UK Social Security and Child Support Commissioners' Decisions

[2001] UKSSCSC CIB_2404_2001 (27 June 2001)

 


CIB/2404/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the claimant's appeal. I set aside the decision of the Portsmouth appeal tribunal dated 1 December 2000 and I refer this case to a differently constituted appeal tribunal.

REASONS

2. The claimant has raised a number of grounds of appeal. In my direction dated 1 November 2001, I expressly directed the Secretary of State to make observations addressing each ground of appeal. His representative has not done so.
3. The claimant appealed to the tribunal against a decision that she was not entitled to incapacity benefit because she scored only thirteen points on the physical descriptors and only four points on the mental health descriptors on a personal capability assessment. The tribunal found that she scored only three points on the physical descriptors and just one point on the mental health descriptors. Accordingly, they dismissed her appeal. She now appeals against the tribunal's decision with the leave of a tribunal chairman.
4. In respect of the activity of "sitting in an upright chair with a back, but no arms", the tribunal said:

"The Appellant informed us that she can sit for about an hour watching TV, reading and writing. We therefore concur with the view of the Examining Medical Practitioner and 3 points were awarded under this descriptor."

The claimant submits that the tribunal erred in failing to make any finding as to the type of chair the claimant used to sit for the period of an hour, while watching television, reading or writing and that therefore the reasons given for awarding only three points on that descriptor are inadequate. Her representative says:

"[The claimant] describes her incapacity …. as 'Industrial injury sustained in workplace Jan 1998 – causing severe damage to cervical/dorsal l.arm/shoulder/hand/l.chest/l.leg'. The injury causes her to experience pain and stiffness in the neck and shoulders that she states is aggravated by sitting. Upright chairs with no arms are totally in parallel with the thoracic vertebrae and do not allow her to lean to alter the position of her back and neck while supporting her arm.

"When sitting in an upright chair with no arms [the claimant] has to lean back in the chair for support, which provokes pain in the thoracic area causing her to rise from sitting to relieve the pain. This reduces the length of time for which she can sit. [The claimant] is able to sit for longer in a padded chair with arms because she is able to lean to the right.

"[The claimant] usually uses a sofa with a back roll built in when she sits for prolonged periods. This type of chair allows her to lean or otherwise move her neck and shoulders into a comfortable position which avoids her thoracic vertebrae from being in a position parallel with the chair back."

The Secretary of State supports the claimant's appeal on this ground.

5. Plainly, the activity in the personal capability assessment is related to a particular sort of chair for a reason and I accept that a tribunal errs if ignoring that aspect of the activity (CSIB/12/96). However, a capacity to sit in another sort of chair may not be wholly irrelevant and a tribunal may take it into account provided they make it clear that their ultimate conclusion relates to the claimant's capacity to sit in an upright chair with no arms. In the present case, I accept that the tribunal's reasoning is inadequate. The Secretary of State might nonetheless have made an attempt to defend the ultimate conclusion reached by the tribunal – or at least a conclusion that did not involve 15 points being awarded – by reference to the tribunal's other findings and the evidence in the case. His representative has not done so and it is not for me to make the case against the claimant.
6. The claimant's second ground of appeal is that the tribunal found that she could bend "most of the time" without recording any finding as to the regularity with which bending can be done throughout the day and without explaining what the term "most of the time" means. The Secretary of State has not commented on this ground. It is without merit. "Most of the time" is an ordinary phrase with an ordinary meaning that does not require explanation and there was no particular reason why, in this case, the tribunal were required expressly to record an additional finding as to the regularity with which the claimant could bend. It had not been suggested that the claimant might be entitled to benefit for some periods but not others.
7. The claimant's third ground of appeal is related to the tribunal's consideration of the activity of "standing without the support of another person or the use of an aid except a walking stick". They said:

