On 22 July 2016 the Appellant’s GP
wrote a letter confirming that circumstances in the Appellant’s life
caused considerable added stress such that he was unable to work.
26 July 2016 a further medical board was held on the papers and concluded that
the LTIA covered
the Appellant’s problems with work stresses.
6 September 2016 a full medical board was held with the Appellant to assess
whether the LTIA assessment
of 45% was still valid in the light of any change of circumstances. The board concluded
45% was indeed still valid. The issue of the medical certificate was not
considered at this board. The medical
certificate was therefore referred to a further medical board, on the papers,
on 26 September 2016 and the board
concluded it should not be honoured.
24 October 2016 a redetermination of the 26 September decision took place,
again on the papers and
the decision not to honour the medical certificate was confirmed.
Appellant lodged a notice of appeal on 10 November, not against the LTIA
assessment of 45% but against the
redetermination on 24 October 2016 not to honour the medical certificate and
grant either STIA for
the period of the certificate or to increase the mental impairment element of
the LTIA award to give an overall
assessment of 100% for an appropriate period.
basic provisions relating to the assessment process are in Article 16 of the
Social Security (Jersey) Law 1974 [the Law]:
Assessment of Long Term
The assessment of a claimant’s incapacitation for the purposes of long
term incapacity allowance shall take into account the period during which the
claimant has suffered and may be expected to continue to suffer from the
relevant loss of faculty.
having regard to the possibility of changes (whether predictable or not) in the
of a claimant, it does not allow of a final assessment being made up to
the end of the period which is to be take into account under paragraph (2)
provisional assessment shall be made, taking into account such shorter period
as seems reasonable having regard to his or her condition and the possibility
of changes; and
the next assessment, the period to be taken into account shall begin with the
end of the period taking into account by the provisional assessment.
(5) The assessment –
specify as a percentage the degree of incapacitation resulting from the loss of
specify the period taken into account by the assessment;
state whether the assessment is provisional or final.
the assessment of a claimant’s incapacitation –
percentage and the period to which paragraph (5) refers shall not be specified
more particularly than is necessary for the purpose of determining the
claimant’s rights in relation to long term incapacity allowance;
b) if the percentage so specified is lower
than 5%, the claimant shall not be entitled to long term incapacity allowance
in respect of that incapacitation; and
c) a percentage which is higher than 5% but
is not a multiple of 5 shall be treated as being the next highest percentage
which is a multiple of 5.
to the other provisions of this Article, provision may be made by order for the
definition of the principles on which incapacitation is to be assessed.
such order may in particular prescribe that a specified loss of faculty shall
be treated as resulting in a specified percentage of incapacitation.”
Social Security (Assessment of Long Term Incapacity) (Jersey) Order 2004 [the Order]
then provides further detail on the principles of assessment. Article 2 states:
The extent of a claimant’s incapacitation shall be assessed, by reference
to the loss of faculty incurred by the claimant as a result of the relevant
disease or injury, in accordance with the following general principles –
the incapacitation to be taken into account shall be the whole
of the loss of faculty to which, having regard to the claimant’s physical
and mental condition at the date of the assessment, the claimant may be
expected to be subject during the period taken into account by the assessment
as compared with a person of the same age and sex whose physical and mental
condition is normal;
the question whether or not any incapacitation involves loss of
earning power or additional expense shall be immaterial;
the percentage of the degree of incapacitation incurred
(whether as the result of one or more claims) shall not be taken to amount in
the aggregate to more than 100%;
incapacitation shall not be so treated as resulting from a
relevant disease or injury in so far as the claimant would in any case have
been subject to that incapacitation as the result of a congenital defect or of
a disease or injury contracted or received before the relevant disease or injury;
incapacitation shall not be so treated as resulting from a
relevant disease or injury in so far as the claimant would not have been
subject to that incapacitation but for some disease or injury that is
contracted or received after the relevant disease or injury and is not directly
attributable to the relevant disease or injury;
the assessment shall be made without reference to any of the
particular circumstances of the claimant except that person’s age, sex,
and physical and mental condition.”
boards are appointed by the Minister for Social Security under Article 34AA of
The Minister shall appoint medical boards, each consisting of one or 2 medical
(2) Subject to the provisions of this
Law, the Minister may, by Order, prescribe the procedures to be followed by a
medical board in the discharge of its functions under this Law.”
then falls to a medical board to assess whether a person has a loss of faculty
as a result of a relevant disease or injury. Article 34A of the Law states:
“(1) Subject to the
provisions of this Law, any question as to –
whether a relevant disease or injury has resulted in a loss of
whether a loss of faculty is likely to be permanent;
the degree at which incapacitation resulting from a loss of
faculty is to be assessed; or
the period to be taken into account in the assessment of the
degree of incapacitation resulting from a loss of faculty,
shall be determined in accordance
with the following provisions of this Article.
