Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C4/96(IB) (25 October 1996)

 


Decision No: C4/96(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

INCAPACITY BENEFIT

Appeal to the Social Security Commissioner on a question of law from the decision of Coleraine Social Security Appeal Tribunal dated 15 January 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. In this case the Adjudication Officer appeals against the decision of Coleraine Social Security Appeal Tribunal, whereby it was held that, as the claimant had scored 15 or more points from physical descriptors, she was entitled to incapacity benefit from and including 9 October 1995.
2. The Tribunal's recorded findings of fact were:-

"The claimant has difficulty in the following areas of activity:

1. Walking:

She cannot walk more than 200 metres without stopping or

severe discomfort. 7 points.

2. Walking up and down stairs:

She cannot walk up and down a flight of 12 stairs without

holding on and taking a rest. 7 points.

3. Sitting:

She cannot sit comfortably for more than an hour without

having to move from the chair. It is noted that she sat

for 45 minutes approximately at the hearing. 3 points

4. Standing:

She cannot stand for more than 30 minutes without having

to move around. 3 points

5. Manual Dexterity:

She cannot turn a tap or control knobs on a cooker with her

left hand. 6 points

6. Reaching:

She cannot raise her left arm above her head to put on a

hat. 6 points.

The Tribunal found that she did not come into any of the specified

descriptors in the area of lifting and carrying.

The Tribunal did not consider or make any finding in relation

to her mental condition."

The Tribunal's decision incorporated a summary of the all work test assessment which set out the claimant's score for the various physical health descriptors which applied to her. The total was said to be 25 points, including 6 points for descriptor 9(f), in respect of the activity of reaching. The decision also included the following record of evidence from the assessor:-

"The medical evidence from her General Practitioner is consistent

with a person who would have difficulty in the areas of reaching,

standing, walking, lifting and carrying."

3. The grounds of the Adjudication Officer's appeal to the Commissioner are as follows:-

"1. Mrs C... originally stated that she had no problem in

the activities of walking, sitting and standing. The medical

officer who examined her agreed, as did the adjudication officer.

At the hearing she indicated that she did have problems in each

of these activities. The tribunal accepted this evidence but

gave no explanation as to why they preferred it to the earlier

evidence, including her own self-assessment. Commissioner's

decision R(I)2/51 refers.

2. In the activity of reaching Mrs C... stated in evidence

to the tribunal that she could not reach above her head. There

was no evidence indicating she was unable to reach to her head.

There was therefore no evidence to support a choice of this latter

descriptor which carries the 6 points awarded by the tribunal for

this activity.

3. Regulation 24 of The Social Security (Incapacity for work)

(General) Regulations (NI) 1995 provides that the all work test

is a test of the extent of a person's incapacity, by reason of

some specific disease or bodily of mental disablement, to perform

the activities prescribed in the Schedule. This Schedule has

two parts, one for physical and one for mental disabilities. The

tribunal failed to apply the all work test in its entirety. The

medical officer and adjudication officer agreed that the claimant

had some problems in the mental health area yet the tribunal "did

not consider or make any finding in relation to her mental

condition".

I therefore submit that the tribunal erred in law by -

. In relation to 1 above, they failed to record adequate

reasons - their chosen descriptors in themselves were

not reasons, but conclusions or findings.

. In relation to 1 above, their decision, based on

Mrs C...'s evidence at the hearing, was inconsistent

with the overwhelming weight of other evidence, ie her

own self-assessment form and the medical officer's report.

. In relation to 2 above, their decision was unsupported by

any evidence.

. In relation to 3 above, their decision was incomplete."

