Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C23/98(IB) (18 March 1999)

 


Decision No: C23/98(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT

(NORTHERN IRELAND) 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) ACT

(NORTHERN IRELAND) 1992

INCAPACITY BENEFIT

Appeal to the Social Security Commissioner

on a question of law from the decision of

Belfast Social Security Appeal Tribunal

dated 4 September 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of the Tribunal whereby it was held that the claimant was not incapable of work from and including 6 May 1997.
2. Initially it seemed that the claimant wished to have an oral hearing but by letter dated 1 December 1998 her solicitors, C( & H( indicated that this was no longer the case. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without an oral hearing.
3. The claimant became unfit for work on 17 May 1988 by reason of muscular rheumatism and was paid Statutory Sick Pay until 21 December 1988 followed by Invalidity Benefit. Due to changes in legislation from 13 April 1995 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. After consideration of the claimant's questionnaire and her general practitioner's statement, and an examination by a medical officer of the Department, an Adjudication Officer decided that the claimant scored 19 points and accordingly passed the All Work Test. However, after a further examination by an medical officer of the Department and after the receipt of a further questionnaire giving details of the claimant's illness, an Adjudication Officer on 6 May 1997 decided that the claimant scored only 9 points and therefore failed the All Work Test. Accordingly the Adjudication Officer reviewed the decision awarding Invalidity Benefit (Incapacity Benefit from 13 April 1995) and gave a revised decision disallowing Incapacity Benefit from and including 6 May 1997. The claimant then appealed to a Social Security Appeal Tribunal.
4. The Tribunal made the following findings of fact material to its decision:-

"The Tribunal found the following facts:-

that the claimant had significant limitations in the activities of:-

a: Rising;

b: Standing;

c: Stairs and

d: Bending and kneeling.

She scored 3 points in each activity making a total of 12 in all."

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

"The appropriate test is the All Work Test. The claimant scored

a total of 12 points but as this score is less than 15 points the

claimant failed the said test.

The Tribunal had before it the written submission of the Adjudication

Officer which covered the 2 claims for Incapacity Benefit under the

new rules. The claimant was successful in her first claim being

awarded 19 points by the Adjudication Officer. On the second occasion

she scored 9 points and therefore failed the said test and this has

led to this appeal. The Tribunal also had the benefit of its own

observations of the claimant and her demeanour at the hearing.

The Tribunal gave the claimant's case every possible consideration

and indeed increased her total score from 9 points to 12. The

Tribunal was particularly impressed by what it took to be evidence of

a sustained and substantial improvement in the claimant's condition by

the fact that the claimant herself had reduced greatly the score from

the first to the second IB50. Although she at first denied there was

an improvement and indeed stated that she had gone "downhill" she

eventually did accept that there was an improvement in her condition.

The 2 doctors who interviewed her obviously concluded the same. The

first doctor gave his opinion that her condition would improve in 12

months. The second doctor found that improvement when he examined

her.

The improvement referred to in the previous paragraph supported

the conclusion the Tribunal had arrived at coming from a

different perspective. The Tribunal assessed the claimant on

the basis of the evidence before it contained in the second

IB 50 and second medical report and the Adjudication Officer's

decision on same. Comparing the 2 matters however assisted the

Tribunal in concluding that it correctly decided the matter."

6. The unanimous decision of the Tribunal was as follows:-

"The appeal is disallowed. The claimant is not incapable of work

from and including 6 May 1997."

7. The summary of the decision of the Tribunal set out the following point score in relation to Physical Health Descriptors under the All Work Test:-

"ALL-WORK TEST ASSESSMENT

PHYSICAL HEALTH DESCRIPTORS

Activity Descriptor Points

Walking on level ground

with a walking stick or

other such aid if such aid

is normally used.

Walking up and down stairs. St(e) 3

Sitting in an upright chair

with a back, but no arms.

Standing without the support of

another person or the use of an

aid except a walking stick. S(f) 3

Rising from sitting in an upright

chair with a back but no arms

without the use of another person R(C) 3

Bending and kneeling B(C) 3

Manual dexterity

Lifting and carrying

Reaching

Speech

Hearing with a hearing aid or other

aid if normally worn

Vision in normal daylight or bright

electric light with glasses or other

aid to vision if such aid is normally

worn

Continence

Remaining conscious other than for

normal periods of sleep

__________________________________________________________

WHEN CALCULATING THE TOTAL, ONLY INCLUDE THE HIGHER OF THE SCORE FROM THE WALKING/STAIRS FUNCTION

PHYSICAL HEALTH TOTAL 12"

8. The Chairman's record of proceedings included the following:-

"The claimant was informed by the chairman of her right to

request an adjournment due to there being no female on the

Tribunal. She indicated her wish to proceed.

The chairman explained to the claimant the procedure and

purpose of the hearing.

...

Sitting:

She can sit upright but if she leans forward her back starts

throbbing. She did not sit comfortably at the interview as

recorded by doctor. It may have appeared to him that she was

comfortable but she was not in fact so. There is always a

certain basic level of pain and one can get used to this so

that there may be no outward sign of same. However some days

are worse than others. The doctor may have thought that she

was comfortable for 30 minutes sitting at the interview.

If she is sitting at the table eating she has to move back in

the chair. Her husband has to bring the seat of the chair

forward to the table. She gets more agitated than uncomfortable.

