Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Decision No: C12/04-05(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 20 February 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal, leave having been granted by me, by the claimant against a decision dated 20 February 2004 of an appeal tribunal sitting at Lurgan. My decision is given in the final 2 paragraphs.

2. The Tribunal disallowed the claimant's appeal against a Departmental decision dated 12 March 2002 which superseded an earlier decision awarding incapacity benefit (IB) and decided that the claimant was not entitled to that benefit from and including 12 March 2002 as he had insufficient points to satisfy the Personal Capability Assessment (PCA). Neither before the Tribunal nor before me was there any contention that the claimant could be considered incapable of work if he did not satisfy the PCA and I proceed on that basis.

3. The Tribunal, on appeal, while it confirmed the Department's supersession decision, did raise the claimant's score on the PCA to 9 points for mental health descriptors. However, 10 points are required to satisfy that test on those descriptors so the appeal was dismissed.

4. The claimant appealed to me, his grounds being set out in a very lengthy document attached to an OSSC1 form received in the Commissioners Office on 19 July 2004. The Department opposes the appeal. There have been subsequent lengthy submissions by the claimant. The claimant has been unrepresented in the appeal to me and the Department has been represented by Mrs Gunning of the Decision Making Services (DMS). The activities and descriptors in the report of the Schedule to the Social Security (Incapacity for Work) (General) Regulations are, of course, subject to regulation 25(3)(b) thereof and must arise from a specific mental illness or disability. There was no question in this case that the claimant suffered from the requisite mental illness.

5. I granted leave on one ground only. This was that an arguable issue appeared to arise as to whether the Tribunal had adequately dealt with the claimant's evidence that his mental disablement at times and in certain situations caused him to "clam up" verbally.

6. One of the activities in the PCA is that of "Interaction with other people" and a descriptor within that activity is number 18(c):-

   "Mental problems impair ability to communicate with other people".

   If this descriptor is satisfied it attracts 2 points which in this case would have meant that the claimant satisfied the PCA and would have won his appeal.

7. The Tribunal recorded the claimant's evidence at hearing as to the manifestations of his mental condition. Included amongst this evidence was that he suffered panic attacks and that in them he would "clam up verbally" when trying to communicate with small groups. The claimant had also given this evidence at his incapacity for work medical examination on 12 February 2002 and in connection with an earlier examination in connection with the PCA.

8. The Medical Examiner had expressed the opinion that the claimant did not satisfy descriptor 18(c) quoting as the reasons for the opinion:-

   "He shops. He is on Church Committee. He chats with family. see 39".

   "39" appears to refer to Box 39 of the Medical Examiner's report which records:-

   "Alert. Is obviously anxious. Does answer promptly, Appropriately, in marked detail, lots of spontaneous conversation".

9. I also note that at Box 50 of that report the Medical Examiner's comments on the descriptor:-

   "Is scared or anxious that work would bring back or worsen his illness".

   The Examiner gives as his opinion that the claimant satisfies that descriptor, giving as his reasons:-

   "He says he could not cope with [a word which I take to be "work"] because of the Anxiety it would cause (would render him speechless)".

10. The Medical Examiner's report appears to accept that in certain circumstances the claimant's mental state would at times render him speechless but yet to have expressed the opinion that his mental condition did not impair his ability to communicate. The claimant had re-iterated his communication difficulties at hearing.

11. The Tribunal was, of course, entitled to reject the claimant's evidence if it found it unreliable. However, I can find no indication that it did so. It did accept that the claimant suffered panic attacks. It did refer to the relevant descriptor 18(c) and stated that the claimant had previously been awarded a point under that descriptor because he was reluctant to communicate with others due to his mental condition. It referred (correctly) to my decision C79/98(IB) as authority for the proposition that mere reluctance did not satisfy the descriptor, which required that there be an impairment of the ability to communicate. It then stated

    "… it would appear that in accordance with the decision of Commissioner Brown, he would not have an inability to communicate with other people, just a desire not to".

12. However, the claimant stated repeatedly in evidence that he could not speak in certain situations due to his mental state. That evidence, could if accepted, have according to my decision C79/98(IB) satisfied the descriptor 18(c). The claimant did not contend that he was reluctant to speak, he contended that he could not do so. The Tribunal's reasoning indicates that it considered he was merely reluctant to communicate due to his mental state. I consider that the Tribunal misinterpreted his evidence in that respect and set the decision aside for that reason. The evidence did not permit the Tribunal to conclude that the claimant was merely asserting reluctance to communicate.

13. The Tribunal refers to a 1999 Medical Report which is before me. It appears to have based its observations on the previous award of points under descriptor 18(c) on this report. However, I am unsure that the 1999 report supported the Tribunal's comments on the award. However, the claimant's clear evidence to the instant Tribunal and in the 2002 and 1999 Medical Reports was that he could not, not that he would not, speak on certain occasions.

14. I set the Tribunal's decision aside as in error of law because it misconstrued the claimant's evidence.

15. I have considerable sympathy with the Tribunal which obviously had a very difficult hearing. It appears that the Tribunal (and particularly the chairman) did its best to make the claimant understand its functions but regrettably with limited success. The Tribunal gave clear reasons for its decision and addressed, in those reasons, issues raised by the claimant which appear to be based on misunderstanding of the Tribunal's functions. The claimant obviously felt strongly about these matters but the Tribunal was correctly exercising its functions. That being so I have no criticism of the Tribunal. Many of the claimant's other grounds of appeal appear to be based on misunderstanding and I do not intend to comment on them further. It is not necessary that I do.

16. The Tribunal did err in law as indicated above and I set its decision aside for that reason. I consider that this is a case where I can give the decision which the Tribunal should have given. It is expedient that I do. The Tribunal made clear findings of fact as to the functional impairments as measured by the PCA. I have no disagreement with those findings except as regards descriptor 18(c). The Tribunal did not assess the claimant's evidence as unreliable and I do not do so. There are indications that the claimant was not always impaired in his ability to communicate with small groups. He could, for example, address the Tribunal without impairment and he was on a Church Committee. However, there are also indications, as mentioned above, that the medical examiner (at Box 50) may have accepted him to have some impairment of the ability to communicate. In addition his anxiety and depression was well documented and accepted and the complaint of impairment of ability to communicate was longstanding and consistent. I accept the claimant's evidence that at the time of the decision under appeal he did suffer impairment in his ability to speak when in small groups due to his mental condition. Descriptor 18(c) is satisfied by impairment in communication, a total inability to communicate is not required. Mere occasional impairment may not be enough but the claimant's impairment appears to be more than that.

17. I therefore conclude that he should be awarded 2 additional points on the PCA for descriptor 18(c). That brings his score on the mental health descriptors to 11 points which means that, measured by the PCA, he was, at the date of the decision under appeal, incapable of work and entitled to incapacity benefit.

18. The claimant wins his appeal.

    M F Brown

    Commissioner

    21 March 2005