Decision No: C10/09-10(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 13 November 2008

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.         Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the application can properly be determined without a hearing.

 

2.         I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal. 

 

3.         The decision of the appeal tribunal dated 13 November 2008 is in error of law. The error of law identified will be explained in more detail below.

 

4.         Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

5.         I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made a further finding of fact. The fresh findings in fact are outlined below.

 

Background

 

6.         The decision under appeal to the appeal tribunal was a decision of the Department, dated 26 June 2008, which decided that:

 

(i)                 grounds existed to supersede an earlier decision of the Department, dated 3 February 2004, and which had awarded an entitlement to incapacity benefit (IB), from and including 1 January 2004; and

 

(ii)        the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 26 June 2008.

 

7.         The appeal was received in the Department on 7 July 2008.

 

8.         On 13 August 2008 the decision dated 26 June 2008 was looked at again but was not changed. The substantive appeal tribunal hearing took place on 13 November 2008. The appellant was present and was represented. The appeal was disallowed. On 10 April 2009 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.

 

9.         The grounds on which the application for leave to appeal was based were that:

 

(i)                 in looking at the applicability of the ‘sitting’ activity, there was no indication that any consideration had been given to the type of chair specified in the relevant legislative provisions, and length of time which the appellant could sit in that type of chair; and

 

(ii)               the appeal tribunal has failed to give an explanation as to why it rejected the evidence of the appellant’s General Practitioner in arriving at certain conclusions with respect to her credibility.            

 

10.       On 24 April 2009, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

Proceedings before the Social Security Commissioner

 

11.       On 1 June 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners. The grounds cited in this application were the same as those which had been cited in the first application to the LQPM.

 

12.       On 19 August 2009 observations were sought from Decision Making Services (DMS) and these were received on 8 September 2009. In these observations DMS opposed the application on the grounds cited by the appellant.

 

Errors of law

 

13.       A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

14.       In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i)       making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)        failing to give reasons or any adequate reasons for findings on material matters;

(iii)       failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)       giving weight to immaterial matters;

(v)        making a material misdirection of law on any material matter;

(vi)       committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

The error of law in the instant case

 

15.       The record of proceedings for the appeal tribunal hearing records that the documents which the appeal tribunal had considered were:

 

                        ‘Submission and scheduled documents.

 

                        Letter from Dr McAuley General Practitioner – 11.11.2008’

 

16.       The letter from the general practitioner (GP) was submitted to the appeal tribunal on behalf of the appellant. The record of proceedings notes a submission from the appellant’s representative that the:

 

‘Submitted letter from General Practitioner is relevant. Refers to long standing condition.

 

In light of General Practitioner’s letter submit that further physical activities relevant to this appeal.’

 

17.       It is clear, therefore, that the appellant’s representative was placing a distinct emphasis on the contents of the letter in relation to submissions which he was making in respect of the issues arising in the appeal.

 

18.       The relevant letter from the GP reads as follows:

 

                        ‘To whom it may concern.

 

This patient has been known to me for some time and she has given me her consent to detail some of her medical history. 

 

She has a long history of fibromyalgia which manifests itself with multiple joint and muscle pains especially in her back. This causes pain and stiffness at rest getting much worse on movement. Her movements are very slow and her exercise capacity is dramatically reduced. She has trouble washing and dressing especially her lower extremities. She has attended pain clinics and has been on multiple medications with little effect.

 

She is also an asthma sufferer causing shortness of breath on minimal exertion. Her condition is controlled by inhalers. I hope you will take this into account when assessing her appeal.’

 

19.       In the statement of reasons for the appeal tribunal’s decision the following is recorded:

 

‘… The Tribunal is of the opinion that if the Appellant could not sit comfortably at all as she stated in her Incapacity for Work questionnaire or if her ability to sit was as limited as she stated in her oral evidence, her GP would have continued to try her on different medication to find one that helped or referred her to a Consultant Rheumatologist or to a Pain Clinic for specialist advice on pain relief. Furthermore the Tribunal finds that the inconsistencies in the Appellant’s evidence concerning her ability to sit without having to move from the chair casts doubt on the reliability of her evidence.’

