Decision No: C10/99(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 the decision of
	Belfast Social Security Appeal Tribunal
	dated 28 August 1998

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with leave of a Commissioner, against the decision of an Appeal Tribunal which held that the claimant had failed to satisfy the All Work Test from and including 27 April 1998.

2.	The claimant became unfit for work on 13 January 1997 and was paid statutory sick pay until 31 January 1997.  She claimed and was paid Incapacity Benefit from 1 February 1997 on the grounds of chronic backache and stress.  As she had been incapable of work for more than 196 days an Adjudication Officer decided that the All Work Test was applicable from 26 July 1997.  On 29 August 1997 the claimant's general practitioner was asked to complete a report on the claimant's condition.  After the return of this report a medical officer of the Department decided that he could not certify that the claimant was suffering from a severe mental health problem.  In order to assess the All Work Test the claimant completed the usual questionnaire and returned it on 8 October 1997 along with a statement from her doctor.  She was then examined by a medical officer of the Department on 26 February 1998.  An Adjudication Officer then considered all the available evidence, applied a descriptor to each relevant activity, decided the claimant scored six points and that she had failed the All Work Test.  An Adjudication Officer then reviewed the decision awarding Incapacity Benefit from 1 February 1997 and gave a revised decision disallowing Incapacity Benefit from and including 27 April 1998.  The claimant then appealed to a Social Security Appeal Tribunal.

3.	The Tribunal made the following findings of fact material to its decision:-

		"Claimant suffers from back pain which causes some limitation 
		of function. The overall degree of limitation is insufficient 
		to satisfy the All Work Test.

		The Tribunal accepts the findings and conclusions of the 
		Medical Referee Service doctor in relation to the claimant's 
		mental state and condition.  The total score on the All Work 
		Test is insufficient to pass."

4.	The Tribunal gave the following reasons for its decision:-

		"The claimant (sic) evidence was not inconsistent (sic) with 
		the clinical findings of the Medical Referee Service doctor.  
		She stated that she was on her feet for 5/10 minutes at a time.  
		She sat without apparent discomfort and conceded that she may 
		have indicated an ability to sit for an hour.  There was 
		evidence of some limitation but not, in the Tribunal's view, 
		enough to satisfy the test."

5.	The unanimous decision of the Appeal Tribunal was in the following terms:-

		"Claimant does not satisfy the All Work Test from and including 
		27.4.98."

6.	The summary of the Tribunal's decision, commonly called the score sheet, was in the following terms:-

				"ALL-WORK TEST ASSESSMENT

				PHYSICAL HEALTH DESCRIPTORS

			Activity				Descriptor		    Points

		Walking on level ground
		with a walking stick or
		other such aid if normally
		used.							G			0)
												  )
		Walking up and down stairs.			D		 	3)

		Sitting in an upright chair 
		with a back, but no arms.				F		   	0

		Standing without the support of
		another person or the use of an
		aid except a walking stick.				F		   	3

		Rising from sitting in an upright
		chair with a back but no arms
		without the use of another person			C		   	3

		Bending and kneeling				C		   	3

		Manual dexterity					H			0	

		Lifting and carrying (by use of
		upper body and arms (excluding all
		other activities specified in Part 1).			G		   	0

		Reaching						G		   	0	

		Speech						F		   	0	

		Hearing with a hearing aid or other
		aid if normally worn					F		   	0	

		Vision in normal daylight or bright
		electric light with glasses or other
		aid to vision if such aid is normally
		worn							F		   	0	
	
		Continence (other than enuresis
		(bedwetting (sic))).					H			0	

		Remaining conscious other than for 
		normal periods of sleep without having
		epileptic or similar seizures during
		waking moments.					G		   	0	

		_______________________________________________________________
		WHEN CALCULATING THE TOTAL, ONLY INCLUDE THE HIGHER OF THE SCORE FROM THE WALKING/STAIRS FUNCTION

							PHYSICAL HEALTH TOTAL 12
ALL - WORK TEST ASSESSMENT

	MENTAL HEALTH DESCRIPTORS

	Activity				Descriptor				Points

 Completion of tasks                                               	                        
 Daily Living                  	                                 		                        
 Coping with Pressure                                             	                        
 Interaction with other people                           D              	                            1

