Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2002] NISSCSC C38/02-03(IB) (14 January 2004)

 


Decision No: C38/02-03(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 4 November 2002 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, with the leave of the Legally Qualified Member, against the decision of an Appeal Tribunal. The Tribunal had disallowed the claimant's appeal against the decision to the effect that the claimant was not incapable of work in accordance with the personal capability assessment from and including 4 September 2000 and was not entitled to credits on the basis of ongoing incapacity for work.
2. The claimant became unfit for work by reason of phlebitis of the left leg and allergic dermatitis and, accordingly, claimed incapacity benefit (IB) from 12 January 2000. A later doctor's statement received in support of the claim referred to varicose veins. The personal capability assessment applied from 1 March 2000. The claimant was not entitled to IB as he did not satisfy the contribution conditions for the receipt of that benefit. Instead he was awarded a National Insurance Contribution credit for each complete week that he was incapable of work. In order to assess the personal capability assessment the claimant was requested to complete the usual questionnaire giving details of how his illness affected his ability to perform various activities. He filled in the appropriate forms and a report was received from his general practitioner. On 3 July 2000 a Medical Officer of the Department was of the opinion that the claimant was not suffering from a severe mental health illness. A Medical Officer of the Department then examined the claimant on 22 July 2000. The Department then considered all available evidence and decided that the claimant scored zero points and failed the personal capability assessment. The Department therefore determined that the claimant was not incapable of work and was not entitled to credits on the basis of ongoing incapacity for work from 4 September 2000. The claimant then appealed. The decision of 4 September 2000 was then looked at again on receipt of the appeal but on 15 September 2000 it was decided that the decision should stand.
3. In this case the relevant test that decides whether the claimant is entitled to incapacity benefit is the Personal Capability Assessment (see part III of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995). The Assessment is applied by measuring prescribed activities using descriptors which, when given the relevant numerical scoring value, have to reach a total of 15 points for physical disability descriptors, 15 for combined physical and mental disability descriptors or 10 for mental disability descriptors.
4. The Tribunal rejected the claimant's appeal although the claimant scored 12 points under the personal capability assessment, all relating to physical health. This was still below the relevant 15 points threshold in this case.
5. The claimant sought the leave of the Legally Qualified Member to appeal to a Commissioner. Leave was granted on 20 January 2003. Even though the Legally Qualified Member made it clear that an error of law was identified, he stated that the point of law was: -

"The claimant has suggested that the Tribunal recorded that he could stand for ½ an hour. This is not so. The record shows clearly that he said he would NOT stand for ½ an hour & this is repeated in the Reasons."

In substance the Legally Qualified Member is not accepting that there has been or could be an error of law but is taking steps to ensure that the claimant is not non-suited by a decision by him to refuse to grant leave to appeal.

6. At this stage it is convenient to set out the Tribunal's reasons, which were as follows: -

"Claimant describes pain due to arthritis and Varicose Veins. He came across as a genuine and honest witness. He described feeling a "wee bit uncomfortable" in prolonged sitting, he described being able to rise even without holding on but holding on automatically. He described being able to stand but not for half an hour without moving around. He described holding on on stairs in case he fell and walking for a distance and then stopping and walking again. He said he could bend his knees and bend over from the waist though with a little pain. He also said he could lift things from one place to another.

Taking the claimant's evidence in its totality and taking into account the claimant's description of a typical day as recorded by the Examining Medical Officer with its description of taking a bit of a walk, going out to the pub, playing snooker etc the Tribunal concludes that the claimant's ability to walk, climb stairs, sit, stand, and rise would be properly reflected by descriptors W(e), St(d) Si(d), S(f) and R(c) respectively attracting an overall total of 12 points. The Tribunal considered the claimant was able to bend and lift and found no other limitation within the context of the assessment."

The reasons are the reasons of the Tribunal which consisted of two persons, and not just those of the legal chairman, who was the Legally Qualified Member.

7. The record of proceedings which was made by the Legally Qualified Member and was contemporaneous, includes the following note of the claimant's evidence: -

"… Standing – Do play Pool but for fun only. Sore leg – pins and needles – sometimes pain as well. I would move about at a bus stop. Would stand up against something. Moving about helps. When you would have numbness. I wouldn't stand for ½ hour in the one spot I would have to move about. …"

8. The claimant's notice of appeal form (OSSC1) to the Social Security Commissioner sets out the grounds of appeal as follows: -

"From reading the decision I do not understand why I was disallowed. In relation to the descriptor for standing I told the Tribunal I could stand for approximately 10 minutes and I would have to lean against something or move around. Both myself and my representative can confirm this. However the Tribunal recorded that I could stand for ½ an hour. This is certainly not the case. The information I gave them should have meant 7 points not 3."