Walking:

This activity also depends upon the level of pain. It can be

in the background or to the fore and can be horrendous. If the

level of pain is low she can walk indeed it can help with the

stiffness.

It is 300 yards to the village and the same back again. She gets

progressively slower and might have to stop altogether. When she

chose the descriptor she did not realise how far 800 metres

actually is."

9. The claimant applied to the Chairman for leave to appeal to a Commissioner and such leave was granted on 27 February 1998.
10. The grounds of the claimant's appeal, which were set out by her solicitors, are that:-

(i) her requests for a postponement and adjournment of the hearing

were refused and such refusal prevented her from obtaining a

detailed report from an osteopath;

(ii) the Tribunal's reasons for its decision not to adjourn the case

were inadequate; and

(iii) the Tribunal's reasons for its decision were inadequate in that

it did not refer to the medical evidence from the claimant's

general practitioner and osteopath and did not explain how much

weight was given to such evidence.

11. Mr Colin Fletcher, the Adjudication Officer now concerned with the case, by letter dated 6 July 1998 submitted that: -

(i) the Tribunal was entitled to decide that it had sufficient

evidence to determine the case and that in the circumstances

the refusal to postpone and adjourn was not an error in law;

(ii) the findings and reasons of the Tribunal were inadequate and

did not meet the requirements of Section 23(3A) of the Social

Security Administration (Northern Ireland) Act 1992 in that

there was no indication that the medical evidence from the

claimant's general practitioner and osteopath was considered,

and this evidence supported the claimant's claim of pain and

significant limitation, and in the circumstances the Tribunal

erred by not explaining how it dealt with this evidence and by

not stating why it felt the evidence did not support the claimed

level of disability; and

(iii) it was necessary for the Tribunal to make specific findings in

relation to all areas of contention raised before it and, in the

circumstances, the Tribunal in failing to make findings in

relation to "walking" and "sitting" made inadequate findings

which has resulted in a decision that was erroneous in law.

12. It is clear that there is a gross error in the Chairman's record of proceedings in that this records that the Chairman was Mr J W(, and the panel members were Mrs M( and Mr Y(. However it is stated in the record of proceedings that there was no female on the Tribunal. This cannot be correct. The Tribunal has purported to continue with the case with the consent of the claimant in light of the fact that there was no female on the Tribunal. This situation could not have arisen and I must accept that the issue in relation to adjournment did not concern the composition of the Tribunal but involved in all probability an application for adjournment by the claimant. In certain circumstances this issue could have been crucial in the present case and further investigations might have been necessary to clarify exactly what happened at the Tribunal hearing. However, in light of my findings on other legal matters it appears to me that it is not constructive to hold this case up further by investigating these matters further. Suffice to say it is very important that a Chairman making a record of proceedings ensures that the record is accurate as, in the present case, there has been a failure to do so.
13. It has been submitted on the claimant's behalf that the refusal of her requests for a postponement and adjournment were entirely unreasonable in the circumstances. Mr Fletcher has not submitted that there was no such issue in the case. I therefore must accept that there were requests for postponement and adjournment. Whether the Tribunal was entitled to decide against the claimant in these applications is a matter which I am not in the position to adjudicate upon. However, it is clear that the Tribunal has not even purported to deal with this issue. This may have been because it has inadvertently confused the issue of adjournment with the matter dealt with in the previous paragraph herein. However, I conclude that a Tribunal is obliged to deal with the issue of adjournment and come to a judicial decision in light of the relevant circumstances. In this case it has failed either so to do or to give adequate reasons for its decision. Accordingly I conclude that the Tribunal has erred in law in this respect.
14. For the reason stated by Mr Fletcher at paragraph 6 above I also conclude that it was necessary for the Tribunal in this case to deal with the evidence from the general practitioner and the osteopath. In light of the support that the evidence gave to the claimant's case, I conclude that the Tribunal erred in law by either not dealing with this evidence or by failing to make the appropriate findings and reasons in relation to this evidence.
15. The relevant test in this case that decides whether claimant is entitled to Incapacity Benefit is the All Work Test (see Part III of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995). The All Work Test is applied by measuring prescribed activities using descriptors which have to reach a total of 15 points for physical descriptors, 15 for combined physical mental disability descriptors or 10 for mental disability descriptors. In this case the relevant threshold was 15 points for physical descriptors.
16. Mr Fletcher submitted that the Tribunal erred specifically by not making any findings in relation to activities of "walking" and "sitting". In this particular case these activities were an issue. Therefore a finding of fact should have been made by the Tribunal in relation to these activities. In certain circumstances a Tribunal can deal with such an issue by assigning a particular descriptor to the activity by giving the appropriate point score in the summary of the decision. However, in this case the Tribunal has failed to give any score in relation to "walking" and "sitting" and I agree with Mr Fletcher in his submission that the Tribunal's findings were inadequate and the decision, accordingly, is erroneous in law.
17. For the reasons stated in paragraphs 8, 9 and 10 I conclude that the Tribunal's decision is erroneous in point of law and accordingly must be set aside. I therefore allow the appeal and refer the matter back to be reheard by a differently constituted Tribunal.

(Signed): J A H Martin

CHIEF COMMISSIONER

18 March 1999