Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C5/99(IB) (11 March 1999)

 


Decision No: C5/99(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT

(NORTHERN IRELAND) 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) ACT

(NORTHERN IRELAND) 1992

INCAPACITY BENEFIT

Application by the claimant for leave to appeal

and appeal to the Social Security Commissioner

on a question of law from the decision of

Belfast Social Security Appeal Tribunal

dated 19 August 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against the decision of an Appeal Tribunal to the effect that the claimant cannot be treated as incapable of work from and including 7 July 1997. I arranged an oral hearing at which the claimant was present and represented by Ms Patricia Slevin, solicitor of the Law Centre (NI). The Adjudication Officer in attendance was Mr S Toner. At the hearing I granted leave to appeal. Both parties consented to me treating the application for leave as an appeal. Therefore, in accordance with regulation 5(3) of the Social Security Commissioners Procedure Regulations (Northern Ireland) 1987, I treat this application as if it were an appeal.
2. The claimant became unfit for work on 15 April 1991. He was paid sickness benefit from that date, followed by Invalidity Benefit, by reason of neurological handicap of his right hand. 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 form on 10 April 1997 and returned it along with the statement from his General Medical Practitioner. In addition a report on the claimant's condition on the usual form was obtained from his doctor and returned on 24 April 1997. On that date a Medical Officer of the department was unable to certify that the claimant was in any category that would make him exempt from the All Work Test. On 27 May 1997 the claimant was examined by a Medical Officer of the department. Then an Adjudication Officer considered all the available evidence, applied a descriptor to each relevant activity, and decided that the claimant scored zero points and accordingly failed the All Work Test. Then an Adjudication Officer reviewed the decision that awarded Invalidity Benefit from 16 December 1993 (Incapacity Benefit from 13 April 1995) and gave a revised decision disallowing Incapacity Benefit from and including 7 July 1997. The claimant then appealed to a Social Security Appeal Tribunal.
3. On appeal the Tribunal made the following findings of fact material to its decision:-

"It is accepted by Tribunal that appellant, on occasion, loses

some power in his right hand and fingers and this causes difficulty

in handling, and lifting, with this hand when the difficulty occurs,

but this is not a constant problem.

It is also accepted that appellant has difficulty sleeping which

probably affects him during the day, and that he is not as socially

active now as he was."

The Tribunal gave the following reasons for its decision:-

"So far as lifting and reaching are concerned, allegations have

been raised since the Questionnaire was completed by the appellant

and the Adjudication Officer would not have had notice of these

when decision reached.

However, on appellant's own evidence, his ability in this respect,

and his dexterity, which has always been an issue, are not constant.

He is unable to give Tribunal any guide as to what proportion of the

time his difficulties arise. From what evidence he did give, it is

probable that his inability to use his right hand and arm, occurs

less than 50% of the time and, therefore, Tribunal feels that this is

not sufficient to satisfy the relevant descriptors.

It is clear that his dexterity is probably sufficient more than 50%

of the time. He admitted writing the answers in the Questionnaire

himself.

So far as his mental capabilities are concerned Tribunal found that

he did not appear to have any difficulty in communication but accept

that his sleep pattern is erratic and probably affects his day time

activity, and that he has become less social than he was prior to his

illness.

Points have been awarded accordingly, but, as they do not combine to

produce a total of 15, which is required by the relevant Regulations

to satisfy the All Work Test, his appeal fails."

The Tribunal came to the following unanimous decision:-

"Appeal refused. Appellant fails to satisfy the All Work Test from

and including 7/7/97."

The summary of the decision of the Tribunal in relation to the Physical Health Descriptors of the All Work Test assessment was as follows:-

"PHYSICAL HEALTH DESCRIPTORS

Activity Descriptor Points

Walking on level ground

with a walking stick or

other such aid if such aid

is normally used.

Walking up and down stairs.

Sitting in an upright chair

with a back, but no arms.

Standing without the support of

another person or the use of an

aid except a walking stick.

