Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C36/98(IB) (25 May 1999)

 


Decision No: C36/98 (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 the

Belfast Social Security Appeal Tribunal

dated 19 November 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, brought by leave of the Chairman, against the decision of the Social Security Appeal Tribunal (SSAT), which held that as she did not score sufficient points in the All Work Test was therefore not entitled to Incapacity Benefit.
2. Briefly the facts are that the claimant is a 38 year old married lady who became unfit for work and claimed sickness benefit in January 1995 followed by Incapacity Benefit from May 1995. Due to the change in legislation in April 1995, she was required to take the All Work Test. She was examined by a Medical Officer on behalf of the Department in December 1995. After this report an Adjudication Officer considered all the available evidence and awarded her 15 points. She had therefore passed the All Work Test and was entitled to Incapacity Benefit. It is interesting at this point to note that the 15 points were all related to the mental assessment only, and that her complaint was diagnosed as chronic anxiety state. In May of 1997 she was again examined by a Medical Officer for the Department and as a result of that examination an Adjudication Officer awarded her only 9 points. Consequently, she had failed the All Work Test. The Adjudication Officer reviewed the decision awarding her Incapacity Benefit and removed the benefit from 7 July 1997. Against that decision claimant appealed to a SSAT.
3. The Tribunal recorded findings of fact material to the decision as shown:-

"Mrs M...-S... is aged 37. She has been claiming as unfit for work since 9 January 1995.

Her score on the All Work Test since 7 July 1997 had been 8 points made up and set out on the attached sheet."

and then gave reasons for its decision as follows:-

"We have considered all the evidence both written and verbal.

We acknowledge and accept that Mrs M...-S... is very anxious. What we have to do, is to decide where she falls on the various descriptors - the All Work Test. There are no physical health problems. We accept the assessment of the examining doctor and the Adjudication Officer's scoring based thereon (with the 3 exceptions noted underneath) as being objective and based on a detailed medical examination. We do, however, consider that Mrs M...-S... does have sleep problems which make her somewhat lethargic in the evenings and interfere with her activities then.

We also accept that, though she was dismissed from her work, Mrs M...-S... had actually stopped work pre dismissal due to stress.

We do not, however, consider that Mrs M...-S... is too frightened to go out alone. She is nervous of meeting more colleagues so avoids certain times of day but is quite capable of going outdoors at other times and indeed does go.

Mrs M...-S... has to satisfy the All Work Test to be entitled to Incapacity Benefit. Her score on the test is 8 points which is below the 10 required. From 7 July 1997, therefore she has not satisfied the test and has not been so entitled.

We must therefore dismiss the appeal."

4. The claimant sought leave to appeal against that decision and I arranged an oral hearing at which the claimant was present and was represented by her husband. The Adjudication Officer was represented by Mr Toner.
5. Claimant's husband drew attention to the fact that at the appeal a long letter which had been written on claimant's behalf setting out her various complaints was not before the Tribunal and the Tribunal eventually had to adjourn to consider the letter. He said that in that letter it set out very clearly what claimant's problems were. He attacked various findings by the Medical Officer as misleading, in particular remarks like "gets up early with children". He said that in fact he is the one who gets the children up, washes and dresses them and then has to encourage claimant to get up and to get dressed. He also said that she never goes out alone. He drew attention to the fact that after the first medical examination, the claimant was awarded 15 points yet as a result of the second examination she was only awarded 6 points. He argued that there was no evidence that there was any improvement in her condition. He said he was surprised that the letter containing the original reasons for appeal was not before the Tribunal until it was photocopied near the end of the hearing. It was then shown to the Tribunal. When it was considered by the Tribunal, no questions were asked relating to the points raised in the letter. He had expected questions from the panel and the answers given to the panel during the hearing were made on the assumption that the panel had received the letter. As far as the sleep problems were concerned, he said that during the day the claimant had to force herself to do tasks that were absolutely necessary because of the children when her husband was out working, but when the children went to bed she is completely exhausted so that she has no activities in the evening at all. Her husband does the bulk of the work during the weekend. The Medical Officer relating to the claimant's activities recorded that she does not have a huge range of activities and therefore no points were awarded in respect of that descriptor. He argued that the reason she did not have a huge range of activities was because of fatigue, apathy and disinterest and needed encouragement. He said that prior to the illness the claimant had worked with refugees, had taught English in China and worked in Israel and had travelled extensively in Asia without any problems. However, now she was in such a situation that she was afraid to go out and needed prompting and encouragement to carry out the simplest task.
6. I have considered all that has been said and I have considered the findings of fact. My attention has been drawn to a decision No C62/98 (IB), in which a Northern Ireland Commissioner dealing with the adequacy of findings recorded:-

"In my view the document which has come to be known as the "score sheet" is a record of the findings of fact. It is the Tribunal's findings on the claimant's capacity over the various activities and descriptors which constitute the All Work Test. I can see no useful point in these being repeated in another part of the decision record and of them having a different status if they are so repeated. These findings of fact were made on all material matters before the Tribunal and were adequate."

Mr Toner argued that that was sufficient authority for the Tribunal to hold that the claimant scored certain marks upon All Work Test.

7. I have considered the statutory obligation to provide proper findings of fact. I have considered Commissioner's decision C62/98(IB) which is quoted above. I consider that decision relates to a situation in which the findings of fact were made on all material matters before the Tribunal, but it does not relate to a situation where questions were raised by a claimant and were not dealt with by the Tribunal as in this case. I have no knowledge of what arguments were produced in C62/98 (IB), but I would find it very difficult to accept that a finding of fact which merely said "Claimant scored X points in the All Work Test" would ever be a sufficient finding of fact unless the reasons for the decision dealt with every descriptor which was queried by the claimant, or argued on behalf of the claimant, as relevant to claimant's condition. The Tribunal would then have made findings of fact on those arguments and given proper reasons for its findings and also proper reason for rejecting any arguments on behalf of the claimant. The actual points awarded are conclusions, not findings of fact.
8. In this particular case I am satisfied that there many items which were argued on behalf of the claimant and on which no findings of fact were made. I am satisfied the Tribunal erred in law in its making sufficient findings of fact. For that reason, I allow the appeal and set aside the decision of the Tribunal.
9. I think it is a proper case in which I should give a decision which the Tribunal should have given. I have sufficient evidence both from the hearing and from the letter which was sent to the Tribunal to make such findings. I accept and endorse the findings of the Tribunal relating to 15(c) and (e) - 2 points; 16(c) and (e) - 2 points; 17(a) and (f) - 3 points, and 18(d) - 1 point. However, to those points I would add the following:- 17(b) - 2 points, as there is clear evidence the claimant frequently feels scared or panicky for no obvious reason. Also I would add 16(a) - 2 points, as I accept the evidence that she needs encouragement to get up and dressed and 15(h) - 1 point, where I accept the evidence that her concentration can only be sustained by prompting. Added to the 8 points which I accept and endorse from the Tribunal, claimant's score is 13 points. She therefore satisfies the All Work Test and is entitled to Incapacity Benefit from and including 7 July 1997.

(Signed): C C G McNally

COMMISSIONER

25 May 1999