Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C38/99(IB) (3 April 2000)

 


Decision No: C38/99(IB)

SOCIAL SECURITY ADMINISTRATION (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

Londonderry Social Security Appeal Tribunal

dated 19 May 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, with leave of a Chairman, against the decision of a Tribunal, whereby it was held that the claimant was not entitled to Incapacity Benefit from and including 18 September 1998.
2. Having considered the circumstances of the case I am satisfied that the appeal can be properly determined without a hearing.
3. The claimant became unfit for work on 20 January 1995 by reason of arthritis. He claimed and was paid Sickness Benefit followed by Incapacity Benefit. Later doctor's statements received in support of the claim refer to arthropathy. 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 4 August 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 this form, his General Practitioner completed the usual medical report and the claimant was examined by a Medical Officer of the Department on 25 August 1998. The Adjudication Officer then considered all the available evidence and also applied a descriptor to each relevant activity. He then decided that the claimant scored three points and accordingly failed the All Work Test. The Adjudication Officer then reviewed the decision awarding Incapacity Benefit from 4 August 1995 and gave a revised decision disallowing Incapacity Benefit from and including 18 September 1998. The claimant then appealed to a Tribunal.
4. The application of the All Work Test is in issue in this particular case. This test is designed to determine whether a person should be treated as being incapable of work. The test is detailed by 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. In light of a decision by the adjudicating authorities to that effect, a claimant can either be awarded Incapacity Benefit or can be considered by the Department for an award of credits if a claimant does not satisfy the contribution conditions for receipt of Incapacity Benefit.
5. On appeal the Tribunal came to the following findings of fact material to its decision:-

"1. The claimant suffers from psoriatic arthropathy.

2. He has difficulty in:-

(i) sitting - he has to get up within 2 hours;

(ii) standing - he has to move around within 30

minutes;

(iii) rising from sitting - sometimes he has to lean

on something;

(iv) bending/kneeling - sometimes he cannot pick paper

off the floor.

3. The severity of his symptoms varies from day to day and

within each day, but for the vast majority of the time,

he can carry out the activities in the all work test

without significant difficulty (except as indicated at

2 above)."

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

"The claimant has not scored 15 or more points under the all work

test. The Tribunal, having considered all available evidence,

including that of the claimant in person, concluded that he was

exaggerating his complaints, and that the appropriate award was

9 points (see findings of fact and summary sheet)."

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

"Disallow appeal. Claimant is not entitled to Incapacity

Benefit from and including 18.9.98."

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

"Presenting Officer: I rely on submission.

Representative: Descriptors disputed - as per submission except

manual dexterity, reaching, lifting/carrying. No mental

descriptors in issue.

Claimant: I take Kapake 4-6 a day; it helps.

Other medication did not agree with my stomach.

I am sore - spine, feet, headache - at times 2 hours most days;

worse if I have to do anything or go anywhere. Have had

investigation of stomach - final results not available - Mr

D… seemed happy enough.

SITTING: I get stiff in both hips, across small of back,

between shoulder blades. I have to lie down when headaches,

pain, tiredness comes on - this happens at some stage every day.

I did not sit half-hour continuously during assessment - not

sure if whole thing lasted 30 minutes. I lie, don't sit watching

television.

RISING: I would be stiff getting up, worse after sitting 10

minutes. I used desk to get up at assessment. Getting up four

times not consistent with sitting half-hour.

BENDING/KNEELING: I think I could touch my knees, pick

something off floor, but with soreness, stiffness in lower part

of back.

STANDING: Sore on middle of back, feet. After certain time each

day, have to lie down, stay off feet. In mornings, could stand

maybe ten minutes before lying down. I don't think I stood five

minutes at assessment.

WALKING: Pains in feet, back, right knee, hips. Feel this after

100 metres -would rest if given choice after that distance.

STAIRS: Pressure on knees coming down; on hips going up. Use

bannister to take weight off; did so outside MRC, I believe.

Each day, I have to lie down once headaches, tiredness, pain come

on, and remain there for the rest of the day. I told the Medical

Officer I took car to shop, collect son from school. He was not

listening to me.

(To Presenting Officer) No aids in home. Use wash hand basin to

help me up from toilet. Episodes of extreme tiredness 3-4 days,

maybe once a month.