		IF LESS THAN 6 AWARD		0 POINTS
		IF 6,7,8 OR 9 AWARD		9 POINTS
		(THE BENEFIT THRESHOLD SCORE IS 10)
							MENTAL HEALTH TOTAL   0 

		ALL - WORK TEST ASSESSMENT

					PHYSICAL HEALTH DESCRIPTORS

			Activity				Descriptor	Points

		Stairs							D	   3

		Standing						F	   3

		Rising from sitting					C	   3

		Bending 						C	   3

										TOTAL 12

					MENTAL HEALTH DESCRIPTORS

			Activity				Descriptor	Points

		Completion of tasks

		Daily living		

		Coping with Pressure

		Interaction with other
		people						D	    1

			If less than 6 disregard

			If 6, 7 8 or 9 carry forward

			(The benefit threshold score is 10)		   1			TOTAL

							PHYSICAL HEALTH TOTAL 12
							MENTAL HEALTH TOTAL 0
							ACCUMULATIVE TOTAL 12"

7.	An application to a Commissioner for leave to appeal was (i) accepted for special reasons and (ii) was granted by a Commissioner on 25 May 1999.

8.	The claimant's grounds of appeal were set out in her notice of application for leave to appeal, presumably prepared by her solicitor, and were in the following terms:-

		"[Claimant] wishes to appeal to the Social Security Commissioner 
		from the decision of the social security appeal tribunal by virtue 
		of s.21 of the Social Security Administration (NI) Act 1992 and 
		reg.24 of the Social Security (Adjudication) Regulations (NI) 1995.

		It is respectfully submitted that the decision of the tribunal was 
		erroneous in law as the tribunal failed to give an adequate statement 
		of reasons for their decision in accordance with their statutory duty 
		under reg.25 of the Social Security (Adjudication) Regulations (NI) 
		1995.

		It is submitted that the tribunal should have adopted the approach 
		set out by Commissioner Walker in para.11 of CSIB/324/97.  
		Commissioner Walker recommended a four-step approach to tribunal 
		decision-making in such cases, which was recently endorsed by 
		Commissioner Martin.  The four steps are as follows:

		1.	The tribunal should consider and make findings of fact 
			about first, the disability or disabilities, be they 
			bodily or mental problems, from which an individual 
			has been proved on the evidence to suffer from;

		2.	The tribunal should consider and make findings of fact 
			about which, if any, of the activities set out in the 
			schedule, are established to be adversely effected (sic) 
			by any of those disabilities;
		3.	The tribunal should determine which descriptor best fits 
			the case having regard to the evidence, based upon 
			appropriate findings of fact;

		4.	In their reasons the tribunal should explain why a 
			particular activity has been held not to be adversely 
			effected (sic), where there was a contention that it was 
			so effected (sic) and why a particular descriptor has 
			been preferred to any other contended for.

		...

		The tribunal failed to make any reference to the activity of walking, 
		which had been put at issue by [claimant] both on the IB50 form and 
		at the tribunal itself.  They also failed to adequately explain why 
		they rejected [claimant's] evidence of limitation in the activity of 
		sitting.  [Claimant] states that she was unable to understand how 
		the tribunal reached their decision from the findings of fact and 
		from the reasons given."

9.	The Adjudication Officer now concerned with the case made the following written submissions by letter dated 21 June 1999:-

		"[Claimant] appeals on the grounds that the Tribunal erred in law 
		by failing to give an adequate statement of reasons for its 
		decision.  In particular it is submitted that - 

		*	the Tribunal should have adopted the approach set out 
			by Commissioner Walker in paragraph 11 of the 
			decision CSIB/324/97.  This approach, it is suggested, 
			was endorsed in a recent decision by The Chief 
			Commissioner (probably C46/97(IB), ...).

		*	It is also submitted that the Tribunal made no reference 
			to the activity of walking in spite of this being raised 
			by [claimant] in her questionnaire and at the hearing.

		*	The Tribunal failed to adequately explain why it rejected 
			claimant's evidence of limitation in the activity of 
			sitting.

		*	She was unable to understand how the Tribunal reached 
			its decision from the findings of facts and from the 
			reasons given.

