Northern Ireland - Social Security and Child Support Commissioners' Decisions

DS-v-Department for Social Development (IB) [2013] NICom 40

Decision No:  C14/10-11(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 11 August 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 11 August 2009 is not in error of law.  Accordingly the decision of the appeal tribunal that the appellant is not entitled to incapacity benefit (IB) from and including 25 February 2009 is confirmed.

 

         Background

 

2.     The decision under appeal to the appeal tribunal was a decision of the Department, dated 25 February 2009, which decided that:

 

(i)          grounds existed to supersede an earlier decision of the Department, dated 19 November 2007 and which had awarded an entitlement to IB, from and including 6 August 2007; and

 

(ii)        the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 25 February 2009.

 

3.     An appeal against the decision dated 25 February 2009 was received in the Department on 9 March 2009.  On 22 April 2009 the decision dated 25 February 2009 was looked at again but was not changed.

 

4.     The substantive appeal tribunal hearing took place on 11 August 2009.  The appellant was present and was represented by Mr Roddy of Omagh Independent Advice Services.  There was a Departmental presenting officer present.  The appeal was disallowed and, overall, the decision dated 25 February 2009, that the appellant was not entitled to IB from and including 25 February 2009 was confirmed.  The appeal tribunal did apply certain of the descriptors and activities in the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, which the decision-maker had not applied.  The application of these descriptors meant that the appellant attracted a score of six points in connection with the work capability assessment.  That score was insufficient, though, for the appeal tribunal to make a determination that the appellant was incapable of work - regulation 20 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

 

5.     On 14 October 2009 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.  On 21 October 2009, the application for leave to appeal was refused by the legally qualified panel member.

 

         Proceedings before the Social Security Commissioner

 

6.     On 5 November 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 12 January 2010 observations were sought from Decision Making Services (DMS) and these were received on 1 February 2010.  In these initial observations, Mr Toner, for DMS, opposed the application on the grounds cited by the appellant.  Written observations were shared with the appellant and Mr Roddy on 17 February 2010.  On 1 September 2010 the then Chief Social Security Commissioner granted leave to appeal.  In granting leave to appeal, the Chief Commissioner identified as a reason, that:

 

‘It is arguable that the decision was wrong in law, because the tribunal failed to consider appropriately the content of a medical report obtained in connection with a previous personal capability assessment.’

 

7.     On 15 September 2010 written observations in reply were received from Mr Roddy.  On 25 November 2010 the parties to the proceedings were informed that the Social Security Commissioner was considering ‘staying’ the appeal as certain of the issues which were raised were also being considered by a Tribunal of Social Security Commissioners in another appeal and seeking the views of the parties on whether a ‘stay’ was appropriate.  Subsequently both parties agreed that a ‘stay’ was appropriate.

 

8.     On 1 September 2011 the Department was requested to provide an additional submission on the applicability of the decision of the Tribunal of Commissioners in JC v Department for Social Development (DLA) ([2011] NICom 177 (C10/10-11 (IB)(T)) (hereafter JC) to the issues arising in the appeal.  Further written submissions were received from Mr Toner on 8 September 2001 which were shared with the appellant and Mr Roddy on 13 September 2011.  The appeal then continued to be stayed for a further period pending the expiry of the relevant appeal period in the case of JC above.

 

         Errors of law

9.     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.

 

10.   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.”

         Was the decision of the appeal tribunal in the instant case in error of law?

 

         The submissions of the parties

 

11.   In the original application for leave to appeal to the Social Security Commissioner, Mr Roddy submitted that the decision of the appeal tribunal was in error of law on the basis that:

 

(i)        The appeal tribunal misinterpreted the evidence contained within a report from the ICAT Orthopaedic Service in that they ‘… deemed the pain to be intermittent as opposed to being as a direct result of engaging in particular activities.’

 

(ii)       The appeal tribunal did not take into consideration the appellant’s ability to accomplish ‘… tasks most of the time or my ability to perform the activities if and when called upon to do so.’

 

(iii)      The appeal tribunal did not consider the possibility of pain and increasing difficulty to perform certain activities on a repeated basis.  At the appeal tribunal hearing it had been submitted that if activities bring on pain then the appellant should be deemed to be unable to perform the activities.  The decisions of the Social Security Commissioner in CIB/13161/96 and CIB/13508/96 were cited in support.

