UK Social Security and Child Support Commissioners' Decisions

Commissioner's Case No: CSIB/42/96

DECISION OF SOCIAL SECURITY COMMISSIONER

1. This claimant's appeal succeeds. I hold the decision of the social security appeal tribunal dated 29 September 1995 to be erroneous in point of law and accordingly set it aside. I remit the case to the tribunal for determination afresh in accordance with the directions which follow.
2. The case came before the tribunal on appeal from a decision of an adjudication officer reviewing and revising an award of incapacity benefit in favour of the claimant and ceasing that award with effect from 13 June 1995. The basis for that was the application of the All Work Test (AWT) as set out in regulation 24 of, and the Schedule to, the Social Security (Incapacity for Work) (General) Regulations 1995. The adjudication officer had the usual self-assessment form in respect of the activities and descriptors set out in the Schedule and evidence from an examining medical practitioner on the usual form. Based upon that he determined that the claimant's score was nine, effectively agreeing with the score by the examining doctor. The claimant's own assessment of her score was 58. The activities in issue before the tribunal essentially were sitting, standing, walking, use of stairs, bending and kneeling and lifting and carrying. The tribunal agreed with the claimant's assessment in respect of standing but otherwise agreed with the adjudication officer and so made a total award of 13. The claimant now again appeals, with leave of the Chairman. The adjudication officer now concerned supports the appeal.
3. I regard the grounds of appeal advanced on behalf of the claimant as of doubtful validity. They centre upon an allegation of a breach of natural justice which means no more in this contest than a failure to provide a fair hearing. On the other hand I agree broadly with the contentions in support of that ground and the adjudication officer's submission that the findings of fact and reasons are inadequate. It is upon that basis that I have allowed the appeal.
4. The tribunal have made no indication of how they reached a conclusion about any descriptor in connection with any of the disputed activities. The descriptors amount to conclusions, thus in the case of sitting, the least descriptor is:

"No problem with sitting."

That, like the other descriptors, are essentially conclusions. What is required from a tribunal are findings of fact, that is to say primary facts, and then no doubt the findings of secondary fact being the descriptors satisfied. The reasons require to explain why a particular descriptor has been found to be satisfied in light of the facts. In my judgment it will not do simply to say as this tribunal did, in their findings of fact:

"b. Tribunal confirms the score from physical assessment as 13 and not 9 and not 15.

c. All scores listed by BAMS doctor and the Adjudication Officer are confirmed save that given for "standing" which is increased from 3 to 7."


 


Commissioner's Case No: CSIB/42/96

These are the only findings of fact which deal at all with activities or descriptors. The underlying reason for the need for proper primary findings, secondary conclusions and then explanatory reasons is to demonstrate on the one hand the independence of the tribunal and secondly and more importantly to indicate clearly to the claimant and any other concerned person what it is that the tribunal have determined. That may be very important for the future progress of the case or for a future claim. This tribunal have simply, and it could be thought to be slavishly although I do not so say, followed what the Departmental doctor and the adjudication officer thought.

5. In the reasons for decision there is this passage:

"We found no medical evidence that she satisfied any award for other than nought for walking."

It is not only the medical evidence which requires to be looked at but all the evidence. The passage is followed by this:

"She is able to walk to shops and back and she may suffer discomfort but there is no medical indication that this is severe."

Again, at least in the evidence, there was an indication that the shops were something over 55 yards from the claimant's house. There is no determination as to how far the shops were from the house. The evidence appears to have been that the claimant suffered severe discomfort at some stage. It did not matter whether there was medical evidence about that it was upon the whole evidence that the tribunal were required to make findings and reach a conclusion.

6. Two activities I should mention for the guidance of the new tribunal: first that of sitting. The tribunal said that they could find no medical reason why the claimant could not sit comfortably for more than two hours without having to move from a chair. Again, of course, it is not whether there was a medical reason but what was the proper conclusion upon the whole evidence, including that of the claimant herself. Nor is there anything to indicate that the tribunal had in mind the specific chair set out for activity 3 in Part I of the Schedule to the General Regulations. Nor was the medical evidence necessarily of great assistance in this case because, although the examining doctor recorded that the claimant had been able to sit comfortably for over 20 minutes, that might yet have meant that by 30 minutes she would have had to move from the chair and so would have been entitled to 7 points. Nor is it clear that the chair in which she was sitting comfortably, according to the doctor's observation, was a chair of the specified type. That is a matter of some importance since it is set out as part of the statutory test. Moreover, the basis upon which the tribunal increased the award in respect of standing was explained to be that the pain in her back would probably require her to sit down. The guidance issued to examining medical officers notes that the chair specified is so because the test involves the ability to maintain the position of the trunk without support. It is then said that the sitting need not be pain free, but any discomfort should not interfere with work-related activities. Then there is this advice:-


 


Commissioner's Case No. CSIB/42/96

"The duration of sitting is limited by the necessity to move from the chair which in turn is provoked by discomfort of sufficient severity to require the cessation of the work activity."

It is therefore in that sort of context that sitting requires to be judged. Given the tribunal's conclusion about back pain requiring the claimant to sit down after a period and given the nature of her back injury and condition, about which there appears to be no dispute, I have some difficulty in following the tribunal's relative lack of regard for the sitting test. The new tribunal will require to approach the matter with greater care.

7. The other particular activity for which I should try to give the new tribunal some guidance is that about lifting and carrying. The tribunal seem to have concluded against the claimant who asserted that she probably could not pick up and carry a 2.5kg bag of potatoes because they noted her ability to lift and carry her child of ten months. The examining doctor had concluded that the claimant had no problem with lifting and carrying whereas her own assessment had been that she could not pick up and carry a 2.5kg bag of potatoes because if she had to pick something heavy she could get a pain in the bottom of her back. Again the guidance to examining medical officers puts the activity,. and the descriptors in a work context and the activity is to be assessed, according to that guidance, on the basis of:

"Picking up from table/counter height is to be considered, not bending to pick up from the floor. ........can the tasks be done reliably, repeatedly, and at reasonable speed? Can the stated loads be carried safely and reliably? Consider shopping, preparing/serving meals, housework and hobbies. Can the person lift (pick up) from a convenient place (without bending or reaching) and hold an object, and if so: would they be able to carry that object a distance (as might reasonably be expected) by an employer, considering only the power and function of the upper limbs and not the ability to walk, climb stairs etc)."

Indeed the initial elaboration of the test is this:

"The ability to lift and hold a weight for a sufficient period of time to be able to carry it for a distance."

The new tribunal will require to consider and assess the evidence accordingly. That, as it seems to me, accords with what was said by the Chief Commissioner in Northern Ireland and agreed with in paragraphs 10 and 13 of my CSIB/17/96 and in Mr Commissioner Howell QC's CIB/13161/96 wherein the relevant passage from the Chief Commissioner (NI)'s decision is quoted at paragraph 39.

8. The appeal is allowed and the case referred accordingly.

(signed)

W M WALKER QC Commissioner Date: 4 June 1997