 

20.       It is clear, therefore, that the appeal tribunal based certain of its conclusions with respect to the applicability of the ‘sitting’ activity on what it determined was an absence of variation in medication on the part of her GP, and the failure on the part of the GP to refer her to a consultant rheumatologist or to a pain clinic for specialist advice on pain relief. In the view of the appeal tribunal, these failures on the part of the GP undermined the appellant’s evidence with respect to the ‘sitting’ activity.

 

21.       The appeal tribunal’s conclusions with respect to the ‘sitting’ activity are difficult to understand in light of the statement in the letter from the GP that ‘She has attended pain clinics and has been on multiple medications with little effect.’ Contrary to the conclusions of the appeal tribunal, this is evidence that the appellant has indeed been referred to a specialist pain clinic and that there have been attempts to vary her pain-killing medication but to little effect.

 

22.       In C8/08-09(IB), I stated, at paragraphs 60-61:

 

                   ‘60.      The reason for my rejection of the DMS submission is that there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.

 

                   61.       In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

 

                                 ‘ … there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect.  It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason.  Indeed, it will sometimes be its duty to do so.  However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant.  It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short.  We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal.  That body must have regard to the whole of the evidence, including the medical evidence.  Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so.  Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.’’

 

23.       In its written observations on the application for leave to appeal to the Social Security Commissioner, DMS has submitted that:

 

‘While the tribunal appear to have erred in its statement regarding (the claimant) not being referred to a pain clinic, I submit that the reasons for decision when read as a whole clearly explain why the tribunal made the decision that it did.’

 

24.       With respect to the maker of that submission, I cannot accept it. As was noted above, the appeal tribunal based certain of its conclusions with respect to the applicability of the ‘sitting’ activity on what it determined was an absence of variation in medication on the part of her GP, and the failure on the part of the GP to refer her to a consultant rheumatologist or to a pain clinic for specialist advice on pain relief. In the view of the appeal tribunal, these failures on the part of the GP undermined the appellant’s evidence with respect to the ‘sitting’ activity. It is clear, therefore, that the conclusions with respect to variation and referral were at the heart of the appeal tribunal’s conclusions with respect to the assessment of the appellant’s credibility with respect to the applicability of the ‘sitting’ activity. Accordingly, it was a crucial aspect of the appeal tribunal’s determination, and the failure to address specific evidence with respect to variation and referral was equally critical. 

 

25.       Further, the appellant and her representative were entitled to know why the appeal tribunal failed to refer to specific evidence which had been submitted on the appellant’s behalf and which were related to the nature and extent of her incapacity.  

 

26.       In the instant case, the appeal tribunal has given no reason why it has rejected the evidence of the appellant’s GP with respect to the referral to a pain clinic and the variation in her pain-killing medication, or why it has arrived at a conclusion which runs contrary to that evidence. In failing to give such an explanation, I find that the decision of the appeal tribunal is in error of law. The error falls within all first three of the errors set out in paragraph 30 of R(I) 2/06 these are:

 

(i)         making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)        failing to give reasons or any adequate reasons for findings on material matters;

(iii)             failing to take into account and/or resolve conflicts of fact or opinion on material matters.

 

 

 

27.       Additionally, the appeal tribunal, in the statement of reasons for its decision noted that:

 

‘The Tribunal prefers the EMO’s assessments of the disputed physical activities, with the exception only of rising 5(c) and bending and kneeling 6(c), and the mental health descriptors because his report was comprehensive and objective and was obtained through a process of examination, observation and history directed specifically to consideration of the Appellant’s ability to carry out the activities in the personal capability assessment.’

 

28.       Clearly, therefore, the appeal tribunal relied on the findings and conclusions of the medical officer of the Department in respect of the disputed activity of sitting.

