Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C28/98(IB) (19 February 1999)

 


Decision No: C28/98(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

Armagh Social Security Appeal Tribunal

dated 31 October 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal against the decision of a Social Security Appeal Tribunal sitting at Armagh whereby it was held that the claimant was not entitled to Incapacity Benefit from and including 26 August 1997. Leave to appeal was granted by the Chairman of the Tribunal on 9 March 1998.
2. 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 6 August 1990 by reason of nervous debility and was paid sickness benefit up to 16 February 1991 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 6 points on the All Work Test. In the circumstances the Adjudication Officer reviewed the decision awarding Invalidity Benefit from 26 November 1993 (Incapacity Benefit from 13 April 1995) and gave a revised decision disallowing Incapacity Benefit from and including 26 August 1997. The claimant accordingly appealed to an Appeal Tribunal.
4. The Tribunal made the following facts material to its decision:-

"1. The claimant is aged 44 and is married with two children

aged 11 and 6. Her husband suffers from arthritis and

is at home. The claimant has been in receipt of sickness

benefit from August 1990. The initial incapacity was

nervous debility and subsequently back pain. This is a

transitional case and she became subject to the All Work

Test from 13 April 1995.

2. Her back pain followed the birth of her youngest child.

In or about 1992 she was referred to a consultant surgeon,

Mr L…, and a CT scan was performed. The scan showed

lumbar disc protrusion. Surgery was discussed but the

consultant surgeon was not advising same. The claimant

had 4 months of physiotherapy. Management thereafter was

conservative and a slow but steady recovery followed. The

claimant continues to have mild residual back problems.

Her condition varies. We do not accept that there has been

any significant deterioration in her condition from

September 1997.

3. The claimant is to have a further CT scan performed on

3 November 1997. Prior to seeing her General Practitioner

in September 1997 she had been an infrequent attender,

the previous visit for treatment being in or about

January 1997. Her medication prior to September 1997 was

mild and there had been no further physiotherapy or referrals

until the recent one.

4. At the medical assessment in July 1997 she could flex below

her knees and had normal spinal rotation. Her back contours

where normal and there was no specific tenderness or

deformity. Hip movements were full. Reflexes in her legs

were present and equal. There was no muscle wasting.

5. The claimant complained of pain always being present and her

leg gave way 3 times which we do not accept. The claimant

also states that she needs assistance from her husband on

rising from bed or from a chair or in using stairs which

we do not accept. She indicated considerable functional

disability and impairment particularly in walking which

we do not accept.

6. The claimant has mild asthma which does not cause any

significant restriction on function on a day to day basis.

She is on standard medication for mild to moderate asthma.

She has never been hospitalised. Her peak flow reading is

moderately reduced.

7. The claimant has no other restriction on function."

The Tribunal gave the following reasons for its decision:-

"The claimant is a tall, well built mother of 2 aged 6 and 11.

She requested a soft seat at the Tribunal. Her General

Practitioner's letter of 20 October 1997 refers to a sudden

relapse in late September 1997. The Doctor felt her symptoms

genuine and she was due a CAT scan on 3 November 1997.

The claimant was seen by a Mr L…, FRCS in 1992, a scan was

performed then. She was not offered surgery. She was either

told that surgery would not help or was not required.

The claimant refers to significant limitation. She says her

husband goes up the stairs behind her linking her. She states

pre September she could walk 50 yards and now it is down to 30.

Against this background of extreme restriction she has not seen

her General Practitioner this year, pre-September. September

is when she was first prescribed any significant medication.

From her account of daily living it is difficult to see any

difference between pre and post September - all activities

were significantly compromised on her account. We do not accept

such extreme restriction. We accept she has some back pain

but that same varies. For this reason we have awarded bending

and kneeling. In all other aspects we find the Adjudication

Officer's scoring accurate. We considered the claimant's

asthma. She is on standard medication. Her peak flow is

moderately reduced. Her representative has not stressed the

asthma. We feel this is correct as in our view same does not

contribute to any significant restriction. She has no other

restrictions.

We appreciate that 3 years ago the claimant was awarded Disability

Living Allowance high rate mobility middle care. We of course

are dealing with a different benefit the award of which is based

on a different criteria and a different means of assessment. The

mobility issue is relevant but we bear in mind the passage of

time. It may be that the claimant's condition was significantly

worse than when award of the mobility component of Disability

Living Allowance was made.

In reaching our decision we have borne in mind that the burden

of proof is on the Adjudication Officer to show capacity (R(S)3/90).

This is the first All Work Test assessment. The claimant has

indicated significant limitation primarily because of her back.

