Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2002] NISSCSC C22/02-03(IB) (17 January 2003)

 


Decision No: C22/02-03(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 the Appeal Tribunal dated 3 October 2000. DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by me, by the claimant against a decision dated 3 October 2000 of an Appeal Tribunal sitting at Belfast. That Tribunal had decided that the claimant had failed the personal capability assessment (scoring 13 points thereon) and was therefore not entitled to Incapacity Benefit. No issue has been raised nor is apparent to me that the claimant could be entitled to the benefit on any basis other than satisfying the personal capability assessment and it is agreed that he needed 15 points to do so. Throughout the proceedings before me the claimant has been represented by the Citizens Advice Bureau, initially by Mr Higgins and later by Mr McVeigh.
2. The claimant's grounds for appeal were set out in a letter attached to an OSSC1 (NI) form received in the Commissioner's office on 27 April 2001. They related solely to one of the activities in the Personal Capability Assessment, i.e. bending and kneeling. In the letter of 8 February 2001 attached to the OSSC1 (NI) Mr Higgins stated as follows:

"I believe the tribunal made an error interpreting the law regarding descriptor 6 (c) of the Personal Capability Assessment ….. This is in the area of "Bending and kneeling" and is the descriptor,

"Sometimes cannot either, bend or kneel, or bend and kneel as if to pick up a piece of paper from the floor and straighten up again."

The Examining Medical Officer agreed with the claimant in this area and awarded 3 points from the above descriptor. However, the tribunal removed these points after the hearing. It is noted in the record of proceedings that the claimant stated to the tribunal that: "If he knelt he could push up on his right side but not on his left side." I believe I recall his exact wording to the question, "Could you bend and pick-up a piece of paper?" was "I could bend down on my right side but not on my left side." He gave his reasons for this to be due to the pain caused by excess pressure on his left foot.

The tribunal gave their reasons for disallowing this descriptor as due to the observation by the Examining Medical Officer that [the claimant] bent to touch his toes during the examination. I argue that this activity is an action of bending straight forward, and so the claimant could put more or less weight on which foot he chose. This does not contradict his statement to the tribunal. Thus the action of bending to pick-up a piece of paper on his left side would be too painful for him. This would in most situations, constitute a probability of about 50% of such required actions, and therefore the wording "sometimes" does apply."

3. In a letter of 24 April 2001 which was also attached to the OSSC1 (NI) form, Mr Higgins stated:

"I enclose the original application to the legally qualified member [this was the letter of 8 February 2001], in which my argument was outlined quite simply. I believe that my client's testimony to the tribunal made it clear that he could not bend or kneel on his left side, therefore this fulfils the relevant wording of descriptor 6(c) i.e. "sometimes". This descriptor was applied and agreed by the Examining Medical Officer and the decision maker, and I believe the tribunal were erroneous in removing it from my client."

4. The appeal was opposed by Mr Kennedy of the Decision Making and Appeals Unit of the Department by letter dated 13 December 2001. Mr Kennedy submitted that I was being asked to consider that a person who could not bend and kneel on one side fulfilled the said descriptor 6(c). Mr Kennedy referred to decision CIB7347/99, a decision of Mr Commissioner Howell in Great Britain. He submitted that the question dealt with by the Commissioner in paragraph 19 of that decision was indistinguishable from the issue in the present case. In that paragraph Mr Commissioner Howell stated:

"The simple issue, on which the Commissioner who granted leave in this case is I think in a minority of one, is whether a claimant who sometimes has a problem with bending but remains able to kneel, or sometimes has a problem with kneeling but remains able to bend, or can manage both but only partially, in each case so as to be able to get within sufficient reach of the floor to pick up a piece of paper, qualifies for the score of 3 points under descriptor 6 (c) or not. It is common ground for this purpose that the person in question, like the claimant in this case, is not so badly disabled that he cannot normally bend to touch his knees and straighten up again so as to score the 15 points that would qualify him for benefit in any event under descriptor 6 (a)."

5. Relying on the Commissioner's interpretation of the descriptor given at paragraph 20, Mr Kennedy submitted that the issue before the Tribunal in the instant case was whether or not the claimant could reach down to the top of the floor and get back up again. At paragraph 20 Mr Commissioner Howell stated: -

"As noted elsewhere the descriptors in this Schedule are to be read in a reasonable everyday sense, and are not to be approached as a work of over-refined legal draftesmanship which they are not. It is plain in my judgment from the way the descriptors are expressed that what the "bending and kneeling" activity is concerned with is a basic level of agility and balance of the torso and limbs. The homely example of a piece of paper on the floor is not of course used because the department is obsessed with the litter in people's houses, but to characterise a minimum standard of ability to flex and extend, sufficient to get oneself within near enough reaching distance of the floor to carry out a simple momentary operation there on an object of negligible thickness above the floor surface itself, using one or two knees for support or stability if necessary, and then get back up again."

