Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C14/00-01(IB) (10 October 2000)

 


Decision No: C14/00-01(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 INCAPACITY BENEFIT
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 28 January 2000 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by myself, by the claimant against the decision dated 28^th January 2000 of an Appeal Tribunal sitting at Belfast. That Tribunal had disallowed the claimant's appeal in relation to Incapacity Benefit finding that he did not satisfy the All Work Test from and including 4^th October 1999.
2. A hearing was not requested and having perused the papers in the case I am satisfied that I can decide the matter without such a hearing. My decision is that the appeal is dismissed, the Tribunal's decision not being in error of law.
3. The claimant's grounds of appeal were set out in a letter dated 4^th July 2000 from Mrs Carty of the Law Centre (NI), representing the claimant. Comment on the appeal was made by Mr Toner of the Decision Making and Appeals Unit (representing the Adjudication Officer now known as the Decision Maker) by letter of 9^th August 2000. Further observations on the Department's comments were offered by Mrs Carty by letter of 15^th September 2000. I am obliged to both representatives for their assistance in this matter.
4. In essence Mrs Carty had two grounds of appeal as follows:-

1. That the reasons for the decision were inadequate.

In Mrs Carty's submission the Tribunal had not given an adequate statement of the reasons for its decision in relation to the disputed descriptors of walking on level ground, walking up and down stairs, standing and continence. She submitted that, by implication the Tribunal had accepted some of the claimant's evidence and rejected some of the Examining Medical Officer's evidence but had left the claimant in a position were he could not understand why his evidence in relation to the above named disputed descriptors had been rejected.

2. That the Tribunal had erred in its approach to the activity of continence.

In this respect Mrs Carty submitted that the Tribunal had erred in failing to make specific findings as to whether there had been any incident when the claimant was unable to reach the toilet and had actually lost control of his bowels. She submitted that it was irrelevant that the circumstances surrounding this matter were that the claimant's bowels were satisfactory but that any problem in that regard was due to mobility when his back was bad.

5. Mr Toner opposed the appeal on both grounds. As regards the first ground, Mr Toner submitted that the reasons for the decision showed that the Tribunal, far from rejecting some of the evidence of the doctor from the Medical Support Services, took account of that evidence and, weighing it with the evidence from the claimant, his doctor and hospital reports rejected the evidence of the claimant regarding the severity and frequency of his back pain, and awarded 3 points each for the activities of rising from sitting and bending and kneeling as well as 8 points for the activity of speech. This , Mr Toner submitted, was consistent with the evidence before the Tribunal.
6. As regards the second issue Mr Toner stated that he would concede that there might be some extreme cases where a person not medically incontinent, might encounter circumstances where through another disability he lost control of his bowels. In this particular case, Mr Toner submitted, the Tribunal had made a finding that the claimant had no problem with continence. He submitted therefore that the implication of the Tribunal's finding was that the claimant would not find himself in circumstances through his back problem where he lost control of his bowels.
7. I deal first with the adequacy of the reasons. It has been explicitly stated by the Tribunal that it did not accept that the claimant's back pain amounted to a significant limitation of function except on an intermittent and occasional basis. It has also been quite clearly stated that this is because of the medical evidence and the treatment pattern. It appears to me quite clear that the Tribunal did not accept the claimant's evidence in full but that it did exactly what Mr Toner has stated it did, in other words it took into account all of the evidence and exercised its judgment. It has stated quite clearly why it has not accepted the claimant's evidence in full and I consider that, in light of the other evidence before it, it was entitled to its conclusion. It appears to me that the decision is quite comprehensible to any reasonable person reading it.
8. With regard to the second ground of appeal it appears to me that this ground indicates some misunderstanding of what is included within the activity of continence. Continence is the ability to control urination and defecation. In this particular case the evidence from the claimant in his questionnaire form was that he lost control of his bowels at least once per week and of his bladder at least once per month. Before the Tribunal the claimant's evidence with relation to this descriptor was that he had never seen a doctor about any continence problem. The record of proceedings included the following from the claimant:-

"If I have a severe pain attack, not often, and I want to go to the toilet at the same time. The pain inhibits me from getting to the toilet. Not a bowel problem, a mobility problem. No problem with the bowels. Back spasm would last maybe 5-10 minutes."

9. The Examining Doctor assessed the claimant as having no problem with continence stating that the claimant described frequency of bladder and bowel movement but there was no history of treatment or specialist assessment for the problem and no continence aids used. The claimant's abdomen on examination was found to be soft and non-tender and the doctor had stated "The client is able to leave home on a daily basis without problems due to poor bladder or bowel control. History and assessment do not correlate with client's choice."
10. To approach this matter it is necessary firstly to understand what is meant by continence. Continence is the ability to control urination and defecation. Obviously no one has indefinite control over these bodily functions. The claimant's own evidence to the Tribunal was that he had no bowel problem but that the problem was a mobility problem. The Tribunal has obviously accepted the claimant's own statement in this respect. What the Tribunal had to assess was not whether or not the claimant ever had an accident but the degree of control which he had. The Tribunal has found that the claimant had no problem with continence, in other words he had no problem with control or his control was normal. I consider that it was quite entitled to this finding and that a lack of mobility does not enter into whether or not someone is continent. Continence is to be determined by considering the degree of control over bladder and bowels.
11. I can see no error on the Tribunal's part either as contended or in any other way and I therefore dismiss the appeal.

(Signed): M F BROWN

COMMISSIONER

10 OCTOBER 2000