Decision No:  C56/98(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

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to the Social Security Commissioner
on a question of law from a Tribunal's decision
dated 3 March 1998

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against a decision of the Social Security Appeal Tribunal which held that she could not be considered unfit for work as she only scored 6 points in the All Work Test.  This appeal comes with leave of the Tribunal.

2.	The Tribunal awarded her 6 points in respect of standing, bending and kneeling and gave reasons for its decision as follows:

		"(1)	As per 1 and 2 inclusive above.

		(2)	Evidence and demeanour of appellant.

		(3)	Tribunal considered medical report of Dr NT M… 27 November 1997, and took from the  report that Mrs McG… ulcerative colitis was well under control and that she did not suffer from it to a significant and incapacitating degree.

		(4)	Further Mrs McG… did not produce any evidence that she has had any loss of control of her bowels.

		(5)	Tribunal accepts that she does have occasion for urgency but this does not merit a point score on the All Work Test."

3.	Leave to appeal was granted by the Tribunal.  This was on the grounds that the Tribunal did not properly consider claimant's medical condition in that she suffered from ulcerative colitis, depression, dyspepsia and panic attacks. The Tribunal had failed to take into account the full medical details.

4.	Briefly the facts are that the claimant claimed Incapacity Benefit from 21 November 1996 by reason of ulcerative colitis and peptic ulcer disease.  She was asked to take the All Work Test and a report was requested from Dr M…  As a result of that report, a Medical Officer of the Department advised that the claimant was incapable of work for a period of 6 months from 24 December 1996.  She then completed another form on 10 June 1997 and a further report was requested from Dr M… on 22 July 1997.  The claimant was also examined by a Medical Officer on behalf of the Department and as a result of that examination the Adjudication Officer awarded her 9 points in respect of continency.

5.	The claimant appealed against that decision and the Tribunal awarded her 6 points as indicated above, but no points in respect of continency.

6.	I arranged an oral hearing of the appeal at which the claimant was present and represented by Mr S… and the Adjudication Officer was represented by Mr McAvoy.  Before the hearing, the Adjudication Officer made a written submission and I think that it would be helpful if I include it.  Mr McAvoy wrote:-

		"While Mrs McG… did not specifically raise mental health 
		problems at the hearing, Dr N T M…'s letter dated 27 February 
		1998, forwarded to the Tribunal, certifies Mrs McG.. as suffering 
		from "stress and some depression".  Mrs McG…'s letter of appeal (undated) also referred to nervous problems.  I would therefore 
		submit that it is implicit mental health was in contention and that 
		it was incumbent on the Tribunal to consider whether she suffered 
		from some specific mental illness or disablement within the meaning 
		of regulations 24 and 25(3)(b) of the Social Security (Incapacity for 
		Work) (General) Regulations (Northern Ireland) 1995.  As there is no indication in the decision that mental health was considered I would 
		support Mrs McG…'s submission that the Tribunal failed to take 
		full account of her condition.

		Regulation 20 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 prescribes that the question as 
		to whether a person is capable or incapable of work is to be 
		determined by the Adjudication Officer.  Section 20 of the Social 
		Security Administration (Northern Ireland) Act 1992 prescribes that 
		an appeal against such a decision will be heard by a Social Security 
		Appeal Tribunal.  While regulation 21 of the Social Security 
		(Incapacity for Work) (General) Regulations (Northern Ireland) 1995 
		provides that any Tribunal deciding a question as to whether a person 
		satisfies the all work test shall sit with a medical assessor I would 
		submit that there is no requirement that a member of the Tribunal 
		should be medically qualified.  I would further submit, following 
		GB Commissioners decision R(I)14/51, that the medical assessor is 
		excluded from playing a part in the decision making process.

