Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C55/99-00(IB) (31 July 2000)

 


Decision No: C55/99-00(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

Belfast Social Security Appeal Tribunal

dated 8 April 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, with the leave of a Commissioner granted on 23 February 2000, against the decision of an Appeal Tribunal. The Tribunal had disallowed the claimant's appeal against a disallowance of Incapacity Benefit from 19 January 1999 on the grounds that he had not satisfied the All Work Test from that date.
2. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
3. The Tribunal's findings of fact and reasons are set out in part 2 and part 3 of the relevant form dated 8 April 1999 while the Chairman's record of proceedings is set out at part 1 of the form. The Tribunal's decision is set out in the appropriate form dated and issued on 8 April 1999 and in which it was stated:-

"Appeal dismissed.

AO had grounds to review & revise ie change of circs, ie he is

capable of work.

From & inc 19.1.99 John D... is not incapable of work."

4. The substance of the claimant's grounds of appeal is that the Tribunal breached the rules of natural justice. He also made the point that the failure of his appeal caused him financial hardship. In particular he submitted that the fear of returning to work would bring back or worsen his illness. In support of this he set out that he had the symptoms of mental illness (absent-mindedness, short term and long term memory problems) and of physical illness (numbness, dizzy spells, tiredness and poor circulation). He submitted that these symptoms would put at risk his safety and the safety of others in a working situation. The Adjudication Officer (now the relevant Departmental Official) Mr Fletcher made written observations on the then application for leave to appeal by letter dated 30 November 1999. He essentially opposed the appeal on the grounds set out by the claimant but made further submissions which, to some extent, are in favour of the claimant's submission that the Tribunal had erred in law.
5. The relevant test in this case is the All Work Test (see part III of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995). This test is applied by measuring prescribed activities using descriptors which have to reach a total of 15 points for physical disability descriptors, 15 for combined physical and mental descriptors or 10 for mental disability descriptors. In the present case there was a nil score in relation to physical descriptors. However the Tribunal, as stated below, awarded four points to the claimant for mental descriptors. Nevertheless, as the scoring under the mental descriptors amounted to less than six points, under regulation 26(1)(b) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 the total of four points was disregarded.
6. The claimant in the present case declined the opportunity of having a hearing before the Tribunal. Whilst it is clear that no penalty can be placed on the claimant because he decides not to attend such a hearing, it is important to remember that the evidential burden of proof to show that the All Work Test was satisfied still rests with the claimant. There is no doubt that a decision not to attend such a hearing makes it less likely that he can discharge this burden. As Mrs Commissioner Brown has stated in C32/98(IB) at paragraph 10:-

"Any claimant who does not attend the hearing and who has an onus

of proof is at some risk in not attending even though there is no

penalty placed on non-attendance. It is self-evident that if a

person has an evidential burden to discharge and does not discharge

it that person will lose the appeal subject of course to the Tribunal

fulfilling its inquisitorial function. It is less likely that that

burden can be discharged if the person does not attend."

7. Examination of the Tribunal's findings of fact and reasons make it clear that the Tribunal considered carefully the claimant's case and, in particular, considered his reply to form IB50 which indicated that, although his condition was variable, he would normally have no difficulty performing the physical activities prescribed by part I of the schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995. It is also clear that the Tribunal paid particular attention to the claimant's description of his typical day as explained to the medical support services doctor on 21 December 1998 and also to the clinical findings on the day of examination.
8. I conclude that Mr Fletcher is correct in his submissions that the Tribunal has adequately fulfilled its inquisitorial role with regard to the physical health activities. In the present case the All Work Test is the relevant test and the Tribunal is not entitled to take into account any other factors other than those set out in the schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995. The Tribunal is not entitled to take into account the effect of the claimant's condition on the claimant's own or others' safety in a working situation. Therefore the Tribunal can not be faulted, in my view, in taking the approach it did in relation to the claimant's physical disabilities.
9. The claimant has specifically made submissions impugning the Tribunal's treatment of his mental disabilities. The relevant legislation in relation to the All Work Test is set out in part II of the schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.
10. Mr Fletcher has also made a relevant submission which, in the circumstances, I consider helpful to quote. His relevant submissions are contained in his letter dated 30 November 1999 and are in the following terms:-

"With regard to the mental health assessment I note the tribunal

accept Adjudication Officer's award of descriptors as reasonable

in light of the medical referee's report. However, I would submit

the report suggests points should also have been awarded for

descriptors 15(c) ("Cannot concentrate to read a magazine article

or to follow a radio or television programme") and 17(f) ("Is scared

or anxious that work would bring back or worsen his illness").