Where a person claims long
term incapacity allowance, the Minister shall refer the case to a
medical board for the determination of the questions to which paragraph (1)
If on that reference, or on any subsequent reference, a medical
board provisionally assesses the degree of incapacitation resulting from the
claimant’s loss of faculty, the Minister shall refer the case again to
a medical board before or
as soon as
reasonably practicable after
the end of the period which that provisional assessment takes into account, for determination by the
reviews of assessments of loss of
faculty made by the medical board fall under Article 34D of the Law as follows;
reviews of assessments
“(1) A medical board may review a decision of any medical board or
medical appeal tribunal if the reviewing board is satisfied by fresh evidence that the decision was given in consequence of the non- disclosure or misrepresentation of a material fact (whether by the
claimant or another person, and whether fraudulently or innocently).
Subject to paragraphs (3), (6) and (7), a medical board may review an assessment by any medical board or medical appeal
tribunal of a degree of incapacitation if the reviewing board is satisfied that, since the making of the assessment, there has been a substantial and unforeseen aggravation of the results of the
relevant disease or injury.
A medical board shall not under paragraph (2) review an assessment unless it is of the opinion that, having regard to the period taken into account by the assessment and the probable duration of the aggravation of the results of the relevant disease or injury, substantial injustice
occur if it is not revised.
Subject to paragraphs (5), (6) and (7), a medical board may
review an assessment by any medical board or medical appeal tribunal of a degree of incapacitation if the reviewing board is
satisfied that, since the making of the assessment, there has been
a substantial and unforeseen amelioration of the results of the relevant disease or injury.
A medical board shall not under paragraph (4) review an assessment unless it is of the opinion that, having regard to the
period taken into account by the assessment and the probable duration of the amelioration of the results of the relevant disease or injury, the assessment under review is not justified.
A medical board shall not under paragraph (2) or paragraph (4) –
review a provisional assessment on any application made within 6 months of that assessment; or
review any other assessment on any application made within 5 years of that other assessment,
unless a medical appeal tribunal gives leave to the reviewing board to do so.
Notwithstanding Article 16, if such leave is given under paragraph (6), the period to be taken into account on any revision
of the assessment shall not include any period before the date of the
Subject to the other provisions of this Article, a medical board
on a review deal with a case in any manner in which it may deal with a case on an original reference and, in particular, may make a provisional assessment notwithstanding that the
assessment under review was final.
The provisions of this Law shall apply to a decision on a review
under this Article as if it were an original decision.
The department’s guidelines on “Short term
deterioration and flare ups” give a useful explanation of how these
issues are dealt with:
Where an LTIA claimants loss of faculty fluctuates between good and bad days
this is already taken into account in the assessment given by the medical board
doctor. However a claimant’s condition may also be affected by short term
flare ups that may or may not be foreseeable.
example a claimant may have a planned operation or procedure in hospital for
the condition included in the LTIA assessment. They may also suffer an injury
to the relevant area of their body. In these situations it is impractical to
arrange a medical board to consider these short term fluctuations.
the claimant may as a result of the flare up be suffering from a greater loss
of faculty than could have been anticipated by the medical board doctor during
the last review.
address this the department is able to accept as evidence of a flare up a
letter from the persons GP or consultant treating them outlining the reason for
the flare up and its expected duration. Alternatively a medical certificate can
be issued for this purpose.
if a medical certificate is issued for a condition that is already included on
an LTIA claim this can only be accepted as a request for a review of the
existing LTIA awarded due to a flare up and not as a separate claim to STIA.
legal requirements for an early review in respect of prolonged deterioration
also apply to flare ups. Therefore where evidence of a flare up is received
this must be refer to a medical board doctor to determine whether the flare up
is of sufficient severity and will last a sufficient period to warrant a
revised assessment being awarded.
only exception to this is where the evidence submitted is in the form of a
medical certificate issued by a doctor at the General Hospital. In this case it
has previous been agreed with the medical board doctors that any such claims
can be accepted for a n increase in the LTIA assessment to 100% without
referral to the medical board.
is however restricted to a maximum of two medical certificates for a single period
of incapacity however long the period is for. Therefore the maximum period that
can be covered by this procedure is where the first medical certificate is
issued for a period of 4 weeks with a second certificate issued for the
following 3 months.”
relevant appeal rights are in Article 34B of the law:
to paragraph (3), a claimant shall have a right of appeal to a medical appeal
tribunal against a decision of a medical board under this Law.
