Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C5/97(IB) (4 August 1997)

 


Decision No: C5/97(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

Omagh Social Security Appeal Tribunal

dated 13 May 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal which held that he was not entitled to incapacity benefit from and including 20 February 1996.
2. Briefly the facts are that the claimant a 51 year old labourer became unfit for work in June 1994 and was paid invalidity benefit in respect of back neck injuries. He subsequently claimed in respect of neck injuries, spinal injury, frozen shoulder and cervical spondylosis. Due to a change in legislation he was obliged to take the all work test and having been examined by a Medical Officer on behalf of the Department, the Adjudication Officer considered all the evidence before him. In applying the descriptors in the all work test the Adjudication Officer awarded him 3 points and decided that he was not unfit for work and therefore no longer entitled to incapacity benefit.
3. Claimant appealed to a Social Security Appeal Tribunal and that Tribunal made the following findings of fact:-

"Facts as in submission. Claimant suffers from frozen shoulder type

complaint which affects left arm badly. Has no problem with walking,

climbing stairs. Neck gives him trouble. Can't sit more than

30 minutes. States he can't stand for more than 30 minutes

without moving around. Has no problem rising from sitting and no

problem with bending and kneeling. Has no problem with manual

dexterity with right hand but states he cannot turn tap with left

hand. Can put hat on with left hand. If lifts or carries anything

with left hand has pain all evening."

The Tribunal awarded him a total of 10 points in respect of "Sitting in an upright chair with a back, but no arms" and "Standing without the support of another person or the use of an aid except a walking stick".

4. Claimant then sought leave to appeal against that decision; I granted leave and arranged an oral hearing of the appeal. At the oral hearing the Adjudication Officer was represented by Mr McAvoy but neither the claimant nor his representative appeared.
5. Mr McAvoy drew attention to the findings of fact made by the Tribunal. In particular, the fact that he could not turn a tap with his left hand and also that if he lifts or carries anything with his left hand he has pain all evening. Mr McAvoy commented that it would appear that the Tribunal left that finding in mid-air without applying it to a descriptor - "lifting and carrying", and in particular 8(e) which relates to the inability to pick up and carry a 0.5 litre carton of milk with one hand, which would merit 6 points. He felt that the finding of fact by the Tribunal would have been sufficient to entitle the claimant to the 6 points in respect of descriptor 8(e).
6. I have considered Mr McAvoy's submission and I have considered the medical evidence. Taking into account the findings of fact I am satisfied that the Tribunal did err in leaving that finding relating to lifting and carrying in mid-air and without applying it to a descriptor and consequently erred in law. I therefore allow the appeal and set aside the decision of the Tribunal. I am satisfied that this is a proper case for me to give the decision which the Tribunal should have given. Applying it to a descriptor I am satisfied that claimant is entitled to 6 points in respect of that disability which gives him a total of 16 points. I am satisfied therefore on the evidence that he is entitled to incapacity benefit from and including 20 February 1996.

(Signed): C C G McNally

COMMISSIONER

4 August 1997