Security Medical Appeal Tribunal
08 Jun 2017
The Jersey Tribunal Offices, Bath Street, St
Chairman S.E. Fitz, Doctor B. Kellett
and Doctor N. Charles
Nature of Claim:
Long Term Incapacity Allowance (LTIA)
Income Support Medical Appeal
“J” assisted by an interpreter
The Minister for Social Security
is an appeal brought by the Appellant following a review decision of 27 March
2017 by a medical board doctor appointed by the Minister for Social Security.
decision was that the Appellant had an assessed loss of faculty of 25% in respect
of a claim to LTIA made on 12 December 2016 in respect of chest pain. The end date of that assessment was set
as 27 March 2019.
medical board decision of 27 March 2017 followed the receipt of a letter on 8
March 2017 from the Appellant’s GP Dr Ryan and from his son requesting
that the decision made by the medical board doctor on 27 February be reviewed.
27 February 2017 the medical board had assessed, for the first time, the
Appellant’s loss of faculty for heart disease at 20%.
to this the Appellant had claimed short term incapacity allowance for ischaemic
heart disease and post CABG and had been paid that benefit between 3 March 2016
and 22 February 2017. From that
date under the provisions of the relevant legislation that claim had to cease
and a claim to long term incapacity allowance made instead.
subject matter for the appeal is whether the Appellant’s loss of faculty
as a result of the relevant medical condition claimed for was correctly
assessed on 27 March 2017.
basic provisions relating to the assessment process are in Article 16 of the
Social Security (Jersey) Law 1974 [the Law]:
of Long Term Incapacity Allowance
(2) 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 suffer from the relevant loss of faculty.
If, having regard to the possibility of changes (whether
predictable or not) in the condition of a claimant, it does not allow of a
final assessment being made up to the end of the period which is to be taken
into account under paragraph (2) –
a 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
on the next assessment, the
period to be taken into account shall begin with the end of the period taken
into account by the provisional assessment.
The assessment –
as a percentage the degree of incapacitation resulting from the loss of
the period taken into account by the assessment; and
shall state whether the
assessment is provisional or final.
In the assessment of a claimant’s incapacitation –
the 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
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.
Subject 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.
Any such order may in particular prescribe that a specified
loss of faculty shall be treated as resulting in a specified percentage of
Social Security (Assessment of Long Term Incapacity) (Jersey) Order 2004 [the
Order] then provides further detail on the principles of assessment. Article 2
“(1) 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
with a person of the same age and sex whose physical and mental condition is
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
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
expect that persons age, sex and physical and mental condition.
Article 3 then deals with the assessment of losses
of faculty described in the Schedule to the Order. This relates solely to
losses resulting from amputation and so is not directly relevant to the
Appellant’s assessment for heart disease.
Article 4 then addresses losses of faculty not
described in the schedule as follows:
the purpose of assessing the extent of the incapacitation resulting from any
disease or injury that is not specified in the schedule, a medical board or a
medical appeal tribunal may have such regards as is appropriate to the
provisions of Article 3.”
9. Medical boards are appointed by the
Minister for Social Security under Article 34AA of the Law;
Minister shall appoint medical boards, each consisting of one or 2
to the provisions of this Law, the Minister may, by Order, prescribe
procedures to be followed by a medical board in the discharge of its
under this Law.”
10. It then falls to a medical board to
assess whether a person has a loss of faculty as a result of a relevant disease
of injury. Article 34A of the Law states:
“(1) Subject to the provisions of this
Law, any questions as to –
whether a relevant disease or injury has resulted in
a loss of faculty;
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;
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.
(2) 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)
(3) 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 medical
11. The relevant appeal rights are in Article
34B of the Law:
“Subject 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 unless –
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
on hearing an appeal, a medical appeal tribunal may
confirm, reverse or vary the decision against
which the appeal is brought.”
12. It 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.
13. Pending 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:
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
On considering the case, the medical appeal tribunal may confirm, reverse or
vary the decision of the
14. The Appellant considered that the
assessment of 25% loss of faculty did not fairly reflect his condition.
15. The Doctor who carried out the
assessment on 27 March 2017 gave evidence. The Doctor had noted the following:
Ischaemic heart disease treated by coronary artery bypass graft and medication.
At Oxford. Now back under care of JGH and GP.
anterior chest pain behind the scar.
Has angina pain on exercise but only after 20 mins. When he is sitting quietly there is no
pain. May get radiation to arms
right>left. Pain worse on
leaning forward. Needs 2
pillows. Reports intermittent
orthopnoea. Also reports some
paroxysmal nocturnal dyspnoea. Also
some ankle swelling.
on exercise, after 20-30 mins on walking.
No dyspnoea on rest.
Tiredness. All the time but worse on exercise.
on level 30mins.
Stairs. Can manage one flight but then feels
only carry small objects.
letter JGH August 2016 ‘normal heart sounds, clear chest and no ankle
swelling’ ‘it looks to me like he has made a full recovery’
(IP) ‘does not appear to have any chest symptoms”
The Appellant had stated he could
self-care and shower, cook for himself, could not do his laundry, could shop
but his family helped with big
shop, did walking each day and had been on holiday to Madeira by direct flight
on his own. The doctor observed
that he sat comfortably and was not short of breath. On examination he found
that his heart sounds were normal, his lungs clear and there was slight
swelling of the ankles.
As there are no specific guidelines for
heart disease, medical boards are directed to use a guideline for chronic
obstructive pulmonary disease (COPD) the symptoms of which are considered to be
comparable. The doctor considered the appellant to be in the mild to moderate
category of 21 to 30%.
The doctor had taken into account a letter
from the Appellant’s GP indicating that the appellant had “marked
impairment of his function in keeping with the hypokinesis
and reduced cardiac function noted in his last echocardiogram. He has marked
functional impairment and limitation of effort tolerance.” The doctor also had a letter from the
appellant himself stating that he: could not change his bed, had to stop 2 or 3
times when hoovering, had to shop everyday as he could not carry much weight,
could not walk more than 10 to 15 minutes and got out of breath, had problems
getting dressed and took over an hour to get from his address in Don Road to
Tribunal considered the Doctor’s assessment to have overemphasised the
statement from the hospital that he had made a full recovery. The Tribunal
considered this related to a physical rather than functional recovery. The only
criteria for the mild to moderate range of the COPD guideline is that an
individual can walk 500 m on the flat without stopping. This is a very narrow
indicator and does not allow for other difficulties the appellant was having
with day to day tasks. The medical members of the Tribunal considered heart
failure to be significantly different from COPD as the former only causes
symptoms when an individual exerts themselves and is not evident at rest,
whilst the symptoms of COPD are progressive. It was also noted that the general
guide to assessments equated 21 to 30% disablement with the loss of one
eye. The difficulties this
appellant was experiencing were considered to be significantly more disabling
and supported by the objective evidence of the echocardiogram.
assessment was varied to 35% with an end date of August 2018 by which time the
Appellant will have been reviewed at the hospital and further evidence of his
loss of function should be available.
Advocate S.E. Fitz 04