Decision No: C28/98(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

	Appeal to the Social Security Commissioner
	on a question of law from the decision of
	Armagh Social Security Appeal Tribunal
	dated 31 October 1997

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal against the decision of a Social Security Appeal Tribunal sitting at Armagh whereby it was held that the claimant was not entitled to Incapacity Benefit from and including 26 August 1997.  Leave to appeal was granted by the Chairman of the Tribunal on 9 March 1998.

2.	Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without an oral hearing.

3.	The claimant became unfit for work on 6 August 1990 by reason of nervous debility and was paid sickness benefit up to 16 February 1991 followed by Invalidity Benefit.  Due to changes in legislation from 13 April 1995 this award became a transitional award of Incapacity Benefit.  As the claimant had been incapable of work for more than 196 days on 13 April 1995 the Adjudication Officer decided that the All Work Test was applicable.  After consideration of the claimant's questionnaire and her General Practitioner's statement, and an examination by a Medical Officer of the Department, an Adjudication Officer decided that the claimant scored 6 points on the All Work Test.  In the circumstances the Adjudication Officer reviewed the decision awarding Invalidity Benefit from 26 November 1993 (Incapacity Benefit from 13 April 1995) and gave a revised decision disallowing Incapacity Benefit from and including 26 August 1997.  The claimant accordingly appealed to an Appeal Tribunal.

4.	The Tribunal made the following facts material to its decision:-

		"1.	The claimant is aged 44 and is married with two children
			aged 11 and 6.  Her husband suffers from arthritis and
			is at home.  The claimant has been in receipt of sickness
			benefit from August 1990.  The initial incapacity was
			nervous debility and subsequently back pain.  This is a
			transitional case and she became subject to the All Work
			Test from 13 April 1995.

		 2.	Her back pain followed the birth of her youngest child.
			In or about 1992 she was referred to a consultant surgeon,
			Mr L…, and a CT scan was performed.  The scan showed
			lumbar disc protrusion.  Surgery was discussed but the
			consultant surgeon was not advising same.  The claimant
			had 4 months of physiotherapy.  Management thereafter was
			conservative and a slow but steady recovery followed.  The
			claimant continues to have mild residual back problems.
			Her condition varies.  We do not accept that there has been
			any significant deterioration in her condition from 
			September 1997.

		 3.	The claimant is to have a further CT scan performed on
			3 November 1997.  Prior to seeing her General Practitioner
			in September 1997 she had been an infrequent attender,
			the previous visit for treatment being in or about 
			January 1997.   Her medication prior to September 1997 was
			mild and there had been no further physiotherapy or referrals
			until the recent one.

		 4.	At the medical assessment in July 1997 she could flex below
			her knees and had normal spinal rotation.  Her back contours
			where normal and there was no specific tenderness or 
			deformity.  Hip movements were full.  Reflexes in her legs
			were present and equal.  There was no muscle wasting.

	 	 5.	The claimant complained of pain always being present and her
			leg gave way 3 times which we do not accept.  The claimant
			also states that she needs assistance from her husband on
			rising from bed or from a chair or in using stairs which 
			we do not accept.  She indicated considerable functional
			disability and impairment particularly in walking which 
			we do not accept.

		 6.	The claimant has mild asthma which does not cause any
			significant restriction on function on a day to day basis.
			She is on standard medication for mild to moderate asthma.
			She has never been hospitalised.  Her peak flow reading is
			moderately reduced.

		 7.	The claimant has no other restriction on function."

	The Tribunal gave the following reasons for its decision:-

		"The claimant is a tall, well built mother of 2 aged 6 and 11.
	 	She requested a soft seat at the Tribunal.  Her General
		Practitioner's letter of 20 October 1997 refers to a sudden
		relapse in late September 1997.  The Doctor felt her symptoms
		genuine and she was due a CAT scan on 3 November 1997.

		The claimant was seen by a Mr L…, FRCS in 1992, a scan was 
		performed then.  She was not offered surgery.  She was either
		told that surgery would not help or was not required.

		The claimant refers to significant limitation.  She says her
		husband goes up the stairs behind her linking her.  She states
		pre September she could walk 50 yards and now it is down to 30.
		Against this background of extreme restriction she has not seen
		her General Practitioner this year, pre-September.  September
		is when she was first prescribed any significant medication.
		From her account of daily living it is difficult to see any
		difference between pre and post September - all activities
		were significantly compromised on her account.  We do not accept
		such extreme restriction.  We accept she has some back pain
		but that same varies.  For this reason we have awarded bending
		and kneeling.  In all other aspects we find the Adjudication
		Officer's scoring accurate.  We considered the claimant's
		asthma.  She is on standard medication.  Her peak flow is       
		moderately reduced.  Her representative has not stressed the
		asthma.  We feel this is correct as in our view same does not
		contribute to any significant restriction.  She has no other
		restrictions.

		We appreciate that 3 years ago the claimant was awarded Disability
		Living Allowance high rate mobility middle care.  We of course
		are dealing with a different benefit the award of which is based
		on a different criteria and a different means of assessment.  The
		mobility issue is relevant but we bear in mind the passage of
		time.  It may be that the claimant's condition was significantly
		worse than when award of the mobility component of Disability
		Living Allowance was made.