		While I would further submit the adjudicating authority is not bound 
		to follow a particular doctor's opinion in relation to a choice of 
		descriptor for "Continence", I note that Mrs McG…'s problems 
		within this activity were not debated at the hearing.  It is not 
		surprising Mrs McG… did not voluntarily raise the issue at 
		hearing given that she was in agreement with the Adjudication 
		Officer's score of 9 points.  I would therefore ask the Commissioner 
		to consider whether the Tribunal failed in it's inquisitorial role by 
		not questioning Mrs McG… on her limitations within this area 
		given that they ultimately awarded 0 points for continence.

		I would also submit that while the Tribunal have made a finding in 
		relation to continence and gave reasons indicating a reliance on Dr 
		N T M…'s letter dated 27/2/98, these seem perverse on a fair 
		reading of that report.  In my view the report does not suggest Mrs McG…'s ulcerative colitis is under control.

		I would further submit that the Tribunal appear to have ignored 
		existing caselaw which held that the loss of control of the bowels 
		can include a situation where the claimant does not in fact mess 
		himself (GB Commissioner's decision CIB/14332/96 as endorsed by C39/97(IB), para 7 refer ...).

		For the reasons above I submit that the decision is erroneous in law.  
		I would therefore support Mrs McG…'s appeal." 

	At the hearing Mr S… referred to the Adjudication Officer's submission and adopted the arguments therein.  He said that at the Tribunal hearing the Tribunal did not allow claimant to enlarge on her condition and how the colitis affected her.  He said she goes to the toilet 8 or 9 times per day which shows how serious her condition is but argued that the Tribunal did not take this into account.

	Mr McAvoy said it was not very clear from the findings of fact why the Tribunal awarded points as the findings of facts are very scant.  He also said that in the reasons for decision, the Tribunal referred to a medical report of Dr N T M… of 27 November 1997.  He said no such a report existed - he assumed the Tribunal was referring to a report of 22 February 1998.  If so, that report did not say that the ulcerative colitis was under control.

Mr McAvoy said the reasons for the decision left a lot to be desired.  He said the Tribunal took away claimant's benefit without giving any proper reason or setting out any argument in support of its decision.  He said claimant had other health problems such as depression and stress which the Tribunal did not mention, but he said his main argument against the decision was that it ignored the case law on continency.

7.	I accept what the Adjudication Officer says as does Mr S… on behalf of the claimant.  I have considered the reasons given by the Tribunal and I have sought in vain the alleged medical report from Dr M T M… of 27 November 1997.  There were two reports on the file, one of 13 June 1997 and another of 18 June 1997, both from Dr M….  On reading the medical reports it is difficult, if not impossible, to assume that claimant's colitis was under control and that she did not suffer from it to a significant and incapacitating degree (as it was quite clear that she did).  This was also clear to the Adjudication Officer when he awarded her 9 points.  Also, the Tribunal in its reasons said that claimant did not produce any evidence that she had any loss of control of her bowels.  The report of the Medical Officer who examined her on behalf of the Department accepts that she loses control of her bowels occasionally and that her evidence on that point was not disputed by him.

8.	I would have thought that by now the Tribunal's would have taken account of the various Commissioner's decisions relating to this problem, in particular, CIB/14332/96 and C39/97(IB).

9.	In any event I am satisfied that the Tribunal erred as the Adjudication Officer submits and I therefore allow the appeal and set aside the decision of the Tribunal.  

10.	I think it is pointless to subject the claimant to any further delay.  All the evidence points to the fact that she suffers from incontinence.  I therefore am satisfied that I should give the decision which the Tribunal should have given as I have sufficient evidence to do so.  The Medical Officer who examined her on behalf of the Department accepts her choice of descriptor and that she loses control of her bowel.  She is therefore awarded 15 points in respect of same and adding to that the 6 points awarded by the Tribunal which I accept and 

endorse, I award her a total of 21 points in the All Work Test and I am satisfied therefore that she is incapable of work from and including 5 December 1997.

(Signed):  CCG McNally
COMMISSIONER

6 July 1999