Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C12/97(IB) (3 June 1997)

 


Decision No: C12/97(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

Application by the claimant for leave to appeal

and appeal to the Social Security Commissioner

on a question of law from the decision of the

Newry Social Security Appeal Tribunal

dated 9 July 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application for the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal. It arises out of the "all work test" which the Adjudication Officer considered the Medical Officer's report and awarded claimant no points. Claimant appealed to a Social Security Appeal Tribunal which awarded him 9 points, 3 in respect of bending and kneeling, 3 in respect of standing without support and 3 in respect of sitting in an upright chair with a back but no arms.
2. The grounds of appeal are that the Tribunal failed to give an adequate reason for its decision and the reason recorded by the Tribunal for holding the claimant was capable of work and that he scored only 9 points in the "all work test" was recorded as:-

"The claimant scored himself 140 and the Adjudication Officer scored

him at 0. We have seen his back and x-rays which show narrowing

and we note his job has ended on medical grounds. We also noted

the Medical Officer's comment (box 5) of finding minimal back

impairment. We are not bound of course by the Medical Officer's

findings. We accept the claimant has a back problem. However,

we do not feel it affects his functioning to the extent claimed.

We feel he sometimes has a problem bending and kneeling and

sitting and standing. We feel he can walk more than 800 metres

without stopping and severe discomfort and has no problem using

stairs. We have also considered his irritable bowel syndrome

but find it attracts no scores. Whilst he may experience diarrhoea

he has control of his bowels. We also considered his limitations

and felt it attracted no scores. On the hearing descriptors in

particular we feel he achieves no scores having regard to the

Medical Officer's findings. We also feel that the side effects

of tinnitus he described to us would not constitute altered

consciousness."

3. I arranged an oral hearing at which claimant was represented by Mr Brady and the Adjudication Officer was represented by Mr McAvoy. Mr Brady argued that the claimant had handed in medical reports to the Tribunal but that the Tribunal in its reasons for its decision and in its findings of fact made absolutely no reference to any of the evidence which he gave. He said that claimant had been found completely incapable of work and that his job with the Library Board had been terminated on the grounds of ill health.
4. Mr McAvoy said that he could not comment on the medical evidence because he did not know what it was. He said there was evidence recorded by the Medical Assessor and he commented upon various abbreviations but was unable to explain what these abbreviations were and said that they did not appear in the medical report. He argued that the claimant had failed the all work test and in his written submission to the Tribunal argued that the Tribunal had taken into account the x-rays provided by the claimant and that the Tribunal had the benefit of the Medical Assessor's opinion and also the opinion of the Examining Medical Practitioner.
5. I have considered all that has been said and I have read all the documents. The report of the Examining Medical Practitioner was completely illegible as far as I was concerned and I asked and received a typed copy. Even the typed copy shows up a clear defect not only in the transcribing of the report but also in the assessment of claimant's incapacity.
6. I would refer to the kneeling and bending test and it is recorded in the typed copy of the medical report which I received - "Patient put on all his own clothing including socks and slip on boots/stooped and lifted envelope at side of desk; knelt down with aid of chair and lifted (ankle) off floor". I have examined the handwritten report of the Medical Officer and it reads:- "Patient put on all his clothing, including socks and slip-on boots/stooped and lifted envelope at side of desk; knelt down with aid of chair and lifted envelope (small) off floor". If one then goes to the descriptors and 6(b) reads:- "Cannot bend or kneel as if to pick up a piece of paper from the floor and straighten up again", that merits 15 points. To me it is quite clear from the Medical Officer's report that claimant was entitled to the benefit of the marks under 6(b) by the Medical Officer's own finding because claimant needed the aid of the chair to kneel down.
7. I am satisfied therefore that the Tribunal erred in law in not properly considering the evidence because it only awarded him 3 points for bending and kneeling. It clearly misinterpreted the evidence.
8. At the hearing I granted leave to appeal, both parties have consented I treat the application as the appeal. For the reasons set out above I allow the appeal and set aside the decision of the Tribunal.
9. I am perfectly satisfied that this is a case in which I should give the decision which the Tribunal should have given. I accept the 3 points awarded by the Tribunal in respect of "standing without support" and "walking up and down stairs" and add to those 6 points 15 points in respect of kneeling and bending. Consequently I am satisfied that claimant did pass the all work test and is unfit for work. I am supported in this decision by the information which I received at the hearing, namely that claimant some time in March went through another all work test and was found incapable of work. I am satisfied therefore that claimant does satisfy the all work test from and including 21 March 1996.

(Signed): C C G McNally

COMMISSIONER

3 June 1997