Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Decision No: C1/04-05(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 14 January 2003 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by me, by the claimant against a decision dated 14 January 2003 of an Appeal Tribunal sitting at Belfast. The Tribunal had disallowed the claimant's appeal against a decision of the Department dated 19 September 2002 in relation to incapacity credits. The Department had decided that the test of incapacity for work for the claimant from and including 3 September 2001 was the personal capability assessment and that the claimant could not be treated as incapable of work from and including 19 September 2002 because none of the exempt conditions applied. The Department further decided that the claimant did not satisfy the personal capability assessment from and including 19 September 2002 because she had not reached the requisite number of points. Specifically she had not reached 10 points for mental descriptors arising from specific mental illness or disablement. She had claimed no physical limitations. It therefore decided that from and including 19 September 2002 the claimant was capable of work and not entitled to incapacity credits. The claimant appealed to the Tribunal.
2. On appeal the only issue before the Tribunal was whether or not the claimant satisfied the personal capability assessment. The Tribunal decided that she did not, awarding her 9 points on that assessment, these being awarded on the basis of mental health activities. The claimant would have required 10 points to be found incapable of work on the basis of the personal capability assessment on the basis of mental health activities only.
3. The claimant appealed to me, her grounds of appeal being contained on an OSSC1 form received in the Commissioner's Office on 5 November 2003. In the appeal to me the claimant has been represented by Mr McVeigh of the Citizens Advice Bureau and the Department has been represented by Mrs Gunning of the Decision Making and Appeals Unit. I am grateful to both representatives for their considerable assistance in this matter.
4. The claimant's grounds of appeal were as follows: -

(1) The Tribunal failed to exercise its inquisitorial function, in particular with relation to descriptor 18(f) where the claimant had given evidence indicating that she was anxious when she was out and spent long periods of time in the house and the Tribunal did not explore this matter further.

(2) The Tribunal failed to give adequate reasons for its decision. In particular it was not clear if the Tribunal accepted or rejected the claimant's evidence as to her sleep difficulties and going out alone. If the Tribunal rejected the evidence it failed to give reasons for so doing. The reasons were therefore inadequate.

5. Mrs Gunning responded to the observations by letter dated 5 April 2004 and commented, with regard to sleep difficulties, that there was no evidence that these difficulties impacted on the claimant's day-time activities as was required to satisfy the relevant descriptor. Mrs Gunning further commented that, in relation to descriptor 18(f) (being too frightened to go out alone), the evidence indicated that although the claimant became anxious when she went out she did do so in order to see her General Practitioner and there was no evidence that she was too frightened to go out alone. In conclusion Mrs Gunning submitted that there was sufficient evidence before the Tribunal on which to determine the relevant issues, the Tribunal considered all the evidence and applied the relevant legislation, its decision was sustainable on that evidence and the reasons adequate to explain the decision. Accordingly she opposed the application.

5. By letter received in the Commissioner's Office on 23 April 2004 Mr McVeigh offered further comments. He submitted that it was arguable that the claimant would satisfy descriptor 16(e) on the basis of the available evidence and delineated the evidence to which he referred. He said that the Tribunal had not accepted that the claimant's disrupted sleep was a direct result of her mental state but found it to be caused by noises that she heard around her flat. The Tribunal expressed the opinion that other persons not suffering from stress and depression might also be awoken under the same circumstances. He submitted that the claimant was being treated by her GP for sleep disturbance and had been prescribed medication and that her case was arguably different from the situation of a person being woken periodically by noises at night. It was clear from the evidence that the claimant's sleep problems were attributable to her medical condition.
6. With regard to the second ground of appeal Mr McVeigh submitted that the points raised by Mrs Gunning on behalf of the Department did not address the issue of the adequacy of reasons.
7. Both parties gave consent, should I grant leave, to my treating the application as an appeal and determining any questions arising thereon as though they arose on appeal.
8. I granted leave as arguable issues appeared to me to arise as to: -

(1) whether the Tribunal adequately explored the issue of whether or not the claimant satisfied descriptor 16(e) of the personal capability assessment; and

(2) whether the Tribunal was entitled, on the evidence, to conclude that the claimant satisfied descriptor 17(c).

