Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Decision No: C17/03-04(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 7 August 2003 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by me, by the claimant against a Tribunal decision dated 7 August 2003 to the effect that the claimant was not entitled to Incapacity Benefit from 14 April 2003. The basis of the decision was that the claimant's capacity for work had to be measured by the personal capability assessment and that the claimant had failed same. The hearing before the Tribunal was a paper hearing. The claimant had not requested an oral hearing which would have been held had it been sought.
2. The grounds of the claimant's appeal to me were contained in an OSSC 1 form dated 25 November 2003 and were in essence four-fold as follows: -

(i) The personal capability assessment did not properly measure his capability for work.

(ii) The assessment did not properly take into consideration the shortness of breath and the chest pain from which he suffered.

(iii) The Tribunal had made a finding that the claimant had no specific mental disease or disability. The claimant considered that this was an error as he had suffered emotional stress accompanying his heart problems although he agreed he did not have a serious mental health problem.

(iv) His General Practitioner and Consultant had said he should not be working until his heart problem was put right.

3. I granted leave, not on the basis of the grounds which the claimant had put forward, but because it appeared to me that an arguable issue arose as to whether the Tribunal erred in law in not affording to the claimant an opportunity to attend and/or to produce additional evidence. My decision is given in the final paragraph.
4. Observations on the appeal were made by letter dated 31 March 2004 from Ms Fleming of the Decision Making and Appeals Unit of the Department. In her very thorough comments, Ms Fleming dealt with the grounds of appeal. In relation to ground one Ms Fleming submitted that the claimant's work capability had to be measured in accordance with the fixed formula of the Personal Capability Assessment (PCA). She submitted that the Tribunal had clearly applied the correct test and had not erred in law in that respect. With regard to the point made by the claimant that there were differences between his questionnaire and the PCA and that he sometimes took certain questions too literally and had been conscious of not exaggerating, the Tribunal in its reasons for decision had clearly considered that matter and had recorded: -

"We appreciate some people are not very good at filling forms and we did look at other areas to see if he had possibly been underscored."

In Ms Fleming's submission by awarding points in relation to walking, standing and using stairs the Tribunal clearly accepted that the claimant had understated his functional abilities when completing his questionnaire.

5. In connection with ground 2, Ms Fleming submitted that the contention that shortness of breath was not recognised in the assessment was incorrect. Shortness of breath was, she submitted, mentioned several times by the Examining Medical Officer and on numerous occasions by the Tribunal throughout the reasons for the decision. Similarly with regard to the contention that chest pain was not properly taken into account, Ms Fleming also disagreed. She submitted that the scores awarded under the PCA related to physical health descriptors overall not merely to one aspect of the claimant's physical condition. She submitted that there was no indication in the assessment that chest pain had been excluded when computing the points to be awarded.
6. As regards Ground 3, Ms Fleming referred to the claimant's letter of 13 July 2003 (which was before the Tribunal) in which he stated that he got emotionally wrought and drew the Tribunal's attention to mental disability descriptors 16(c), 17(d), and 18(d). She submitted that the Tribunal had considered whether a mental health assessment was appropriate and concluded that it was not, "given the absence of any specific diagnosis of a specific mental disease or disability." In coming to this conclusion, the Tribunal had referred to a reported Commissioner's decision, R(IB)2/98 which at paragraph 7 stated: -

"In construing and applying the descriptors in the Schedule to the 1995 Regulations, it must always be borne in mind that regulation 24 of those regulations provides that "the all work test is a test of a person's incapacity, by reason of some specific disease or bodily or mental disablement, to perform the activities presented in the Schedule" (my emphasis). In this context, therefore, the matters specified in Part II of the Schedule under the heading "Mental Disabilities", can qualify for "points" only if they result from "mental disablement" (reg. 24). In other words, they must not be mere matters of mood but must relate to a recognisable mental disablement, in the nature of an illness and not shared by healthy members of the population. The generality of such a phrase as, "often sits for hours doing nothing" (para. 15(b)), for example, must be restricted to such a state resulting from a definite mental disability".

Ms Fleming submitted that that decision had also decided that the Tribunal should be hesitant in going to the question of possible mental disabilities unless they have been raised before and in addition there was some medical or similar evidence on the point (paragraph 5).