4. The claimant's representative, Mr David S(, Solicitor of B( and C( Solicitors, 9 L( Road, Londonderry, by letter date 10 May 1996, submitted that the Tribunal had not erred in law in any respect. The substance of his argument was that, in grounds of appeal 1 and 2, the Adjudication Officer was really saying that the Appeal Tribunal had erred in fact rather than law. In relation to ground 3 he submitted that the Tribunal were under no obligation in law to consider mental descriptors which could not, in any event, have altered the outcome of the appeal.
5. I held an oral hearing at which the claimant, who was present, was represented by Mr S.... The Adjudication Officer in attendance was Mr S J McAvoy, who, in advance of the hearing had informed the Commissioners' Office that he would not be pursuing point 3 of the grounds of appeal. In relation to ground 1, Mr McAvoy acknowledged that in decision No. C1/96(IB) I had already expressed the opinion that Tribunals were not required to record their reasons for reaching their relevant findings of fact and that specifically, in relation to incapacity benefit, there was no need for them to state their reasons for deciding that a particular descriptor was appropriate. He submitted that the circumstances of this case were unusual in that it was not until the Tribunal hearing that the claimant had suggested that certain of the descriptors applied to her. In such circumstances, where an allegation of disability was not made until a very late stage, Mr McAvoy submitted that the Tribunal should record their reasons for accepting it in preference to the other evidence.
6. So far as ground 2 was concerned, Mr McAvoy pointed out that the Tribunal's finding of fact No.6, "reaching" was to the effect that the claimant could not raise her left arm above her head to put on a hat, whereas the descriptor was concerned with the ability to raise one arm to the head to put on a hat. An inability to raise one arm above the head to reach for something did not attract any points and in Mr McAvoy's submission that should have been the claimant's score on the reaching descriptor. I drew Mr McAvoy's attention to the fact that, in their assessment summary, the Tribunal had recorded that descriptor 9(f) applied, and that 6 points had been awarded; whereas the correct score for 9(f) was 0. I confess that I am a little surprised that there should be such a differential between the scores for an inability to reach to and above the head; however the Tribunal's award of 6 points in respect of descriptor 9(f) was clearly wrong.
7. Although he was no longer submitting that the Tribunal had erred in law in not considering the claimant's mental condition, Mr McAvoy explained that in his opinion it was important that in all cases Adjudication Officers should continue to record their findings on both the physical and mental health descriptors. Failure to do so could, he said, give rise to problems in relation to the review of decisions.
8. Mr S... accepted that something was wrong with the Tribunal's award of 6 points in respect of descriptor 9(f). He submitted however that the findings and awards in respect of the remaining descriptors had all been validly made and that there was nothing to suggest that the Tribunal had erred in law in relation to them. Even if the 6 points for descriptor 9(f) were deducted, the claimant's score still exceeded 15 and she was entitled to incapacity benefit as the Tribunal had decided.
9. Having considered this matter I have reached the conclusion that there were no special circumstances surrounding this case which required the Tribunal to state their reasons in greater detail than usual, as submitted in ground 1 of the grounds of appeal. It is right to say that an allegation which is advanced at the outset of any fact-finding exercise will generally carry more weight than one which comes at the last minute; but that is only common sense, and I have no doubt it is a factor which

any Tribunal would bear in mind. I am accordingly unable to accept that in this instance, the Tribunal erred in law in failing to record their reasons for their findings of fact or for their choice of the descriptors which were held to apply to the claimant. I am further satisfied that there was evidence to support the findings which were reached.

Similarly in relation to ground 3, I do not consider that the Appeal Tribunal erred in law in failing to consider or make any findings in relation to the claimant's mental condition. The fact that the claimant scored 15 or more points for the physical health descriptors was sufficient reason for their decision that she was entitled to incapacity benefit, and there was no legal obligation upon the Tribunal to proceed any further. I do, however, agree with Mr McAvoy that, so far as the initial decision of the Adjudication Officer is concerned, there are sound reasons why, in every case, this should cover both the physical and the mental health descriptors.

10. There remains the question of the award of 6 points for the activity of reaching, which is the subject of ground 2. As explained in paragraph 6 above, the Tribunal's finding of fact is not couched in terms of any of the reaching descriptors, and it was clearly wrong to specify descriptor 9(f) and award 6 points. As Mr S... has said, it makes no difference to the outcome of the appeal and, although I suspect that the reference to descriptor 9(f) may just have been a slip, I have decided that the simplest course is to allow the appeal to the extent of substituting 0 for 6 in respect of the activity of reaching; thus reducing the physical health total to 19. In all other respects I confirm the Appeal Tribunal's decision that the claimant has scored 15 or more points from physical descriptors and that she is entitled to incapacity benefit from and including 9 October 1995.

(Signed): R R Chambers

CHIEF COMMISSIONER

25 October 1996