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You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> [2004] NISSCSC C5/03-04(IB) (23 February 2004) URL: http://www.bailii.org/nie/cases/NISSCSC/2004/C5_03-04(IB).html Cite as: [2004] NISSCSC C5/3-4(IB), [2004] NISSCSC C5/03-04(IB) |
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[2004] NISSCSC C5/03-04(IB) (23 February 2004)
Decision No: C5/03-04(IB)
"My decision only for the period from and including 25 April 2001 is that [the claimant] is capable of work and not entitled to incapacity credits from and including 25 April 2001 on the basis of ongoing incapacity for work."
"Appeal Disallowed
The Appellant cannot be treated as incapable of work and is not incapable of work in accordance with the personal capability assessment from and including 25.4. 2001 and is not entitled to credits on the basis of ongoing incapacity for work."
"This is to confirm that [the claimant] attends the Royal Victoria Hospital, Belfast. He has a deficiency in his immune system and requires regular intravenous treatment every two weeks. This treatment is given as a Day Case at the Royal Victoria Hospital and, provided he continues on this treatment, he remains reasonably well.If you require any further details about this patient's case history or the condition from which he suffers, this can be forwarded on request provided [the claimant] gives permission."
"I apologise for the delay in replying to you about your appeal.I have read over the literature which you left me very carefully and I quite honestly do not feel that there is anything further I can contribute to what I said in my original Medical Report.
It is clear that when you were interviewed for your appeal you were asked about problems with sitting, problems with bending or kneeling, ability to walk or climb stairs and all of these issues have been clearly outlined.
I do not feel that there is anything with regard to your medical condition which affects your ability to perform any of these functions and therefore there is nothing further that I can add apart from the fact that you suffer from recurrent infections and require intravenous therapy on a regular basis. I doubt if either of these would influence the Appeals Committee with regard to your benefits."
"Deficiency in immune system. No medical evidence that it is severe or uncontrollable".There is no indication of the claimant responding directly to these comments. He did state that he had felt "great" at the time of the decision maker's decision but had got worse since. The tenor of the claimant's evidence was that he suffered infections/abscesses but that these infections were minor due to the treatment that he got and that he sliced and dressed his own abscesses. He also stated that he could go for months and not have any infections or abscesses and that his treatment kept his condition "stable and liveable".
"It seems to me that there is clearly a duty upon a tribunal to ensure that all relevant questions have been asked of a claimant. It could not be otherwise, given the complexity of social security law and the fact that few claimants have advisors. … The asking of questions is largely achieved by ever-more sophisticated claim forms but even the income support claim form, which runs to several pages, cannot ask all possibly relevant questions. Some questions are designed merely to elicit an answer which will reveal whether further questions need be asked later. When a case goes on appeal, it seems to me that a tribunal are not bound to ask questions that have already been asked by the Secretary of State or by an adjudication officer, unless the points have been put in issue, but they are obliged to ask those questions that have not previously been asked but which should have been asked.
32. In the present case, I agree with the adjudication officer now concerned that the claimant had raised, through the information he had given, the serious possibility that paragraph 6 of Schedule 1 to the Income Support (General) Regulations 1987 applied to him, even though he had not provided sufficient information to enable that question to be determined in his favour. The local adjudication officer appears to have overlooked that fact and consequently did not ask questions calculated to elicit the relevant evidence from the claimant. That burden accordingly fell upon the tribunal."
"He cannot be treated as incapable of work from and including 25 April 2001 because none of the exempt conditions apply.…
Therefore he is capable of work and cannot be treated as incapable of work because there are no exceptional circumstances."
"In deciding an appeal under this article, an appeal tribunal –(a) need not consider any issue that is not raised by the appeal;"
The authors of the 2002 edition of Volume III (Administration; Adjudication and the European Dimension) of "Social Security Legislation" comment on that provision as follows: -
"What does appear fairly clear is that para (a) is intended to make it explicit that there are limits to the extent to which a tribunal is under a duty to consider possible challenges to a decision that have not been raised by the claimant in the "appeal"."
I agree with that comment.
"Everything will depend on the circumstances in any given instance. … We would be slow to convict a tribunal of failure to identify an uncanvassed factual point in favour of the claimant in the absence of the most obvious and clear cut circumstances."
"(1) Where the question whether a person is capable or incapable of work falls to be determined in accordance with the personal capability assessment, a person shall be treated as incapable of work on any day in respect of which any of the circumstances set out in paragraph (2) apply to him.(2) The circumstances referred to in paragraph (1) are –
…
(e) that he is suffering from any of the following conditions and that there exists medical evidence that he is suffering from any of them.…(vii) manifestations of severe and progressive immune deficiency states characterised by the occurrence of a severe constitutional disease or opportunistic infections or tumour formation."
(Signed): M F Brown
COMMISSIONER
23 February 2004