		In relation to decision CSIB/324/97, The Chief Commissioner, at 
		paragraph 11 of decision C46/97(IB), commended the words of 
		Commissioner Walker as a sensible guide to Tribunals in All Work 
		Test cases, "as long as it is appreciated that the Commissioner 
		is setting out "the best and safest practice"."  The Chief 
		Commissioner went on to say that the "best and safest practice" 
		should not be used as a straitjacket and the fact that such an 
		approach is not adopted, does not necessarily mean that a 
		Tribunal's decision is erroneous on point of law.  Although I 
		do not consider that the Tribunal erred by not approaching (sic) 
		the "best and safest practice", I have some sympathy with the 
		grounds put forward by [claimant].

		In the reasons for decision it is recorded "The claimant(s) 
		evidence was not inconsistent (my highlighting) with the clinical 
		findings of the Medical Referee Service doctor."  Given that 
		[claimant's] score, on the basis of her evidence on her 
		questionnaire, amounted to 55 points and that of the MSS doctor, 
		on examination, amounted to 6 points, it is clear that there 
		were inconsistencies.  [Claimant's] evidence at the hearing was 
		consistent with that in her questionnaire.  It may be that there 
		was a typographical error in that "not inconsistent" should read 
		"not consistent".  In any event it is difficult to understand 
		what the Tribunal meant.

		As shown above [claimant] scored 55 points on her questionnaire 
		and the AO, on the basis of the medical examination, scored 
		[claimant] 6 points for "standing" and "bending and kneeling".  
		The Tribunal awarded 6 points for "standing" and "bending and 
		kneeling" and by implication agreed with the AO and medical 
		officer.  The Tribunal awarded an additional 6 points for 
		"walking up and down stairs" and "rising from sitting" and 
		therefore, to some extent, accepted [claimant's] evidence.  In 
		the reasons for decision the Tribunal has at least mentioned 
		"standing" and "sitting", although it is not clear what the 
		reference to standing means.  There is, however no mention of 
		the activity of "walking on level ground" in the findings and 
		the reasons (apart from a score of 0 points in the summary of 
		the decision) and it is not surprising that [claimant] cannot 
		understand why her evidence was rejected in this respect.

		In decision R(A)1/72 the Great Britain Commissioner when dealing 
		with the standard of reasoning held at paragraph 8.

		"The obligation to give reasons for the decision in such a case 
		imports a requirement to do more than only to state the conclusion, 
		and for the determining authority to state that on the evidence the 
		authority is not satisfied that the statutory conditions are met, 
		does no more than this.  If affords no guide to the selective 
		process by which the evidence has been accepted, rejected, weighed 
		or considered, or the reasons for any of these things.  It is 
		not, of course, obligatory thus to deal with every piece of 
		evidence or to over elaborate, but in an administrative quasi-
		judicial decision the minimum requirements must at least be that 
		the claimant, looking at the decision should be able to discern 
		on the face of it the reasons why the evidence has failed to 
		satisfy the authority.  For the purpose of the regulation which 
		requires the reasons for the decision to be set out, a decision 
		based, and only based, on a conclusion that the total effect of 
		the evidence fails to satisfy, without reasons given for reaching 
		that conclusion, will in many cases be no adequate decision at 
		all."

		The above statement was approved by the Commissioner in decision C19/98(IB) ... and at paragraph 13 of that decision she held

			"I would not wish to impose on the Tribunal the need 
			to be unduly lengthy in its reasons.  So long as the 
			reasons adequately explain the decision that is all 
			that is legally required.  However where the Tribunal, 
			as in this case, is rejecting the claimant's evidence 
			and where the claimant's evidence is crucial as it was 
			here, I think it is necessary to explain, at least in 
			brief and general terms why this was done......  The 
			claimant should not be left in a speculative position 
			as to why her crucial evidence was rejected.  The 
			standard of reasoning means that she was so left.  It 
			is not adequate."

		For the reasons given above I therefore submit that the reasons for 
		the Tribunal's decision are inadequate and do not meet the 
		requirements of regulation 23(3A) of the Social Security 
		(Adjudication) Regulations 1995 (sic)."

10.	The claimant's solicitor also referred me specifically to the Northern Ireland case of C36/98(IB), in particular to paragraph 7.

11.	I arranged a hearing of the appeal at which the claimant, who was not present, was represented by Ms Slevin of the Law Centre (NI) while the Departmental Official in attendance was Mr Toner.

