Decision No: C3/07–08(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 3 October 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant with the permission of the chairman, against a decision of the appeal tribunal sitting at Belfast on 3 October 2006 (the “appeal tribunal”).  For the reasons which I give, that decision is erroneous in point of law.  I therefore set it aside and refer the case to a differently constituted tribunal (the “new tribunal”) for a complete rehearing.

2.	The claimant, who was born on 3 July 1978 and who suffers from serious bladder problems, appealed to the appeal tribunal against a decision dated 10 March 2006, that he did not satisfy the personal capability assessment from and including that date because he had not reached 15 points from physical descriptors.  The mental health descriptors were not in issue.  The total number of points reached were nil.  Further, it was decided that he could not be treated as incapable of work because none of the exempt conditions applied.  It was further decided that he was not entitled to incapacity benefit from and including 10 March 2006.  An earlier decision, dated 2 June 2005, awarding incapacity benefit from and including 19 May 2005, was superseded.

3.	The claimant’s appeal first came before a tribunal on 1 September 2006, when it was adjourned to enable him to obtain further medical evidence and to enable the Department to correct an error in its submissions.  The appeal was heard on 3 October 2006.  The claimant attended and gave evidence.  The unanimous decision of the appeal tribunal was to dismiss the appeal.  Leave to appeal to a Commissioner was, however, granted by the chairman.

4.	I can deal with the matter shortly because I am satisfied that the appeal tribunal erred in law in the following way.  The claimant lodged medical evidence in support of his appeal.  This evidence included a number of letters from a consultant neuro-urologist at the Belfast City Hospital who was investigating the claimant’s problems.  The first in time of these letters was typed on 28 January 2005 and states that the claimant had joined the consultant’s waiting list on 8 December 2004, for a procedure to be carried out at the Belfast City Hospital.  The nature of the procedure was not explained.  The following letter was typed on 8 April 2005, following the claimant’s attendance at the consultant’s clinic two days previously.  It reads:
	
“[The claimant] is on my waiting list and has been since December 2004 for urological surgery at the Belfast City Hospital.  There is a very long waiting list for this although I am trying to bring the appointment forward.  He is unable to work until his clinical situation has resolved by treatment.”

A further letter was typed on 20 June 2006.  It reads:

	“The above patient has been under my urological care as I am his Consultant Urologist.  He has urodynamic evidence of bladder outlet obstruction and is undergoing investigation.  He currently awaits CT scan which will probably take a couple of months to be carried out.  He is unable to work due to his severe symptoms and his chronic pain.

	All of his investigations have taken a considerable period of time since the waiting lists at the Regional Urology Service are so long at present.”

Finally, in a letter typed on 28 September 2006, the consultant said:

	“[The claimant] is under my care.  I am his Consultant Urological Surgeon.  His urological difficulties (which remain under investigation) have resulted in quite a marked impairment of his daily activities particularly with regard to marked discomfort during sitting, standing and walking for any length of time.  …

	He is undergoing extensive investigation and has now been referred to Consultant colleagues of mine here in the Belfast City Hospital to further investigate his symptoms in addition to the investigations and treatment he is undergoing under my care.”

5.	Pausing there, that series of letters indicates that their writer was a consultant neuro-urologist who had been involved with the claimant’s care for at least 18 months by September 2006.  Further, that the writer had required the claimant to undergo a series of tests and investigations in order to have a full understanding of his problems.  I do not seek to fetter the fact finding powers of the new tribunal in any way but it is appropriate to say that what the consultant says is not without significance.

6.	The appeal tribunal did not accept the consultant’s evidence for the following reasons.

	“The Claimant relied on [the consultant’s] account that he “is unable to work” without treatment (letter 8 April 2005) and para one of the letter 28 September 2006. The Tribunal found that [the consultant] had offered no diagnosis to underpin his views and that he did not have personal knowledge of the matters he commented on.  It also found that he was not applying the All Work Test, as set out in legislation.  [It] preferred its own assessment of all the evidence related to the statutory personal capability test.”

7.	The Department accepts that the first part of the appeal tribunal’s reasons is in error of law.  It is submitted:

“Regarding the personal knowledge of [the consultant], I would submit that the possession or lack of personal knowledge of a claimant by a medical practitioner is not a requirement which should lead a tribunal to dismiss a particular medical opinion.  In the NI unreported decision C23/02-03(DLA) Commissioner held:

	‘8.	I am of the view that the Tribunal was quite entitled to rely, as it obviously did, on Dr G…’s factual report.  I do not accept that Dr G… was not in a position to make an assessment of the claimant’s needs.  Any doctor giving a report in the circumstances does not have to have any prior personal knowledge of the patient.  Consultants prepare reports for court cases without such knowledge and medical practitioners preparing reports for claims for state benefit are equally not required to have any prior personal knowledge of the patient.’

In view of this I would submit that it was not relevant to the assessment of this evidence to consider [the consultant’s] personal knowledge of the matters he commented on.  The evidence consists of medical facts and opinions provided by a medical professional and should be considered solely in that context.”

I accept those submissions.  I add that, as indicated above, the evidence demonstrates that the consultant had been involved with the claimant’s care for some time and that investigations were being carried out.

8.	The matter does not stop there because the Department goes on to make the following submissions:

“However I would submit that this statement by the tribunal is not an error sufficient to render its reasons insufficient or its decision in error of law.  The tribunal found that [the consultant] was not applying provisions of the functional assessment contained in the statutory test for capacity for work.  It is therefore clear that the tribunal concluded that [the consultant’s] opinions regarding the appellant’s ability to sit, stand or walk was of lesser probative value than the report of the Department’s examining doctor, who was applying the statutory test.  I would submit that the tribunal was entitled to reach this conclusion on the evidence and therefore did not err as contended.”

9.	I do not accept this part of the Department’s submissions.  It is, of course, quite clear that the consultant was not making his remarks in the context of the personal capability assessment – although I accept that the fact that the letters are addressed “To whom it may concern” indicates that they were probably provided for the purposes of a claim or an appeal .  I proceed on the basis that the consultant was unaware of the requirements of the personal capability assessment.  On that basis the comments he has made – for example that the claimant has “marked discomfort during sitting, standing and walking for any length of time” – are simply the comments of a doctor following ongoing investigations into the claimant’s problems.  They should be treated as such and not dismissed on the basis that they were not given in the context of a personal capability assessment – which they clearly were not.  The appeal tribunal’s decision to reject the consultant’s evidence for the reasons which it gave are unsustainable.  Nor was it entitled to reject his evidence on the basis that no diagnosis had been offered.  That was something to which the ongoing investigations were directed.  Where the consultant’s explanation might be said to be deficient – although I stress that this will be a matter for the new tribunal to consider – is that it contains little in the way of explanation, apart from the reference to marked discomfort, as to why the claimant’s medical problems affect his abilities to sit, stand, walk and so forth.

10.	I therefore allow the appeal and remit the matter to the new tribunal for a complete rehearing.  The weight to be given to the evidence, and how conflicts are to be resolved, are matters for the new tribunal.  However, in resolving conflicts it must have regard to the whole of the evidence.  This may mean having to accept evidence which those hearing the appeal would prefer to reject.  A tribunal should not be unduly astute to find reasons for rejecting evidence which it finds inconvenient or which is contrary to the tribunal’s preferred outcome.  

(signed): J P Powell

Deputy Commissioner

3 October 2007

C30708IB.PP