Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C56/99-00(IB) (17 April 2000)

 


Decision No: C56/99-00(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Application by the claimant for leave to appeal and appeal to

the Social Security Commissioner on a question of law

from Magherafelt Social Security Appeal Tribunal

dated 27 April 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against a decision of the Appeal Tribunal. The Tribunal had disallowed the claimant's appeal and decided that the claimant was not entitled to Incapacity Benefit from and including 25 November 1998.
2. I grant leave to appeal and with the consent of the claimant and Mr Toner, the Departmental Official now concerned with this case, I treat the application as an appeal and proceed to determine any questions arising on the application for leave as though they were questions arising on an appeal. Having considered the circumstances of the case, I am satisfied that this application (and appeal) can properly be determined without a hearing.
3. The claimant became unfit for work and was paid statutory sick pay by her employer from 1 March 1989 to 15 September 1989. She then claimed and was paid Invalidity Benefit from 16 September 1989 by reason of back pain. 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 completed the usual questionnaire giving details of how her illness affected her ability to perform various activities. On 4 November 1998 the claimant was examined by a Medical Officer of the Department. The Adjudication Officer then considered all the available evidence, applied a descriptor to each relevant activity and decided that the claimant failed the All Work Test as she only scored 3 points. The Adjudication Officer then reviewed the decision awarding Invalidity Benefit from 8 December 1993 (Incapacity Benefit from 13 April 1995) and gave a revised decision disallowing Incapacity Benefit from and including 25 November 1998. The claimant then appealed.
4. The Tribunal made the following findings of fact material to its decision:-

"1. The claimant suffers from back pain.

2. She was difficulty in:-

"(i) walking; her limit without severe discomfort is

under 400 metres;

(ii) walking up and down stairs; she needs to hold on

to a rail;

(iii) sitting: within 2 hours she needs to get up;

(iv) rising from sitting: sometimes she needs to lean

on something;

(v) bending/kneeling: sometimes she cannot pick a

piece of paper off the floor and straighten up

again.

3. She did not complain of difficulty in any other area of

physical activity nor of any mental health problem."

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

"The claimant has scored less than 15 points under the All Work

Test. In reaching the conclusion that a score of 9 points was

appropriate (see summary sheet and findings of fact), the

Tribunal considered all the available evidence, including all

medical evidence and the evidence given by the claimant. It was

accepted that the claimant had some restriction in various

activities, but not to the extent claimed by her.

In light of the above, the Adjudication Officer was entitled to

review the decision awarding Invalidity Benefit from 16 September

1989 on the ground of a change in circumstances, that is that the

claimant is now capable of work, within the meaning of the

Social Security/Incapacity for Work) (General) Regulations

(Northern Ireland) 1995."

6. The Chairman made the following record of the Tribunal's proceedings:-

"Copy medical letters 1 February 1999, 19 October 1998,

23 January 1996, 17 August 1995, 11 May 1995, September 1994,

26 July 1994.

Claimant: Physiotherapy finished last August - no benefit.

Was given shoe support - not much benefit either. Have been

on Brufen 8 months, 2 a day. Some relief. Also take

Paracetamol - not every day. Constant back pain, worse at

times.

SITTING: Always uncomfortable - middle of back. Right leg

gets numb. Have to get up after 1/2 hour maybe.

SITTING: Always hold on, support myself, because of pain in

middle of back. I held on at assessment - always do so.

STANDING: I would fall over due to poor co-ordination in back,

poor balance. Have to lean on something, need support. Might

be able to stand 5 minutes without support.

WALKING: I would trip if I had to walk any distance. Also leg

very painful after a few hundred yards. Don't go for walks.

Don't use walking stick; just leg support supplied by

physiotherapist.

STAIRS: Have to hold on and step 1/2 way up. Right leg has to

be trailed up.

LIFTING/CARRYING: Can't lift heavy things. Could not carry 5

pound bag of potatoes any distance. Could not carry full kettle

because I could not balance my body properly. No problem with

hands or arms.

Representative: She walks poorly - limps badly, has pain all the

time.

Claimant: My right leg gives way at times on stairs.

ALL: Nothing to add."

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

"Disallow appeal. Claimant is not entitled to Incapacity

Benefit from and including 25.11.98."

8. In the application for leave to appeal, Mr McVeigh of the Citizens Advice Bureau, on behalf of the claimant, submitted that the Tribunal had erred in law in the following respects:-

"1. The decision contains a false proposition of the law.

