Decision No:  C5/06-07(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 11 July 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, leave having been granted by the legally qualified panel member, against a decision dated 11 July 2006 of an appeal tribunal sitting at Londonderry.  My decision is given in the final paragraph.  The tribunal had disallowed the claimant’s appeal against a departmental decision dated 26 April 2006 and decided that the claimant was not entitled to incapacity credits from and including that date.  It appears that the claimant could only be entitled to the said credits if he was found to be incapable of work on the personal capability assessment.  His score on that assessment being found to be six points he was not so incapable.

2.	The claimant applied for leave to appeal, by letter dated 30 August 2006, to the legally qualified panel member.  This letter began by saying that the claimant must have been misunderstood and then gave evidence as to his condition.  The legally qualified panel member granted leave.  The grant was on a pro-forma COMM 12 which contained the standard phrase:

“I am satisfied that grounds have been established that the decision of the tribunal is, or may be, erroneous in point of law.”

	No other reasons were given.  While a legally qualified panel member is under no obligation to give reasons for granting or refusing leave, it would be of assistance to a Commissioner where leave is being granted to indicate the reason for the grant in that particular decision.

3.	In the appeal to me the claimant’s grounds were very similar.  He again said he must have been misunderstood and set out further evidence.  He stated his condition had worsened and said the tribunal did not take other aspects of his condition into consideration.  He gave some detail on these matters.

4.	The Department is represented in the appeal to a Commissioner by Mr Kirk of its Decision Making Services branch.  Mr Kirk opposed the appeal.  He submitted that the tribunal had based its decision on the documents before it.  It was aware of the claimant’s medical condition, had not misunderstood it and had not erred in its conclusions based on the evidence before it.

5.	As regards the claimant’s contention that his condition had worsened and that the examining medical practitioner (EMP) had recorded an out of date dosage of medication, Mr Kirk submitted that the dosage of medicine recorded in the EMP report would have been based on the information supplied by the claimant.  He also submitted that the tribunal was precluded by Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 from taking into account any circumstances not obtaining at the date of the departmental decision (26 April 2006).

6.	As regards the contention that the tribunal did not take into account other aspects of his medical condition, specifically, carpel tunnel syndrome, Mr Kirk submitted that the tribunal was aware that the claimant suffered from this condition.  It was mentioned by him in his self-assessment form and in the letter of appeal, though not specifically mentioned by either the General Practitioner or the EMP.  He submitted that the tribunal was looking at the claimant’s ability to carry out certain functions as measured by the personal capability assessment and its decision that he did not satisfy that test was not in error of law.  The claimant was given an opportunity to comment on Mr Kirk’s submissions but did not do so.

	Decision and Reasons

7.	I find myself in agreement with Mr Kirk in his admirably clear submission.  It was the claimant’s choice to have the appeal determined on the papers rather than appearing before the tribunal.  I can see no reason why the tribunal should have considered adjourning to order an oral hearing of its own volition.  It had adequate evidence to enable it to reach its decision.  It has clearly relied, as it was entitled to do, on the EMP’s report.  It has clearly considered and assessed the evidence before it, its conclusions were sustainable on the evidence, the statutory conditions appear to have been properly applied and I can ascertain no error in the conclusions.  The decision is adequately explained by the reasons which deal with the evidence.

8.	The claimant is essentially seeking to dispute the tribunal’s factual conclusions as to his functional capacity as measured by the personal capability assessment and to do so by giving additional evidence.  It is unfortunate that the claimant did not request an oral hearing when he could have attended and given further evidence to the tribunal.  The tribunal is not in error of law for not having considered evidence which was not before it.  In considering whether the tribunal erred in law I am unable to take such evidence into account.  The tribunal’s conclusions on the claimant’s functional capacity were sustainable on the evidence before it and there is no merit in the grounds of appeal in relation to those conclusions.

9.	As regards the element of deterioration in the claimant’s condition, Mr Kirk is correct in that the tribunal could not take into consideration circumstances not obtaining at 26 April 2006 (the date of the Department’s decision).  Article 13(8) of the Social Security (Northern Ireland) Order 1998 expressly prohibits it from so doing.

10.	As regards the element relating to the carpel tunnel syndrome, I am again in agreement with Mr Kirk.  The tribunal was concerned with assessing the claimant’s functional capacity.  It considered all the papers in the case which were included in the Department’s submission to it.  This included the self-assessment form and the appeal letter both of which mentioned carpel tunnel syndrome.  On the evidence before it the tribunal was entitled to its conclusion that the claimant had no problem with manual dexterity (the most likely activity to be affected). The claimant had stated to the EMP that he dressed, did light housework, cooked at times and enjoyed calligraphy and played the guitar for fun.  As mentioned earlier the overall conclusions were sustainable on the evidence.

11.	I can ascertain no merit in the grounds of appeal.  The tribunal’s decision is not in error of law and the appeal is dismissed.  If the claimant considers that his condition has worsened he may wish to consider reclaiming.  That is, however, a matter for him.

(signed):  M F Brown

Commissioner

19 February 2007