Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C10/99(IB) (21 February 2000)

 


Decision No: C10/99(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 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 INCAPACITY BENEFIT
Appeal to the Social Security Commissioner

on a question of law from the decision of

Belfast Social Security Appeal Tribunal

dated 28 August 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, with leave of a Commissioner, against the decision of an Appeal Tribunal which held that the claimant had failed to satisfy the All Work Test from and including 27 April 1998.
2. The claimant became unfit for work on 13 January 1997 and was paid statutory sick pay until 31 January 1997. She claimed and was paid Incapacity Benefit from 1 February 1997 on the grounds of chronic backache and stress. As she had been incapable of work for more than 196 days an Adjudication Officer decided that the All Work Test was applicable from 26 July 1997. On 29 August 1997 the claimant's general practitioner was asked to complete a report on the claimant's condition. After the return of this report a medical officer of the Department decided that he could not certify that the claimant was suffering from a severe mental health problem. In order to assess the All Work Test the claimant completed the usual questionnaire and returned it on 8 October 1997 along with a statement from her doctor. She was then examined by a medical officer of the Department on 26 February 1998. An Adjudication Officer then considered all the available evidence, applied a descriptor to each relevant activity, decided the claimant scored six points and that she had failed the All Work Test. An Adjudication Officer then reviewed the decision awarding Incapacity Benefit from 1 February 1997 and gave a revised decision disallowing Incapacity Benefit from and including 27 April 1998. The claimant then appealed to a Social Security Appeal Tribunal.
3. The Tribunal made the following findings of fact material to its decision:-

"Claimant suffers from back pain which causes some limitation

of function. The overall degree of limitation is insufficient

to satisfy the All Work Test.

The Tribunal accepts the findings and conclusions of the

Medical Referee Service doctor in relation to the claimant's

mental state and condition. The total score on the All Work

Test is insufficient to pass."

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

"The claimant (sic) evidence was not inconsistent (sic) with

the clinical findings of the Medical Referee Service doctor.

She stated that she was on her feet for 5/10 minutes at a time.

She sat without apparent discomfort and conceded that she may

have indicated an ability to sit for an hour. There was

evidence of some limitation but not, in the Tribunal's view,

enough to satisfy the test."

5. The unanimous decision of the Appeal Tribunal was in the following terms:-

"Claimant does not satisfy the All Work Test from and including

27.4.98."

6. The summary of the Tribunal's decision, commonly called the score sheet, was in the following terms:-

"ALL-WORK TEST ASSESSMENT

PHYSICAL HEALTH DESCRIPTORS

Activity Descriptor Points

Walking on level ground

with a walking stick or

other such aid if normally

used. G 0)

)

Walking up and down stairs. D 3)

Sitting in an upright chair

with a back, but no arms. F 0

Standing without the support of

another person or the use of an

aid except a walking stick. F 3

Rising from sitting in an upright

chair with a back but no arms

without the use of another person C 3

Bending and kneeling C 3

Manual dexterity H 0

Lifting and carrying (by use of

upper body and arms (excluding all

other activities specified in Part 1). G 0

Reaching G 0

Speech F 0

Hearing with a hearing aid or other

aid if normally worn F 0

Vision in normal daylight or bright

electric light with glasses or other

aid to vision if such aid is normally

worn F 0

Continence (other than enuresis

(bedwetting (sic))). H 0

Remaining conscious other than for

normal periods of sleep without having

epileptic or similar seizures during

waking moments. G 0

_______________________________________________________________

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

PHYSICAL HEALTH TOTAL 12

ALL - WORK TEST ASSESSMENT

MENTAL HEALTH DESCRIPTORS

Activity Descriptor Points

Completion of tasks

Daily Living

Coping with Pressure

Interaction with other people D 1

IF LESS THAN 6 AWARD 0 POINTS

IF 6,7,8 OR 9 AWARD 9 POINTS

(THE BENEFIT THRESHOLD SCORE IS 10)

MENTAL HEALTH TOTAL 0

ALL - WORK TEST ASSESSMENT

PHYSICAL HEALTH DESCRIPTORS

Activity Descriptor Points

Stairs D 3

Standing F 3

Rising from sitting C 3

Bending C 3

TOTAL 12

MENTAL HEALTH DESCRIPTORS

Activity Descriptor Points

Completion of tasks

Daily living

Coping with Pressure

Interaction with other

people D 1

If less than 6 disregard

If 6, 7 8 or 9 carry forward

(The benefit threshold score is 10) 1 TOTAL

PHYSICAL HEALTH TOTAL 12

MENTAL HEALTH TOTAL 0

ACCUMULATIVE TOTAL 12"

7. An application to a Commissioner for leave to appeal was (i) accepted for special reasons and (ii) was granted by a Commissioner on 25 May 1999.
8. The claimant's grounds of appeal were set out in her notice of application for leave to appeal, presumably prepared by her solicitor, and were in the following terms:-

"[Claimant] wishes to appeal to the Social Security Commissioner

from the decision of the social security appeal tribunal by virtue

of s.21 of the Social Security Administration (NI) Act 1992 and

reg.24 of the Social Security (Adjudication) Regulations (NI) 1995.