 

(iv)      The appeal tribunal had before it a copy of a medical report prepared in connection with a previous personal capability assessment.  This report was of significance as it was argued that her condition had not changed since the date of the previous medical examination and that she was dissatisfied with the conduct and conclusions of the medical examination which she had undertaken in connection with the Departmental decision in the instant appeal.  In its statement of reasons, the appeal tribunal had referred to the medical report prepared in connection with the previous personal capability assessment, but had not considered it, referring to certain decisions of the Social Security Commissioners on the principle that previous entitlement to a social security benefit was no guarantee of a future award.  It was submitted that the decisions of the Commissioners which the appeal tribunal were referring to were decisions made in connection with disability living allowance (DLA).  There were other decisions of the Social Security Commissioners, including CIB/3586/2008 which addressed the specific issue of the manner in which an appeal tribunal should deal with the issue of medical reports prepared in connection with previous personal capability assessments.

 

12.   As was noted above, in the initial written observations on the application for leave to appeal, Mr Toner opposed the application on all of the grounds submitted by Mr Roddy.  In further written observations in reply to those of Mr Toner, Mr Roddy submitted that at the oral hearing of the appeal he had raised concerns about the accuracy of the report of the medical examination which had been conducted on 29 December 2008 in connection with the decision-making process giving rise to the appeal.  Further, he had submitted that the appellant had been having a ‘bad day’ on the day of the examination and the conclusions of the medical officer of the Department, that there was ‘… evidence of magnification and management …’ was not consistent with severe problems.  Finally, Mr Roddy submitted that the clinical findings on examination in both the present and previous medical reports were similar but the resultant opinion and conclusions on functional ability were very inconsistent.  Mr Roddy submitted that consideration of the totality of the evidence, including the report of the previous examination in connection with the personal capability assessment, dated 17 April 2007, the letter from the appellant’s general practitioner (GP) dated 30 March 2009, x-ray results and the report from the ICATS Orthopaedic Service would all suggest that the appellant had a genuine problem with her back.  Mr Roddy also submitted that the correct test is whether restrictions are present for ‘most of the time’ as opposed to ‘all of the time’.

 

13.   As was noted above, Mr Toner was requested to provide additional submissions on the applicability of the decision in JC to the issues arising in the appeal.  Mr Toner submitted that the decision of the appeal tribunal in the instant case was in keeping with the principles set out by the Tribunal of Commissioners in JC.

 

         Analysis

 

14.   I begin with the question of the duty of the appeal tribunal where there has been a previous personal capability assessment involving the completion of a report by a medical officer of the Department following an examination of the claimant.  This was the issue which was considered by the Tribunal of Commissioners in JC.  At paragraph 50 of their decision, the Commissioners set out the following principles:

 

‘50.      The implications of the introduction of the Great Britain equivalent of regulation 6(2)(g) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999 and, more particularly, the effect of the introduction of that provision on the requirement to consider previous adjudication history, have been considered by the Social Security Commissioners in Great Britain in a number of well-analysed and thorough decisions.  From those decisions we derive and accept the following principles:

 

(i)         there was a clear purpose to the introduction of regulation 6(2)(g) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, which was to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession;

 

(ii)        accordingly, there is no requirement to identify a regulation 6(2)(a)(i) change of circumstances in order to supersede an IB decision;

 

(iii)       there is a difference between the evidential requirement to determine the ground for supersession and the evidential requirement to establish whether an individual is incapable of work in connection with the all work test or personal capability assessment;

 

(iv)       it is no longer necessary as a matter of law for an appeal tribunal to have before it and to consider the evidence of the claimant’s previous assessments in connection with the all work test or personal capability assessment;

 

(v)        an appeal tribunal is entitled to call for whatever evidence it considers to be relevant to the proper determination of the issues arising in an appeal;

 

(vi)       the requirement for an appeal tribunal to consider the evidence associated with previous favourable assessments in connection with the all work test or personal capability assessment depends entirely on the relevance of the earlier assessments to the determination of the claimant’s incapacity for work at the date of the supersession decision;

 

