Social Security Medical Appeal Tribunal

Case number:

[2017]TRS008

 

 

Date:

31 Mar 2017

Held at:

The Jersey Tribunal Offices, Bath Street, St Helier

Before:

Chairman B.I Le Marquand, Dr B. Kellett and Dr N. Charles

Nature of Claim:

Long Term Incapacity Allowance (LTIA)

Hearing Type:

Social Security Medical Appeal

 

 

Appellant:

“H”

Respondent:

The Minister for Social Security

 

Background

1.        The Appellant has for a number of years suffered from depression and acute anxiety which includes severe panic attacks. The details and causes of this are set out in the various letters and documents relating to this appeal but are of a sensitive and confidential nature and so will not be detailed in this written decision because of this decision's public nature.

 

2.        During the period from 2nd November 2015 to 30 October 2016, the Appellant was in receipt of Short Term Incapacity Allowance (STIA) but under the terms of Article 15 (2) of the Social Security (Jersey) Law 1974 as amended the Appellant ceased to be eligible to STIA after the statutory period of 364 days. Accordingly, on 7th November 2016 the Appellant was assessed by a Medical Board consisting of one doctor for 20% Long Term Incapacity Allowance (LTIA) in respect of loss of faculty by reason of impaired mental health function due to anxiety in respect of the medical conditions mentioned in Paragraph 1 of this Decision with the next date for assessment being set as 7th November 2017 and with the payment period being backdated to start from the end of the STIA payments. The assessment for 20% was based upon the Appellant being assessed as being at the top of the Mild range for depression which is set out in the guidance document entitled “Guide to depression assessments”, that is the top of the range from 11% to 20%.

 

3.       The Appellant was dissatisfied with the assessment of 20% and so the case was referred to a second Medical Board consisting of a second doctor who on 20th December 2016 made a revised assessment in respect of loss of faculty due to cerebral impairment in respect of anxiety/depression of 35%. This assessment was based upon the Appellant being assessed as being at the top of the Mild range for depression which is set out in the guidance document entitled “Guide to depression assessments”, that is the top of the range from 11% to 20%. However, to that figure of 20% was added a further 15% in respect of the Appellant's anxiety and panic attacks which were assessed as being quite severe. The date of the next assessment was maintained as 7th November 2017.

 

4.        On 10th January 2017 the Appellant lodged an appeal to this Tribunal dated 8th January 2017 from the assessment of 20th December 2017 in respect of 35% LTIA. This appeal was referred to the doctor who constituted the second Medical Board who by a Memorandum dated 27th January 2017 maintained the previous decision of 35% LTIA. Subsequently, a supporting letter from the Appellant's GP was referred to this doctor who by a Written Note dated 6th February 2017 and by Memorandum dated 9th March 2017 maintained the previous decision of 35% LTIA. After that, on 9th March 2017, the same doctor wrote another memorandum in which the previous decision was maintained but in which the reasons for this were clarified. The reasoning still involved an assessment for depression at the upper end of the mild category, with an uplift of 15% in relation to the panic attacks. However, in that Memorandum the doctor writes that the Appellant does have some features of the mild/moderate category, 21 – 30%, (which are then specified). The Appellant also has some features of the moderate category, 31 – 50%, (which are then specified), but does not fit completely into either of these categories.

 

The Law

 

5.       The appeal was brought under Article 34B of the Social Security (Jersey) Law 1974, as amended, (the Law) the Tribunal having the power to confirm, reverse or vary the decision of the medical board (Article 34B (4)).

 

6.       It was noted that, whilst Article 34B (3) (a) prevented an appeal within 2 years of a provisional assessment, this provision has ceased to apply to appeals. Such appeals proceed by virtue of the powers given to the Minister under Article 34C of the Law by way of reference to the Tribunal.

 

7.       The relevant provisions of the Social Security (Assessment of Long Term Incapacity) (Jersey)(Order) 2004 (the Order) are as follows:   Article 3 (1) (a) states that the incapacitation to be taken into account shall be the whole of the loss of faculty to which .. the claimant may be expected to be subject as compared with a person of the same age and sex whose physical and mental condition is normal and Article 3 (1) (b) states that the question whether or not any incapacitation involves loss of earning power or additional expense shall be immaterial.

 

Evidence

For the Minister

 

8.      The doctor who had constituted the Second Medical Board against whose decision of 35% LTIA this appeal has been made (the Second Doctor), gave sworn evidence in relation to the assessment of 20th December 2016 and in relation to the Memoranda dated 27th January 2017 and 9th March 2017 and the written Note dated 6th February 2017. The Second Doctor referred to the written assessment form dated 20th December 2016 and to the Depression Assessment Report also dated 20th December 2016 which was attached thereto. The Second doctor had seen the Appellant on that date and had had access to Jersey General Hospital notes and to the Appellant's GP's letter dated 27th November 2016 and to the Appellant's letter dated 27th November 2016, which was later attached to the Appellant's notice of Appeal. These documents contain information of a sensitive and confidential nature and so will not be detailed in this written decision because of its public nature.