It is respectfully submitted that the decision of the tribunal was

erroneous in law as the tribunal failed to give an adequate statement

of reasons for their decision in accordance with their statutory duty

under reg.25 of the Social Security (Adjudication) Regulations (NI)

1995.

It is submitted that the tribunal should have adopted the approach

set out by Commissioner Walker in para.11 of CSIB/324/97.

Commissioner Walker recommended a four-step approach to tribunal

decision-making in such cases, which was recently endorsed by

Commissioner Martin. The four steps are as follows:

1. The tribunal should consider and make findings of fact

about first, the disability or disabilities, be they

bodily or mental problems, from which an individual

has been proved on the evidence to suffer from;

2. The tribunal should consider and make findings of fact

about which, if any, of the activities set out in the

schedule, are established to be adversely effected (sic)

by any of those disabilities;

3. The tribunal should determine which descriptor best fits

the case having regard to the evidence, based upon

appropriate findings of fact;

4. In their reasons the tribunal should explain why a

particular activity has been held not to be adversely

effected (sic), where there was a contention that it was

so effected (sic) and why a particular descriptor has

been preferred to any other contended for.

...

The tribunal failed to make any reference to the activity of walking,

which had been put at issue by [claimant] both on the IB50 form and

at the tribunal itself. They also failed to adequately explain why

they rejected [claimant's] evidence of limitation in the activity of

sitting. [Claimant] states that she was unable to understand how

the tribunal reached their decision from the findings of fact and

from the reasons given."

9. The Adjudication Officer now concerned with the case made the following written submissions by letter dated 21 June 1999:-

"[Claimant] appeals on the grounds that the Tribunal erred in law

by failing to give an adequate statement of reasons for its

decision. In particular it is submitted that -

* the Tribunal should have adopted the approach set out

by Commissioner Walker in paragraph 11 of the

decision CSIB/324/97. This approach, it is suggested,

was endorsed in a recent decision by The Chief

Commissioner (probably C46/97(IB), ...).

* It is also submitted that the Tribunal made no reference

to the activity of walking in spite of this being raised

by [claimant] in her questionnaire and at the hearing.

* The Tribunal failed to adequately explain why it rejected

claimant's evidence of limitation in the activity of

sitting.

* She was unable to understand how the Tribunal reached

its decision from the findings of facts and from the

reasons given.

In relation to decision CSIB/324/97, The Chief Commissioner, at

paragraph 11 of decision C46/97(IB), commended the words of

Commissioner Walker as a sensible guide to Tribunals in All Work

Test cases, "as long as it is appreciated that the Commissioner

is setting out "the best and safest practice"." The Chief

Commissioner went on to say that the "best and safest practice"

should not be used as a straitjacket and the fact that such an

approach is not adopted, does not necessarily mean that a

Tribunal's decision is erroneous on point of law. Although I

do not consider that the Tribunal erred by not approaching (sic)

the "best and safest practice", I have some sympathy with the

grounds put forward by [claimant].

In the reasons for decision it is recorded "The claimant(s)

evidence was not inconsistent (my highlighting) with the clinical

findings of the Medical Referee Service doctor." Given that

[claimant's] score, on the basis of her evidence on her

questionnaire, amounted to 55 points and that of the MSS doctor,

on examination, amounted to 6 points, it is clear that there

were inconsistencies. [Claimant's] evidence at the hearing was

consistent with that in her questionnaire. It may be that there

was a typographical error in that "not inconsistent" should read

"not consistent". In any event it is difficult to understand

what the Tribunal meant.

As shown above [claimant] scored 55 points on her questionnaire

and the AO, on the basis of the medical examination, scored

[claimant] 6 points for "standing" and "bending and kneeling".

The Tribunal awarded 6 points for "standing" and "bending and

kneeling" and by implication agreed with the AO and medical

officer. The Tribunal awarded an additional 6 points for

"walking up and down stairs" and "rising from sitting" and

therefore, to some extent, accepted [claimant's] evidence. In

the reasons for decision the Tribunal has at least mentioned

"standing" and "sitting", although it is not clear what the

reference to standing means. There is, however no mention of

the activity of "walking on level ground" in the findings and

the reasons (apart from a score of 0 points in the summary of

the decision) and it is not surprising that [claimant] cannot

understand why her evidence was rejected in this respect.