(vii)      an appeal tribunal will be required to consider the evidence associated with previous favourable assessments where an appellant asserts that there has been no change in his medical condition or disablement and that the evidence associated with previous assessments is relevant to that continuing medical condition or disablement.  In such circumstances the last previous assessment is likely to be of more relevance than earlier ones and the relevance of any particular assessment is likely to diminish with the passage of time;

 

(viii)     details of the basis of the claimant’s previous assessments in connection with the all work test or personal capability assessment may be relevant evidence of the claimant’s overall capacity, particularly where the claimant has a variable condition.  Variability may increase the relevance of older assessments carried out before the last previous assessment;

 

(ix)       details of the basis of the claimant’s previous assessments in connection with the all work test or personal capability assessment may be of no relevance in a case, for example, where there is evidence that the claimant’s condition has changed in a way that renders the details of the earlier assessment irrelevant;

 

(x)        where the evidence associated with a previous favourable assessment in connection with the all work test or personal capability assessment is no longer available, it does not follow that the award of entitlement to benefit or credits, based on that favourable assessment, should automatically continue, simply because a comparison cannot be made.  The appeal tribunal must reach a decision based on whatever evidence is available to it;

 

(xi)       the value of the evidence associated with a previous favourable assessment in connection with the all work test or personal capability assessment may be minimal.  This may be the case where an appeal tribunal has replaced a decision of the Department with its own decision, and there are no relevant findings in fact or reasons for the appeal tribunal’s decision because the success of the appeal obviated the requirement to call for these;

 

(xii)      an appeal tribunal may call for evidence associated with a previous unfavourable assessment in connection with the all work test or personal capability assessment.  It follows that where evidence of previous assessments is of relevance in cases, for example, where the claimant’s condition is variable, the evidence may assist in determining the claimant’s overall capacity.’

 

15.   There is no doubt that the appeal tribunal had before it a copy of the report of the medical examination conducted on 17 April 2007.  It is noted, albeit with an incorrect date, in both the record of proceedings for the appeal tribunal hearing and in the statement of reasons for the appeal tribunal’s decision.

 

16.   As was noted by the Tribunal of Commissioners in JC, there was no requirement, as a matter of law, for the appeal tribunal to ‘… have before it and to consider the evidence of the claimant’s previous assessments in connection with the all work test or personal capability assessment.’  This is because the effect of the introduction of regulation 6(2)(g) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999 was to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession and, accordingly, there is no requirement to identify a regulation 6(2)(a)(i) change of circumstances in order to supersede an IB decision.

 

17.   In her appeal against the decision of the Department dated 25 February 2009 and which was received in the Department on 9 March 2009, the appellant had asserted that her medical condition had not improved since the date of the previous medical examination conducted in accordance with an earlier personal capability assessment.

 

18.   In the application for leave to appeal, and in subsequent written observations in reply to those of Mr Toner, Mr Roddy has submitted that at the oral hearing of the appeal he made a submission that the appellant’s circumstances had not changed between the date of the medical examination conducted on 17 April 2007 and the medical examination conducted on 29 December 2008.

 

19.   At first glance, therefore, that might trigger the requirement in sub-paragraph (vii) of paragraph 50 of the decision in JC that the appellant must ‘…consider the evidence associated with previous favourable assessments where an appellant asserts that there has been no change in his medical condition or disablement and that the evidence associated with previous assessments is relevant to that continuing medical condition or disablement.’  It is important to note that there is a two-fold requirement - the assertion of no change in the medical condition or disablement and the relevance of the previous assessment to the continuing medical condition.

 

20.   I have considered the content of the record of proceedings for the oral hearing of the appeal.  It is recorded that Mr Roddy made two submissions.  The first, at the commencement of the oral hearing was in connection with the activities associated with the personal capability which were in dispute.  The second recorded submission came towards the end of the oral hearing, as follows:

 

‘Representative

 

She had to give up work in 2006.  She got 12 points from an Examining Medical Practitioner in 2007.  The Department then increased this to 15 points.

 

She was examined on 19/12/2008 and gained no points.

 

She was having a bad day on the 19/12/2008.  She denies any exaggeration of her problems on that date.

 

There is a genuine problem with her back.  She is waiting on physiotherapy.

 

If the activities brings on pain, then she cannot do those activities.’