12.	At the hearing both advocates expanded on their respective submissions and confirmed that both took the view that the Tribunal had erred in law in its decision.  
13.	The advocates agreed that the first sentence in the Tribunal's reasons for decision did not make any sense.  I considered at one stage that this sentence might have contained a transcription error in which, by mistake, a double negative has been used.   However, there appears to be no other document in existence to suggest that this was merely a transcription error.  In the circumstances I hold that the Tribunal has erred in its reasoning as it stated in the first place that "the claimant (sic) evidence was not inconsistent with the clinical findings of the Medical Referee Service doctor," but this statement clearly conflicts with the rest of the Tribunal's reasoning.   Accordingly I hold that this is an error in point of law.	

14.	Both Ms Slevin and Mr Toner also agreed that the reference in the Tribunal's reasons to the claimant being "on her feet" does not make clear whether this is of relevance to the claimant's standing or walking.  Accordingly it is not clear which descriptor this comment relates to.  I accept these submissions are correct.

15.	Ms Slevin also submitted that in the reasons for decision there is a reference to the claimant sitting "without apparent discomfort." Ms Slevin submitted that, if the Tribunal wished to draw conclusions from its own observations, it should have made clear that it was observing the claimant whilst sitting in "an activity 3 chair" (see the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 - part 1 of the Schedule), namely, "Sitting in an upright chair with a back, but no arms.")  Ms Slevin referred to paragraph 14 of the decision of Mr Commissioner Walker QC, namely CSIB/324/97, in which he stated as follows:-

		"14.	The second example concerns the first such activity - 
			number three in the Schedule:-

			"Sitting in an upright chair with a back, but no arms." 

		The doctor gave an opinion for that is all that it really is, that 
		the claimant could not sit comfortably for more than one hour without 
		having to move from the chair.  The adjudication officer accepted 
		that in preference to the other evidence.  The claimant's case before 
		the tribunal was that she could not sit comfortably for more than ten 
		minutes without having to move from the chair and not one hour as the 
		doctor stated.  That would have produced an award of 15 points on its 
		own.  The doctor explained his opinion by noting that the claimant's 
		back pain appeared to be present all the time but was worse on sitting.  
		He then founded on the fact that she watched hour long television 
		programmes and was able to travel on a bus for about half an hour.  
		He also observed that she had sat without apparent discomfort for the 
		entire interview, being roughly 25 minutes.  There then followed the 
		clinical findings about pain in the lower back across the top of the 
		pelvic bone and findings about her ability to reach and bend.  Now 
		the tribunal would no doubt be entitled to assume that the doctor had 
		in mind for his direct evidence the chair specified for the purpose 
		of this activity.  But they should also have noted that his direct 
		evidence covered no more than 25 minutes and so it is difficult to 
		see, given what he found about pain on sitting, why he thought one 
		hour was the limit rather than 30 minutes, which would have involved 
		a different descriptor.  The fact that the claimant watched hour long 
		television programmes or travelled by bus were no doubt relevant but 
		it would equally be relevant to know whether, especially in the case 
		of the former, she was using the chair specified for the purpose of 
		the activity rather than something more comfortable in which, no doubt, 
		she could sit longer.  The tribunal decision in impliedly endorsing the 
		one hour limit suffers from similar defects.  It may be that their 
		hearing lasted over half an hour and that at it the claimant sat 
		in an appropriate chair.  If so that could have been used to justify 
		their endorsement of the adjudication officer's finding, but that was 
		not what was done."

	She submitted that the Tribunal ought not to have come to any conclusion from its own observations in relation to activity 3 unless it specifically observed and assessed the claimant in "an activity 3" chair.  In addition Ms Slevin submitted that the Tribunal ought to have considered specifically a possibility of discomfort, in light of the fact that comfort and discomfort are relevant in relation to descriptor 3(a) to (e).

16.	Mr Toner accepted that the Tribunal's reasoning in relation to sitting was difficult to understand and thereby was unsatisfactory.

17.	However, it is noteworthy that the evidence of the claimant was that she could not sit - the type of chair not being mentioned - for more than 20 minutes.  When assessing what the relevant facts are, in my view, a Tribunal is entitled to take into account its own observations which either tend to contradict or confirm the evidence of a claimant.  It might be preferable for a Tribunal to note specifically, before drawing particular conclusions, whether or not a claimant was sitting on "an activity 3 chair" or some other type of seat.  However I specifically do not express a concluded view on this issue.  In any event I do not consider that the Tribunal erred in law in this case by not directly relating its observations to "an activity 3 chair".