Representative: Inconsistencies in Medical Officer's report - not

200 metres to gate, impossible to see people on street outside;

timing not accurate either. Claimant's knees not observed by

Medical Officer - was not asked to remove lower garments. Medical

Officer - box 61 - suggests improvement possible - not consistent

with Doctor K…'s assessment.

All: Nothing to add."

9. The summary of the decision of the Tribunal (perhaps more accurately described as the All Work Test assessment sheet in relation to physical health descriptors) established that the Tribunal specifically scored zero points in relation to activity 1 (walking on level ground with a walking stick or other such aid if normally used) under descriptor 1(g); zero points in relation to activity 2 (walking up and down stairs) under descriptor 2(f); zero points in relation to activity 3 (sitting in an upright chair with a back, but no arms) under descriptor 3(e); three points in relation to activity 4 (standing without the support of another person or the use of an aid except a walking stick) under descriptor 4(f); three points in relation to activity 5 (rising from sitting in an upright chair with a back but no arms without the use of another person) under descriptor 5(c) and three points in relation to activity 6 (bending and kneeling) under descriptor 6(c).
10. The claimant, who is now represented by Mr Farrell of the Churches' Advice Centre, applied for leave to appeal on the grounds that the Tribunal had given inadequate reasons for its decision and, in particular, on the grounds that the Tribunal failed to give specific reasons for deciding that he was exaggerating his complaints. In addition he submitted that the Tribunal ought to have explained why it formed a negative impression of the claimant's credibility.
11. As stated at paragraph 1, the Chairman granted leave to appeal on 25 August 1999.
12. By letter dated 8 December 1999, Mr Fletcher, the Departmental Official now concerned with this case, also submitted that the decision was erroneous in law.
13. Mr Fletcher made the point that the adequacy of the findings and reasons in any case must always be judged in relation to the particular facts of the case. He also noted that the Medical Support Services' doctor's report (in boxes 11 and 15) accepted a degree of pain in the legs and the feet but discounted the contention of back pain, whilst the Tribunal seems to have accepted a degree of back pain but has discounted the foot pain. In these circumstances Mr Fletcher has argued that the Tribunal's actual acceptance of the claimant's evidence (to a degree) in preference to the Medical Support Services' doctor's report is such that the Tribunal should have gone further and explained why it discounted limitations in relation to activity 1 (walking on level ground with a walking stick or other such aid if normally used) and activity 2 (walking up and down stairs).
14. Whilst a Tribunal is entitled to make judgments in relation to credibility based on its overall impression of a claimant (as demonstrated in decision C17/99(IB) at paragraph 11 and 13), in my view this does not mean that a Tribunal should not deal with all the relevant issues when deciding a case. In my view, having accepted the claimant's evidence in relation to the back pain, it was necessary for it to give some explanation why it did not accept his evidence in relation to pain in his feet. By not so doing the Tribunal, in my view, has failed to give adequate reasons for its decision.
15. Mr Fletcher has also introduced a further point. He has noted that the case was originally adjourned by a Tribunal to obtain a specialist report. This specialist report (from Dr …) noted that on examination the claimant was tender over his right Achilles tendon and had scars relating to a previous skin grafting. The claimant's then representative, Mr …, clearly referred to this report in his submissions to the Tribunal but there is no evidence that the Tribunal gave an assessment of this report in its decision making process. Mr Fletcher has submitted that the Tribunal ought to have dealt with this issue in its reasoning. I agree and in the circumstances find that by not so doing the reasoning of the Tribunal was inadequate and therefore the decision was erroneous in law.
16. Accordingly I conclude that the Tribunal's decision does not meet the requirements of regulation 23(3A) of the Social Security (Adjudication) Regulations (Northern Ireland) 1995 (the then applicable legislation) as to relevant findings of fact and reasons. Therefore I accept Mr Farrell's submission contained in the notice of application for leave to appeal that the decision is erroneous in point of law. I therefore set the Tribunal's decision aside and remit the case for rehearing and redetermination to an entirely differently constituted Social Security Appeal Tribunal.

(Signed): J A H Martin

CHIEF COMMISSIONER

3 April 2000