9. By letter dated 10 June 2004 the Department offered comment on these grounds. It submitted that the Tribunal had adequately explored descriptor 16(e). Mrs Gunning submitted that points could only be awarded in respect of mental disabilities if the claimant satisfied the descriptor as a result of a recognisable mental disablement, in the nature of an illness not shared by healthy members of the population (paragraph 8 of decision R2/99(IB)). She submitted that the Tribunal had adequately explored the issues relating to the said descriptor and was entitled to conclude that the claimant had no particular sleep problems relating to her mental state. Mrs Gunning further submitted that descriptor 16(e) was dependent on sleep problems interfering with daytime activities. The claimant had described her typical day to the MSS doctor who examined her on 6 August 2002 and there was no mention then of sleep problems impacting on her daily activities. Similarly there was nothing in the Tribunal's record of proceedings to indicate that she made such a contention at hearing. With regard to ground (2) Mrs Gunning submitted that the Tribunal had erred when it awarded one point for satisfaction of descriptor 17(c) as in her view the Tribunal was not entitled to conclude that the claimant satisfied that descriptor. Mrs Gunning submitted, however, that this error did not vitiate the Tribunal decision in that the claimant still failed to score 10 points and still failed to satisfy the test.
10. By letter received on 9 July 2004 Mr McVeigh made further comments. He submitted that the Tribunal had failed to adequately explore the issue of possible satisfaction of descriptor 16(e) in that it had failed to deal specifically with whether sleep problems interfered with daytime activities. He further submitted that in the absence of any contradictory evidence the Tribunal was entitled to conclude that the claimant satisfied descriptor 17(c). The Department awarded points for this descriptor at the time of the original decision and this was not disputed at the appeal hearing by the claimant, her representative or the Departmental Presenting Officer. The Medical Officer who examined the claimant was of the opinion that she would avoid carrying out routine activities because she was convinced that they proved too tiring or stressful. This was supported by evidence that she avoided going to shopping centres or any crowded place.
11. The claimant's capacity for work is to be measured by the personal capability assessment. Regulation 25(3)(b) of the Social Security (Incapacity for Work) General Regulations (Northern Ireland) 1995 provides that in determining the extent of a person's incapacity to perform any activity listed in part two of that test (the mental activities) it shall be a condition that the said incapacity arises from some specific mental illness or disablement. The personal capability assessment sets out a number of activities and then of descriptors within those activities. The descriptors which are of particular relevance to this appeal are as follows: -

"16(e) Sleep problems interfere with his daytime activities"

"17(c) Avoids carrying out routine activities because he is convinced they will prove too tiring or stressful."

"18(f) Is too frightened to go out alone."

12. I will deal first with descriptor 18(f). I do not consider that the Tribunal erred in relation to this matter. The requirement is that of being too frightened to go out alone. It is not enough that when out alone the claimant is frightened or that the prospect of going out alone makes the claimant frightened. The fear, which must come from a specific mental illness or disablement, must be such as to prevent the claimant from going out alone. The evidence in this case was quite obviously that the claimant was not so prevented. She preferred to avoid crowds but she still did go out alone for example to a nearby shop and to her General Practioner's surgery. I do not consider that the Tribunal erred in relation to this descriptor.
13. As regards descriptor 17(c), Mr McVeigh is correct in that the issue of whether this was satisfied was not specifically raised by either the claimant or the Presenting Officer. Article 13(8)(a) of the Social Security (Northern Ireland) Order 1998 provides that an appeal tribunal need not consider any issue that is not raised by the appeal. However if the evidence makes an issue clearly apparent then the Tribunal would be in error in not so doing. In this case the Departmental Examining Doctor, dealing with the relevant descriptor, cited as the reason for his opinion that the claimant satisfied the said descriptor, the following: -

"Avoids going to shopping centres or any crowded public places".