7. Ms Fleming submitted that there was no medical evidence to suggest that the claimant was suffering from or receiving any treatment for a specific mental disease or disability. The claimant had stated that he did not know whether this was a side effect of his medication or to do with his condition. Ms Fleming therefore submitted that even the claimant's own evidence did not state that he was suffering from any mental disease or disability. She submitted that the mental health descriptors mentioned by the claimant, even if all 3 were satisfied would only result in an award of 3 points and by reason of Regulation 26(1)(d) of the Social Security Incapacity Work (General) Regulations (Northern Ireland) 1995 would have to be disregarded as not aggregating 6 points or more. Therefore, had the Tribunal awarded points for those descriptors it would have made no difference to the overall score under the Personal Capability Assessment.
8. As regards my reasons for granting leave to appeal, Ms Fleming submitted that the claimant was initially afforded an opportunity to request an oral hearing. The claimant indicated that he wanted this appeal decided on the papers only. He was given the opportunity to forward any further information and relevant documents to the Tribunal and he availed of this opportunity and forwarded his letter dated 13 July 2003, which was put before and considered by the Tribunal. Ms Fleming submitted further that it was apparent that the Tribunal had considered whether an adjournment to seek further evidence was appropriate and had recorded: -

"We did not feel it necessary bearing in mind our inquisitorial function to adjourn to seek further evidence."

Ms Fleming submitted that, given the evidence before it, the Tribunal was entitled to come to the decision it did and as such she submitted that the decision was not erroneous in point of law.

9. These observations were sent to the claimant by letter dated 1 April 2004. He was given an opportunity to make further comment thereon but did not avail himself of that opportunity.
10. I consider that there is no merit in the ground of appeal that the PCA was not appropriate in this case. This relates to the first and fourth grounds set out above. The Tribunal, there being no exceptional circumstances in this case, had to measure the claimant's capability by the PCA. This is provided in Section 167C of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 which provides: -

"(1) Where the own occupation test is not applicable, or has ceased to apply, in the case of a person, the question whether the person is capable or incapable of work shall be determined in accordance with a personal capability assessment.

(2) Provision shall be made by regulations –

(a) defining a personal capability assessment by reference to the extent to which a person who has some specific disease or bodily or mental disablement is capable or incapable of performing such activities as may be prescribed;

(b) as to the manner of assessing whether a person is in accordance with a personal capability assessment, incapable of work."

Section 167A provides that: -

"…whether a person is capable or incapable of work shall be determined in accordance with this Part of this Act."

The "own occupation" test applies only where a person has been engaged in remunerative work for more than 8 weeks in the 21 weeks immediately preceding the day with respect to which it falls to be determined whether he is or was incapable of work. In this case that day was 14 April 2003 and the claimant had not worked since 26 February 2002 at least. Under Section 167C his capability for work had to be determined in accordance with the PCA. There are also provisions for certain circumstances whereby a person who is not incapable of work in accordance with the PCA can be treated as incapable of work. These circumstances are however, very limited, and there is no indication that any applied in the claimant's case. That being so the Tribunal had no alternative but to apply the PCA and I can find no error of law in its so doing. The claimant's capacity for work had to be measured by that assessment. This essentially disposes of the fourth ground of appeal indicated above as the Tribunal had to apply the PCA and was not bound by the opinion of any doctor.

11. As regards the manner of the Tribunal's application of the PCA, this really relates to the second and third grounds set out above. I am in agreement with Ms Fleming that it does appear that the Tribunal properly took into consideration the claimant's complaints of chest pain and shortness of breath. These are mentioned by the claimant himself and it is quite obvious that the Tribunal has considered his evidence. They were also mentioned by the examining doctor whose evidence the Tribunal has also obviously taken into consideration. The claimant was awarded 14 points on foot of the PCA and these points were awarded for difficulties in prolonged standing, walking and on stairs. It appears that they were awarded because the claimant was short of breath and had a reduced exercise tolerance probably due to his irregular heart beat which affected these activities. These points would not have been awarded had the Tribunal not taken on board the claimant's difficulties. The claimant himself indicated that, in addition to the shortness of breath experienced on any form of sustained exertion he continued to experience considerable chest pain which he said he did not mention to the examining doctor. He stated that the pain was unpredictable and that it could be of quite long duration. This was mentioned in his appeal letter and it is also obvious from the Tribunal's reasoning that it has considered that letter which indeed it specifically mentions. The Tribunal states: -

" He referred to chest pain and felt he may not have expressed himself well before the medical officer in this regard."