9. Having considered the circumstances of the case I considered that it was appropriate to hold a hearing of this appeal. In preparation for this appeal, Mr Brady of Welfare Rights, Newry, who appeared for the claimant at the Tribunal and also represented the claimant before me, made the following succinct submission which was set out in his skeleton argument dated 29 August 2003: -

"The fundamental issue in this appeal is a straightforward one. When Mr Sloan was asked how long he could stand for, e.g. at a bus stop he said that after ten minutes he would have to move around. The chairperson recorded that he said 30 minutes and this is simply not the case. Of course this meant the difference between 3 and 7 points, and meant that if Mr Sloan had been awarded the 7 points he would have succeeded in his appeal."

10. Mrs Gunning of the Decision Making and Appeals Unit of the Department, who represented the Department at the hearing before me, submitted that the Tribunal's decision was not in error.
11. I have got to remind myself that a Commissioner, deciding a case on appeal from a Tribunal, has no legal jurisdiction to rehear the evidence that comes before a Tribunal and decide on that evidence. My jurisdiction is confined solely to points of law. In certain circumstances, as Article 15(8) of the Social Security (Northern Ireland) Order 1998 makes clear, I can make fresh or further findings of fact. However, I can only make such findings if I have already held that the decision appealed against was erroneous in point of law and have set the decision of the Tribunal aside accordingly. I do not have the jurisdiction to hear evidence, in the normal sense, to ascertain whether or not there has been an error of law.
12. The Legally Qualified Member has made it clear that he stands by the record of proceedings which he has made on behalf of the Tribunal. This is not a case where there has been a misunderstanding, which has been retrospectively appreciated as such, by the Tribunal. Mr Brady, on the other hand, has made it entirely clear that he considers that the Tribunal has misunderstood or mistaken the Tribunal's evidence.
13. I am prepared to take account of what Mr Brady has submitted on behalf of the claimant and I am also prepared to take into account the Chairman's note appended to the document on which he granted leave to appeal to a Commissioner. However, I am not able to take them into account as evidence in the conventional sense, as I am not in a position to make findings of fact until an error of law has been demonstrated to me. Nevertheless I am entitled to take all factors that I consider to be relevant in deciding whether or not there has been an error in law and I conclude that the difference of opinion as to what happened at the Tribunal hearing is relevant, even on an appeal on a point of law confined to points of law.
14. Mrs Gunning has urged me to look at the Tribunal's findings of fact in light of the record of proceedings. She has submitted that if the claimant had told the Tribunal that he could stand for "approximately 10 minutes", the Tribunal would almost inevitably have had to ask further questions to clarify which was the appropriate descriptor in all the circumstances.
15. The relevant portion of Part I of the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 is in the following terms:-




"4. Standing without the support of another person or the use of an aid except a walking stick.

4.

Cannot stand unassisted. Cannot stand for more than a minute before needing to sit down. Cannot stand for more than 10 minutes before needing to sit down. Cannot stand for than 30 minutes before needing to sit down. Cannot stand for more than 10 minutes before needing to move around. Cannot stand for more than 30 minutes before needing to remove around. No problem standing.

15 15 15 7 7 3 0"

The legislation makes it clear that the 10 minute period was crucial and whether it is more than 10 minutes or less then 10 minutes or exactly 10 minutes can make a considerable difference in the scoring. It seems to me that a Tribunal would have wished to clarify whether the claimant had to sit down after 10 minutes or whether he needed some other support or whether he merely required to move around. As the Tribunal did not feel it necessary to investigate these matters by asking further questions it seems to me that the Tribunal must have had no reason to address these issues. Therefore, in the circumstances, I conclude that I am not entitled to assume in favour of the claimant that the Tribunal got its facts wrong when assessing the appropriate descriptor in relation to the activity of standing.

16. It is also worthy of note that the Tribunal specifically concluded that the claimant came across "as a genuine and honest witness". I have no reason to come to any other conclusion although, as I have already made clear, a Commissioner hearing a case on appeal is not normally concerned with the veracity, or otherwise, of claimants before Tribunals. However, it is far from impossible that witnesses and advocates acting entirely in good faith can make a mistake in relation to their own recollection of what has been said before Tribunals. The Tribunal Chairman is required by statute to take a record of the proceedings. Moreover, I am informed that no record was being taken by either the claimant or his representative in this case. In the circumstances I am not in the position to impugn the Tribunal's record, which has been specifically affirmed by the Legally Qualified Member in the document granting leave to appeal. I also bear in mind that the reasons of the Tribunal, i.e. the reasons of both members of the Tribunal, specifically confirms the reference in the record of proceedings to the difficulties that the claimant said that he had in standing for half an hour. In my view it is most unlikely that both members of the Tribunal would make the same error about the period of standing. It is also of some significance that the claimant considers that the Tribunal recorded that he "could stand for ½ an hour", while the reality is somewhat different as the Tribunal in fact recorded that he "wouldn't stand for ½ hour in the one spot." I also note that, in the IB50 Incapacity for Work questionnaire, the claimant ticked the box "I cannot stand for more than 10 minutes without having to sit down". This descriptor scores 10 points. This is yet a different descriptor from the one he contends was put forward to the Tribunal.
17. Accordingly, in the circumstances I am unable to hold that there has been any error in point of law in this case and, accordingly, I dismiss the appeal.

(signed): J A H Martin QC

Chief Commissioner

14 January 2004