Application No: A114/97(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

INCAPACITY BENEFIT

Application for leave to appeal to the
Social Security Commissioner
on a question of law from the decision of
Magherafelt Social Security Appeal Tribunal
dated 23 April 1997

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal from a decision of the Appeal Tribunal which was to the effect that the claimant's appeal from a decision of the Adjudication Officer was disallowed and that incapacity benefit is not payable from and including 24 February 1997 because the claimant has failed the appropriate "All Work Test".

2.	The claimant suffered a complicated colles fracture on 9 April 1996.  Thereafter she was paid statutory sick pay up to and including 24 October 1996.  Incapacity benefit was paid from 25 October 1996.  As the claimant had been incapable of work for 196 days the Adjudication Officer decided to apply the All Work Test from 25 October 1996.  The claimant filled in the usual questionnaire, a factual report was completed by Dr K… H…, and the claimant was examined by a Medical Officer of the Department on 30 January 1997.  The Adjudication Officer considered all the available evidence, applied a descriptor to each relevant activity, in accordance with the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995, and decided that the claimant scored 6 points and accordingly failed the relevant All Work Test.  In light of this finding the Adjudication Officer reviewed the decision awarding incapacity benefit and gave a revised decision disallowing incapacity benefit from and including 24 February 1997.  On 19 March 1997 the claimant appealed to a Social Security Appeal Tribunal.

3.	The appeal was heard by a Tribunal at Magherafelt on 23 April 1997.  While the Appeal Tribunal also decided that the claimant failed the All Work Test, it also concluded that the claimant was entitled to an enhanced score of 12 points which is still less than the threshold of 15 points for physical descriptors required by the legislation.

4.	An oral hearing of the application for leave was arranged.  At this hearing the claimant, who was present, was represented by Councillor G… and the Adjudication Officer was represented by Mr S J McAvoy.  At the hearing Mr G… submitted that (1) the Appeal Tribunal had not given sufficient credit to the claimant for difficulties in reaching (Part I of the Schedule to the Regulations, activity 9), and (2) the Tribunal failed to deal properly with the issue of vertigo mentioned by Mr G… at the appeal hearing.

5.	In its findings of fact the Appeal Tribunal dealt at some length with the claimant's medical condition.  As well as the fracture of the left wrist which reduced power and grip the claimant also has problems with her hip, vertigo, a hiatus hernia and shortness of breath.  It is apparent from the Tribunal's decision that it has considered carefully all the available evidence, including the claimant's oral evidence and the examining doctor's assessment.  The Tribunal concluded that the claimant's physical disability was greater than that decided by the Adjudication Officer.  In particular, the Tribunal decided that the claimant could not pick up and carry a 0.5 litre carton of milk with her left hand and accordingly was entitled to an additional 6 points under the All Work Test; (activity 8 of Part I of the Schedule to the Regulations).  Otherwise the Tribunal decided to accept the examining doctor's assessment.  Implicitly this finding rejects any additional points score for the vertigo problem.  There is no reason, in my view, to conclude that this finding by the Tribunal is wrong or inappropriate.

6.	At the hearing the claimant produced documentation from her employer, North Eastern Education & Library Board, to the effect that it is very likely that her employment will be terminated on the grounds of medical incapacity on 31 January 1998.  It seems that she will be unable to work as a cook/supervisor.  The difficulty in this case is that whilst many of the documents before the Tribunal, and before me, would suggest that she would have considerable difficulty holding down her job as a cook/supervisor, the appropriate test as set out in the legislation is not whether she can carry on her own occupation but is whether she can satisfy the All Work Test or not.  This is a very different test in practice to an own occupation test.

7.	There is no doubt that at the oral hearing I have heard all matters that would have been relevant to an actual appeal hearing.  However, in light of all the circumstances, I conclude that there does not appear to be any valid ground for holding that the decision of the Social Security Appeal Tribunal is or may be erroneous in point of law.  Accordingly leave to appeal is refused.

(Signed):  J A H Martin

CHIEF COMMISSIONER

2 February 1998