Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C9/96(IB) (9 July 1997)

 


Decision No: C9/96(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 the

Belfast Social Security Appeal Tribunal

dated 8 May 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the Adjudication Officer for leave to appeal against the decision of a Social Security Appeal Tribunal. It relates to the all work test and in particular the descriptor 8, lifting and carrying, in particular 8(c).

"Cannot pick up and pour from a full saucepan or kettle of

1.7 litre capacity with either hand."

2. The claimant is a 19 year old trainee secretary, she became unfit for work and claimed sickness benefit in June 1995 by reason of a fractured right wrist. It subsequently transpired that she suffered from DE Quervarns Syndrome. An Adjudication Officer decided that claimant scored no points in the all work test.
3. Against that decision claimant appealed to a Social Security Appeal Tribunal, that Tribunal made the following findings of fact:-

"(a) The Complainant has been suffering from a condition affecting

the joint in her right wrist which controls the movement of her

thumb.

(b) As a result of this condition movements involving her thumb are

difficult and painful e.g. she cannot lift and pour from a full

saucepan or kettle with her right hand or pick up a small coin from

the floor; also she sometimes has an inability to grip objects with

her right hand."

The Tribunal then decided that she was entitled to 15 points in respect of that descriptor, and also 6 points in respect of manual dexterity 7(g) - "Cannot pick up a coin 2.5cm or less with one hand". It is interesting to note that the Medical Officer scored her for her inability to pick up a coin 2.5cm or less with one hand, and also in relation to lifting and carrying - that is picking up and carrying a 2.5kg bag of potatoes with either hand. That would have given her a total of 14 points. It was also recorded by the Medical Assessor that inability to grip something would be a standard symptom of DE Quervarns Syndrome and that the sufferer would have pain in lifting heavy weights such as a full kettle. The problem would be with the thumb movement, the four fingers would be quite free. The Tribunal consequently decided that claimant was incapable of work from 8 January 1996 and her appeal was successful.

4. The Adjudication Officer sought leave to appeal against that decision on the grounds that the Tribunal erred in law in misinterpreting regulation 24 of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995 when deciding that the claimant "cannot pick up and pour from a full saucepan or kettle of 1.7 litre capacity with either hand". He also said that claimant's inability to use her left hand to carry out this task was not attributable to some specific disease or bodily or mental disability affecting both hands, but to her right handedness.
5. The Chairman of the Tribunal granted leave to appeal and the claimant's representative Mr Stockman from the Law Centre (NI) responded to the Adjudication Officer's appeal in a written memorandum in which he set out his arguments as follows:-

"It is accepted that the adjudication officer has correctly

identified the legislation which is relevant to this appeal.

The all work test is established by reg. 24 of the Incapacity

for Work (General) Regulations, which is a provision made under

the authority of s.171C(2) of the Social Security Contributions

and Benefits Act.

The all work test is a test of incapacity to perform the activities

described in the Schedule to the Incapacity for Work (General)

Regulations by reason of some specific disease or bodily or mental

disablement.

The activity in question in the appeal appears in para.8(c) of the

Schedule, namely - "Cannot pick up and pour from a full saucepan

or kettle of 1.7 litre capacity with either hand".

The essence of the claimant's case was that the injury to her right

hand prevented the activity being carried out with that hand and

because she was right-handed, she could not perform the activity

with her left hand. The tribunal did not specify why this activity

could not be performed with the left hand, but it must be presumed

that they accepted that this was because the claimant was so unused

to performing this activity that she could not actually do it with

her left hand. An alternative presumption would be that, because of

the implication that a saucepan or kettle might contain boiling

liquid, the tribunal considered that the task could not be

performed safely with the left hand. Whichever may be the case,

this was a question of fact for the tribunal and the adjudication

officer does not contest the reasonableness of the actual finding

of fact.

The adjudication officer's point is a simple one. He argues that the

claimant's inability to perform the task with the left hand is not

due to some specific disease or bodily or mental disablement, but is

attributable only to the fact that she is right-handed.

It is submitted on the claimant's behalf that it is significant that

the activity in para.8(c) of the Schedule is not divided into two

parts relating to each hand. Had the test been "Cannot pick up and

pour from a full saucepan or kettle of 1.7 litre capacity with the

right hand" together with "Cannot pick up and pour from a full

saucepan or kettle of 1.7 litre capacity with the left hand" then

the position would be clear. In each case the incapacity would have

to result from disablement to the relevant hand. The points

attributable to each would be aggregated within the general

principles set out in reg. s 25 and 26.

