Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2007] NISSCSC C4_07_08(IB) (13 November 2007)

Decision No: C4/07-08(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
INCAPACITY BENEFIT
Application by the claimant for leave to appeal and appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 18 January 2006
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This case begins as an application by the claimant for leave to appeal against a decision dated 18 January 2006 of an appeal tribunal sitting at Belfast. I grant leave and, with the consent of Mr Hatton of the Law Centre (NI) representing the claimant and Mr Sloan of Decision Making Services Branch, representing the Department, treat the application as an appeal and determine any questions arising thereon as if they arose on appeal.
   
2. I held a hearing which Mr Hatton and Mr Sloan attended. As matters progressed Mr Hatton relied on only two grounds of appeal and conceded that even had the tribunal erred in the manner contended in these grounds this would not have vitiated its decision. I consider this concession was correct.
   
3. My function in this case is to decide whether or not the tribunal's decision (to supersede a previous award of incapacity benefit and disallow same from and including 13 June 2005) is in error of law not whether or not it contains an error. Dependent on the nature of any error it may or may not render the decision in error of law. By no means every error will do so.
4. In this case Mr Hatton put forward two grounds of appeal. I will deal with the second one first. Mr Hatton submitted that, on the evidence before it, the tribunal had not been entitled to conclude that there had been "no specialist referrals" regarding the claimant's back. This conclusion was, in Mr Hatton's submission, incorrect, as the claimant had been referred to a Rheumatologist, an early arthritis clinic, to physiotherapy and to hydrotherapy.
5. Mr Sloan submitted that the tribunal had meant orthopaedic specialists when it referred to specialist referrals. I consider Mr Sloan to be correct. The tribunal's observation was made in the context of osteoarthritis changes being noted on X-ray and the medical member of the tribunal's observations that any X-ray of a man of the claimant's age would show arthritic changes. It was also made against the context of very severe walking and other limitations alleged in the claim form.
6. The tribunal was in my view referring to orthopaedic specialists and was correct in its finding that there had been no referral to such specialists. There is no merit in the second ground.
7. The first ground related to the tribunal having awarded points under activity 5 (rising from sitting) of the personal capability assessment on the basis, in Mr Hatton's submission, of the examining doctor's report of 12 May 2005. This report was to the effect that the doctor accepted that sometimes the claimant needed to hold on when rising from sitting because of dizziness. The doctor did not consider that there was any problem with bending or kneeling (activity 6). Three points (the score for the "sometimes" descriptor c of activity 5) were awarded by the tribunal. It awarded no points under activity 6 (bending and kneeling) though that activity also contains a "sometimes" descriptor. In Mr Hatton's view it was an error of law for the tribunal not to have explained why, on the same basis as points were awarded under activity 5, they were not also awarded under activity 6.
8. Mr Sloan also considers this to be an error but both representatives agreed that any such error would not vitiate the decision.
9. I do agree that there was some lack of clarity in the tribunal's reasoning. However even had points been awarded under descriptor 6 they would not have brought the claimant up to the necessary score on the personal capability assessment and so the decision would have been the same. The tribunal found the claimant's evidence unreliable and for many reasons. This conclusion was not, in my view, perverse or unreasonable. That being so the tribunal does appear to have relied on the medical evidence for its assessment on the personal capability assessment. This again it was entitled to do.
10. Mr Hatton has referred to decision CIB/3589/2004, a decision of Mr Commissioner Jacobs in Great Britain. That decision is not, in my view, on all fours with the present case. In that decision the tribunal expressly reasoned that migraine headaches could only be considered under the one activity of "lost or altered consciousness". Mr Commissioner Jacobs, correctly in my view, found this to be an error. He stated at paragraph 10:

"The personal capability assessment is concerned with a claimant's capacity for work. It operates by reference to disabilities. In other words, it is concerned with the effects of disabilities on a person's ability to perform work-related functions. …."

He continues at paragraph 11:

"In order to apply the legislation correctly, a tribunal has to follow a series of links from the disease (or disablement) to the symptoms to the disabilities to their effects on the work-related activities of the personal capability assessment. All those links are factual."

11. I agree with the above observations. In this particular case, against the background of the accepted evidence (ie the medical evidence) there was some lack of clarity but same related only to descriptors 5 and 6. Had the reasoning been clearer either by explaining why, despite awarding points under 5c, points were not being awarded under 6c or even had there been an award of additional points under 6c or a removal of points under 5c this would have made no difference to the decision.
12. The decision of the tribunal is not in error of law. It is sustainable on the accepted evidence and the small lack of clarity relating to descriptors 5 and 6 is not such as to render the overall reasoning inadequate to explain the decision. The appeal is dismissed.

(signed):M F Brown

Commissioner

13 November 2007