Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C53/97(IB) (14 January 1998)

 


Decision No: C53/97(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 Cookstown Social Security Appeal Tribunal dated 29 July 1996 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal which held that as he did not satisfy the All Work Test from 22 May 1996 he was no longer considered to be incapable of work.
2. Claimant is a 53 year old man and previously worked as a motor mechanic. He claimed sickness benefit from March 1988 and subsequently received invalidity benefit.
3. He was required to undergo the All Work Test and the Adjudication Officer awarded him no points. Claimant appealed against that decision to a Social Security Appeal Tribunal. Claimant now seeks leave to appeal against the Adjudication Officer's decision on the grounds that the Tribunal erred in law and did not take proper account of his medical condition.
4. I held an oral hearing at which claimant was represented by Mr T…, Solicitor of Messrs M… & Company. The Adjudication Officer was represented by Mr McAvoy.
5. Mr T… argued that the nature of claimant's disability, namely, ME was such that he was able to do an action once but not able to carry out the activity repeatedly. The Tribunal did not take into account the fact that while claimant could carry out an activity once the effort was such that he could not repeat it for some time.
6. Mr McAvoy argued that the Tribunal had gone into the matter very thoroughly. It had awarded him 9 points for his physical health and 2 points for his mental health as against an award of no points by the Adjudication Officer. As far as the argument that the claimant could carry out a task once but could not repeat it for some time he accepted that there was no evidence that the Tribunal did not take that approach because it awarded points which the Adjudication Officer had not. He said the evidence was before it and while he accepted that it did not record that it had considered that aspect, nevertheless, the reasons given for its decision would possibly indicate that it did consider that aspect of claimant's illness.
7. I have considered all that has been said and I have also considered the comment by the Medical Assessor which is by the Tribunal and the Assessor records:-

"Normal symptoms of ME - extreme fatigue on exertion and muscular pain, there is no specific test for it."

The Assessor then goes on to detail the various medications which claimant takes.

8. I have considered the argument as to whether or not the Tribunal properly considered the "reasonable regularity" as set out by the Chief Commissioner in C1/95(IB) and I am satisfied that Great Britain Commissioners decisions CIB/13161/96 and CIB/13508/96 do not in any way conflict with this decision but rather supported it when the Commissioner records "... the possibility of pain and fatigue and the increasing difficulty of performing a given activity on a repeated basis must in my judgment be taken into account by considering how far the claimant's normal capabilities are impaired by comparison with those of a healthy person in normal working order. ...", and also taking into account the Medical Assessor's opinion which I have referred to above relating to fatigue and pain. I am satisfied that the fact that a claimant could carry out an activity once did not necessarily mean he was not entitled to any points.
9. I find that the Tribunal erred in either not considering that aspect of claimant's symptoms or if it did in not recording that it so considered, also it did not record any findings relating to it.
10. At the hearing I granted leave to appeal and with the consent of both parties I treat the application as the appeal. For the reasons set out above I am satisfied that the Tribunal erred as stated. I therefore allow the appeal, set aside the decision and refer it back to be reheard by a differently constituted Social Security Appeal Tribunal.

(Signed): C C G McNally

COMMISSIONER

14 January 1998