 

21.   There does not appear to be a record, therefore of a submission that there had been no change in the appellant’s medical condition since the date of the previous medical examination on 17 April 2007.  I would emphasise, however, that that is not fatal to Mr Roddy’s argument as it is clear from the original letter of appeal against the Departmental decision that such an argument was being advanced.

 

22.   How did the appeal tribunal assess the evidence contained in the report of the medical examination conducted on 17 April 2007?  As was noted above, it recorded that the medical report was included in the totality of the evidence which was before it.  Thereafter, the appeal tribunal recorded in its statement of reasons:

 

‘The Tribunal also noted the contents of Dr C’s [sic] report dated 7 April 2007 but as expounded in numerous Commissioners [sic] decisions the fact that a person had previously been awarded a benefit is no guarantee of a future award of benefit.’

 

23.   The reference to 7 April 2007 should, of course, be to 17 April 2007.  In general terms, the appeal tribunal is correct to observe that there is a general principal of law that a previous award of entitlement to a social security benefit does not guarantee a renewal of that entitlement on a further claim - see the decision of the Court of Appeal in R 3/04(DLA) (Quinn v Department for Social Development [2004] NICA 22).

 

24.   In any event, and with respect to the submission made by Mr Roddy, I am of the view that the appeal tribunal was not as dismissive of the contents of the report of 17 April 2007 as he suggests.  I am of the view that the appeal tribunal considered the contents of that report as part of its assessment of all of the evidence which was before it.

 

25.   Further, when one considers the context and content of the relevant report, it is not clear how any greater analysis of it would have made any difference to the overall conclusions of the appeal tribunal.  Mr Roddy submits that consideration of the totality of the evidence, including the report of the previous examination in connection with the personal capability assessment, dated 17 April 2007, the letter from the appellant’s GP dated 30 March 2009, x-ray results and the report from the ICATS Orthopaedic Service would all suggest that the appellant had a genuine problem with her back.  It is clear that the appeal tribunal did accept that the appellant would have back pain from time to time.  Having assessed all of the other medical evidence which was before it, including the letter from the appellant’s GP dated 30 March 2009, x-ray results and the report from the ICATS Orthopaedic Service, the appeal tribunal concluded that the appellant had recorded ‘mild lumbar scoliosis and some disc narrowing’ and the least serious form of spina bifida.

 

26.   Mr Roddy also submits that the clinical findings on examination in both April 2007 and December 2008 were identical and yet the medical officers of the Department and subsequent decision-makers arrived at wholly different conclusions with respect to the applicability of descriptors and activities.  In this regard it is important to note that the role of all of the adjudicating authorities, including original decision-makers and appeal tribunals was as described by Mrs Commissioner Brown at paragraph 23 of her decision in C6/05-06(IB) as a concern with:

 

‘… the claimant’s functional limitations as measured by the personal capability assessment.  Ms Fleming is correct that this, not diagnostic labelling, was the tribunal’s focus.’

 

27.   In making a decision on functional limitation the decision-maker may rely on the opinion of the medical officer of the Department as contained with the report of a medical examination conducted in connection with the personal capability assessment.  It is important to note, however, that what is recorded in the report is the opinion of the medical officer as to the claimant’s functional limitations based on relevant clinical findings.  The duty of the decision-maker is to decide whether the test of incapacity for work is satisfied.  In connection with the appellant, the test of incapacity 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) Social Security Contributions and Benefits (Northern Ireland) Act 1992.  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.  In carrying out that duty the decision-maker may consider but is not necessarily bound by the opinion of the medical officer.

 

28.   Following the report of the medical examination conducted in April 2007 we are informed that the decision-maker accepted the opinion of the medical officer, applied the relevant activities and descriptors which resulted in the appellant scoring 12 points and, accordingly, failing the personal capability assessment.  Following the making of an appeal against the Departmental decision, and the submission of additional evidence, the negative Departmental decision was revised and IB was awarded, presumably on the basis that it was accepted that the appellant satisfied the personal capability assessment.

