Decision No: C15/98(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 by the claimant for leave to appeal
and appeal to the Social Security Commissioner
on a question of law from the decision of the
Newry Social Security Appeal Tribunal
dated 15 August 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal which held that claimant was not entitled to incapacity benefit from and including 10 June 1996 as he only scored 12 points in the All Work Test.

2.	Briefly the facts are that the claimant is a 41 year old unemployed labourer who became unfit to work in February 1994 by reason of low back pain.  He claimed and was awarded invalidity benefit from that date.  Due to a change in the legislation this award became a transitional award of incapacity benefit and claimant was asked to take the All Work Test.  In respect of the All Work Test and as the result of a report of an Examining Medical Practitioner the Adjudication Officer awarded claimant 3 points in respect of the fact that sometimes he could not rise from sitting to standing without holding on to something.

3.	Claimant appealed to a Social Security Appeal Tribunal which awarded claimant 12 points in the All Work Test and recorded findings of fact and reasons for that decision as follows:-

Findings of fact

"We adopt as findings paragraphs 5(1),(2),(3),(4) and (6) of the Summary of Facts in the appeal papers.

The claimant suffers from low back pain, extending into his left leg and Grade 1 Spondylosesthesis has been diagnosed after investigation.  The condition is variable and the claimant would experience spasms about twice per week, relieved by lying flat.  At times if pain is severe he has to lie flat for two days.  He has recently acquired a surgical belt, and has undergone physiotherapy and traction.

We accept the findings on clinical examination by the examining doctor at Box 10, 30, 34 of his report dated 23.4.96.

We find that the claimant is not limited in the activities of walking up and down stairs, manual dexterity, lifting and carrying, reaching, nor in any other prescribed activity.

We find that the claimant's walking is limited so that he cannot walk more than 800 metres without stopping or severe discomfort.

He can walk up and down stairs normally, although slowly.  He is unable to sit comfortably for more than one hour without having to move from the chair, and he cannot stand for more than 0 minutes before needing to move around.

He sometimes cannot rise from sitting without holding on to something.  He sometimes cannot bend or kneel as if to pick up a piece of paper from the floor and straighten up again."

Reasons for decision

"On the basis of the clinical findings of the examining doctor on examination, we are unable to accept that the claimant is limited by his physical condition to the extent stated today.  Although he has some difficulties with standing and sitting, we consider that he could stand comfortably for 30 minutes, and could sit comfortably for at least an hour.  He states that he has to hold on when climbing stairs, as he has a fear of falling but we do not accept that, except during spasms, this is necessary.  Although he would be unable to lift heavy weights there is no evidence that lifting is so restricted that he would be unable to lift a 2.5kg bag of potatoes and he should have no significant difficulties with reaching."

4.	Claimant now seeks leave to appeal to the Commissioner on the grounds that the Tribunal erred in law because it failed to give an adequate statement of the reasons for its decision and the findings of fact upon which it was based and that the decision was based upon insufficient evidence.

5.	The Chairperson of the Tribunal refused leave to appeal and on receipt of the application I arranged an oral hearing at which claimant was not present but was represented by Mr Brady.  The Adjudication Officer was represented by Mr McAvoy.  At the hearing Mr Brady argued that claimant's walking up stairs was limited because he had pains in his spine and that even the Medical Examiner recorded that he had to take stairs slowly but normally, may sleep downstairs but bathroom upstairs.  He also recorded that the claimant used steps.  Mr Brady argued that the Tribunal found as a fact that he could walk up and down stairs normally although slowly.  While they did not make any finding of fact relating to whether or not he had to hold on when climbing stairs, nevertheless in the reasons for the Tribunal's decision the Tribunal recorded that it did not accept that it was necessary for him to hold on except during  spasms.  Mr Brady also said that the Tribunal neglected to pay any attention to the fact that claimant had good days and bad days although the Medical Officer recorded in claimant's clinical history that he had pain in his left leg all the time and in his lower back most of the time but he would get a week when he would need too many painkillers, two weeks not too bad and one week when really bad, that was an average month.  When he was really bad he had to lie on the floor for a couple of days.  It is recorded that stairs normally taken slowly especially when in pain and referred to the evidence of the claimant at the Tribunal when he said that his bathroom was upstairs and he had 1 1/2 rails in the bathroom to avoid falling.  He fell a couple of years ago on the stairs and that even if no spasm he would still hold on.

