Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C54/97(IB) (25 June 1998)

 


Decision No: C54/97(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 Armagh Social Security Appeal Tribunal dated 18 July 1997 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by leave of the Commissioner against the decision of a Social Security Appeal Tribunal which awarded claimant 12 points in the All Work Test and found that she was not incapable of work and therefore was not entitled to Incapacity Benefit.
2. The Tribunal recorded in its findings of fact that "In 1974 claimant had a hysterectomy. Since then she has been experiencing some dribbling of urine. She also needs to relieve herself frequently. Occasionally she would lose control of her bladder. She is not on any medication for a urinary problem and has had no recent referrals or investigation of same. She has control of her bowels." No points were awarded to her in respect of incontinency.
3. I arranged an oral hearing of the appeal at which claimant was not present nor was she represented. The Adjudication Officer was represented by Mr Colin Fletcher. Mr Fletcher mentioned the fact that claimant had complained that certain medical evidence which she had sent in was not before the Tribunal. However, having investigated the matter there was no evidence that the evidence had ever been received by the Independent Tribunal Service. He said that although claimant experienced some dribbling the Tribunal had chosen descriptor 13(g) that she loses control of her bladder occasionally and that does not merit any score. He drew attention to the fact that the Tribunal recorded that they had considered the question of continency and the fact that she changed her clothing several times a day, and went on to record:-

"... The issue before us is whether she has control of her bladder. The claimant experiences urgency and leakage on occasion. A minor leakage would not necessarily constitute loss of control. Urgency and the amount of leakage are factors to be considered. CIB/14332/1996). We feel that the claimant is usually aware of the need to go to the toilet and can control her need to go for a reasonable period. We also feel that most of the time the leakage is fairly minor though no doubt upsetting to the claimant. The frequency of the change of underclothing is not the issue as this can be a matter of personal choice. We are concerned with the question of control. The claimant in her questionnaire has said she occasionally loses control which we have accepted. Had she a daily loss of control we would have expected much greater investigation and treatment than the papers indicate."

4. I have considered the approach of the Tribunal to the continency question and I think the Tribunal misdirected itself in saying that the change of underclothing was not an issue as it was a matter of personal choice. It was quite clear that that was sufficient evidence to draw attention to the fact that claimant would lose control and dribble several times a day. They also misdirected themselves in considering the definition of loss of control and I would recommend Tribunals to take cognisance of and apply the various Commissioners Decisions in relation to bladder control as far as continency is concerned. It is time Tribunals began applying the relevant decisions.
5. I am satisfied that the Tribunal erred in law and that it misdirected itself in respect of continency. I therefore allow the appeal and set aside the decision of the Tribunal. I am satisfied that this is a proper case in which I should give the decision the Tribunal should have given. I am satisfied claimant does suffer from loss of control of bladder and if one accepts her evidence that she dribbles most days and has to change her clothing 3 times a day, which the Tribunal did not dispute then she would be entitled to points under 13(f). This would entitle her to an additional 3 points, which added to the 12 points awarded by the Tribunal, which I accept and endorse, it would give her 15 points and entitle her to Incapacity Benefit from 13 May 1997.

(Signed): C C G McNally

COMMISSIONER

25 June 1998