not a case where I consider that I can give the decision which the tribunal should have given.  The matter is therefore remitted to a differently constituted appeal tribunal for rehearing and redetermination.  The claimant should not take this setting aside as any indication of the likely substantive outcome of the appeal.  It is for him to produce evidence in support of his contentions that he suffers from the relevant disease and as to its effects.  The tribunal is required to assess his functional impairments as measured by the personal capability assessment at the time of the Departmental decision.

(signed):  M F Brown

Commissioner

3 April 2006