Decision No: C39/98(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 30 September 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 awarded her 13 points in the All Work Test in respect of physical descriptors but no points in respect of mental descriptors.  As a result she failed the All Work Test and the Tribunal held that she was therefore not entitled to Incapacity Benefit from and including 11 July 1996.

2.	The Adjudication Officer had scored her 6 points for the physical assessment, (3 in respect of standing and 3 in respect of bending and kneeling) and 2 points on the mental assessment, (1 in respect of daily living and 1 in respect of interaction with other people).  The Tribunal held that she had no mental health problems and awarded her no points for this but 7 points in respect of sitting, 3 points in respect of standing and 3 points in respect of bending and kneeling, making a total of 13 points.

3.	Leave to appeal was sought on the grounds that the Tribunal was influenced by irrelevant factors ie claimant could drive a car and go to do he shopping and that it addressed its decision on her activities of daily living.  It was also on the grounds that she was entitled to points for the mental descriptors and that the Tribunal invented a test of its own, namely "satisfactory level of activity".  

4.	I arranged an oral hearing at which claimant was not present but was represented by Mr Stockman and the Adjudication Officer was represented by Mr McAvoy.

5.	Mr Stockman argued at length that claimant had mental health problems.  He said that the Tribunal was wrong in disregarding the evidence in the Medical Officer's report in connection with her mental problems and that the Tribunal did not properly address that fact.  He also argued that it was over-influenced by considering what she did in her activities during the day and in particular, he relied upon the evidence relating to her inability to stand.  He said that the Tribunal awarded her 3 points on descriptor 4(f) in that she could not stand for more than 30 minutes before needing to move around.  He said that the Tribunal agreed with the Medical Referee Service assessment in relation to standing and accepted that she had difficulty standing for prolonged periods but needed to move around usually after 30 minutes and went on to find - "She can go shopping and stand at check-out.  She can cook and do washing up.  Score 3 points".  Mr Stockman argued that it applied the wrong test because the fact that she could cook, do washing up, do shopping and stand at a check-out was not the test, the test was could she stand for a certain time before she needed to move around and that all the activities which the Tribunal considered where activities which she would be capable of moving about as and when she would require.  The claimant's own evidence was that she could not stand for 10 minutes without having to move.  Mr Stockman argued that she was properly entitled to 7 points in respect of that descriptor.

6.	Mr McAvoy argued that very few of the descriptors can be regarded as facts, that they were not measured.  The Tribunal had medical reports and the opportunity to question the claimant and that the clinical findings were related to claimant and it comes down to the opinion of the Tribunal taking into account all the evidence. 

7.	I have considered all that has been said and I have read all the documents.  In particular I have read the Medical Officer's report and I am satisfied that on that report there would be sufficient evidence to award points to the claimant in respect of the mental health descriptors.  The Tribunal was wrong in finding that the mental health descriptors did not apply as there was no mental disability.  I am also satisfied that the Tribunal invented its own test of a "satisfactory level of activity" whereas it should have directed its mind to the descriptors.  Having considered the evidence of the Medical Officer in relation to standing, the Medical Officer recorded that claimant said her back pain is worse when standing but then went on to say that she makes the evening meal, does the washing up and stood getting undressed and dressed and during examination.  He referred to box 10 in which he carried out a physical examination relating to her fingertips, her ability to reach to her calves with no difficulty and that her lateral rotation and flexion was normal.  I cannot see the medical evidence to support the finding that claimant could stand for 30 minutes without needing to move around.  I think that the Tribunal misdirected itself in this regard because the relevant question was whether or not she could stand for a particular period without having to move about.  Her evidence is very clear on this, there is no contradictory evidence in my opinion.  Consequently I think that the Tribunal erred in only awarding 3 points in respect of that and not making a proper finding to support those 3 points.

8.	I therefore grant leave to appeal and with the consent of both parties I will treat the application as the appeal.  For the reasons given above I allow the appeal and set aside the decision of the Tribunal.

9.	I am satisfied that without going into the mental descriptors that the matter can be resolved quickly by me making a finding which the Tribunal should have given.

10.	I have considered all the evidence and I am satisfied that claimant's evidence is acceptable on the point of standing and that the proper descriptor is 4(e) in that she cannot stand for more than 10 minutes before needing to move around.  That would entitle her to 7 points.  I accept and endorse the other 10 points which were awarded to her by the Tribunal in respect of descriptor 3(c) 7 points and 6(c) 3 points.  That added to the 7 points in respect of descriptor 4(e) gives her a total of 17 points and therefore she passes the All Work Test and is therefore unfit for work and entitled to Incapacity Benefit from 11 July 1996.

	(Signed):  C C G McNally
							
	COMMISSIONER

	23 June 1998