The Tribunal has stated later in its reasoning: -

"Our starting point was that the appellant scored himself at 7 points. We appreciate that some people are not very good at filling forms and we did look at other areas to see if he had possibly been underscored. On observation he was short of breath. This would be typical of atrial fibrillation. Ultimately, we believe that the appellant had been awarded points in the relevant areas at the appropriate level. Principally we felt stairs and walking would be affected. He is [sic] also been scored on standing which requires some stamina. We do not feel other activities would be affected. We appreciate the appellant has a genuine problem and this was recognised by the medical officer. We did not find a mental health assessment appropriate given the absence of any specific diagnosis of a specific mental disease or disability (see R(IB)2198 and CIBI 14442196)."

12. It is quite apparent from reading the Tribunal's reasons that it has taken on board all the claimant's evidence and indeed has not disputed same. Its assessment on the Personal Capability Assessment appears, in light of that evidence and of the medical evidence before it, quite reasonable and I do not consider that there is any merit in the second ground of appeal.
13. As regards the claimant's ground in relation to emotional stress I again do not consider that the Tribunal erred and am in agreement with Ms Fleming in this respect. The Personal Capability Assessment is based on functional limitations arising from, in the case of the mental health descriptors, "some specific mental illness or disablement" (Regulation 25(3)(b) of the above Regulations).

It appears to me that, on the evidence before it, the Tribunal was quite entitled to consider that there was no specific mental disease or disability. There was no diagnosis of either and the claimant himself associated his emotional stress with his medication or his physical condition. It would not be surprising if there was some emotional stress coming from those which could be a normal reaction. It is not necessarily a mental disease or disability to be under stress and somewhat emotionally overwrought. The claimant had produced no medical evidence as to his suffering from any mental disablement or disease and his own evidence does not indicate that he was so suffering. Decision R(IB)2/98 is correct in stating that only limitations coming from specific disease or disablement can be considered. I therefore do not consider that the Tribunal erred in declining to apply the mental health assessment. There was sufficient evidence for it to conclude that there was no specific mental disablement or disease and that it did not need to apply the mental health assessment. I also agree with Ms Fleming that, even had it done so, the claimant would not have attained sufficient points on the PCA.

14. As regards the reason why I granted leave which is as to whether or not the Tribunal should have adjourned either to afford the claimant an opportunity to attend or to seek further evidence, I have found this a somewhat finely balanced decision. The claimant is a patently genuine person and he came very close to satisfying the test. However he was afforded the opportunity to seek an oral hearing and to produce additional evidence. He did not avail of the opportunity to seek a hearing but did send an additional letter. All the evidence was considered. It is also apparent that the Tribunal did consider whether or not to adjourn. It has reviewed the evidence in considerable and thorough detail and has indicated that the existing award of points, on the basis of the evidence put before it was adequate and that that evidence was sufficient to enable it to reach a decision. The Tribunal was entitled to both conclusions and I can ascertain no error in the Tribunal proceeding to hear the appeal in the appellant's absence nor in its not seeking further evidence. Its decision was certainly sustainable on the evidence before it and evidence to support a contention should, in general, be produced by the party making that contention.
15. The claimant has mentioned, in the course of his appeal to me, that his decision not to attend the Tribunal was to his disadvantage. That may be the case, I have no means of knowing. It is possible that had he attended the Tribunal he could have produced additional evidence or given the Tribunal extra information which would have assisted his appeal. That is not, however, indicative of an error on the Tribunal's part. The Tribunal had sufficient evidence to enable it to reach its decision and to deal with all the issues arising on the appeal. That being so I cannot conclude that the Tribunal was in error of law in not adjourning.
16. If the claimant feels that he is still entitled to the benefit he may wish to consider taking advice about reclaiming from a later date. That, however, is no part of my jurisdiction which is confined to deciding whether or not the Tribunal erred in law. In my view it did not. I therefore dismiss the appeal.

(Signed): M F Brown

Commissioner

8 June 2004