 

The Second Doctor also referred the Tribunal to the written assessment form dated 7th November 2016 which had been completed by the doctor who had constituted the First Medical Board who had made an assessment of 20% LTIA and to the Depression Assessment Form also dated 7th November 2017 which had been attached thereto. These documents also contain information of a sensitive and confidential nature and so will not be detailed in this written decision because of this decision's public nature. The second doctor was of the opinion that the assessment which they had made had produced a slightly higher assessment of impairment than that made by the first doctor but indicated that that might have been simply because the second doctor was seeing the Appellant on a different day to the first doctor. The assessment which the second doctor had made was by way of averaging of the condition of the Appellant over a period of time because of the variability of the effect of the panic attacks upon the Appellant.

 

9.          The Second Doctor on 20th December 2016 made an assessment in respect of loss of faculty due to cerebral impairment in respect of anxiety/depression of 35%. This assessment  was based upon the Appellant being assessed as being at the top of the Mild range for depression which is set out in the guidance document entitled “Guide to depression assessments”, that is the top of the range from 11% to 20%. However, to that figure of 20% was added a further 15% in respect of the Appellant's anxiety and panic attacks which were assessed as being quite severe.  

 

10.      At the request of the Tribunal, the representative of the Department, gave the following sworn evidence:-

a)              That prior to 2014 the guidance given by the Department in relation to the cases which were not specifically covered under the Law and subsidiary legislation was only general             in nature and summarised in the General Guide to Assessments document.  

b)              That during 2014 more specific guidance had been issued in relation to a variety of conditions including depression as a result of advice received by the Department from a             UK expert in this area and this had led to the issuing of the document entitled ‘Guide to depression assessments’ which was understood by the doctors on Medical Boards as being advisory.

c)              That the normal procedure of the Department when the first assessment of a  doctor was challenged, as had happened in this case in relation to the assessment of       the First Medical Board, was that a second assessment was made by another doctor, constituting the Second Medical Board. This did not correspond with the relevant articles    of the Social Security (Jersey Law 1974 but was thought to be fair to the applicant.     

d)              That the practice of the Department when receiving an appeal to the Tribunal was to refer the matter back to the doctor on the Medical Board. Sometimes the information     which accompanied the notice of Appeal to the Tribunal contained additional medical information which led to the doctor on the Medical Board being able to increase their assessment and in such a case the Department would write to the Appellant in order to indicate this and in order to ask whether, in the light of this increased assessment, the person wished to proceed with their appeal to the Tribunal. This procedure also did not correspond with the relevant articles of the Social Security (Jersey Law 1974 but was thought to be fair to the applicant.    

 

11.      The Department had provided the Tribunal with a bundle of other relevant information.

 

For the Appellant

 

12.      The Appellant included a written Statement in the notice of appeal to the Tribunal which was  received on 10th January 2017. She was dissatisfied with the assessment by the Second Doctor        of her LTIA at 35% and the start of this reads:-

   ‘I would like to appeal against the decision of Med. Board made on 20th December 2017. I believe that the Medical Board have not acknowledged all the facts provided by my GP, my psychotherapist and me. The decision does not represent fully my loss of faculty for anxiety and depression.'

   The written statement then provides information of a sensitive and confidential nature which will not be detailed in this written decision because of this decision's public nature. The Appellant also attached to the Notice of Appeal a copy of a letter which the Appellant had sent to the Department when indicating dissatisfaction with the assessment of the First Medical Board of 20%. That letter also provides information of a sensitive and confidential nature which will not be detailed in this written decision because of this decision's public nature.

 

13.      The Appellant also explained to the Tribunal the variable nature of the effects of the panic attacks. The Appellant could be substantially debilitated for hours or for days. 

 

14.      The Appellant had also provided the Tribunal with a letter dated 12th March 2017 which indicated that the Appellant's symptoms had been particularly bad over the last month. Unfortunately, the Tribunal cannot take this into account as this appeal relates to the medical condition of the Appellant on 20th December 2016 when the assessment of the Second Doctor was made. Any worsening of the Appellant's condition since then could be a matter for a further assessment but is not a matter for this appeal.   

 

Decision

 

15.      The matter to be determined is the question as to the appropriate assessment of loss of faculty by reason of depression and acute anxiety including the effect of the panic attacks. The second doctor, against whose decision the appeal was being made, had made the assessment based upon an assessment for depression at the upper end of the mild range (11% to 20%) but with a 15 % increase in relation to the panic attacks, thus arriving at a figure of 35%.

 

16.      Whilst understanding the reasoning behind that, the Tribunal decided that the better approach was to make an assessment of loss of faculty in relation to the depression and the panic attacks together. The general guide to assessments document which had existed before the guide to depression assessments, had set out bands in relation to mild, mild to moderate, moderate, etc. conditions. Accordingly, the Tribunal decided that it was better practice to seek to make an overall assessment within those general guidelines, an assessment, which would, of course, be informed by the specific guidelines in relation to depression.

 

17.      Following those principles the Tribunal decided that the overall assessment was just below the middle of the moderate range (31 – 50%) and made the assessment at 40%. The Tribunal accepted that the assessment of 35% was not an unreasonable assessment but decided that sufficient weight had not been given in this assessment to the severity of the panic attacks and to the extent of the mental impairment whilst these were occurring. The Tribunal did not find that there was any reason to change the date for the next assessment from 7th November 2017 as previously set.

 

 

 

Advocate B.I. Le Marquand                                                                         11 May 2017                                                         

                                   

 


Page Last Updated: 04 Oct 2017