We find her stated restrictions totally unrealistic. We did

consider her General Practitioner's letter and considered whether

a change had occurred in September 1997 (CIB/14430/96, CISA/12054/96 and CS/12054/96). The distinction the claimant made in her walking being reduced from 50 yards to 30 yards was indicative

of the change being virtually indistinguishable given the severe

pre September restriction described. The claimant explained the

assistance given by her husband. He apparently is unfit for

work. We feel faced with the illogic of him assisting her

the claimant described him as suffering from 'slight arthritis'.

Overall we found the extreme disability described inconsistent

with the Medical Officer's findings of reasonably good function

and the claimant's medical history. In our view the claimant

fails the All Work Test and the decision to review and revise

was correct. We do appreciate the claimant has some back

discomfort and suffers from asthma. There may be occupations

for which she would be unfit but we are assessing here in the

context of the relatively light activities in the All Work Test."

The unanimous decision of the Tribunal was as follows:-

"... from and including 26 August 1997 the claimant fails

the All Work Test.

All Work Test score 9 physical.

Appeal dismissed."

In its summary of the decision of the Tribunal, the All Work Test Assessment form made it clear that the claimant scored 3 points on descriptor 5(c) (Rising from sitting in an upright chair with a back but no arms without the help of another person), 3 points on descriptor 6(c) (Bending and kneeling) and 3 points on descriptor 4(f) (Standing without the support of another person or the use of an aid except a walking stick).

5. The claimant appealed to a Commissioner on the following grounds:-

(i) the Tribunal failed to explain why it rejected her doctor's letter

of support;

(ii) it was mistaken in reasoning that the reduction in walking ability

from September 1997 was virtually indistinguishable from her evidence

of pre-September restrictions, and the claimant noted that the

Tribunal specifically referred to a reduction to 30 yards rather

than 30 feet in its reasons for decision; and

(iii) the Tribunal failed to comment on a request for an adjournment to

obtain results of a CAT scan scheduled for 3 November 1997.

6. Mr McAvoy, the Adjudication Officer now involved in the case, opposed the claimant's appeal and set out the reasons for the opposition in a letter dated 19 May 1998. In particular, in relation to grounds of appeal (i) and (ii) Mr McAvoy submitted as follows:-

"I would submit that points (i) and (ii) above are linked in that

Dr M…'s letter dated 20 October 1997 was written in support

of the claim of deterioration from September 1997. Dr M…'s

letter is written in general terms and does not focus on specific

physical limitations.

I would further submit that it is clear that the Tribunal held

Mrs M...'s stated restrictions pre-September 1997 to be wholly

inconsistent with the Medical Officer's findings and decided she

exaggerated her condition. While the Tribunal do misquote

Mrs M...'s evidence as submitted in point (ii) above I do

not think this error prejudices the decision. In absence of any

specific medical evidence supporting the claims of deterioration

from September 1997 it was incumbent on the Tribunal to judge

the veracity of Mrs M...'s oral evidence. It is apparent that

the Tribunal found this evidence to be unconvincing and that they

did not accept any significant limitations in the prescribed

activity of "Walking on level ground ..." either pre or post

September 1997. I would submit that this was a judgment they

were entitled to make."

7. I conclude, despite the technical deficiency in the Tribunal's reasons, that Mr McAvoy is correct in submission that the Tribunal was entitled to conclude that the claimant's oral evidence was unconvincing and that it was also entitled to conclude that it did not accept that there were any significant limitations in the prescribed activity of "Walking on level ground with a walking stick or other aid if such aid is normally used" either pre or post September 1997. My conclusions are consistent with the view taken by the Great Britain Commissioner in CSDLA/257/96 in which Mr Commissioner Mitchell QC decided that it was not appropriate to find a Tribunal decision erroneous in law, because of a technical deficiency, particularly as any substituted decision which he might have come to would necessarily have been to the same effect as that of the original Tribunal.
8. Mr McAvoy made the following submission in relation to point (iii) of the grounds of appeal:-

"With regard to point (iii) above the Record of Proceedings

attribute the suggestion that an adjournment might have been

useful to the Presenting Officer. There is no indication

that Mrs M... or her representative pursued the matter.

Nevertheless, it is for the Tribunal to judge whether they

have sufficient evidence to determine the case and their

decision to proceed would not amount to an error in law."

9. The record of proceedings states as follows:-

"Presenting Officer: Sitting - test is hand chair.

Might be useful to adjourn for CAT scan results."

10. I conclude that Mr McAvoy is correct in his submissions that there is no indication that the claimant or her representative sought an adjournment at any time. In the circumstances I also agree that it is for the Tribunal to judge whether it has sufficient evidence to determine the case. In certain circumstances a Tribunal can be in error in law in proceeding to adjudicate upon an appeal without hearing additional evidence but, in my view, this is not one of those cases. By implication the Tribunal has decided that it had sufficient evidence to determine the case and, in my view, it was not in error in law in so doing.
11. Therefore, for the reasons stated, this appeal is dismissed.

(Signed): J A H Martin

CHIEF COMMISSIONER

19 February 1999