Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C36/99(IB) (29 February 2000)

 


Decision No: C36/99(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

Omagh Social Security Appeal Tribunal

dated 12 January 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of the Appeal Tribunal, in which it dismissed the claimant's appeal on the grounds that he failed to satisfy the All Work Test from and including 29 October 1998. Essentially the decision was to the effect that the claimant had failed to achieve a score of points sufficient to pass the All Work Test and that there were no exempting or exceptional circumstances. Leave to appeal was granted by the Chairman of the Tribunal on 22 June 1999. The claimant did not appeal within the statutory time limit. However, on 17 November 1999, a Commissioner accepted the appeal for special reasons even though the appeal, which was received on 6 August 1999 (the time limit having expired on 4 August 1999), was late.
2. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
3. The claimant became unfit for work on 15 November 1990 and was paid statutory sick pay by his employer until 31 May 1991. From 1 June 1991 he claimed and was paid Invalidity Benefit by reason of having an ulcer. Later doctor's statements received in support of the claim referred to duodenal ulcer, neck and knee pains. 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. In order to assess the All Work Test the claimant was requested to complete the usual questionnaire giving details of how his illness affected his ability to perform various activities. The claimant completed the form and returned it along with a statement from his General Practitioner. On 8 October 1998 the claimant was examined by a Medical Officer of the Department. The Adjudication Officer then considered all the available evidence and applied a descriptor to each relevant activity. Accordingly he decided that the claimant scored three points and therefore failed the All Work Test. The Adjudication Officer then reviewed the decision awarding Invalidity Benefit from 29 April 1994 (Incapacity Benefit from 13 April 1995) and gave a revised decision disallowing Incapacity Benefit from and including 29 October 1998. The claimant then appealed to a Tribunal.
4. The relevant test in this case that decides whether the claimant is entitled to Incapacity Benefit is the All Work Test (see Part III of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995). The All Work Test is applied by measuring prescribed activities using descriptors which have to reach a total of (i) 15 points for physical descriptors, (ii) 15 for combined physical and mental disability descriptors or (iii) 10 for mental disability descriptors. In this case the only relevant threshold was that relating to physical descriptors.
5. The Tribunal made the following findings of fact material to its decision:-

"It is accepted from the oral evidence given by the claimant

and his Representative, and from the submission papers that

claimant suffers from arthritis or a like condition in both

knees, the left knee being more affected than the right knee;

also migraine; also a duodenal ulcer; and also some pain in his

neck. As a result to his arthritis in the knees and is accepted

that he has functional disability in the activities of walking,

standing, rising from sitting, and bending and kneeling. The

extent of his functional disability led to him being awarded 12

points by the Tribunal. He did not claim any additional points

for the activity of walking up and down stairs. He claimed

functional disability in the activities of sitting in an upright

chair and reaching but this was not accepted by the Tribunal."

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

"No additional medical evidence was submitted by claimant.

On the balance of probabilities, having considered all the

available evidence. the Tribunal felt that the points awarded

in the activities of walking, standing, rising and bending and

kneeling accurately reflected the degree of functional limitation

in those areas; and that claimant did not prove on the balance

of probabilities any functional limitation in the other two

activities claimed that is sitting and reaching."

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

"a. From and including 29 October 1998 claimant fails

the All Work Test.

b. Score on All Work Test is 12 points (physical).

c. Appeal disallowed."

8. The Chairman's record of proceedings was in the following terms:-

"Submission papers and submission by Mr McLaughlin.

Mr McLaughlin: No medical evidence but wishes to proceed.

Mr Stewart: Summarised facts 3 points awarded. Nothing

further to add at this point.

Mr McLaughlin: Client laboured from age 14. Never claimed

dole. Became ill in 1990 with duodenal ulcer and went off

work. Worked 38 years - all sorts of weather. Developed

pains - both knees - more so left knee. In July 1998 at

Tyrone County Hospital bandage and heat treatment to left

knee. Following week - referred to Altnagelvin. Plaster of

Paris on left leg thigh to ankle for 6 weeks. When removed

pain and discomfort still there. Also pain in right knee but

not to same degree. Weight-bearing to knees causes problems.

Duodenal ulcer all his life eating out of lunch-box. Also has

neck pains last 8 years working in quarries - last 30 years and

attending to brick-layers. Suffers migraine about twice a week

- leads to vomiting. Widower. Wife died a year ago: now lives

with 80 year old mother. Helped by his one son and daughter and

his siter (sic).

Medical report - in medical examination has complained of pain

at leg raising but this is not mentioned. He also told Medical

Officer about being in Altnagelvin but again this is not mentioned.

His own General Practitioner Doctor S… says there's no cure

for the condition - arthritis in knees - except physiotherapy.

Because of duodenal ulcer this limits him in taking painkillers.

Pain in neck - from loading bricks all his life. Pain in neck

not as troublesome.