It is, to my mind, very doubtful that going to shopping centres and crowded public places are routine activities. It is for that reason that I raised this issue. It is not necessary that I decide whether the Tribunal was in error in not dealing with the matter. I am setting this decision aside for other reasons and the Department will, at that stage, if it so wishes, have the opportunity to raise the issue of this descriptor. The claimant should now be aware that it may do so and be prepared to deal with the matter.

14. I come now to descriptor 16(e) – sleep problems interfere with daytime activities. The Tribunal's reasoning with relation to this descriptor was as follows: -

"With regard to the difficulty over sleep, the descriptor 16(e) states that her sleep problems would interfere with her daytime activities. In general the evidence given by [the claimant] did not indicate that she had any particular sleep problems relating to her mental state specifically. She was woken at night in relation to the noises that she heard in and around her flat which would then disrupt her sleep making her tired the next day; but the Tribunal were not satisfied that this was as a result of her mental state as it was of the opinion that other persons not suffering from stress and depression might also be awoken under the same circumstances albeit the Tribunal accepted that [the claimant] was more likely to suffer more anxiety as a result of being woken. However in evidence it was clear that [the claimant] was being awakened by outside noises as opposed to having sleep disturbance arising out of her stress reaction and depression."

15. The evidence to which the Tribunal refers appears to be that given at hearing. At hearing the claimant stated that her daily routine depended on what her night's sleep was like and that she took a half tablet of her medication during the week but at weekends took a full tablet. This medication appeared to be for depression and sleeping problems. She said that if she took a full tablet every day she would be like "a zombie". She said that "4 out of 7" (it was not clear whether this referred to days or nights) she would be bad. Later in the evidence she stated that if she took a half a tablet the slightest noise would wake her. At hearing also Miss M..., who was acting as the claimant's representative, stated that the key to the claimant's daytime activities depended on the value of her sleep. Miss M... said that there were a lot of strange noises in Rathcoole and that the claimant woke easily.
16. It appears unlikely that Miss M... was in a position to give evidence of her own knowledge as to the audibility of noises in the claimant's home at night nor as to her sleeping problems. It is in general undesirable that representatives should also act as witnesses but if a representative does give evidence it would be good practice to state clearly what is known of the representative's knowledge and what he or she has been told by the claimant.
17. The Tribunal accepted that the claimant was woken at night by noises which she heard round her flat and that her sleep was therefore disrupted making her tired next day. It concluded that the evidence was clear that she was woken by outside noises as opposed to having sleep disturbance arising out of her stress reaction and depression. Had the evidence entitled the Tribunal to the conclusion that it was external noises that were the sole cause of the sleep problems, I would have agreed that the descriptor could not be satisfied. Lack of sleep occasioned by being woken by external noises and not connected to a mental health condition cannot lead to satisfaction of the descriptor. This is not a sleep problem at all, it is a problem of external noises leading to lack of sleep. It does not appear to me that the evidence entitled the Tribunal to reach the conclusion which it did. The claimant said that the slightest noise would waken her and that this was so even when she had taken the half tablet of the medication which her doctor had prescribed for the purpose of dealing with sleep problems. The Tribunal did not reject that evidence. That being so it appears to me that the Tribunal was not entitled to base its conclusion that the sleep problems did not come from the claimant's mental state on the evidence which the claimant gave at hearing. I set the decision aside because the Tribunal reached a conclusion which the evidence, (which in any event needed further exploration), did not permit it to reach.
18. I do not consider that this is a case where I can give the decision which the Tribunal should have given. I therefore remit the matter to a differently constituted Tribunal for rehearing. I direct that Tribunal to explore fully the question of whether the claimant has sleep problems coming from a mental illness or disablement and if so the effect of same on her daily activities. I direct it further to consider, as Mrs Gunning has mentioned, the description of a typical day given to the Examining Medical Doctor and the claimant's own evidence. If there is inconsistency in the evidence given the Tribunal will have to make its own assessment of the evidence and reach its own findings as to the fact situation.

(signed): M F BROWN

COMISSIONER

10 November 2004