Decision No: C18/97(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

	Appeal to the Social Security Commissioner
	on a question of law from the decision of
	Belfast Social Security Appeal Tribunal
	dated 1 November 1996

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal which held that she was not entitled to Incapacity Benefit from and including 16 July 1996.

2.	An oral hearing of the appeal was arranged.  At the hearing the claimant was not present but she was represented by Ms Loughrey of the Law Centre (NI) and the Adjudication Officer was represented by Mr McAvoy.

3.	This is an instance where there was no representation from the Social Security Agency at the original hearing and this was unfortunate as in the circumstances no oral submissions were made to the Tribunal on behalf of the Agency.

4.	The claimant suffers from a variety of complaints including pains in her legs and back and also problems with breathlessness, as a result she has difficulty in walking and using stairs.  She also has a history of diverticulitis and irritable bowel syndrome, with resultant difficulties controlling her bowel motions.  

5.	The relevant test in this case that decides whether she is entitled to Incapacity Benefit is the All Work Test (see Part III of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995).  The All Work Test is applied by measuring prescribed activities using descriptors which have to reach a total of 15 points for physical descriptors, 15 for combined physical and mental disability descriptors or 10 for mental disability descriptors.  In this case the relevant threshold was 15 points for physical descriptors.

6.	The Tribunal awarded her 9 points on the All Work Test in respect of walking up and down stairs, rising from sitting in an upright chair and bending and kneeling.  The Tribunal awarded no points in respect of continence.

7.	The Tribunal gave the following reasons for its decision:-

		"We accept that the appellant suffers from a number of personal
		medical problems which are documented in the medical evidence.
		We are of the view that these conditions cause her difficulties
		to a certain extent and that she does suffer a certain amount
		of pain and discomfort.  However, we note that she has been able 
		to cope with most of her daily activities such as dusting and 
		hoovering, as documented in the Medical Officer's report, and
		that she also had to cope in trying to look after the needs of
		her very ill mother.  We have attached significant weight to the
		comments and findings in the Medical Officer's report.  In          
		particular there is not a great deal of clinical abnormality which
		would account for the level of disability claimed by the appellant.
		Accordingly we have difficulty in accepting that the appellant     
		suffers as badly as she claims.  We have also considered in detail   
		the questions and answers pertaining to the mental health section    
		in the Medical Officer's report.  Taking all matters into 
		consideration we are satisfied that the Adjudication Officer has   
		discharged the onus of proof in deciding that the appellant cannot
		be treated as incapable of work from and including 16 July 1996."

8.	At the hearing before me Ms Loughrey argued that the claimant's bowel condition was an issue that should have been specifically dealt with by the Tribunal.  In particular she argued that the Tribunal had not decided specifically whether the claimant was entitled to 9 points under descriptor 13(e) in relation to continence; see the Schedule to the Regulations.  Under 13(e) a claimant is entitled to 9 points on the All Work Test if he or she loses control of bowels occasionally.  The Tribunal awarded the claimant 0 points under descriptor 13.  In light of the fact that the Tribunal accepted the Medical Officer's findings that there had been only one episode of faecal incontinence approximately 2 years before his examination, it is perhaps not unreasonable to conclude that the Tribunal was implicitly finding that one such episode can never be categorised as the occasional loss of control of the bowels.  However, if the Tribunal did come to that conclusion, it seems clear that the test being applied is whether or not the claimant actually soiled herself.  

9.	I have had the benefit of being referred to the decisions of Mr Commissioner Goodman in CIB/14332/96 (an English decision) and a decision of Mr Commissioner McNally in C39/97(IB) (a Northern Irish decision).  Because these decisions post-dated the Tribunal hearing, the Tribunal was not in a position to take these decisions into account.

10.	In CIB/14332/96 the evidence found as a fact by the Tribunal was that "... the claimant (was) suffering from irritable bowel syndrome.  This means he gets episodes of constipation for 3 or 4 days interspersed with days when he has 3 or 4 bowel evacuations in rapid succession, very urgently and with explosive diarrhoea ...  The claimant has always been able to find a toilet in time.  He has not yet had an accident."  The majority of the Tribunal found that he had suffered loss of control of his bowels.  The Adjudication Officer appealed to the Commissioner.  Mr Commissioner Goodman upheld the decision of the Tribunal and gave reasons as follows:-

		".... I consider that the expression "loses control of bowels"
		is apt ..... to include a situation like this where the claimant
		suffers from severe Irritable Bowel Syndrome.  He lost control
		of his bowels at least once a month (indeed it appears once a
		week probably) in the sense that he is not able to 'hold himself',
		as the normal person can do even when faced with a considerable
		urge to defaecate.  If the claimant did not immediately rush to
		the lavatory, he would indeed "mess himself".

		I therefore conclude on these facts the tribunal were entitled
		to come to the conclusion they did."

11.	Mr Commissioner Goodman continued by stating as follows:-

		"My decision is however a precedent for the ruling that the
		expression "loses control of bowels" can comprehend a situation
		where a claimant does not in fact "mess himself", provided he is
		able immediately to rush to a nearby lavatory."

12.	Mr Commissioner McNally in decision No. C39/97(IB) followed the decision of CIB/14332/96 and came to the same legal conclusion that loss of control of bowels does not necessarily result in soiling.  

13.	In the present case the Tribunal failed to award any points under the "continence" descriptor.  However, the Tribunal did accept that the claimant suffered from diverticulitis and irritable bowel syndrome.  It seems that the Tribunal did not accept that the claimant experienced monthly episodes of actual bowel incontinence.  However, the Tribunal did not direct its mind to whether there was any occasional loss of control of bowels applying the test as clarified by Mr Commissioner Goodman.  I have some sympathy with the Tribunal in that it would seem that the medical profession in the past have been equating loss of control of bowels with soiling.  

14.	Ms Loughrey, originally in her appeal, had made the point that even the Medical Officer's report, which was accepted by the Tribunal, found that the claimant had experienced an episode of bowel incontinence within the past 2 years.  However, at the Tribunal she conceded, in my view quite properly, that the word "occasionally" could never encompass only one episode.  Therefore in my view, if the Tribunal finds that there only is one episode of bowel incontinence, taking into account Mr Commissioner Goodman's extended definition, it cannot be appropriate to award 9 points under descriptor 13(e).

15.	Mr McAvoy in the circumstances did not resist the substantive points made by Ms Loughrey in relation to the proper test to be applied in deciding whether or not a person was incontinent or not.  

16.	Accordingly the claimant's appeal is allowed.  The decision of the Appeal Tribunal is erroneous in point of law, for the reasons stated above, and therefore I set it aside.  The appeal is referred to a differently constituted Social Security Appeal Tribunal for determination, and at the rehearing the Tribunal, when deciding the appeal, should take into account the decisions CIB/14332/96, C39/97(IB) and the decision herein.

(Signed):  J A H Martin

CHIEF COMMISSIONER

23 January 1998