"In her evidence before us, the Appellant admitted that she uses public transport regularly and goes round the supermarket with her husband in Gosport. Apparently, her shopping will take at least 30 minutes and she has been advised to walk for at least a minimum of 1 hour a day. The video shown to us did indicate that the Appellant walked normally and she was seen kicking a ball and walking the dogs. The evidence from both Examining Medical Practitioners is that the Appellant does the housework and some cooking. She also attends church services. For these reasons, we cannot award any points under this descriptor and disagree with the views of the Examining Medical Practitioner on page 42 of the scheduled evidence in view of the Appellant's evident ability to travel and self-care, which the Examining Medical Practitioner admitted in evidence. We note the comments of the first Examining Medical Practitioner on page 67."

The comments of the first Examining Medical Practitioner (now to be found at page 76I), dated 4 November 1998, were –

"States leads a busy active life, on the go the whole time. Walks the dogs. Goes to church."

"Erect posture and stood comfortably prior to examination telling me at length about her employers and financial problems. Easily gets on and off the couch. Normal gait and pace."

He also referred to observations on page 76G, including the findings from his clinical examination –

"Back – able to twist, tip toe, squat, and bend forward to well below knees.

No neurological signs.

No muscle wasting.

Knees and hips fully functional."

"As regards the AWT there is no functional disability regarding her back and legs."

The claimant submits that the tribunal's findings relate to activities that do not generally involve prolonged periods of standing in the same position and that there are insufficient findings relating to support the tribunal's disagreement with the examining medical practitioner's assessment on 15 March 2000 (leading to the decision under appeal) that she could not stand for more than 10 minutes before needing to move around. The Secretary of State has not commented on this ground of appeal. It seems to me that the tribunal completely failed to address the terms of the descriptors relating to the activity of standing. It may be possible to draw inferences from a person's ability to move about that are relevant to that person's ability to stand without moving about but, if so, I consider that they ought to be explained. At first sight, too entirely different activities are being considered. Furthermore, having noted the comments made in 1998, the tribunal have not stated whether or why they considered them to be relevant to a decision made a year and a half later. I, therefore, accept that the tribunal erred in this regard. However, this, by itself, would not have made any difference to the outcome of the hearing.

8. The claimant's fourth ground of appeal relates to the mental health descriptors. It is said that the tribunal erred in considering the descriptors without making any firm finding that the claimant had a mental health condition. The claimant does not claim she suffered any disadvantage in consequence of the alleged error – which makes one wonder why the point is raised – and the Secretary of State has made no comment on it. It is true that regulation 25(3)(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 makes it necessary that a claimant be suffering from "some specific mental illness or disablement" if the mental health descriptors are to be considered but, as the Secretary of State appears to have accepted that she did suffer from such a condition, it seems to me the point was not in issue before the tribunal and they did not err in law in not recording their own specific finding on it.
9. The claimant's fifth ground of appeal, which is that the tribunal did not record adequate findings of fact, adds nothing to the first four grounds.
10. The claimant's sixth ground of appeal is that the tribunal erred in considering the descriptor "cannot turn a sink tap" because they qualified it by adding "if it is not too tight". I do not agree that they erred. Anyone can have difficulty with a tap that is jammed. What is contemplated by the legislation is a tap requiring an ordinary amount of force to turn it, when it is closed so as to prevent water dripping though it. It seems to me that all the tribunal were doing was accepting that the claimant might have difficulty with some taps. That finding does not suggest that she would not be able to turn most taps with reasonable regularity. The tribunal used the words "too tight" and not the words "only loosely tightened", which the claimant uses as a paraphrase and which might have carried the implication that the degree of looseness had to be unusual.
11. For the reasons given in paragraphs 5 and 7, I allow this appeal. In the absence of any submission from the Secretary of State on the factual issues arising in this case in the light of all the evidence now available, I am not prepared to give a final determination of the case on the papers. Accordingly, I refer the case to another tribunal.

(signed) M. ROWLAND

Commissioner

27 June 2002