 

29.   Following the report of the medical examination conducted in December 2008, the decision-maker also accepted the opinion of the medical officer, applied the relevant activities and descriptors which resulted in the appellant scoring 0 points and, accordingly, failing the personal capability assessment.  It is important to note that the appeal tribunal, adopting its independent and inquisitorial role did not accept that the decision-maker’s endorsement of the applicable activities and descriptors was correct and substituted certain of the descriptors and activities which the decision-maker had not applied.  The application of these descriptors meant that the appellant attracted a score of six points in connection with the work capability assessment.  In so doing, the appeal tribunal accepted that the appellant had a degree of limitation with respect to those activities.  The descriptors which the appeal tribunal applied of its own volition were parallel to those which had been applied by the medical officer in April 2007.  Further, the appeal tribunal gave an adequate and rational explanation of the reasons why it did not accept that certain other scoring activities and descriptors applied.

 

30.   Accordingly, I cannot accept that the decision of the appeal tribunal was in error of law on the basis upon which it addressed the evidence contained within the report of the medical examination conducted in connection with a previous personal capability assessment.

 

31.   I turn to the other grounds set out by Mr Roddy in the application for leave to appeal.  As was noted above, these were:

 

(i)        The appeal tribunal misinterpreted the evidence contained within a report from the ICAT Orthopaedic Service in that they ‘… deemed the pain to be intermittent as opposed to being as a direct result of engaging in particular activities.’

 

(ii)       The appeal tribunal did not take into consideration the appellant’s ability to accomplish ‘… tasks most of the time or my ability to perform the activities if and when called upon to do so.’

 

(iii)      The appeal tribunal did not consider the possibility of pain and increasing difficulty to perform certain activities on a repeated basis.  At the appeal tribunal hearing it had been submitted that if activities bring on pain then the appellant should be deemed to be unable to perform the activities.  The decisions of the Social Security Commissioner in CIB/13161/96 and CIB/13508/96 were cited in support.

 

32.   With respect to Mr Roddy’s submission in connection with the evidence contained within a report from the ICAT Orthopaedic Service, I cannot accept it.  I cannot ascertain how the phrase ‘intermittent pain’ cannot be interpreted in any other way than pain which occurs from time to time.  Further, the report makes it clear that the pain, when it does occur, is linked to specific activities, such as getting in and out of a car, twisting or bending or standing for long periods.  Those are irregular activities.  Further, it is clear that the linkage of pain to irregular activities as recorded in the relevant report is based on what has been reported to the report’s author by the appellant.  I cannot, therefore, agree with Mr Roddy that the decision of the appeal tribunal is in error of law on the basis of this submitted ground.

 

33.   In connection with the submission that the appeal tribunal has failed to take into consideration the appellant’s ability to perform certain activities most of the time, I am reminded that in R(IB) 2/99, after approving of the decision in R1/96(IB), a Tribunal of Commissioners in Great Britain said the following, at paragraph 15:

 

‘Although we consider a broad approach to be justified, the words of the legislation cannot be ignored.  In R(A) 2/74, the Chief Commissioner said, when remitting the case before him to another delegated medical practitioner:

 

“[I]n my judgment in answering the [statutory questions], ‘regard must be paid to ... the claimant’s requirements over a period of time’.  I think that the delegate should take a broad view of the matter, asking himself some such question as whether in all the circumstances the words in the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts.  These are matters for the good sense and judgment of the delegate.”

 

It follows that, in those cases where relevant descriptors are expressed in terms that the claimant “cannot”, rather than “sometimes cannot”, perform the activity, one should not stray too far from an arithmetical approach that considers what the claimant’s abilities are “most of the time” - the phrase used in C1/95(IB).  Nevertheless, we agree that all the factors mentioned by counsel - the frequency of “bad” days, the length of periods of “bad” days and of intervening periods, the severity of the claimant’s disablement on both “good” and “bad” days and the unpredictability of “bad” days - are relevant when applying the broad approach.  Thus, a person whose condition varies from day to day and who would easily satisfy the “all work test” on three days a week and would nearly satisfy it on the other four days might well be considered incapable of work for the whole week.  But a person who has long periods of illness separated by periods of remission lasting some weeks, during which he or she suffers no significant disablement, might well be considered to be incapable of work during the periods of illness but not to be incapable of work during the periods of remission, even if the periods of illness are longer than the periods of remission.  Each case must be judged on its merits and we agree with the Commissioner who decided CIB/6244/1997 that there are some cases where a claimant can properly be regarded as incapable of work both on days when the “all work test” is clearly satisfied and on other days in between those days and that there are other cases where the claimant can be regarded as incapable of work only on “bad days”, although we do not consider the distinction he drew between “variable” and “intermittent” conditions to be a helpful one.’