The examining doctor gave an opinion that [the claimant] has a

short concentration span and gives up reading or watching television

after about 15 to 20 minutes (boxes 33, 34 and 49 of form IB85 refer).

The tribunal accepted [the claimant] had poor concentration (see the

penultimate paragraph of the Findings of fact). However, the

tribunal decided that descriptor 15(c) was not appropriate presumably following the adjudication officer's reasoning that the descriptor

did not apply because [the claimant] spends a lot of time watching

television and can get through a book in about one week (see "Notes"

on form IB58).

I submit the adjudication officer's reason (implicitly endorsed by

the tribunal) for finding that descriptor 15(c) was not appropriate

is flawed. The test is not whether [the claimant] watches a lot of

television (indeed there is little evidence to suggest that this is

actually the case) or as to how many days it takes for him to finish

reading a book. I submit that the descriptor tests the ability to

concentrate sufficiently to read a magazine article or follow a

radio or television programme in one continuous session. Although

there is no definition as to how long concentration must be

maintained, I submit the Medical Support Services doctor's evidence

that [the claimant] gives up reading or watching television after

about 15 to 20 minutes supports the award of descriptor 15(c).

With regard to descriptor 17(f) it seems self-evident that [the

claimant] was anxious that a return to work would bring back or

worsen his illness and therefore I submit a points award for this

descriptor was appropriate."

11. In relation to the claimant's submission that his mental symptoms would put his and others' safety at risk in a working situation, I conclude, as I did in relation to physical symptoms, that the only relevant test is that set out in the All Work Test and that this additional specific test cannot be considered by the adjudicating authorities to be relevant.
12. This point also applies to the claimant's submissions in relation to financial hardship. The adjudicating authorities are not permitted under the legislation to take such a fact into account in an Incapacity Benefit case.
13. However I am entirely satisfied that Mr Fletcher's submissions in relation to 15(c) and 17(f) are apposite. It seems to me that Mr Fletcher is correct that the Tribunal has appeared to be applying the wrong tests in relation to these descriptors. The Tribunal, in my view, should have, in light of the evidence, awarded one point for activity 15 under descriptor 15(c) (cannot concentrate to read a magazine article or follow a radio or television programme) and one point for activity 17 under descriptor 17(e) (frequently finds there are so many things to do that he gives up because of fatigue, apathy or disinterest). This would have resulted in the claimant receiving two further points under the All Work Test. However it is important to remember that the Tribunal's decision was that the claimant had failed the All Work Test. The fact that the Tribunal awarded the claimant four points (which under the Regulations equates to a score of nil points) rather than six points is not fundamental to the correctness of the decision which is that the claimant has failed the All Work Test. The addition of the two additional points which result in a substantive score of six points in no way vitiates the overall correctness of the Tribunal's decision, namely, that the claimant has failed the All Work Test.
14. (The use of the word "disinterest" in descriptor 17(e) (part II of the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 concerns me. "Disinterest" normally means "freedom from bias or involvement" and does not mean "not being interested". However the context of the word "disinterest" in descriptor 17(e), where it is put in a similar category to "fatigue" and apathy", suggests to me that the adjudicating authorities must interpret the word "disinterest" as meaning "indifference" or "lack of interest". Perhaps this requires a purposive and strained construction (see Francis Bennion's article in Justice of the Peace, Volume 162(1998) "Threading the Legislative Maze") but, in the circumstances, I find that this is the only possible construction).
15. Therefore I conclude that the error, which is not an error of substance, cannot amount to an error in point of law in this case. I am reinforced in coming to this conclusion by the decision of the Great Britain Commissioner in CSDLA/257/96 in which Mr Commissioner Mitchell QC came to a similar conclusion in a case where any substituted decision which he might have made would, of necessity, have been exactly to the same effect as the original decision of the Tribunal.
16. For the reasons stated I conclude that the Tribunal has not erred in point of law in its decision and I therefore dismiss this appeal.

(Signed): J.A.H. Martin QC

Chief Commissioner

31 July 2000