Standing - most period 1/2 hour before sitting, he'd first

have to move around. 3

Rising - at times he'd have to hold on - at times his

left leg would lock. 3

Sitting - most 1/2 hour-1 hour before rising. Knees

get stiff and sore. 0

Bending/kneeling - sometimes has to hold to get down

to ground floor level. 3

Reaching - could reach up with both arms but couldn't

hold anything. 0

Walking - 3 points accepted 3

Presenting Officer see he had a problem with walking.

This is with the knees.

Stairs - no higher points claimed. 0

60 years old. Medical condition getting no better. No cure.

Medical Assessor: Naramig specifically for migraine - to try

to prevent attacks. Anti-inflammatories have an effect on the

stomach but there are drugs now such as Locsec or Tagamet which

can counteract these effects. Never heard of Plaster of Paris

treatment before for arthritis. More common to have for example

an injection of steroid into the joint.

[Claimant]: Heat treatment at first in Tyrone County Hospital.

Then at Altnagelvin they suggested Plaster of paris - but I

don't really know why. Last with own General Practitioner about

3 weeks ago. Tablets for migraine. Often vomit it off. General

Practitioner has given me different medication for the stomach

but none have any great effect. There are days I can't eat due to

stomach disorder. Knees - I can only walk a very short distance

or anything else. Family members make dinner and clean house.

I do all my own dressing bathing etcetera. They do shopping for

me."

9. Mr McLaughlin, who represents the claimant, sought leave to appeal on the following grounds:-

"In the first instance it is appreciated that the tribunal awarded

12 points in total for the descriptors Walking, Standing, Getting

up from Sitting, Bending & Kneeling. The tribunal did not ward

any points for Sitting and Reaching.

It was accepted by the tribunal that the claimant had a medical

condition of Arthritis or a like condition in both knees with

the left knee being the worst effected.

As a result of the said condition in the knees it was accepted

by the Tribunal that the claimant had a functional disability

in the areas of Walking, Standing, Bending & Kneeling and

Getting up from a Sitting position but not the fact that she

could not sit for up to an hour without having to rise because

the degree of discomfort made it impossible for her to sit any

longer.

The condition of [claimant's] knees leave him that he cannot

sit for any longer than an hour without having to rise as the

same disability exists for this descriptor as for the descriptors

where points were awarded, therefore the claimant fails to

understand why points were not awarded for this descriptor.

The descriptor of reaching is not being contested."

10. As stated in the first paragraph herein, leave to appeal was granted by a Chairman in this case.
11. The Departmental Official now concerned with this case, Mr Fletcher, made the following relevant written submission by letter dated 8 December 1999:-

"Grounds for appeal

[Claimant] appeals on the grounds that he cannot understand why

he was not awarded points for activity 3 of Part 1 of the

Schedule to the Social Security (Incapacity for Work) (General)

Regulations (Northern Ireland) 1995 ("Sitting in an upright

chair with a back but no arms").

Comments

At the hearing [claimant] told the tribunal he could not sit for

longer than 1/2 - 1 hour because his knees get stiff and sore.

This evidence was crucial to [claimant's] appeal; if he had been

believed he would have scored an additional 3/7 points taking

him above the benefit threshold.

It is apparent the tribunal largely accepted [claimant's] evidence

in relation to other activities in preference to the Medical

Support Services doctor's report but chose to reject his evidence

in relation to problems with sitting. The tribunal may have placed

weight on the representative's comments that it was weight bearing

to the knees that causes problems and took the view that sitting

would actually alleviate this problem. However, this is only

speculation and in the circumstances I submit that it was necessary

for the tribunal to explain why it rejected his crucial evidence on

this point (see paragraph 13 of C19/98(IB) ...).

For the reasons above I submit the reasons were inadequate to

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

Security (Adjudication) Regulations (Northern Ireland) Act

1995 and therefore the decision was erroneous in law. If

the Commissioner accepts my submission I respectfully suggest

that the case should be remitted to be reheard by a differently

constituted tribunal as it seems there is insufficient evidence

in the papers upon which to make the necessary findings in

relation to activity 3."

12. It is noteworthy in this case that the Medical Support Services' doctor's report, if accepted in its entirety would have scored the claimant zero points. The Adjudication Officer had originally scored the claimant three points in relation to walking (descriptor (e) cannot walk more than 400 metres without stopping or severe discomfort). However the Tribunal, as Mr Fletcher has pointed out, preferred the claimant's evidence in relation to many of the other activities in contention. Nonetheless the Tribunal rejected the claimant's evidence that he could not sit for longer than 1/2 - 1 hour because his knees became stiff and sore. I accept Mr McLaughlin's and Mr Fletcher's submissions that, in the circumstances, the Tribunal ought to have explained why it rejected such crucial evidence on this important point.
13. Therefore I come to the conclusion that the Tribunal's reasons were inadequate and therefore its decision was erroneous in law. I therefore set the Tribunal's decision aside and remit the case for rehearing and redetermination to an entirely differently constituted Appeal Tribunal. Success in the present appeal should not be taken as being an indicator that the eventual result will be in favour of the claimant.

(Signed): J A H Martin

CHIEF COMMISSIONER

29 February 2000