Social Security Medical Appeal Tribunal

 

Case number:              [2017]TRS015

Held at:                        Tribunal Offices, 1st Floor, International House, 41 The Parade, St Helier

Date:                             24 November 2017

Appellant:                    “O”

Respondent:                 The Minister for Social Security

Panel members:           Chairman S.E. Fitz, Dr B. Kellett and Dr M. Richardson

Nature of Claim:            Long Term Incapacity Allowance (“LTIA”)

 

Background

1.       This is an appeal brought by the Appellant following a redetermination decision on 11 August 2017 by a medical board doctor (the “Doctor”) appointed by the Minister for Social Security.

 

2.       The decision was that the Appellant had an assessed loss of faculty totalling 45% in respect of an ongoing claim to LTIA. The assessment was broken down as follows: 30% for impairment following head injury and 15% for secondary cerebral impairment. The end date of that assessment was set as 11 August 2022.

 

3.       The Appellant had been the victim of a hit and run in 2000 and sustained a major head injury. Her main ongoing symptoms were extreme fatigue, numbness down the left hand side of her body and loss of taste and smell.

 

4.       On 25 June 2013 her loss of faculty was assessed at 75% by a medical board. This was done with the aid only of the general guidelines and scheduled and non-scheduled conditions assessments, which seek to equate loss of faculty with first world war amputations. 75% fell within the band for an upper thigh amputation. The assessment was to be reviewed in June 2017.

 

5.       In June 2017 a medical board assessed loss of faculty at 45%, 30% for sequela of head injury and 15% for loss of taste and smell. The Appellant challenged this assessment and sought a redetermination which led to the assessment on 11 August 2017. This assessment was carried out taking into account new guidelines. Whilst there were no guidelines for head injuries, the guidelines for chronic fatigue syndrome and for depression were considered relevant.

 

The Law

6.       The basic provisions relating to the assessment process are in Article 16 of the Social Security (Jersey) Law 1974 [the Law]:

“Assessment 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.

(4)          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)           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

(b)           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.

(5)            The assessment –

(a)             shall specify as a percentage the degree of incapacitation resulting from the loss        of faculty;

(b)             shall specify the period taken into account by the assessment; and

(c)              shall state whether the assessment is provisional or final.

(6)            In the assessment of a claimant’s incapacitation –

(a)           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 allowance;

(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.

(7)          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.

 

(8)          Any such order may in particular prescribe that a specified loss of faculty shall be treated as resulting in a specified percentage of incapacitation.”

 

 

 

7.        The Social Security (Assessment of Long Term Incapacity) (Jersey) Order 2004 [the Order] then provides further detail on the principles of assessment. Article 2 states:

“(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 –

(a)               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;

(b)               the question whether or not any incapacitation involves loss of earning power              or additional expense shall be immaterial;

(c)                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%;

(d)               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;

(e)                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;

(f)                 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.”

 

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 the Appellant’s loss of faculty as a result of their head injury and secondary anxiety/depression.

 

Article 4 then addresses losses of faculty not described in the schedule as follows:

 

“For 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 regard as is appropriate to the provisions of Article 3.”

8.       Medical boards are appointed by the Minister for Social Security under Article 34AA of the Law; 

“(1)   The Minister shall appoint medical boards, each consisting of one or 2 medical                                practitioners.

  (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.”

 

9.       It 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 –

(a)               whether a relevant disease or injury has resulted in a loss of faculty;

(b)               whether a loss of faculty is likely to be permanent;

(c)                the degree at which incapacitation resulting from a loss of faculty is to be assessed; or

(d)               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) refers.

(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 board.”

 

10.    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.

(2)     An appeal shall be made in such manner and brought within such time as may be prescribed.

(3)   An appeal shall not lie in respect of a provisional assessment unless –

(a)               2 years has elapsed since the case was first referred to a medical board; and

(b)               the period taken into account by the assessment does not fall wholly within that period of 2 years.

(4)     On hearing an appeal, a medical appeal tribunal may confirm, reverse or vary   the decision against which the appeal is brought.”

11.   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.

 

12.   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:

“(1) 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 consideration.

(2)     On considering the case, the medical appeal tribunal may confirm, reverse or vary  the decision of the medical board.

 

The Dispute

13. The Appellant’s contention was that there had been no improvement in her condition since 2013 and therefore the reduction from 75% to 45% was inexplicable and unjustified.

 

Evidence

 

14.   The Doctor who carried out the assessment on 11 August 2017 gave evidence. She agreed that there had been no apparent improvement in the Appellant’s condition since 2013. She had revised the assessment because she considered the 75% award to be overly generous and not in accordance with current guidelines. She had not given a separate assessment for the loss of taste and smell as she considered this to be a consequence of the head injury. She noted that previous medical boards had assessed for the Appellant for depression but not quantified it separately.  She felt it was sufficiently evident to be separately quantified.

 

The Doctor noted the following in relation to the Appellant:

·        She gets tired easily

·        She works 3 hours a day doing scanning

·        She walks to work which takes 30 to 45 minutes and will walk home again or get the bus if she is too tired.

·        She gets herself ready for work and showers in the evenings as she is too tired in the morning.

·        She has weakness on her left side and drops things. She gets numbness and tingling in the left side.

·        She can do up buttons and zips

·        She suffers from reduced concentration.

·         She has no sense of taste and little of smell.

·        She has headaches every few days.

·        Her sleep is disturbed, partly due to symptoms of the menopause.

·        She cooks from scratch

·        She does the housework at weekends.

·         She has been to Ireland and the UK recently

·        She is on medication for depression.

 

The doctor concluded her assessment as follows:

 

“IP is in the mild category of depression guidelines, 11-20%, at the lower end, as her depression scores are mostly not present of mild with a few mild/moderate and 2 moderate ticks.

 

Her main problems are the sequelae listed, which puts her into the mild/moderate category of impairment assessments, at the upper end. She is not in the moderately severe category,

51-80%, she was on 75%, according to our guidelines, as she can work part time, walk 45 minutes to work, self cares, shops, cleans and cooks, even if she does need to pace herself at times.”

 

15.   The Appellant also gave evidence. She did not dispute the facts as recounted by the doctor. She emphasised how tired she felt which was her greatest difficulty. She recounted that she often dropped things, fell over and suffered with poor memory.

 

Decision

 

16.   The Tribunal considered the Doctor’s assessment to be fair and reasonable.  The Tribunal entirely understood the Appellant’s concern at the reduction in the assessment but concluded that the 75% assessment was overly generous in all the circumstances and made without the benefit of modern guidelines. It was considered reasonable for the Doctor to use the guidelines for both depression and chronic fatigue syndrome. The Tribunal  considered that the correct bands within those guidelines had been used, the correct position within the bands chosen and that overall 45% was a fair reflection of the loss of faculty bearing in mind that the Appellant was able to carry out many day to day functions although slowly and with consequent fatigue. The Tribunal did not however consider it right to separate depression out, it being a consequence of the head injury. The Tribunal concluded that 45% was the correct assessment but should be an overall figure in relation to head injury and sequilla which include loss of taste and smell and secondary cerebral impairment.

 

17.   Appeal dismissed.

 

 

 

 

Signed:                                                                                    Dated:  18 January 2018

Advocate S. E. Fitz, Chairman


Page Last Updated: 09 Apr 2018