Decision No: C3/98(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 the
Belfast Social Security Appeal Tribunal
dated 20 June 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant by leave of the Chairman of the Tribunal against the decision of a Social Security Appeal Tribunal which held that claimant did not pass the All Work Test and therefore cannot be considered as incapable of work from and including 23 April 1997.

2.	Briefly the facts are that the claimant is a lady of 57 years of age, who was a shop assistant and became unfit for work in July 1995 by reason of Chostochondritis and neuralgia of the spine.  As she did not satisfy the contribution conditions she did not receive Incapacity Benefit but instead was awarded National Insurance Contribution Credits.  As she was incapable of work for more than 196 days in January 1996 she was asked to take the All Work Test.  She completed a questionnaire and was examined by a Medical Officer of the Department who certified that she was incapable of work, but considered that the cause of incapacity would be expected to improve in 12 months.  She was therefore medically examined again after having completed a further questionnaire and was examined by a Medical Officer of the Department in February 1996.  As a result of his report the Adjudication Officer decided that she scored no points in the All Work Test.  The Adjudication Officer then decided that she was not incapable of work from and including 23 April 1997.

3.	Claimant appealed against that decision to a Social Security Appeal Tribunal and that Tribunal sat on 20 June 1997.  Claimant handed in to the Tribunal a letter dated 19 June relating to an appointment with Dr R..., Consultant Physician in the Royal Victoria Hospital for 3 days after the date of hearing.  The Tribunal found that claimant could not be considered incapable of work and made the following findings of fact material to its decision as:-

"Mrs W...'s date of birth is 31 January 1941.  She suffers from generalised muscle pains including costo-chondritis.

Her score on the All Work Test from and including 23 April 1997has been 6 points."

and went on to give reasons for its decision as follows:-

"All the following applies from and including 23 April 1997.

We found Mrs W...'s evidence to-day to be truthful and accurate.  We prefer it to the evidence in the questionnaire as we have been able to test today's evidence by questioning.  In so far as the evidence in the questionnaire conflicts with today's evidence we reject it.

We also largely accept the Examining Doctor's assessment and the Adjudication Officer's scoring based thereon, except for the assessment on sitting and rising from sitting where we consider there was some under-assessment.

We accept Mrs W... does suffer from muscular pain which varies in terms of the pain level.  We do not consider in light of todays evidence and the medical report that on most day the pain is at such level as to prevent her from carrying out the activities in the various descriptors except that we accept there is a problem with very prolonged sitting and at times a problem with rising from sitting.

We consider that all the time on most days Mrs W... can, without substantial or preventing pain, carry out the activities except as indicated on the score sheet.

Mrs W... is required to satisfy the All Work Test to be considered incapable of work.  Since 23 April 1997 she has not done so."

Claimant sought leave to appeal against that decision and the Chairperson of the Tribunal granted leave in the following terms:-

"Leave to appeal is granted in order that the Commissioner may rule on whether, the Tribunal was in error in proceeding without the specialists' reports."

4.	I held an oral hearing at which claimant was present but was not represented.  The Adjudication Officer was represented by Mr Fletcher.
5.	Claimant said she suffered from muscular rheumatism for 5 years and arthritis in her hands.  She said the Tribunal did not take into account the level of pain which she had.  She had an appointment with Dr R... 3 days after the Tribunal and was surprised that the Tribunal did not wait until it received the report which found that she suffered from chronic fatigue/fibromyalgia.  She said that she had been given a certificate to say she has a 50% disability.  Claimant said she had been seen by Mr F the Consultant Rheumatologist.  She had several reports from various consultants who treated her which she had given to a Medical Appeal Tribunal and assumed that they would have been among her papers and for that reason did not bring them to the Tribunal hearing.

6.	Claimant's husband also addressed me on the state of claimant's health and that she has difficulty sleeping at night with the pain.  He said she could not bend down unless she had something to hold on to and that his wife was getting worse all the time.

7.	Mr Fletcher said that claimant should have brought all her medical evidence to the Tribunal and quoted decision A2/92(IVB) which said that claimant should have medical evidence in order for the Tribunal.  He said that the Tribunal appeared to accept claimant's evidence as truthful and also accepted that her condition was deteriorating.

8.	I have considered all that has been said and I have considered the findings of fact made by the Tribunal which are not findings of fact at all.  The Tribunal recorded that it found her evidence truthful and accurate.  It largely accepted the Examining Medical Officer's assessment which is summarised in the clinical findings of the Adjudication Officer's submission to the Tribunal as follows:-

"(17)	On the medical report dated 4.2.97 the medical officer listed all diagnoses as:

Chostochondritis and chest pain.

The following clinical findings were recorded:

Tender over anterior aspects of both shoulders.  There was a full range of passive movement but complaint of pain at extremes.  Movement was 80% of normal.  Power grade was 4.  Blood pressure was 130/90.  Chest was clear, 2 normal heart sounds.  She had full power/movement of hands, wrists and elbows.  Power was 4-5/5 in both shoulders (pain was felt when tested)."

I am satisfied that the Tribunal erred in not making proper findings of fact in relation to the various descriptors which she disputed.  I therefore allow the appeal and set aside the decision of the Tribunal.  I am satisfied that I should give the decision which the Tribunal should have given.

9.	Claimant handed in to me reports from Dr M B F the Consultant Rheumatologist, Dr S D R... the Consultant Physician, Dr W B L the Consultant Anaesthetist, Dr W a Consultant Rheumatologist, Dr S a Consultant Physician, Dr B a Consultant Anaesthetist in Antrim Hospital and Dr J B McC Consultant Physician in the W Hospital.   All these reports clearly show that claimant has many problems.

10.	Dr F the Rheumatologist recorded that the pain was progressed and extended into her shoulders, calves and ankles and that she complains of chronic tiredness.  He found that she had degenerative arthritis in the right carpus and that her more generalised aches and pains were due to muscular rheumatism.  Dr R... the Consultant Physician said she suffers from chronic fatigue and fibromyalgia and that she also suffered from depression.  Dr W the Consultant Rheumatologist in Antrim Hospital formed the impression that she suffered from costchondritis with a neuralgic component.

11.	Taking into account the fact that the Tribunal considered her to be a truthful and accurate witness together with the variety of medical reports I have read, I am satisfied that on the basis of her evidence and the medical reports, that 'lifting and carrying' and 'reaching' should have been considered by the Tribunal.  I am satisfied that had the Tribunal seen all the medical reports which have been given to me it may well have come to a different conclusion.  The Adjudication Officer who awarded her no points was merely going on the scant findings of the Examining Medical Officer.  Taking into account the evidence before me today and the evidence of all the medical reports which were furnished to me I am satisfied that because of the pains in her shoulders she would be entitled to points on descriptor 8(d) which would award her 8 points and descriptor 9(e) which would award her 6 points.  I also accept and endorse the 6 points already allocated by the Tribunal for sitting (3(a)) and rising from sitting (5(c)) which gives her a total of 20 points.  I am satisfied therefore that she satisfies the All Work Test and that consequently she is considered incapable of work as and from 23 April 1997.

(Signed):  C C G McNally

COMMISSIONER

30 September 1998