Social Security Medical Appeal Tribunal
at: Tribunal Offices,
1st Floor, International House, 41 The
Parade, St Helier
Date: 24 November 2017
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”)
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.
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.
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.
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.
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.
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.
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.
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
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 –
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
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 except
that person’s age, sex, and physical and mental condition.”
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.
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.”
boards are appointed by the Minister for Social Security under Article 34AA of
“(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.”
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
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) refers.
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
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.
appeal shall be made in such manner and brought within such time as may be
(3) 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 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:
“(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.
On considering the case, the medical appeal tribunal may
confirm, reverse or vary
the decision of the medical board.
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.
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.
Doctor noted the following in relation to the Appellant:
gets tired easily
works 3 hours a day doing scanning
walks to work which takes 30 to 45 minutes and will walk home again or get the
bus if she is too tired.
gets herself ready for work and showers in the evenings as she is too tired in
has weakness on her left side and drops things. She gets numbness and tingling
in the left side.
can do up buttons and zips
suffers from reduced concentration.
She has no sense of taste and little of
has headaches every few days.
sleep is disturbed, partly due to symptoms of the menopause.
cooks from scratch
does the housework at weekends.
She has been to Ireland and the UK
is on medication for depression.
The doctor concluded her assessment as
“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
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.”
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.
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.
Dated: 18 January 2018
S. E. Fitz, Chairman