Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C20/97(IB) (26 January 1998)

 


Decision No: C20/97(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

Appeal to the Social Security Commissioner on a question of law from the decision of the Belfast Social Security Appeal Tribunal dated 29 November 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of the Social Security Appeal Tribunal which disallowed an appeal by the claimant from a decision of the Adjudication Officer and in particular held that the claimant did not satisfy the All Work Test as and from 21 September 1996, and, accordingly was not entitled to incapacity benefit from that date.
2. Leave to appeal was granted by a Commissioner on 17 June 1997.
3. An oral hearing of the appeal was heard on 20 October 1997, at which the claimant was represented by Ms J Loughrey of Law Centre (NI) and Mr S J McAvoy appeared on behalf of the Adjudication Officer.
4. The claimant's grounds of appeal were set out in writing as follows:-

"I wish to appeal to the Social Security Commissioner from the

decision of the social security appeal tribunal by virtue of

s.21 of the Social Security Administration (NI) Act 1992 and

reg.24 of the Social Security (Adjudication) Regulations (NI)

1995.

I respectfully submit that the decision of the tribunal was

erroneous in law as follows:

The tribunal awarded no points for the "Rising from Sitting"

activity. I respectfully submit that the tribunal either

overlooked or misconstrued the descriptor in para.5(c) of the

Schedule to the Incapacity for Work Regulations or, alternatively,

came to an unreasonable decision in failing to award me any points

under this heading, or alternatively based this part of the

decision on no or insufficient evidence.

In particular, at the date of examination by the Medical Referee

I was still using crutches to assist me in walking because of the

post operative disability in my right knee. The medical referee

indicated at Box 7 of his report that "Client has pain in right leg

and right lower arm and low back pain ... Right leg occasionally

gives way unexpectedly"

I submit that this is evidence which is relevant to the descriptor

"Sometimes cannot rise from sitting without holding on to something".

The disability in my right leg leads to self-evident difficulty

in rising from sitting without holding on to something. In

particular, at the medical examination I leaned on a crutch to

rise from sitting. At the tribunal hearing, when I no longer used

the crutch, I leaned on the tribunal table to rise from sitting.

The evidence of the medical referee and the observations of the

tribunal in respect of ability on one particular day is insufficient

to make a determination that I never have problems rising from

sitting."

5. Mr McAvoy, in reply, submitted in writing as follows:-

"In her appeal Ms J... contends that the Tribunal should

have awarded points for descriptor 5(c) "Sometimes cannot rise

from sitting to standing without holding on to something",

particularly in view of the fact that she leaned on a crutch

to rise from sitting at the medical examination and at the hearing

she leaned on the Tribunal table to rise from sitting. In the

reasons for decision the chairman has recorded "... she rose from

her chair with ease today, which was also noted by the Medical

Referee." The Tribunal acknowledged that Ms J... had

sustained a serious injury to her knee and femur and that she

continued to suffer some problems but that they were not as

severe as she believed.

The Tribunal had the benefit of seeing and questioning Ms J...

and they appear to have given due consideration to all the medical

evidence before them. I therefore submit that this was a decision

that they were entitled to reach on the evidence before them and

they have not erred in law."

6. The facts are as follows. The claimant was injured in a road traffic accident on 17 February 1992. She received statutory sickness pay until 3 November 1992. She then received invalidity benefit until 13 April 1995. Due to changes in legislation from that date this award became a transitional award of incapacity benefit. As the claimant had been incapable of work for more than 196 days on 13 April 1995 the Adjudication Officer decided that the All Work Test was applicable. In order to apply the All Work Test the claimant was requested to complete a questionnaire giving details of how her illness affected her ability to perform various activities. On 14 August 1996 she was examined by a Medical Officer of the Department. The Adjudication Officer considered the evidence and awarded her total of 10 points on the All Work Test in relation to physical descriptors and 3 points in relation to mental descriptors. Accordingly the Adjudication Officer decided that the claimant did not satisfy any of the conditions in order to be treated as having satisfied the test. It was accepted by Ms Loughrey that the All Work Test was the appropriate test as there were no grounds advanced suggesting that the claimant might satisfy any conditions for being exempt from the test.
7. The Adjudication Officer, in particular, decided that the claimant had limitations in the activities of standing, walking, and walking up and down stairs. In accordance with the Schedule (Part I) of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995, 7 points were awarded under activity 4, descriptor 4(d) - namely the Adjudication Officer was satisfied that the claimant cannot stand for 30 minutes before needing to sit down; 3 points under activity 1, descriptor 1(e) as the claimant cannot walk more than 400 metres without stopping or severe discomfort and 3 points under activity 2, descriptor 2(b) - the claimant can only walk up and down a flight of 12 stairs one step at a time. Under regulation 26(2) a claimant cannot score points for both activity 1 and activity 2. Accordingly the total score for physical disabilities is 10 rather than the mathematical total of 13. Under regulation 26(1)(b) the 3 points awarded under Part II of the Schedule for mental disabilities must be disregarded as the aggregate score of 3 points is less than the 6 point threshold required by the legislation.
8. The reasons for the Tribunal's decision were set out as follows:-

