Social Security Medical Appeal Tribunal

Case number:            [2019]TRS010

Held at:                      The Jersey Tribunal Offices, International House, St Helier

Date:                           13 June, 2019

Appellant:                  “E”

Respondent:                          The Minister for Social Security

Panel members:        Chairman B.I. Le Marquand, Dr B. Kellett and Dr M. Richardson

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

Background

1.       The Appellant suffers from a heart and lung condition (“the Appellant's main condition”) and also claims that he suffers from persistent headaches.  However, the Appellant is also in receipt of 60% LTIA in relation to separate conditions. Investigations in relation to the Appellant's main condition started in 2017 but here has never been a clear diagnosis in relation to this. However, the Appellant has not been able to work since 2004 due to an accident to his shoulder.  The details and effects of the Appellant's main condition 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.   On 18th January 2019, following a period of 364 days during which the Appellant received STIA in respect of the Appellant's main condition a Medical Board consisting of the First Doctor assessed the Appellant's main condition at 20% LTIA and assessed the claim in relation to headaches at 0% LTIA. Because the Appellant was dissatisfied with this outcome his claim was on 7th March 2019 re-assessed by a Medical Board consisting of the Second Doctor who also assessed the Appellant's main condition at 20%   LTIA with the claim for headaches assessed at 0% LTIA and with the next review date being set as 13th November 2019.  

 

3.  On 27th March 2019 the Appellant lodged an appeal to this Tribunal from the  re-assessment of 7th March 2019 in respect of 20% LTIA. In that notice of appeal the Appellant stated that he did not agree with the assessment of 20% LTIA and that the award was not enough for the problems which he had. However, the Appellant did not offer any new evidence.  

 

 The Law

 

4.  The appeal was referred to the Tribunal under Article 34C (1) of the Social   Security (Jersey) Law 1974, as amended, (the Law) the Tribunal having the power to confirm, reverse or vary the decision of a second medical board (Article 34C (3)).

 

5. The relevant provisions of the Social Security (Assessment of Long Term Incapacity) (Jersey)(Order) 2004 as amended (the Order) are as follows:   Article 2 (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 2 (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

 

6. The Second Doctor who had constituted the Medical Board against whose decision of 20% LTIA this appeal has been made, gave sworn evidence in relation to the re-assessment on 7th March 2019. The Second Doctor referred to the written assessment form dated 7th March 2019, upon which date the Second Doctor had seen the Appellant. The Second Doctor also referred to a Medical Assessment Report dated 14th January 2019 produced by the Appellant's G P and a report from a consultant respiratory physician at the Jersey General Hospital, dated 29th October, 2018.   This document contains information of a sensitive and confidential nature and so will not be detailed in this written decision because of its public nature.

 

7.      The Second Doctor had given the following reasoning for the LTIA assessment in the written assessment form:-

     “A difficult assessment as his other conditions overlap with this, plus there is no particular assessment for heart disease, so I used the COPD one as being the nearest. From the history and peak flow, IP appears to be in the mild category at the upper end, as his walking is affected by SOB, but is also due to back, knees and weight. His headaches do not cause any apparent impairment per se and could be due to several of his conditions. There is no mention of them in the GP letter”.   

     

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

 

           For the Appellant

 

9.  At the hearing the Appellant explained to the Tribunal that everything was difficult for him, he agreed that he could walk for up to 5-6 minutes but stated that he then got dizzy and had to sit down.  He did suffer from headaches which were worse at night time and at night time he had difficulty breathing properly and sometimes he felt his heart shaking or rattling in his chest. 

 

            Decision

 

  10.  The matter to be determined is the question as to the appropriate assessment of loss of faculty by reason of the Appellant's main condition and headaches.

    

 11.  The Tribunal agrees with the Second Doctor that, in the absence of a specific diagnosis in relation to the Appellant's main condition, the best guidance available is that set out in the Guide to COPD. The decision of the Tribunal is that, at the date of the reassessment of 20% by the Second Doctor on 7th March 2019, the level of loss of faculty by reason of the Appellant's main condition lies at the upper end of the mild range (10-20%) within the Guide to COPD, which leads to the assessment being rounded up to 20%.  The Tribunal was not able to award an additional percentage to headaches.  That was for a number of reasons:

         a) Firstly the headaches could be caused by a number of reasons.  They could relate at night time to the apnoea which is probably caused by the Appellant’s morbid obesity, which is one of the conditions covered by the 60% LTIA award. 

         b)  Secondly, the headaches could be related to the Appellant’s neck condition, which is also covered by the 60% LTIA award.

         c) Thirdly the headaches could be related to stress, caused by the Appellant’s depression which is also covered by the 60% LTIA award.

         d) Fourthly, the headaches could be caused by some of the medication which the Appellant is taking for the Appellant’s main condition or for conditions which are covered by the 60% LTIA award.

              

          Accordingly, the appeal is refused.

 

 12.  The Tribunal also agrees with the Second Doctor that the next review should take place at the same time as the next review in relation to the other LTIA claim,  namely on 13th November 2019, and urges the Appellant to spend the time until then in building his case to prepare for that assessment.

 

 

 

     Signed:                                                                                   Dated:  

 

       Advocate B.I. Le Marquand 

                                   


Page Last Updated: 08 Jul 2019