Rising from sitting in an upright

chair with a back but no arms

without the help of another person

Bending and kneeling

Manual dexterity 7H 0

Lifting and carrying by use 8G 0

of upper body and arms (excluding

all other activities specified in

Part 1)

Reaching 9G 0

Speech

Hearing with a hearing aid or other

aid if normally worn

Vision in normal daylight or bright

electric light with glasses or other

aid to vision if such aid is normally

worn

Continence

Remaining conscious other than for

normal periods of sleep

____________________________________________________

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

PHYSICAL HEALTH TOTAL 0"

The summary of the decision of the Tribunal in relation to the mental health descriptors was as follows:-

"MENTAL HEALTH DESCRIPTORS

Activity Descriptor Points

Completion of tasks 15E 1

Daily Living 16E 1

Coping with Pressure

Interaction with other people

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"

4. The relevant test in this case that decides whether the claimant is entitled to Incapacity Benefit is the All Work Test (see part 3 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 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 descriptors as it has not been argued that the net mental health total of zero (gross score 2) was incorrect in this case.
5. The claimant's submissions on the application for leave to appeal, and the appeal, can be summarised as follows:-

1. The Tribunal was erroneous in law in that it failed to record adequate findings of fact and failed to give adequate reasons for its decision. In particular the Tribunal failed to make findings of fact in relation to the claimant's speed of writing and the effort involved and whether he suffered any pain subsequent to writing. Also the Tribunal failed to take into account properly the circumstances in which the claimant was able to complete in his own hand the Incapacity Benefit questionnaire. In addition the Tribunal failed to give proper reasons why it did not award 15 points under activity 7 (manual dexterity) and in particular descriptor 7(d) (cannot use a pen or pencil), in light of the fact that there was evidence that he suffered discomfort, pain and reduced power in his right hand.

2. In the alternative it was submitted that the Tribunal erred by coming to a decision that was based on no or inadequate evidence, in that there was no evidence that his dexterity was sufficient more than 50% of the time.

3. The Tribunal also erred in law in failing to consider whether the claimant can use a pen or pencil with reasonable regularity, in that it failed to properly consider the concept of "reasonable regularity" in light of the decision of the Northern Ireland Chief Commissioner in C1/95(IB).

4. Finally the Tribunal erred in law in failing to make adequate findings of fact and to provide proper statement of reasons in relation to activity number 8 (lifting) and activity 9 (reaching).

At the oral hearing Ms Slevin also submitted that it was relevant that the claimant, according to her instructions, felt intimidated by the Tribunal setting and that, accordingly, he may not have adequately made clear that he was in constant pain. She submitted in the circumstances, in light of the fact that pain was an issue in the case, that the Tribunal ought to have specifically questioned the claimant in relation to this aspect of the case.