The tribunal decided that the Adjudication officer was entitled

to review the decision awarding Invalidity Benefit from 16

September 1989 on the ground of a change of circumstances, that

is that the claimant now capable of work, within the meaning of

the Social Security (Incapacity for Work) (General) Regulations

(Northern Ireland) 1995.

The fact that a person is capable of work is a conclusion of law

and not a relevant change of circumstances. The tribunal have

failed to look whether a change in the claimant's condition

represents a change of circumstances to justify a review.

2. The tribunal has failed to state adequate reasons for

decision.

The tribunal have failed to give reason as to why they rejected

[claimant's] evidence as refereed (sic) to in the record of

proceedings. In R(A)1/72 the Commissioner held that "in an

administrative quasi-judicial decision the minimum requirement

must be at least that the claimant, looking at the decision must

be able to discern on the face of it the reasons why the evidence

failed to satisfy the authority".

3. The decision is supported by insufficient evidence.

The tribunal confirm that they considered all available evidence

including all medical evidence and evidence given by the claimant.

They accepted that [claimant] had some restriction in various

activities but not to the extent claimed by her.

In a report dated 1 February 1999 Dr J.I.M... MD FRCP, furnished

to the tribunal, he confirms that [claimant] is genuine in her

complaints but her diagnosis remains uncertain. He confirms his

intentions of repeating her MRI or dorsal lumber spine and also

some nerve conduction velocities in the lower limb. The tribunal

have based their decision on uncertain clinical findings and where

aware of the tests that where (sic) pending."

9. Mr Toner made written submissions in relation to the application for leave to appeal by letter dated 28 November 1999 and Mr McVeigh made an additional submission by letter dated 23 December 1999.
10. The relevant test applied by the adjudication authorities 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 descriptors, 15 for combined physical and mental disability descriptors or 10 for mental disability descriptors. In this case the relevant threshold was 15 points for physical disability descriptors.
11. In relation to the first ground I come to the conclusion that the Adjudication Officer was entitled to review the award of benefit and that there was no error in law on the part of the Tribunal in upholding that decision. It is correct that the fact that a person is capable of work is a conclusion of law and not a relevant change of circumstance in relation to review. However the Tribunal has applied the All Work Test, and in so doing, measured the extent of the functional limitation of the claimant by setting out a point score. As Mr Toner submitted, the Adjudication Officer when assessing the All Work Test on 25 November 1998 gave 3 points to the claimant for the activity of bending and kneeling, and this, in itself, indicated a change of functional ability and accordingly established the appropriate grounds for review.
12. In relation to the third ground I conclude that the Tribunal had sufficient evidence to decide the appeal. It is clear that the Tribunal, if it had decided to do so, could have asked for further evidence but, in light of the evidence that was already before it, it could not be said that not to do so was wrong in law. As Mr Toner pointed out, the All Work Test is a test of a person's functional ability and there is no evidence that the tests mentioned by Dr M... to assist in a diagnosis of the claimant's condition would assist in deciding whether or not the claimant was able to perform the activities associated with the All Work Test.
13. In relation to the second ground it is clear from the record of proceedings that the claimant was alleging that she could not carry a five pound bag of potatoes any distance and could not carry a full kettle (for which she would be entitled to 15 points under the All Work Test). In the relevant questionnaire dated 17 April 1998 she also had stated that she could not pick up and carry a 2.5 kilo bag of potatoes with either one of her hands (which would have entitled her to 8 points under the All Work Test). The Tribunal made no finding of fact in respect of the activity of lifting and carrying. In not so doing, I conclude that the Tribunal has erred in law and has not taken into account all the available evidence, even though it stated in its reasons for its decision that it had considered all the available evidence.
14. In its findings of fact the Tribunal also specifically found that the claimant did not complain of any difficulty in any area of physical activity other than walking, walking up and down stairs, sitting, rising from sitting and, finally, bending and kneeling. I conclude that the Tribunal has erred in law by finding as a fact that the claimant did not complain of difficulty in any other area of physical activity when clearly this was not correct as she had complained about difficulty in lifting and carrying.
15. I conclude that the Tribunal therefore has erred in its decision making process. Mr Toner in his submissions recognised the Tribunal's error and my finding in relation to this point is consistent with his helpful and succinct submissions.
16. For the reasons stated I hold that Mr McVeigh is correct in his submission that the decision of the Tribunal is erroneous in point of law and in the circumstances I set it aside. I therefore allow the appeal and refer the case back to be reheard by a differently constituted Tribunal.

(Signed): J A H Martin

CHIEF COMMISSIONER

17 April 2000