An appeal shall be made in such manner and brought within such
time as may be prescribed.
An appeal shall not lie in respect of a provisional assessment
2 years has elapsed since the case was first referred to a
medical board; and
the period taken into account by the assessment does not fall wholly
within that period of 2 years.
On hearing an appeal, a medical appeal tribunal may confirm,
reverse or vary the decision against which the appeal is brought.”
should be noted that following an earlier decision of the Minister for Social
Security the time restriction specified in paragraph 3 of Article 34B has
ceased to be applied to appeals made under this Article.
an amendment of Article 34B appeals are being allowed to proceed to the
Tribunal by virtue of the powers given to the Minister under Article 34C of the
Law as follows:
Where the Minister considers that a decision of a medical board ought to be
considered by a medical
appeal tribunal, the Minister may refer the case to such a tribunal for its
On considering the case, the medical appeal tribunal may confirm, reverse or
vary the decision of the medical board.”
Department’s Presenting Officer represented the Minister in the absence
of the doctor who had carried out the redetermination (“the
Doctor”) who no longer works in the island. In written argument it was
maintained on behalf of the Minister that the Doctor had taken into account all
the relevant evidence from the Appellant and his GP and previous medical board
reports. Based on these the Doctor had assessed that the Appellant’s
condition of stress had previously been included in the assessment for LTIA.
Consequently a separate claim for STIA could not be made for this condition.
Loss of faculty due to different stressful conditions cannot be separated from
the loss of faculty the Appellant is already suffering from due to stress as a
result of the effects of the cervical spine condition. The Doctor had also considered the flare
up of the stress and concluded that the 30% included fluctuations that the
Appellant could be expected to suffer. It was argued that, although as a result
of a new event affecting the Appellant, the flare up of their stress condition
had already been taken into account by the Doctor and is included in the overall
Appellant gave evidence. He described the circumstances in his life at the time
and how he gave up work as he could no longer cope as a result of the two
difficult situations he was facing. He described how this was entirely different
from the stress he generally encounters. He used strategies to deal with this
particularly difficult period and knew in November 2016 that he had recovered
and was able to return to work. He maintained that there had been other
stressful periods in his life and times when he was unable to work and he had
not sought to seek medical certificates to cover these periods. This period he
saw as truly exceptional. He did not return to work until November but did not
seek a further certificate at the expiry of the first, seeing no point, as the
first had not been accepted. He understood the department’s position on
flare-ups and considered he had coped with previous flare- ups in the past.
This period in his life he considered to be much greater than a flare up. He
also considered this episode to be completely unrelated to his ongoing stress.
Tribunal considered it understandable that the Doctor had rejected the medical
certificate as it merely referred to “stress “ and this was clearly
included in the LTIA. This decision was made without contact with the
Appellant. When the Appellant did have the opportunity to explain his
circumstances at the early review medical board, the board was considering the
validity of the LTIA claim and did not consider the issue of the medical
certificate. The Tribunal, having
heard the Appellant give evidence, concluded that the use of the word
“stress” on the medical certificate did not adequately reflect the
difficulties the Appellant was facing at that time. Words to the effect of
“grief, loss and relationship difficulties” would have better
reflected the position. Such a description would have indicated the distinct
nature of the difficulties from those generally encountered by the
Appellant. The tribunal concluded
that these difficulties were separate from those included in the LTIA and that
the medical certificate should be honoured by means of an STIA award for the
period of the certificate. (It was noted that there may have been some
uncertainty as to whether the 1 April was the correct date that the Appellant
ceased to work. The Tribunal confirms that STIA can only be awarded for the
actual period the Appellant was not working). Whether any further medical certificates
are granted retrospectively to cover the ongoing period of absence for work is
a matter for the Appellant’s GP and the department.
Chairman S.E. Fitz 11
relation to the guideline referred to in paragraph 15 the Social Security
department would point out that this document has been written solely as an internal
guide for the use of Social Security
Officers and Medical Board Doctors working
on behalf of the of the Social Security Department. It is regularly
updated as legislation and policy changes are implemented, therefore, it is only correct at 6/3/2017.
It illustrates the guidance provided at that time and is not a legal document,
nor does it constitute legal opinion. The contents of this document
are for information purposes only.