Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C24/02-03(IB) (13 February 2003)

 


Decision No: C24/02-03(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 12 January 2001. DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by myself, by the claimant against a decision dated 12 January 2001 of an Appeal Tribunal sitting at Belfast. The decision is given in the final paragraph. That Tribunal had disallowed the claimant's appeal in relation to incapacity credits. The Tribunal decided that the claimant was to be treated as not incapable of work from and including 16 October 2000. The Tribunal awarded the claimant 10 points on the Personal Capability Assessment, being made up of three points for descriptor (e) on the walking activity and seven points for descriptor (c) on the standing activity. It was in connection with the standing activity (activity 4) that the grounds of appeal were raised.
2. The application to me was late and I extended time for special reasons.
3. The claimant was represented by Miss Loughrey of the Law Centre (NI). The grounds of appeal were set out in a document attached to an OSSC1 form received in the Commissioners office on 4 February 2002 and amplified by letter of 9 January 2003. The grounds were that the Tribunal's reasons were inadequate in that the Tribunal had not given adequate reasons for selecting descriptor 4(e) in preference to the claimant's own choice of 4(c). The grounds continued that the reasons for selecting 4(e) should have been given as, had the Tribunal accepted descriptor 4(c), the claimant would have been entitled to 15 points on that descriptor with the result that the Personal Capability Assessment would have been satisfied.
4. For clarity's sake I set out hereunder the relevant descriptors. The activity (activity 4) is:

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

Descriptor 4(c) is:

"Cannot stand for more than 10 minutes before needing to sit down."

Descriptor 4(e) is:

"Cannot stand for more than 10 minutes before needing to move around."

5. The claimant had chosen descriptor 4(c) in his IB50 questionnaire received in the Department on 6 June 2000 and had stated therein that standing gave him increased pain and light-headedness. In the medical report prepared by the MSS doctor dated 29 August 2000, the doctor assessed the claimant, on the standing activity, as falling within descriptor (e). Under the heading "Prominent features of functional ability relevant to daily living" relating to that activity the doctor listed chest pain and the claimant's own statements that he may walk a little locally and about the garden and that he used the stairs at home. The history of a typical day given by the claimant was that depending on how he was feeling he might either sit and rest or potter about the garden or do some housework.
6. The form on which the claimant appealed to the Tribunal did not mention any disagreement with the assessment on the standing descriptor. At hearing the evidence with relation to standing was as follows:

"Can't stand too long. Pain increases. Moving helps [my emphasis]or sitting. They all help but nothing really helps. Don't think the act of standing itself makes things worse but over a long time the pain gets worse and I get fatigued. Ultimately have to lie down. I am used to it now so I would lie down straight away. I have in the past ignored it and passed out. 10 minutes is about the maximum. At a funeral recently I left for the car after that."

7. The Tribunal did not find the claimant's evidence reliable. In particular it recorded that it did not consider that the severity and frequency of the condition was supported by the clinical findings of the Examining Medical Officer or by the nature of the claimant's treatment. The Tribunal accepted that the claimant had difficulties with standing and walking but did not consider that the claimant was entitled to points on the other descriptors which he had contended. It awarded three points for the walking descriptor and seven points for the standing descriptor. The walking descriptor considered applicable was that he could not walk more than 400 metres without stopping or severe discomfort and the standing descriptor was 4(e), that he could not stand for more than 10 minutes before needing to move around.
8. By letter dated 8 December 2002 from Mr Fletcher of the Decision Making and Appeals Unit, the Department opposed the appeal. Mr Fletcher contended that the reasons made it quite clear that the Tribunal could not accept the claimant's evidence as to the severity of the problems claimed. He submitted that the Tribunal's choice of descriptors in relation to walking and standing was clearly reflective of its assessment that the claimant was exaggerating his difficulty and of the Tribunal's view of the MSS doctor's report.
9. There was some mention in correspondence of a descriptor in relation to consciousness but no issues were raised nor are any apparent to me in relation thereto. I therefore comment no further on that matter.
10. It has been decided in previous decisions (C1/96(IB) – paragraph 5, R3/01(IB)(T) – paragraphs 25 and 26, (C1/00-01(IB)) that there is no specific legal requirement for a Tribunal to give reasons for the selection of a particular descriptor although in certain cases this may be necessary to explain the decision adequately. In this case the question which I have to ask is whether the reasons explain the decision rather than whether the reasons explain the choice of a particular descriptor. Miss Loughrey is correct in that had the claimant selected descriptor 4(c) rather than 4(e) the claimant would have satisfied the Personal Capability Assessment and won his appeal. That does not, however, of itself mean that the Tribunal has to give reasons for selection of that particular descriptor. The standard remains what it always is, whether the reasons adequately explain the decision. There is no heavier burden placed on the Tribunal because a particular choice of descriptor would or would not take the claimant over the necessary 15 points. (R3/01(IB)(T) – paragraphs 25 and 26).
11. The reasons must be read against the background of the evidence. It appears to me quite obvious that the Tribunal was entitled to its view not only on the MSS doctor's medical report but also on the claimant's own evidence. It is noteworthy that the claimant stated that, when he had pain on standing, moving or sitting helped. It is also worthy of note that the Tribunal did not find the claimant's evidence reliable. It clearly explained its assessment of the claimant's evidence.
12. The Tribunal's decision is, in my view, understandable to any reasonable person reading it. It has quite clearly not accepted the claimant's evidence as to the severity of his problems. Even if it had, however, it could have been entitled to its conclusion on the standing descriptor on the basis of the claimant's oral evidence to the Tribunal. It was also entitled to that view, solely on the evidence from the MSS doctor upon which it obviously relied. That being so and the assessment of the evidence being clearly explained I do not consider that the reasons for decision were inadequate. I can find no error in the decision whether as indicated by the claimant or otherwise and I therefore dismiss the appeal.

(Signed): M F BROWN

COMMISSIONER

13 FEBRUARY 2003