		In reaching our decision we have borne in mind that the burden
		of proof is on the Adjudication Officer to show capacity (R(S)3/90).
		This is the first All Work Test assessment.  The claimant has
		indicated significant limitation primarily because of her back.
		We find her stated restrictions totally unrealistic.  We did
		consider her General Practitioner's letter and considered whether
		a change had occurred in September 1997 (CIB/14430/96, CISA/12054/96 and CS/12054/96).  The distinction the claimant made in her walking being reduced from 50 yards to 30 yards was indicative
		of the change being virtually indistinguishable given the severe
		pre September restriction described.  The claimant explained the
		assistance given by her husband.  He apparently is unfit for
		work.  We feel faced with the illogic of him assisting her
		the claimant described him as suffering from 'slight arthritis'.
		Overall we found the extreme disability described inconsistent
		with the Medical Officer's findings of reasonably good function
		and the claimant's medical history.  In our view the claimant
		fails the All Work Test and the decision to review and revise
		was correct.  We do appreciate the claimant has some back
		discomfort and suffers from asthma.  There may be occupations
		for which she would be unfit but we are assessing here in the
		context of the relatively light activities in the All Work Test."

	The unanimous decision of the Tribunal was as follows:-

		"... from and including 26 August 1997 the claimant fails
		the All Work Test.  

		All Work Test score 9 physical.

		Appeal dismissed."

	In its summary of the decision of the Tribunal, the All Work Test Assessment form made it clear that the claimant scored 3 points on descriptor 5(c) (Rising from sitting in an upright chair with a back but no arms without the help of another person), 3 points on descriptor 6(c) (Bending and kneeling) and 3 points on descriptor 4(f) (Standing without the support of another person or the use of an aid except a walking stick).

5.	The claimant appealed to a Commissioner on the following grounds:-

	(i)	the Tribunal failed to explain why it rejected her doctor's letter
		of support;

	(ii)	it was mistaken in reasoning that the reduction in walking ability
		from September 1997 was virtually indistinguishable from her evidence
		of pre-September restrictions, and the claimant noted that the
		Tribunal specifically referred to a reduction to 30 yards rather
		than 30 feet in its reasons for decision; and

	(iii)	the Tribunal failed to comment on a request for an adjournment to
		obtain results of a CAT scan scheduled for 3 November 1997.

6.	Mr McAvoy, the Adjudication Officer now involved in the case, opposed the claimant's appeal and set out the reasons for the opposition in a letter dated 19 May 1998.  In particular, in relation to grounds of appeal (i) and (ii) Mr McAvoy submitted as follows:-

		"I would submit that points (i) and (ii) above are linked in that
		Dr M…’s letter dated 20 October 1997 was written in support
		of the claim of deterioration from September 1997.  Dr M…’s
		letter is written in general terms and does not focus on specific
		physical limitations.

		I would further submit that it is clear that the Tribunal held
		Mrs M...'s stated restrictions pre-September 1997 to be wholly
		inconsistent with the Medical Officer's findings and decided she
		exaggerated her condition.  While the Tribunal do misquote 
		Mrs M...'s evidence as submitted in point (ii) above I do 
		not think this error prejudices the decision.  In absence of any
		specific medical evidence supporting the claims of deterioration
		from September 1997 it was incumbent on the Tribunal to judge 
		the veracity of Mrs M...'s oral evidence.  It is apparent that
		the Tribunal found this evidence to be unconvincing and that they
		did not accept any significant limitations in the prescribed
		activity of "Walking on level ground ..." either pre or post
		September 1997.  I would submit that this was a judgment they
		were entitled to make."

7.	I conclude, despite the technical deficiency in the Tribunal's reasons, that Mr McAvoy is correct in submission that the Tribunal was entitled to conclude that the claimant's oral evidence was unconvincing and that it was also entitled to conclude that it did not accept that there were any significant limitations in the prescribed activity of "Walking on level ground with a walking stick or other aid if such aid is normally used" either pre or post September 1997.  My conclusions are consistent with the view taken by the Great Britain Commissioner in CSDLA/257/96 in which Mr Commissioner Mitchell QC decided that it was not appropriate to find a Tribunal decision erroneous in law, because of a technical deficiency, particularly as any substituted decision which he might have come to would necessarily have been to the same effect as that of the original Tribunal.

8.	Mr McAvoy made the following submission in relation to point (iii) of the grounds of appeal:-

		"With regard to point (iii) above the Record of Proceedings 
		attribute the suggestion that an adjournment might have been
		useful to the Presenting Officer.  There is no indication 
		that Mrs M... or her representative pursued the matter.
		Nevertheless, it is for the Tribunal to judge whether they
		have sufficient evidence to determine the case and their 
		decision to proceed would not amount to an error in law."

9.	The record of proceedings states as follows:-

		"Presenting Officer: Sitting - test is hand chair.
		Might be useful to adjourn for CAT scan results."

10.	I conclude that Mr McAvoy is correct in his submissions that there is no indication that the claimant or her representative sought an adjournment at any time.  In the circumstances I also agree that it is for the Tribunal to judge whether it has sufficient evidence to determine the case.  In certain circumstances a Tribunal can be in error in law in proceeding to adjudicate upon an appeal without hearing additional evidence but, in my view, this is not one of those cases.  By implication the Tribunal has decided that it had sufficient evidence to determine the case and, in my view, it was not in error in law in so doing.

11.	Therefore, for the reasons stated, this appeal is dismissed.

	(Signed):  J A H Martin

	CHIEF COMMISSIONER

	19 February 1999