Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C50/98(IB) (17 February 1999)

 


Decision No: C50/98(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 10 November 1997
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This case is an appeal by the claimant, with a Commissioner's leave granted on 2 September 1998, from a decision of Belfast Social Security Appeal Tribunal dated 10 November 1997 to the effect that the claimant is not incapable of work from and including 8 September 1997 on the ground that he has failed the All Work Test.
2. The Tribunal disallowed the claimant's appeal from a decision of an Adjudication Officer which had held that the claimant did not satisfy the All Work Test. This test is designed to determine those who qualify for Incapacity Benefit. The test is set out in the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 and in particular by Part III of, and the Schedule to, the regulations. In brief and for the purposes of this case where only physical disabilities were in question, the scheme set out in Part I of the schedule provides a set of activities and descriptors related to each. In respect of each descriptor points are acquired and, if more than 15 points are achieved, then the claimant has satisfied the All Work Test and is, other matters apart, entitled to the benefit.
3. The Adjudication Officer awarded the claimant zero points on 8 September 1997 and therefore failed the All Work Test. Accordingly the Adjudication Officer decided that the claimant was not incapable of work from and including 8 September 1997.
4. The Tribunal made the following findings of fact material to its decision:-

"Tribunal accept that Mr B... has limitations in the following areas and has scored accordingly:-

Activity Descriptor Score

Stairs 2E 3

Sitting 3D 3

Standing 4F 3

Rising from sitting 5C 3

Total 12

Mr B... fails the All Work Test.

Mr B... is capable of work from and including 8 September 1997."

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

"1. As per page above.

2. Evidence of Adjudication Officer and Medical Referee

Service.

3. Evidence of Mr B... and his demeanour and presentation."

6. The majority decision of the Tribunal was in the following terms:-

"Appeal not allowed.

Mr B... scores 12 points on the All Work Test. He is capable of work from and including 8 September 1997."

There was no record of the reasons for the decision of the minority.

7. The All Work Test assessment in relation to physical health descriptors was set out by the Chairman in the following terms:-

" PHYSICAL HEALTH DESCRIPTORS

Activity Descriptor Points

Walking on level ground

with a walking stick or

other such aid if normally

used. 1f (0)

Walking up and down stairs. 2e 3

Sitting in an upright chair

with a back, but no arms. 3d 3

Standing without the support of

another person or the use of an

aid except a walking stick. 4f 3

Rising from sitting in an upright

chair with a back but no arms

without the use of another person 5c 3

Bending and kneeling 6d 0

Manual dexterity 7h 0

Lifting and carrying 8g 0

Reaching 9g 0

Speech 10f 0

Hearing with a hearing aid or other

aid if normally worn 11f 0

Vision in normal daylight or bright

electric light with glasses or other

aid to vision if such aid is normally

worn 12f 0

Continence 13h 0

Remaining conscious other than for

normal periods of sleep 14g 0 ____________________________________________________

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

PHYSICAL HEALTH TOTAL 12"

8. The record of proceedings produced by the Chairman of the Tribunal stated, inter alia:-

"Bending and kneeling

Confirms that can regularly bend to put on shoes and socks. Can also kneel but this causes a little pain. Can bend/kneel to pick up change that he may have dropped. Has to use support of hands to get back up but can get up and straighten up. Doctor states able to kneel and squat. Noted this in papers. Says kneeling sore. States that previous Doctor accepts that he has difficulty with knees. Exercise to build up supporting muscle groups. Has had a toilet fitted downstairs to make life easier. Went to physiotherapy at D… - 6 months - stopped not doing him any good. All other sports stopped. Noted now to have been sitting 40 minutes with no sign of any discomfort - why? - reply - trying to move knees under table - not noticed or observed by any of Tribunal members - Did not rise to "relieve" discomfort."

In addition there is no record of any report from the War Pensions Agency dated 8 May 1997 ever having been submitted to the Tribunal.

9. In the claimant's application for leave to appeal, submitted by his solicitors M… & F…, it was pointed out that a report from the War Pensions Agency dated 8 May 1997 was submitted to the Tribunal and that this report addressed activities that were directly relevant to the entitlement to Incapacity Benefit. It was contended on behalf of the claimant that this report directly contradicted the Medical Officer's report obtained in connection with Incapacity Benefit and, in particular, contradicted the report in respect of the activity of bending and kneeling. Accordingly, as the Tribunal had awarded points for other activities against the opinion of the Medical Officer's report, it was submitted that the reasons given by the Tribunal did not explain adequately why points were not awarded for the activity of bending and kneeling.
10. The Adjudication Officer now concerned with this case, Mr S Toner, has submitted by letter dated 2 July 1998 that, whilst there is no record of this report having been submitted to the Tribunal, it was clearly part of the case papers and, as such, it is not appropriate to draw the conclusion that it was not before the Tribunal.
11. In my view I do not consider that I am entitled to assume that this report was not considered by the Tribunal in all the circumstances.
12. However the claimant also submits that no reasons were given for not awarding points for the activity of bending and kneeling, and, in the circumstances, it was inappropriate for the Tribunal to come to that conclusion.
13. Mr Toner agrees that whilst there is evidence recorded on the disputed activity of bending and kneeling (see the quoted portion of the record of proceedings set out above in paragraph 8), there are no findings of fact or reasons recorded in respect of that activity apart from "descriptor 6(d)" "zero points" being entered in the summary of the decision of the Tribunal headed "Physical Health Descriptors".
14. It is clear that there was an issue for the Tribunal to decide in relation to the bending and kneeling activity. No explanation of any sort has been given for deciding that the claimant scored zero points in respect of this activity. In this case some form of explanation was needed to explain to the claimant which evidence the Tribunal preferred and in general terms why the Tribunal preferred that evidence. Accordingly I conclude that the Tribunal's failure to record the reasons for not awarding points for the activity of bending and kneeling was an error in law.
15. However another point arises on the face of the record of these proceedings. The summary of the decision clearly shows that the claimant's appeal was disallowed by a majority decision and an examination of all the relevant forms shows that there was a failure to record the reasons of the dissenting member. The relevant statutory provision is set out in regulation 23 of the Social Security (Adjudication) Regulations (Northern Ireland) 1995 in particular at regulation 23(3D) which states as follows:-

"Where a decision is not unanimous, the statements referred to in paragraph (3A) shall record that one of the members dissented and the reasons given by him for dissenting."

The reference to paragraph (3A) is a reference to the statement of the reasons for the Tribunal's decision and of its findings on questions of fact material thereto.

16. I conclude that if a decision is not unanimous that the Chairman's statement under paragraph (3A) must record that one member dissented from the majority decision and also must record what reasons were given by that member for so dissenting. In this case a Chairman has failed to record the reasons given by the dissenting member. This omission is an error in law as it is a failure to comply with regulation 23(3D).
17. Accordingly I hold that the Tribunal erred in law in the respect set out at paragraphs 12 and 14. Accordingly I remit the case for rehearing and redetermination. I therefore set the decision aside and remit the case for rehearing and redetermination to an entirely differently constituted Appeal Tribunal.

(Signed): J A H Martin

CHIEF COMMISSIONER

17 February 1999