In decision R(A)1/72 the Great Britain Commissioner when dealing

with the standard of reasoning held at paragraph 8.

"The obligation to give reasons for the decision in such a case

imports a requirement to do more than only to state the conclusion,

and for the determining authority to state that on the evidence the

authority is not satisfied that the statutory conditions are met,

does no more than this. If affords no guide to the selective

process by which the evidence has been accepted, rejected, weighed

or considered, or the reasons for any of these things. It is

not, of course, obligatory thus to deal with every piece of

evidence or to over elaborate, but in an administrative quasi-

judicial decision the minimum requirements must at least be that

the claimant, looking at the decision should be able to discern

on the face of it the reasons why the evidence has failed to

satisfy the authority. For the purpose of the regulation which

requires the reasons for the decision to be set out, a decision

based, and only based, on a conclusion that the total effect of

the evidence fails to satisfy, without reasons given for reaching

that conclusion, will in many cases be no adequate decision at

all."

The above statement was approved by the Commissioner in decision C19/98(IB) ... and at paragraph 13 of that decision she held

"I would not wish to impose on the Tribunal the need

to be unduly lengthy in its reasons. So long as the

reasons adequately explain the decision that is all

that is legally required. However where the Tribunal,

as in this case, is rejecting the claimant's evidence

and where the claimant's evidence is crucial as it was

here, I think it is necessary to explain, at least in

brief and general terms why this was done...... The

claimant should not be left in a speculative position

as to why her crucial evidence was rejected. The

standard of reasoning means that she was so left. It

is not adequate."

For the reasons given above I therefore submit that the reasons for

the Tribunal's decision are inadequate and do not meet the

requirements of regulation 23(3A) of the Social Security

(Adjudication) Regulations 1995 (sic)."

10. The claimant's solicitor also referred me specifically to the Northern Ireland case of C36/98(IB), in particular to paragraph 7.
11. I arranged a hearing of the appeal at which the claimant, who was not present, was represented by Ms Slevin of the Law Centre (NI) while the Departmental Official in attendance was Mr Toner.
12. At the hearing both advocates expanded on their respective submissions and confirmed that both took the view that the Tribunal had erred in law in its decision.
13. The advocates agreed that the first sentence in the Tribunal's reasons for decision did not make any sense. I considered at one stage that this sentence might have contained a transcription error in which, by mistake, a double negative has been used. However, there appears to be no other document in existence to suggest that this was merely a transcription error. In the circumstances I hold that the Tribunal has erred in its reasoning as it stated in the first place that "the claimant (sic) evidence was not inconsistent with the clinical findings of the Medical Referee Service doctor," but this statement clearly conflicts with the rest of the Tribunal's reasoning. Accordingly I hold that this is an error in point of law.
14. Both Ms Slevin and Mr Toner also agreed that the reference in the Tribunal's reasons to the claimant being "on her feet" does not make clear whether this is of relevance to the claimant's standing or walking. Accordingly it is not clear which descriptor this comment relates to. I accept these submissions are correct.
15. Ms Slevin also submitted that in the reasons for decision there is a reference to the claimant sitting "without apparent discomfort." Ms Slevin submitted that, if the Tribunal wished to draw conclusions from its own observations, it should have made clear that it was observing the claimant whilst sitting in "an activity 3 chair" (see the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 - part 1 of the Schedule), namely, "Sitting in an upright chair with a back, but no arms.") Ms Slevin referred to paragraph 14 of the decision of Mr Commissioner Walker QC, namely CSIB/324/97, in which he stated as follows:-

"14. The second example concerns the first such activity -

number three in the Schedule:-

"Sitting in an upright chair with a back, but no arms."

The doctor gave an opinion for that is all that it really is, that

the claimant could not sit comfortably for more than one hour without

having to move from the chair. The adjudication officer accepted

that in preference to the other evidence. The claimant's case before

the tribunal was that she could not sit comfortably for more than ten

minutes without having to move from the chair and not one hour as the

doctor stated. That would have produced an award of 15 points on its

own. The doctor explained his opinion by noting that the claimant's

back pain appeared to be present all the time but was worse on sitting.

He then founded on the fact that she watched hour long television

programmes and was able to travel on a bus for about half an hour.

