Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C45/97(IB) (23 June 1998)

 


Decision No: C45/97(IB)PRIVATE

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

Newry Social Security Appeal Tribunal

dated 5 June 1997

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 the claimant's appeal from a decision of an Adjudication Officer to the effect that the claimant is not entitled to incapacity benefit from and including 24 March 1997.
2. The claimant became unfit for work and received statutory sick pay for the period 6 February 1995 to 23 August 1995. He then claimed incapacity benefit from 24 August 1995 on the grounds that he suffered from back pain and sciatica. After the usual completion of a questionnaire by the claimant and an examination by a Medical Officer of the Department, an Adjudication Officer, after considering all the available evidence, decided that the claimant scored 24 points and accordingly passed the All Work Test in December 1995. The claimant was reassessed in 1997, again completing a questionnaire and being examined by a Medical Officer of the Department, but an Adjudication Officer decided that the claimant scored zero points and accordingly failed the All Work Test. In the circumstances an Adjudication Officer on review disallowed incapacity benefit from and including 24 March 1997. The claimant appealed to a Social Security Appeal Tribunal.
3. On appeal the Tribunal found the following facts material to its decision:-

"Rising 5c: 3 ) Points were awarded after

Stairs 2d: 3 ) presentation of oral evidence

Bending 6c: 3 ) and consideration of papers

There was no muscle wasting Medical Officer examination (Box 30).

The Tribunal did not find as fact any other complaint made by the

claimant which could be usefully assessed reference All Work Test

descriptors."

4. The Tribunal gave the following reasons for its decision:-

"All contents of papers considered with oral evidence and

advice from Medical Assessor taken into consideration.

Tribunal's observation of claimant and answers resulted in

the recorded decision."

5. In the summary of its decision the Tribunal made clear that it awarded the claimant 3 points in relation to descriptor 2a for walking up and down stairs; 3 points in relation to descriptor 5c for rising from sitting; 3 points in relation to descriptor 6c for bending and kneeling; that is a total of 9 points for physical health descriptors.
6. The claimant appealed to the Chairman for leave to appeal to a Commissioner on the following grounds which I state in full:-

"I wish to apply for leave to appeal to the Commissioner.

The Tribunal failed to give an adequate statement of the

reasons for its decision and the findings of fact on which

it was based. It also made a decision based on insufficient

evidence.

From reading the decision I do not understand why I was

disallowed."

7. In spite of these somewhat terse and unhelpful grounds of appeal the Chairman granted leave to appeal on 24 July 1997.
8. Mr S J McAvoy, on behalf of the Adjudication Officer, made the following written comments on the claimant's grounds of appeal:-

"Mr D... does not specify precisely how the tribunal erred

in the various general ways to which he refers. However the

Commissioner may wish to consider the following observations.

When he completed the questionnaire on 23 January 1997 Mr D...

identified difficulties in the activities of sitting in a chair,

rising from a chair, standing, walking up and down stairs,

bending and kneeling and lifting and carrying. The tribunal

decided that there were difficulties in the activities of

rising from a chair, walking up and down stairs and bending

and kneeling and awarded Mr D... 9 points. The tribunal also

made the following finding of fact -

"The Tribunal did not find as fact any other complaint

made by the claimant which could be usefully assessed

reference All Work Test descriptors."

In the circumstances of this case it is submitted that it was

incumbent on the tribunal to make specific findings as to why

Mr D... did not score any points in the activities of sitting

in a chair, standing and lifting and carrying. I therefore

do not oppose Mr D...'s appeal."

9. Having considered the circumstances of the case and the reasons put forward for an oral hearing, I am satisfied that the appeal can properly be determined without an oral hearing.
10. In light of all the circumstances I come to the conclusion that the claimant's appeal is well founded. Before the Tribunal there was an issue whether the claimant was entitled to score points in relation to the activities of sitting in a chair, standing, lifting and carrying. The Tribunal should have explained why these particular activities were held not to have been adversely affected as there was a contention that they were so affected. Accordingly I accept Mr McAvoy's submission and I conclude that the Tribunal ought to have made specific findings as to why the claimant did not score any points in the activities of sitting in a chair, standing, lifting and carrying. Accordingly I hold that the Tribunal's decision is erroneous in point of law, I set it aside and refer the case to another Tribunal for reconsideration which, in the circumstances, should make specific findings of fact in relation to the matters referred to in Mr McAvoy's observations.

(Signed): J A H Martin

CHIEF COMMISSIONER

23 June 1998