"The difference between the Adjudication Officer and the claimant

is in the extent of the restriction in the activities of sitting,

rising from sitting, standing and bending. We have awarded 3

points for bending as we accept that on occasions the claimant

has difficulties.

However in relation to the other three activities we believe that

the Adjudication Officer has made the correct decision. We accept

the findings of the Medical Referee, and there is no reason to

believe that the Medical Referee has failed to record the history

given by the claimant to her. The claimant tried to assert this

during the hearing, but when invited to state in specific terms

what the Medical Referee had incorrectly recorded, she was unable

to do so.

There is little medical evidence to support the claimant's own

description of her problems. She sat throughout the hearing today

in apparent comfort, and declined a brief adjournment during the

hearing. There is nothing to support her limit of 10 minutes for

sitting. In addition she rose from her chair with ease today, which

was also noted by the Medical Referee. The note from Dr C…

states that she is very disabled. The purpose of this report

relates to her employment as a domestic assistant, and the employer

has certain factors to consider. We could find no evidence to

suggest that the claimant is very disabled.

We accept that the claimant sustained a serious injury, particularly

to her knee and femur. She continues to suffer some problems, but

these are not as severe as she believes. At the present time she

does not satisfy the All Work Test."

The Tribunal also specifically accepted the clinical findings and observations of the Medical Referee, and stated that the claimant did not accurately describe her own symptoms.

9. The conclusion of the Tribunal was that the claimant was entitled to a further 3 points under activity 6, bending and kneeling, descriptor 4(c) the claimant sometimes cannot bend or kneel as if to pick up a piece of paper from the floor and straighten up again. Accordingly while the physical health descriptor score was increased to 13, it was still below the 15 points score required by the All Work Test.
10. In the appeal before me it was emphasised on behalf of the claimant that her submission was that further points should have been awarded by the Tribunal under activity 5, and in particular under descriptor 5(c), namely that whilst rising from sitting in an upright chair with a back but no arms and without the help of another person, the claimant sometimes cannot rise from sitting to standing without holding on to something. To support this proposition two medical reports, which had been before the Tribunal, were produced to me. These were reports from Mr M… FRCS dated 17 April 1996 and 18 September 1996. These reports make it clear that the claimant has a problem with her right leg. However, at no stage is it explicit that there are specific problems in getting up from a seated position. In addition, even after a careful reading of the reports it cannot be taken that the reports implicitly contain information to the effect that the claimant has such difficulties.
11. In the Incapacity for Work questionnaire of 7 June 1996 the claimant stated that she had to push herself out of the chair as she cannot put too much pressure on her right leg. The Medical Referee in his report form of 14 August 1996 stated that he had observed during the assessment "no problem rising from sitting today". The Tribunal also found that she rose from her chair at the Tribunal hearing with ease.
12. It was argued on behalf of the claimant that this evidence is not inconsistent with a conclusion that the claimant "sometimes" cannot rise from sitting to standing without holding on to something, the test in the legislation. However, in my view, the Tribunal was entitled, on the evidence before it, to come to the conclusion that the claimant was not entitled to any points under activity 5 and, in particular, descriptor 5(c). The Tribunal, in my view, is entitled to conclude that the evidence does not satisfy them that the claimant has a problem getting up from a chair.
13. I accept that the claimant sustained a most serious injury. I accept that she continues to suffer some problems. However, the Tribunal has come to a decision that it was entitled to reach on the evidence before it. Accordingly I hold that the Tribunal did not err in law.
14. Therefore, for the reasons stated, this appeal is dismissed.

(Signed): J A H Martin

CHIEF COMMISSIONER

26 January 1998