Instead the activity in para.8 is a combined activity. It is

conceded that to score the relevant points in the all work test it

must be the case that the task cannot be completed with either

hand. It is conceded that it must also be the case that the

inability to perform the task with either hand results from a

physical disablement. However, because the activity in question

is a combined activity, it is submitted that it is not necessary

to separate the elements of the activity into right hand and left

hand when seeking to determine whether the incapacity in question

results from a physical disablement. It is enough that there is a

physical disablement which is readily identifiable, such as the

disablement to the right hand in this case, which leads ultimately

to the incapacity to perform the combined activity.

It must be determined by a tribunal whether the circumstances of the

claimant are such that he or she is incapable of performing the

task as a question of fact. For example, as an otherwise healthy

teenager, in the present case the claimant might reasonably have been

found to have been capable of using the left hand for the task in

question once she became accustomed to the activity. An

ambidextrous person might reasonably be found to have no difficulty

performing the activity. Yet in other circumstances, such as where

the claimant is a particularly frail individual albeit with no

specific disablement to the weaker hand or arm, it might also be a

reasonable finding that he or she would not be capable of the task.

It is submitted that the relevant test allows for the distinction

to be made between the person who can cope with the task and the

person who cannot. It is not necessary to address the issue

of physical disablement to the weaker hand or arm. The inability

to perform the task arises from the physical disablement to the

stronger hand or arm and the question of whether there is a

physical disablement to the weaker hand or arm does not arise -

simply the question of fact as to whether the task can actually be

performed using the weaker hand or arm."

6. I arranged an oral hearing of the appeal at which claimant was represented by Mr Stockman and the Adjudication Officer was represented by Mr McAvoy.
7. Mr McAvoy argued that it was accepted that claimant had a problem with her right hand but that her inability to use her left hand was not attributable to some disease or to a bodily disability. Consequently claimant was not entitled to the 15 points, therefore the Tribunal had erred in law.
8. Mr Stockman rested his argument on his written submission which I have quoted above.
9. I have considered Mr McAvoy's argument which in fact boils down to say that the disability must be in both hands in order to get full points. Claimant's inability to perform the tasks with her left hand was because she was right-handed.
10. Mr Stockman argued that the activity in descriptor 8 is a combined activity, and he accepted that to score the full points, the tasks cannot be completed with either hand. He said that even if the claimant had a disability in one hand only, that would satisfy the requirements because the inability to perform the task with either hand resulted from that physical disability. He argued that it was not necessary to separate the elements of the activity into right hand and left hand when seeking to determine whether the incapacity in question was a physical disability. It was enough that the physical disability leads to the incapacity to perform the combined task.
11. The point is a narrow point but it is very important. The all work test is a test of what tasks a claimant cannot perform in order that a claimant's ability to work may be assessed. I accept that the regulation requires that the inability to perform a particular task must spring from a specified complaint; either a specific disease, bodily disablement or a mental disablement. The only relevant one in the instant case is a bodily disablement. It is not disputed that she has a bodily disablement in her right hand. The question is - is this inability linked to her disability in her right hand?
12. I am satisfied that there is no merit in that proposition. If one looks at the descriptors they relate not to what a claimant can do but what a claimant cannot do. In the instant case the argument is, and is accepted, that the claimant cannot perform the task with either her left hand or her right hand. I think that it is necessary to separate the elements of the activity into left and right-handed actions when seeking to determine whether the incapacity results from a physical disability. I accept that claimant cannot perform the function with her left hand, but the inability to perform a function with her left hand is not itself evidence of a disability. I am satisfied therefore that the Tribunal erred in giving reasons for its decision saying that claimant could not pick up and pour from a full saucepan with either hand and that she satisfies the test. I think that the Tribunal misled itself when it said that it did not think the claimant should be disallowed because, theoretically, she could do the exercise with her left hand, if in fact she cannot do it. The question is not whether she can or cannot do it but whether or not she is unable to do it because of a specific disease, or a bodily or mental disability. It is not suggested that she has a disability in her left hand, other than an inability to use it to carry out the required function.

I reject the argument that a disability in one hand can mean that a claimant would be entitled to the benefit of descriptor 8(c) in respect of both hands. I therefore find that the Tribunal erred in law in its decision in that regard.

I am satisfied it also erred in not making a finding in relation to her left hand. It found she could not pick up and pour from a saucepan or kettle with either hand, but to entitle her to the points, it must make a finding as to whether or not that lack of function is by reason of some specific or bodily or mental disability.

I therefore allow the appeal and set aside the decision of the Tribunal. I refer the matter back to be heard by a differently constituted Tribunal. That Tribunal shall make proper findings of fact and record proper reasons for its decision.

(Signed): C C G McNally

COMMISSIONER

9 July 1997