6. Mr S J McAvoy, on behalf of the Adjudication Officer, made written observations dated 22 June 1998 and these observations were expanded upon by Mr Toner at the oral hearing. In substance it was submitted on behalf of the Adjudication Officer that the Tribunal's findings of fact and reasons for its decision did meet the requirements of regulation 23(3A) of the Social Security (Adjudication) Regulations (Northern Ireland) 1995. In particular the Tribunal had before it the claimant's Incapacity for Work questionnaire dated 10 April 1997 on which he indicated that he had no difficulties reaching with his arms or lifting and carrying and, in addition, the medical support services report dated 27 May 1997 reported entirely unremarkable clinical findings. It is clear that the Tribunal accepted that the claimant, on occasion, lost some power in his right hand and fingers and that this caused difficulties with activity 7 (manual dexterity), activity 8 (lifting and carrying) and activity 9 (reaching) when the difficulty (sic) actually occurred. However the Tribunal was entitled to decide, as it did, that in these variable conditions it was necessary for it to consider whether these activities could be performed "most of the time" and the Tribunal was correct so to do in light of paragraph 7 of the Chief Commissioner's decision C1/95(IB). It was submitted on behalf of the Adjudication Officer that in light of the fact that the claimant's condition was variable and the fact that he could give no guide as to what proportion of the time he had difficulty, it was entirely within the Tribunal's remit to come to the conclusion that the claimant had difficulties less than 50% of the time, taking into account the fact that the burden of proof was on the claimant. It was also submitted on the Adjudication Officer's behalf that such a conclusion was reasonable and explained adequately why the claimant had failed the All Work Test. In the circumstances it was submitted that the Tribunal's decision was not erroneous in law.
7. It is clear from the record of proceedings that the Tribunal did hear some evidence in relation to pain as there is a reference in the appellant's evidence to the taking of Paracetamol painkillers. There is also, in my view, the implicit finding that the Tribunal was accepting the evidence from the Medical Officer which in the circumstances must be considered to be disinterested as well as informed. It is clear that, even if the facts contained in the claimant's questionnaire dated 10 April 1997 were entirely accepted, the claimant would only have gained 10 points. It is also significant that he never claimed that he could not use a pen or pencil. It seems that the Tribunal did try to get a full explanation from the claimant in relation to his manual dexterity problems but failed to obtain specific details. I consider that it is difficult to criticize the Tribunal, especially in light of the fact that when completing the relevant boxes in the Incapacity for Work questionnaire, he did not claim any specific manual dexterity problem except the difficulty in tying his shoelaces. It is relevant that in the same section of the questionnaire in relation to manual dexterity he did refer to pain and locking due to cramp and stiffness, but this does not appear to prevent him using a pen or pencil. While it would have been preferable for the Tribunal in the present circumstances to have made an explicit finding that it was accepting the Medical Officer's report, it seems to me that it has not been demonstrated that the Tribunal has failed to record adequate findings of fact or to give adequate reasons for its decision. It has dealt with the issues in the case, namely the question of manual dexterity, and come to conclusions that are reasonable in the circumstances. It seems to me that the Tribunal approached the case in a way that is not inconsistent with the approach recommended by the Chief Commissioner in C1/95(IB), as it concluded that the claimant's dexterity is probably sufficient "more than 50% of the time". This conclusion is not inconsistent with the suggested approach set out at paragraph 7 of C1/95(IB).
8. I have some sympathy with Ms Slevin's point that the Tribunal failed to make adequate findings of fact and to provide a proper statement of reasons in relation to activity 8 (lifting) and activity 9 (reaching). However it seems to me that these points were never made in the claimant's Incapacity for Work questionnaire completed by him and that the original Adjudication Officer was not in the position, therefore, to deal with these allegations. In light of the fact that the Tribunal concluded that the claimant did not give it any coherent evidence as to the amount of time that the claimant suffered physical difficulties in these respects, it seems to me reasonable in all the circumstances for the Tribunal to conclude that it was proper to award zero points for each of these activities. While the Tribunal has an inquisitorial role, it cannot be held to be in error in concluding that the claimant was entitled to zero points in respect of these activities in light of the nature of the evidence actually adduced to it.
9. The Tribunal has referred to the fact that in its reasons the claimant admitted writing the answers in the questionnaire himself. Ms Slevin has suggested that this evidence was given an inappropriate status and was held to be a most relevant fact against the claimant. However, close examination of the reasons for the Tribunal's decision, do not suggest to me that this finding has any such particular enhanced status. It was just one of the relevant factors in this case.
10. Ms Slevin's point that the Tribunal erred in not dealing adequately with the pain issue is undermined by the fact that she has stated in her submissions that the claimant may not have made it clear to the Tribunal that he was in constant pain. Certainly the issue of pain was mentioned before the Tribunal (supported to some extent by the statement from Dr H( that the claimant had constant discomfort in his right hand) as there is a mention in the Chairman's Record of Proceedings of the fact that he takes painkillers. However it does not appear to have been a main factor in the case and, in my view, I do not consider that, in the circumstances, the Tribunal erred by not specifically mentioning pain in its findings of fact and reasons.
11. Ms Slevin's additional and related point is that, according to her instructions, the claimant felt intimidated by the Tribunal. There is no evidence to support this proposition and it seems unlikely to be a relevant factor in this case in light of the fact that the claimant was represented before the Tribunal by an experienced public representative, namely Councillor D Hollis.
12. In my view the Tribunal has dealt with the issues in this case by deciding the facts and then by applying the All Work Test to the facts. The Tribunal was entitled to set out its conclusions in the findings of fact and the reasons and by recording the appropriate descriptor and awarding the appropriate points.
13. In the circumstances I conclude that the Appeal Tribunal's decision is not erroneous in point of law and therefore I dismiss the appeal.

(Signed): J A H Martin

CHIEF COMMISSIONER

11 March 1999