 

29.       In the report of the medical examination, undertaken by a medical officer of the Department, on 15 May 2008, the medical officer observes that:

 

‘Sat normally (sat in waiting area leaning forwards reading a magazine – not typical for back pain) for 26 minutes.’

 

30.       I do not know whether this means that the appellant has sat normally for 26 minutes during the course of the medical examination, or whether she had sat in the waiting room for 26 minutes, leaning forward and reading a magazine. If it is the latter, I find it difficult to understand how the medical officer could have arrived at this conclusion unless he/she spent 26 minutes observing the appellant as she sat in the waiting room, leaning forwards, reading a magazine which, I would think, was highly unlikely.

 

The appellant’s other grounds for appealing to the Social Security Commissioner

 

31.       Having found that there was a procedural irregularity which was capable of making a material difference to the outcome or the fairness of the proceedings, I do not have to consider the appellant’s other grounds for appealing.

 

Further findings in fact

 

32.       The test of incapacity for work, applicable to the appellant, was the personal capability assessment. The personal capability assessment is an assessment of the extent to which a person who has some specific disease or bodily or mental disablement to perform certain of the activities as prescribed - Section 167A(1), 167C(1) and (2) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

 

33.       The prescribed activities are to be found in Parts I and II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

 

34.       Adopting the findings of fact made by the appeal tribunal, the application of relevant descriptors to relevant activities means that the appellant scores 12 points.

 

35.       I have looked and assessed the evidence which was available to the appeal tribunal with respect to the activity of sitting. In the IB50 questionnaire, completed on 24 November 2007, the appellant indicated, in response to a question related to her limitations with respect to sitting that she could not sit at all. I cannot accept that evidence.

 

36.       In the report of the medical examination, undertaken by a medical officer of the Department, on 15 May 2008, the medical officer observes that:

 

‘Sat normally (sat in waiting area leaning forwards reading a magazine – not typical for back pain) for 26 minutes.’

 

37.       As was noted above, I do not know whether this means that the appellant has sat normally for 26 minutes during the course of the medical examination, or whether she had sat in the waiting room for 26 minutes, leaning forward and reading a magazine. If it is the latter, I find it difficult to understand how the medical officer could have arrived at this conclusion unless he/she spent 26 minutes observing the appellant as she sat in the waiting room, leaning forwards, reading a magazine which, I would think, was highly unlikely.

 

38.       Before the appeal tribunal, the appellant’s representative submitted that the problems the appellant has with sitting would mean that she could only sit for between 30 minutes to one hour.

 

39.       In light of the medical evidence in the report of the GP, concerning pain and stiffness at rest, which I find to be supportive of the submissions made by the appellant’s representative, I conclude that the appellant cannot sit comfortably for more than one hour without having to move from a chair (that is an upright chair, with a back, but no arms) because the degree of discomfort makes it impossible to continue sitting.   

 

40.       This conclusion would not be out of keeping with the observations of the medical officer of the Department, if the quotation noted above is to be interpreted, as meaning that the appellant sat normally for 26 minutes during the course of the medical examination.

 

41.       Accordingly, I apply descriptor 3(d) of Part I to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, which attracts three further points.

 

Disposal

 

42.       The test of incapacity for work, applicable to the appellant, was the personal capability assessment. The personal capability assessment is an assessment of the extent to which a person who has some specific disease or bodily or mental disablement to perform certain of the activities as prescribed - section 167A(1), 167C(1) and (2) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

 

43.       The prescribed activities are to be found in Parts I and II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

 

44.       Adopting certain the findings of fact made by the appeal tribunal, and my own findings of fact set out above, the application of relevant descriptors to relevant activities means that the appellant scores 15 points. The appellant, therefore, satisfies the personal capability assessment in that she is incapable, by reason of some specific disease or bodily or mental disablement to perform certain of the activities as prescribed in the relevant legislation.

 

45.       The appellant is, therefore, entitled to IB from and including 26 June 2008.

 

            (Signed):  K Mullan

 

            COMMISSIONER

 

 

 

            8 December 2009