He also observed that she had sat without apparent discomfort for the

entire interview, being roughly 25 minutes. There then followed the

clinical findings about pain in the lower back across the top of the

pelvic bone and findings about her ability to reach and bend. Now

the tribunal would no doubt be entitled to assume that the doctor had

in mind for his direct evidence the chair specified for the purpose

of this activity. But they should also have noted that his direct

evidence covered no more than 25 minutes and so it is difficult to

see, given what he found about pain on sitting, why he thought one

hour was the limit rather than 30 minutes, which would have involved

a different descriptor. The fact that the claimant watched hour long

television programmes or travelled by bus were no doubt relevant but

it would equally be relevant to know whether, especially in the case

of the former, she was using the chair specified for the purpose of

the activity rather than something more comfortable in which, no doubt,

she could sit longer. The tribunal decision in impliedly endorsing the

one hour limit suffers from similar defects. It may be that their

hearing lasted over half an hour and that at it the claimant sat

in an appropriate chair. If so that could have been used to justify

their endorsement of the adjudication officer's finding, but that was

not what was done."

She submitted that the Tribunal ought not to have come to any conclusion from its own observations in relation to activity 3 unless it specifically observed and assessed the claimant in "an activity 3" chair. In addition Ms Slevin submitted that the Tribunal ought to have considered specifically a possibility of discomfort, in light of the fact that comfort and discomfort are relevant in relation to descriptor 3(a) to (e).

16. Mr Toner accepted that the Tribunal's reasoning in relation to sitting was difficult to understand and thereby was unsatisfactory.
17. However, it is noteworthy that the evidence of the claimant was that she could not sit - the type of chair not being mentioned - for more than 20 minutes. When assessing what the relevant facts are, in my view, a Tribunal is entitled to take into account its own observations which either tend to contradict or confirm the evidence of a claimant. It might be preferable for a Tribunal to note specifically, before drawing particular conclusions, whether or not a claimant was sitting on "an activity 3 chair" or some other type of seat. However I specifically do not express a concluded view on this issue. In any event I do not consider that the Tribunal erred in law in this case by not directly relating its observations to "an activity 3 chair".
18. Ms Slevin also submitted that the Tribunal erred by not dealing specifically with the claimant's walking ability. She submitted that the reference to being "on her feet" cannot be assumed to be a reference to walking. She submitted that the reference in the score sheet to walking and the scores given therein are not sufficient to show that the Tribunal addressed its mind to this issue. Mr Toner submitted that the score sheet can, in suitable cases, give sufficient reasons but conceded, in the present case, that the Tribunal ought to have justified its scoring of the activity of walking just as it attempted to justify its scoring in relation to the activity of sitting.
19. Ms Slevin relied on the decision of Mr Commissioner McNally in C36/98(IB), at paragraph 7 were he stated:-

"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 the 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 where 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 the 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."

I agree with Mr Commissioner McNally that a mere total score in the All Work Test in itself can never be considered to be a sufficient finding of fact, and, in my view, such a total score in itself can never be considered to be the sole reason for a decision. However, whether or not an individual scoring for each relevant activity is a sufficient finding of fact is a separate and distinct issue. The actual point scoring in relation to each activity may be a conclusion but the finding that a relevant descriptor is appropriate is a finding of fact.

20. Mr Toner supported the proposition that the score sheet can be a record of the findings of fact by drawing my attention to the words of Mrs Commissioner Brown in decision C62/98(IB) at paragraph 11 in which she stated as follows:-

"To come now to the points made in Mr McAvoy's letter, I am not of

the view and indeed my reason for having an oral hearing in this

case was that I considered Mr McAvoy incorrect in his contention

that inadequate findings of fact had been made in this case. In

my view the document which has become 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."

I agree that the score sheet is a record of findings of fact, but it is necessary not only to consider whether there are sufficient findings of fact but also to consider whether proper reasons have been given for the decision.

21. It is also important to remember that it is not crucial where a Tribunal records the relevant material in its decision making process as long as it is recorded. As Chief Commissioner Chambers QC stated in C1/96(IB):-

"So long as all the necessary material is included, it matters

not where it appears in the recorded decision."

22. However, in all the circumstances, I consider that, on balance, Mr Toner was correct to concede, in light of the apparent confusion and inconsistent treatment of the activities of walking and sitting, that the Tribunal has given inadequate reasons for its decision in relation to its scoring of the activity of walking.
23. Accordingly it is clear to me that there has been confusion in the reasoning of the Tribunal's decision (see paragraph 13) and inadequate treatment of the activities relating to standing and walking (see paragraph 14, 18 and 22). Therefore I conclude that the reasons for the Tribunal's decision are inadequate and do not meet the requirements of regulation 23(3A) of the Social Security (Adjudication) Regulations (Northern Ireland) 1995 (the then relevant legislation).
24. For the reasons stated 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

21 February 2000