 

34.   The decision in R(IB) 2/99 was considered by a Tribunal of Commissioners in Northern Ireland in R1/02(IB)(T).  At paragraph 19, they stated:

 

‘The Appeal Tribunal did attempt to reach a conclusion based on the broad brush approach basis outlined in R(IB)2/99.  A Tribunal is entitled to make a finding e.g. that on most days the claimant could walk in excess of 200 metres before stopping or severe discomfort without evidence expressly so stating.  It must be permitted to exercise its judgment as to the true fact situation on the basis of the accepted evidence as a whole and may draw inferences from that accepted evidence.  It is for the Tribunal, not for any witness, to make the necessary findings.’

 

35.   Further, at paragraphs 25 to 26:

 

‘25       As regards variable conditions such as the claimant’s foot problem, we are largely in agreement with R(IB)2/99, a Great Britain Decision of a Tribunal of Commissioners, that the “broad approach” outlined therein is the only one which can sensibly be applied.  We also, however, share the views expressed in that case decision at paragraph 15 thereof that “… the words of the legislation cannot be ignored …  It follows that, in those cases where relevant descriptors are expressed in terms that the claimant “cannot”, rather than “sometimes cannot” perform the activity, one should not stray too far from an arithmetical approach that considers what the claimant’s abilities are “most of the time”…”.

 

26.       We also consider that certain factors mentioned in that decision are likely to be relevant in applying that approach though this list is neither prescriptive nor conclusive i.e. the frequency with which the relevant limitation(s) arise, for how long they last, the duration of periods when the limitation(s) are not present.  We are less certain, however of the meaning or relevance of the phrase “the unpredictability of “bad” days” used in that decision.  Adjudicators will simply have to try to determine the likely patterns of functional limitation.  Uncertainty as to the possibility of a future recurrence would not of itself usually be enough to satisfy the test which must be satisfied on the balance of probability at the time of the decision maker’s decision.’

 

36.   In my view, the key sentence in the approved and much-quoted extract from R1/96(IB) is:

 

‘The real issue is whether, taking an overall view of the claimant’s capacity to perform the activity in question, he should reasonably be considered to be incapable of performing it.’

 

37.   To my mind, that is reflective of a ‘broad view’ or ‘broad approach’, and there is nothing inconsistent between the ‘reasonable regularity’ test in R1/96(IB) and the ‘broad approach’ in R2/99(IB).

 

38.   It is necessary, of course, to consider whether the appeal tribunal applied the test correctly in the instant case.  I consider that it did.  It took into account all relevant factors, in line with the guidance in paragraph 26 of the Tribunal of Commissioners in R1/02(T), and in the words of that Tribunal exercised ‘its judgment as to the true fact situation on the basis of the accepted evidence as a whole’.  I would repeat that I consider that the appeal tribunal was entitled to interpret the phrase ‘intermittent pain’ as meaning pain on an occasional basis and linked to irregular activities.

 

39.   Finally I have considered the submission that if activities bring on pain then the appellant should be deemed to be unable to perform the activities.  Once again I would repeat that the appeal tribunal did not err in how it interpreted the phrase ‘intermittent pain’.  Further, the appeal tribunal accepted that the intermittent pain was linked to certain activities such as bending.  It is important to note that the appeal tribunal accepted that the appellant’s problems with intermittent back pain would, on occasions, cause her to have occasional limitations with the activities of bending and kneeling and rising from sitting.  With respect to the submission which has been made, I cannot find any error with the appeal tribunal’s reasoning with respect to the effect of intermittent pain on her ability to carry out certain functions.  The appeal tribunal did not accept that the appellant could only carry out these functions with pain and this was, in my view, a conclusion it was entitled to reach.

 

         Disposal

 

40.   The decision of the appeal tribunal dated 11 August 2009 is not in error of law.  Accordingly the decision of the appeal tribunal that the appellant is not entitled to IB from and including 25 February 2009 is confirmed.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

12 June 2013