6.	Mr McAvoy said that the key element was claimant's good days and bad days and that the Tribunal did not make clear the extent of claimant's good days or bad days and that it should have gone into more detail in that regard.  He then referred to the Northern Ireland Chief Commissioner's decision C1/95(IB) which was adopted and accepted by English Commissioners in CIB/13161/96 in which the Northern Ireland Commissioner said that there must be an overall requirement of reasonableness in the approach of the Tribunal to the question of what a person is or is not capable of doing and that this may include consideration of his ability to perform various specified activities most of the time and to that extent "reasonable regularity" may properly   be considered.  Mr McAvoy referred to the Medical Officer's report in which he said that claimant had pain in his left leg all the time and in his lower left back most of the time.

7.	Mr McAvoy referred to the English Commissioner's decision which I have quoted above and which has been recorded CIB/13161/96 which deals with the position of an intermittent or variable condition which attacks sporadically and produces different results for different days.  In that decision the Commissioner, having accepted the Northern Ireland Chief Commissioner's decision that the simple language used in the Regulations must be read in a reasonably broad and not a restricted literary sense, goes on then to deal with the situation where he says that the All Work Test takes no account of the difficulties suffered by people who lose their earning capacity from conditions that attack them in the way that multiple sclerosis, epilepsy, or minieres disease would and be intermittent in their effect.  He said that he was satisfied that the All Work Test had to be satisfied on a day-to-day basis for each individual day of claim before it could count as a day of incapacity and give rise to the entitlement of benefit and argued that by requiring the test to be satisfied on a day-to-day basis then only days on which claimant was actually incapable could be counted as a day of incapacity, while a person suffers from intermittent conditions the test produces different answers on different days that all relevant individual days need to be identified.

8.	Mr McAvoy considered that the English Commissioner's decision was in conflict with other decisions, in particular C1/95(IB).

9.	I have considered all that has been said and I have examined all the documents in this case.  At the hearing I granted leave to appeal and both parties having agreed I am treating the application as the appeal.  Two points are very relevant, one is whether or not claimant is entitled to any points walking up and down stairs.  The Tribunal held he could walk up and down stairs normally although slowly but it depends upon which is meant by "normally".  The Tribunal in its reasons for the decision said that he had a fear of falling so he held on, but they did not accept that this was necessary except during spasms.  I can see no evidence to support that finding at all and nothing in the medical report contradicts the evidence of the claimant.  I am satisfied therefore that the Tribunal erred in not awarding him 3 points in respect of the walking up and down stairs.

10.	I now turn to the argument as to whether or not this day-by-day benefit must be assessed separately.  I am satisfied that the Northern Ireland Chief Commissioner's decision C1/95(IB) sets out the position clearly and that the English decision CIB/13161/96 which accepts the Chief Commissioner's decision but seems to back-track on it in respect of the day-to-day benefit.  I am satisfied that that could never have been intended by Parliament for a benefit to be assessed every day, although it is a daily benefit.  We have been living with day-to-day benefits for very many years and it has never been suggested until now that there must be an examination and a decision in respect of each day.  I am satisfied that was not intended by the drafters of this benefit or by those who drew up the descriptors and I find support for my argument in an examination of the descriptors where the word "occasionally" or "at least once a month" or "at least once a week" is used in various descriptors and where it would be possible for a claimant to be awarded 15 points for a descriptor of which he only satisfied once a week or once a month.  That I think is the strongest argument against attempting to assess a day-by-day disability and against the contention that the All Work Test must be satisfied on a day-to-day basis for each individual day of the claim before it can be counted as a day of incapacity.  I reject that argument in favour of the overall argument of a reasonable approach.  I do not accept that it was intended that a claimant would float in and out of benefit - it is an attempt to see if a person is able to work.

11.	It is not necessary for me to go into the matter in any great depth in the instant case because I am satisfied that the claimant will pass the All Work Test by adding the 12 points which the Tribunal awarded to the 3 points which I consider he is entitled to and that then will give him 15 points.  In any event I think it is important that the argument which Mr McAvoy provoked at the hearing in respect of the day-to-day benefit should be put to rest.

12.	For the reasons set out above I allow the appeal and set aside the decision of the Tribunal.  I am satisfied this is a proper case in which I should give the decision which the Tribunal should have given, namely that claimant is entitled to 3 points in respect of walking up and down stairs.  He is also entitled to the points awarded by the Tribunal which I endorse and accept, namely 3 points in respect of descriptor 3(d), 4(f), 5(c) and 6(c), consequently he is entitled to 15 points, he has passed the All Work Test and he is therefore entitled to incapacity benefit from and including 10 June 1996.

(Signed):  C C G McNally

COMMISSIONER
18 February 1998