THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSIB/160/00

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  D J MAY QC

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the disability appeal tribunal given at Glasgow on 23 September 1999 is not erroneous on a point of law.  The appeal fails.  I dismiss it.

2.	The claimant has appealed against the decision of the Secretary of State recorded at the decision notice at page 59 which dismissed an appeal from a decision of an adjudication officer issued on 15 September 1997.  The grounds of appeal are in the following terms:

“I refer to the tribunal service of 23/09/99 (sent on 02/12/99) please treat this letter as application for leave to appeal to the Commissioner on the grounds that the tribunal erred in law by failing to state in sufficient detail why the evidence for this claimant did not succeed.

To state that it contradicts other evidence is insufficient as contradiction does not of itself make the sort of evidence to be preferred to another.

The fact that the claimants evidence to BAMS was different is not of itself enough explanation as that evidence was given 4 weeks prior to the start of this period under consideration.”

3.	The Secretary of State has supported the appeal.  In his submission he said:

“4. Having considered the papers relating to these grounds, I agree entirely with what the claimant says in his appeal.

5. Only the mental health descriptors were at issue.  These were 15[b], [g], [h], 16[c], [e], 17[b], [c], [d], [e], 18[d] and [e] [page 55].  In the statement of facts and reasons for the decision, the tribunal says that the direct evidence of the claimant was totally inconsistent with all the medical evidence [page 79].

6. In paragraph 5 of CIB/15693/96, the Commissioner rejected that findings of fact in general terms were sufficient where mental health descriptors were at issue.  He held that, where a tribunal was satisfied that there was medical evidence of mental disability, it was incumbent on it to dissatisfy itself that all the descriptors relating to mental incapacity were considered.  This was held because the claimant did not have any opportunity in the incapacity for work questionnaire to deal with each of the activities prescribed by the regulations on a point to point basis.

7. I submit that the tribunal has failed to show that it has considered each of the descriptors at issue and this is an error in law.”

4.	I do not consider that there is any merit in the grounds of appeal nor the support for them.  It is clear that the tribunal did not accept the claimant’s evidence.  That was a matter which was within their province as a fact-finding body.  The basis for that view is that the tribunal found that the claimant’s evidence was not only inconsistent with the medical evidence in the case including that of the general practitioner but was also self-contradictory.  In the last paragraph of the grounds of appeal quoted above the claimant’s representative makes a submission to effect that the fact that the claimant’s evidence to the BAMS doctor was different was not in itself enough explanation because of the time that this evidence was given.  However, there is no record in the record of proceedings that it was put to the tribunal by his representative that the tribunal ought to disregard that inconsistency for the reasons suggested in the grounds of appeal.  Assessment of the evidence was a matter for the tribunal and having done so the reasoned basis for the view that they took was adequate for the purpose of explaining to the claimant why his evidence was not accepted.

5.	I do not accept the Secretary of State’s submission in paragraph 6 of his submission.  In paragraph 5(b) of CIB/15693/1996 the Commissioner said:

“It is therefore, in my judgment, incumbent on a tribunal where it is satisfied that there is medical evidence of mental disease or disability – as appears to have been the case with the present tribunal – to dissatisfy itself that all the descriptors relating to mental incapacity are considered and that the claimant has had the opportunity of dealing with those descriptors.”

I do not accept what the Commissioner says in that case as a matter of general application.

6.	In this case there was an oral hearing of the claimant’s appeal.  The claimant was represented and it was made quite clear to the tribunal which of the mental descriptors where in issue before them.  I refer in that connection to the record of proceedings recorded at page 74 which sets out the mental health descriptors said to apply.  In my view the tribunal as the claimant was represented was entitled to accept that the representative knew the case which is sought to be made and in particular which descriptors are sought to be established by the claimant.  The tribunal applied the facts to the descriptors contended for.  It was not necessary for them to explore descriptors which were not contended for by the representative.  To determine otherwise would place an unnecessary burden on tribunals.  What actually happened before the tribunal in CIB/15693/96 is not at all clear from the Commissioner’s decision as there is no quotation from the Record of Proceedings.  The decision was based on the findings in fact recorded in paragraph 3 and the reasons for decision recorded in paragraph 4.  On that basis the Commissioner’s view appears to have been formed in the light of the particular circumstances pertaining to that case.  I do not regard what is said in paragraph 5(b) of that decision as having any application in this case where as I have indicated the claimant was represented and a clear indication was given as to which descriptors he was asserting he satisfied.  It is unfortunate that the Commissioner in that case sought to set out a rule with apparent general application.  I do not accept that there is such a general rule. 

7.	The appeal fails.

						(signed)
						D J MAY QC
						Commissioner
						Date:  19 October 2000