Mr Kennedy referred to the evidence of the claimant in the questionnaire where the claimant selected descriptor 6 (c) and went on to explain that he could not put any weight down on to his ankle. At the hearing of the appeal the claimant had given evidence that "if he knelt he could push up on his right side but not on his left". The Tribunal, in Mr Kennedy's submission, had explained its decision that the claimant would have no problem with the activity by noting that on the medical examination the claimant was able to bend to touch his toes and that he would be able to perform the activity of picking up a piece of paper from the floor.

6. Mr Kennedy submitted that the claimant's contention that he should be awarded 3 points under descriptor 6 (c) because he could reach the floor by bending but not by kneeling on one side, was an example of an anomaly which could arise if his argument was correct. This anomaly had been addressed by the Commissioner in the above decision in the following terms.

"It is simply inconsistent with any conceivable rational intent that a person not able either to bend or to kneel fully, but still able to struggle and reach the floor by a partial combination of the two should be given no score, when a person who has no problem at all doing it by one means alone should still get the points."

7. Mr Kennedy submitted that the evidence in this case was that the claimant could bend to pick up a piece of paper from the floor. Therefore he was not entitled to points under descriptor 6 (c) despite his problems in reaching the floor and getting up again on his left side. He therefore submitted that the Tribunal was correct to make the decision which it did despite its disagreement with the Examining Medical Officer and the Decision Maker.
8. It appears to me that the grounds of appeal as set out by Mr Higgins raise an issue as to the accuracy of the record of proceedings. This record is not of course verbatim nor is it meant to be. Mr Higgins recalls that the wording to the question: could you bend and pick up a piece of paper, was: -

"I could bend down on my right side but not on my left side."

The Tribunal's note of the evidence at hearing with relation to this descriptor is:

"He has a problem bending." If he knelt he could push up on his right side but not on his left side."

9. I am not of the view that there is any great significance in the possible discrepancy here. It does not seem that the claimant was denying that he could bend to the floor so as to pick up a piece of paper. It does appear to be a common case that he could always bend to the right side and this is consistent with the observation by the Examining Medical Officer.
10. It therefore appears that the issue before me is whether a claimant who can bend as if to pick up a piece of paper from the floor when bending to the right side but not to the left side falls within the descriptor 6 (c).
11. The actual wording of the descriptor in the legislation at the relevant time was as follows:

"Sometimes cannot either, bend or kneel, or bend and kneel as if to pick up a piece of paper from the floor and straighten up again."

12. Mr Higgins is endeavouring to contend that the limitations on the claimant's bending to the left side must indicate that he sometimes cannot bend as if to pick up a piece of paper from the floor and straighten up again. I do not agree with that contention. The descriptor contains no mention of bending to one side or the other. It is simply bending as if to pick up a piece of paper from the floor. Provided the claimant bends to the right side he can always do this. It therefore cannot be said that sometimes he cannot bend as if to pick up a piece of paper from the floor and straighten up again. He might have to reposition himself depending on the position of the piece of paper but he could always bend as if to pick up a piece of paper from the floor.
13. It is quite obvious that the Tribunal has had in mind the fact that the claimant did have some difficulties with bending but nevertheless he would be able to perform the activity of bending or kneeling so as to pick up a piece of paper from the floor. It has therefore adopted the interpretation in CIB7347/99. It has not ignored problems with the claimant's left side. Even had it done so provided that the claimant could always bend on the right side, which was the Tribunal's obvious conclusion and which was obviously open on the evidence, the descriptor would not have been satisfied.
14. The "sometimes" in the descriptor governs the ability to bend or kneel or bend and kneel; it does not govern bending or kneeling or bending and kneeling to one side or to the other. As the claimant can always bend, albeit to the right side, he does not satisfy the descriptor. I am in agreement with the interpretation given in CIB7347/99 and the Tribunal has adopted this. I can ascertain no error of law in its decision. I therefore dismiss the appeal

(Signed): M F Brown

COMMISSIONER

17 January 2003