Decision No: C17/98(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
Belfast Social Security Appeal Tribunal
dated 11 November 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 as he only scored 13 points in the All Work Test that he was not entitled to incapacity benefit and cannot be treated as being incapable of work from and including 17 September 1996.

2.	Briefly the facts are that the claimant is a man of 44 years of age, who became unfit for work in March 1995.  He received statutory sick pay followed by incapacity benefit.  His complaints were vertigo and arthritis.  Claimant was requested to complete a questionnaire in respect of the All Work Test as a result of which the Adjudication Officer awarded him 27 points which included 10 points for manual dexterity and 8 points in respect of defective hearing.  He was subsequently asked to complete another questionnaire and was examined by a Medical Officer in August 1996 as the result of which the Adjudication Officer only gave him 9 points and awarded no points in respect of manual dexterity or hearing.  Against that decision claimant appealed to a Social Security Appeal Tribunal.  That Tribunal awarded him 13 points and gave reasons for its decision as follows:-

"Review - The Tribunal is of the opinion that the Adjudication Officer was entitled to review award as the evidence (medical)no longer supported appellant's contention of incapacity and we believe that the Department has discharged the onus of proof.  It is accepted that appellant does experience the medical complaints referred to at Box 2 above.  However, given appellant's own admission and the content and detail of the medical evidence the Tribunal is of the opinion that the descriptors selected by the Examining Medical Officer, save that relating to rising from sitting, given an accurate and reliable assessment of appellant's functional ability.  Whilst accepting appellant does experience some dizziness but given frequency and duration and the fact that appellant can reduce same with care, for example, not making quick movements such as getting up quickly and the Examining Medical Officer noted no neurological deficit, the Tribunal concurs with the Examining Medical Officer's opinion that the Activity 14 is not satisfied in any respect.  Tribunal also believes kneeling can be managed albeit with care to avoid quick movements either going down or getting up again.  The Tribunal was at variance with the Examining Medical Officer's choice of descriptor reference rising from sitting.  We believe that it would be prudent to hold on when rising.  As total score is 13 the All Work Test is not satisfied."

Claimant sought leave to appeal against that decision and I arranged an oral hearing of the application at which claimant was represented by Mr O'Rawe of the Disability Action Advice and Information Centre and the Adjudication Officer was represented by Mr McAvoy.  At the hearing I granted leave to appeal and with the consent of the parties treated the hearing of the application as the hearing of the appeal.  Mr O'Rawe argued about the claimant's dizziness and said that the Tribunal was wrong in saying that he would be all right if he did not make quick movements and said that the legislation encompassed a general ability and did not consider that an ability to do something if certain specific precautions were taken, was relevant.  Also as far as kneeling was concerned he said the Tribunal found he could kneel if he avoided quick movements.  Mr O'Rawe also said the Tribunal erred in not treating claimant's dyslexia as a mental disability because it is recognised within the ambant of mental health and said that other legislation has accepted dyslexia and that the Tribunal erred in not looking at claimant's dyslexia.  Mr McAvoy said that there was no evidence that dyslexia was a mental disablement.  He said that while he accepted that dyslexia can cause great difficulties, nevertheless, the Medical Referee did not consider it a mental disability.

3.	I have considered the claimant's argument relating to his ability to bend and kneel in relation to his complaint of vertigo.  His evidence was that movement of his head brings on dizziness and if he bends over he gets dizzy.  In kneeling his difficulty is in getting up.  If one then turns to the record of the Medical Examining Officer he records "able to do hoovering, able to put on shoes and socks", then refers to paragraph 50.  Paragraph 50 refers to his ability to hear and said he is "able to stand on tip toe, to squat, to kneel".  It is interesting to note that in the first All Work Test when the Adjudication Officer awarded him 27 points he awarded him no points in respect of bending and keeling.  In the second All Work Test the Adjudication Officer awarded him 3 points as did the Tribunal.

4.	The first All Work Test awarded him 8 points in respect of hearing and the Tribunal recorded the finding of fact that claimant described hearing as if two speakers, one of which (in one ear) sounds far away but made no mention in the reasons for its decision as to hearing complaint other than by implication that it accepted the Medical Officer's choice of descriptors.  Turning to the Medical Officer's record in the first examination the Medical Officer recorded that he had difficulty hearing if background noise was present but recorded that he heard loud whisper in either ear.  In the second medical examination the doctor recorded "May have difficulty hearing if there is background noise", and then recorded "able to hear whispered voice at 6 yards -both ears against background noise", but it is interesting to note that the Medical Assessor at the Tribunal when asked to explain the problems with Miniere's disease replied that it affected the aspects of the inner ear, vomiting/dizziness, can get noises in ear and frequent deafness.

5.	I am satisfied that the Tribunal erred in not making a proper finding in relation to the deafness, particularly as claimant claimed that he suffered from Miniere's disease and tinnitus.  For that reason I allow the appeal and set aside the decision of the Tribunal.  I reject the claimant's argument relating to Dyslexia and I find it unnecessary to make any finding in relation to manual dexterity.  I consider that this is a proper case in which I should give the decision which the Tribunal should have given.  The Tribunal awarded claimant 13 points.  I am satisfied that on the evidence there should have been a finding that claimant was entitled to points under descriptor 11(e) "cannot hear well enough to understand someone talking in a normal voice on a busy street", which would merit 8 points.  Accepting and adopting the 13 points already awarded by the Tribunal together with the 8 points in respect of his hearing problem gives claimant a total of 21 points which means that he has passed the All Work Test and is entitled to incapacity benefit from and including 17 September 1996.

(Signed):  C C G McNally

COMMISSIONER

6 MARCH 1998