Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C7/98(IB) (1 November 1998)

 


Decision No: C7/98(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 Belfast Social Security Appeal Tribunal dated 22 September 1997
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the Adjudication Officer against the decision of a Social Security Appeal Tribunal whereby it was held that the claimant was entitled to Incapacity Benefit from and including 2 June 1997. Leave to appeal was granted by the Chairman of the Tribunal on 12 January 1998.
2. The claimant prior to 13 April 1995 became unfit for work by reason of osteoarthritis in her knees. She claimed and was paid Invalidity Benefit. Due to changes in legislation from 13 April 1995 this award became a transitional award of Incapacity Benefit. In the circumstances the All Work Test was applicable so, after considering all the available evidence, an Adjudication Officer on 2 June 1997 reviewed the decision awarding Invalidity Benefit from 13 April 1995 and gave a revised decision disallowing Incapacity Benefit from and including 2 June 1997 on the grounds that the claimant had only scored 10 points on the All Work Test. The claimant appealed this decision to an Appeal Tribunal.
3. The Tribunal made the following findings of fact material to its decision:-

"Mrs W... has a problem with arthritis. Disability Living Allowance shows crepidus (sic) - accepted by tribunal. Scoring stopped after 16."

The Tribunal gave the following reasons for its decision:-

"Genuine - scored 16 - crepitus in Disability Living Allowance. Tribunal did not need to address issue of manual dexterity in report of 21 August 1997."

The unanimous decision of the Tribunal was as follows:-

"Mrs W... satisfies the all work test from and including 2 June 1997. Any Job Seekers Allowance paid is to be treated as an account of Incapacity Benefit."

4. The grounds of appeal set out in the Adjudication Officer's application to the Chairman of the Tribunal were as follows:-

"In the questionnaire completed on 6 December 1996 Mrs W... stated she had difficulties in the activities of sitting in an upright chair, rising from such a chair, standing, walking, walking up and down stairs, bending and kneeling and lifting and carrying. In her grounds of appeal she disagreed with the points scored by the adjudication officer in 6 of those activities (standing was not disputed) and also the activity of manual dexterity.

When the tribunal decided the case they awarded a total of 16 points for walking (3 points), walking up and down stairs (3 points), standing (7 points) and rising from sitting (3 points) and then stopped scoring. In their reasons for decision it is stated that the tribunal did not need to address the issue of manual dexterity as 16 points had already been scored.

Regulation 26(2) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 provides that where descriptors specified for activities 1 and 2 in Part 1 apply, only one of those descriptors shall be counted when determining a person's score (see also C1/95(IB), paragraph 7).

Accordingly I would submit that the tribunal's decision is erroneous in law as the score of 3 points for walking on level ground (activity 1) and the score of 3 points for walking up and down stairs (activity 2) have both been counted."

5. By letter dated 21 April 1998 Councillor Johnny McLaughlin, who represents the claimant, stated the following:-

"I wish to state in answer to the requested comments that I am in agreement with the Adjudication Officers Representative, in that the tribunals awarded points for walking a distance plus that of going up and down stairs cannot be added together.

The Tribunal should have went beyond this point to see if the claimants medical condition fitted into any of the other descriptors."

6. Part I of the Schedule to the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995 sets out activity 1 as "Walking on level ground with a walking stick or other aid if such aid is normally used" and activity 2 as "Walking up and down stairs". Regulation 26(2) of the same Regulations states as follows:-

"In determining a person's score where descriptors specified for activities 1 and 2 in part I apply to him, only one descriptor shall be counted and that shall be the descriptor with the highest score in respect of either activity which applies to him."

7. The Tribunal in this case had a responsibility to apply the All Work Test as set out in regulation 25 of the Regulations. However, I am satisfied that both Mr Toner and Councillor McLaughlin are correct that the Tribunal's decision is erroneous in point of law as it counted both the score of 3 points on activity 1 and also the score of 3 points for activity 2. This method of scoring is in direct contradiction to the legislation. Unfortunately this is another case, similar to C1/95(IB) in which a Tribunal has overlooked the provisions of regulation 26(2).
8. In all the circumstances I am satisfied that the decision of the Appeal Tribunal is erroneous in point of law. Accordingly, I allow this appeal and set aside the decision of the Appeal Tribunal. In light of the fact that the Tribunal did not address the issue of manual dexterity at all it is clear that issues of fact still require to be decided by a Tribunal. I therefore remit the case for rehearing and redetermination to a freshly constituted Social Security Appeal Tribunal.

(Signed): J A H Martin

CHIEF COMMISSIONER

1 November 1998