18.	Ms Slevin also submitted that the Tribunal erred by not dealing specifically with the claimant's walking ability.  She submitted that the reference to being "on her feet" cannot be assumed to be a reference to walking.  She submitted that the reference in the score sheet to walking and the scores given therein are not sufficient to show that the Tribunal addressed its mind to this issue.  Mr Toner submitted that the score sheet can, in suitable cases, give sufficient reasons but conceded, in the present case, that the Tribunal ought to have justified its scoring of the activity of walking just as it attempted to justify its scoring in relation to the activity of sitting.

19.	Ms Slevin relied on the decision of Mr Commissioner McNally in C36/98(IB), at paragraph 7 were he stated:-

		"I have considered the statutory obligation to provide proper 
		findings of fact.  I have considered Commissioner's decision 
		C62/98(IB) which is quoted above.  I consider that decision 
		relates to a situation in which the findings of fact were made 
		on all material matters before the Tribunal, but it does not 
		relate to a situation where the questions were raised by a 
		claimant and were not dealt with by the Tribunal as in this 
		case.  I have no knowledge of what arguments where produced in 
		C62/98(IB), but I would find it very difficult to accept that 
		a finding of fact which merely said "Claimant scored X points 
		in the All Work Test" would ever be a sufficient finding of 
		fact unless the reasons for the decision dealt with every 
		descriptor which was queried by the claimant, or argued on 
		behalf of the claimant, as relevant to the claimant's condition.  
		The Tribunal would then have made findings of fact on those 
		arguments and given proper reasons for its findings and also 
		proper reason for rejecting any arguments on behalf of the 
		claimant.  The actual points awarded are conclusions, not 
		findings of fact."

	I agree with Mr Commissioner McNally that a mere total score in the All Work Test in itself can never be considered to be a sufficient finding of fact, and, in my view, such a total score in itself can never be considered to be the sole reason for a decision.  However, whether or not an individual scoring for each relevant activity is a sufficient finding of fact is a separate and distinct issue.  The actual point scoring in relation to each activity may be a conclusion but the finding that a relevant descriptor is appropriate is a finding of fact.

20.	Mr Toner supported the proposition that the score sheet can be a record of the findings of fact by drawing my attention to the words of Mrs Commissioner Brown in decision C62/98(IB) at paragraph 11 in which she stated as follows:-

		"To come now to the points made in Mr McAvoy's letter, I am not of 
		the view and indeed my reason for having an oral hearing in this 
		case was that I considered Mr McAvoy incorrect in his contention 
		that inadequate findings of fact had been made in this case.  In 
		my view the document which has become known as the "score sheet" 
		is a record of the findings of fact.  It is the Tribunal's findings 
		on the claimant's capacity over the various activities and descriptors 
		which constitute the All Work Test.  I can see no useful point in these 
		being repeated in another part of the decision record and of them having 
		a different status if they are so repeated.  These findings of fact were 
		made on all material matters before the Tribunal and were adequate."

	I agree that the score sheet is a record of findings of fact, but it is necessary not only to consider whether there are sufficient findings of fact but also to consider whether proper reasons have been given for the decision.

21.	It is also important to remember that it is not crucial where a Tribunal records the relevant material in its decision making process as long as it is recorded.  As Chief Commissioner Chambers QC stated in C1/96(IB):-

		"So long as all the necessary material is included, it matters 
		not where it appears in the recorded decision."

22.	However, in all the circumstances, I consider that, on balance, Mr Toner was correct to concede, in light of the apparent confusion and inconsistent treatment of the activities of walking and sitting, that the Tribunal has given inadequate reasons for its decision in relation to its scoring of the activity of walking.	

23.	Accordingly it is clear to me that there has been confusion in the reasoning of the Tribunal's decision (see paragraph 13) and inadequate treatment of the activities relating to standing and walking (see paragraph 14, 18 and 22).  Therefore I conclude that the reasons for the Tribunal's decision are inadequate and do not meet the requirements of regulation 23(3A) of the Social Security (Adjudication) Regulations (Northern Ireland) 1995 (the then relevant legislation).

24.	For the reasons stated I conclude that the Tribunal's decision is erroneous in point of law and accordingly must be set aside.  I therefore allow the appeal and refer the matter back to be reheard by a differently constituted Tribunal.

(Signed): J A H Martin

CHIEF COMMISSIONER

	21 February 2000