Decision No: C24/99(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

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 30 October 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal which held that the claimant did not satisfy the All Work Test and therefore could not be considered incapable of work from and including 6 November 1996.

2.	This matter was before me previously and I referred it back to be reheard by a differently constituted Appeal Tribunal.

3.	Claimant suffers from arthritis, diabetes, alcoholism and depression.  The Tribunal made findings of fact as follows:-

		"1.	The summary of facts at part 5 of the papers is accepted and adopted by the Tribunal.

		2.	The decision of the Tribunal on 24.1.97 was set aside by the Commissioner on 24.6.98 and the appeal referred back to be reheard by a differently constituted Social Security Appeal Tribunal.

		3.	The appellant has diabetes which is controlled by diet only 
			and does not affect his functional ability to carry out the 
			activities in the All Work Test.

		4.	He suffers from gastritis and a gastroscope showed two small ulcers.  This is relieved by Losec medication and does not affect his functional ability.

		5.	The appellant has a history of gunshot wounds to his left loin into both legs.  He has pain in his lower back and lower right leg but this does not affect his functional ability to carry out 
			the activities in the All Work Test.

		6.	He suffers from depression with a history of alcohol abuse.

		7.	He has problems with the mental health activities of daily living, coping with pressure and interaction with other people, as indicated in attached score sheet."

4.	The Tribunal also gave long and detailed reasons for its decision for claimant's mental health problems and I do not disagree with the points awarded.  It awarded no points in respect of his physical condition.  I held an oral hearing at which the claimant was present and was represented by Mr Brady and the Adjudication Officer was represented by Mr Toner.

5.	Mr Brady firstly dealt with the claimant's physical problems as a result of both his alcoholism and his depression.  In the mid seventies he was shot seven times in the back and in his left leg.  Mr Brady detailed the various complaints which the claimant had.

6.	He then referred to the mental health problems and to the report of an examining medical practitioner dated 29 October 1996 which he said the Tribunal relied heavily upon.  He said that the claimant gave evidence before the Tribunal, that he never learned to read or write, yet the medical report which the Tribunal relied on so heavily said that he reads a paper thoroughly and absorbs it all and can look up a dictionary to answer quiz questions. He questioned whether or not any reliance could be placed upon the medical report.

7.	Mr Toner said the Tribunal took account of all the evidence before it and gave adequate reasons for its decision, but the only thing that puzzled him was that the Tribunal said claimant had been off the drink for a year whereas the evidence was that he was still drinking.

8.	I have considered all that has been said and I have considered the long and very detailed reasons given by the Tribunal for each descriptor and I have considered the findings of fact.  The findings of fact are a recital of matters which are not in dispute and I cannot see where any finding of fact is material to the decision, although reasons for the decision are peppered with findings of fact.

9.	One statement in the reasons for the decision puzzles me.  When the Tribunal recorded, "No additional medical evidence has been submitted to contradict the Independent Medical Examiner's findings" .  It must only relate to the physical conditions because the scoring on the mental problems was not done by an examination but merely a record by the medical examiner of what the claimant told him.  There is no medical evidence relating to the claimant's mental condition at all and no medical findings recorded.  There is evidence from the claimant which was recorded by an Examining Medical Practitioner.

10.	I have considered the physical condition of the claimant and I am satisfied that the medical practitioner carried out a medical examination and that his conclusions were accepted by the Tribunal and no fault can be found in that.

11.	As far as the claimant's mental condition is concerned, the evidence was that when he gets annoyed he gets aggressive, he shouts due to everyday things and hits doors and bangs his fist off the couch; he also lifts furniture which is too heavy and tries to throw it and is aggressive with people.  It is recorded: "I can't think of anything that irritates me now that didn't always annoy me.  I can't remember if I was like that in my teens."  The Tribunal found it was not reasonable behaviour and it accepted his evidence that he gets annoyed and aggressive which results in disruptive behaviour and awarded him 2 points in respect of 18(b) but went on to say that he did not satisfy 18(d) (gets irritated by things which would not have bothered him before he became ill) on the grounds that he always had a bad temper and that he did not indicate in his oral evidence that he gets irritated by things which would not have bothered him before he became ill.  

12.	Turning to descriptor 16 under daily living; the medical practitioner in answering the question, "Is he frequently distressed at some time of the day due to fluctuation of moods?" recorded "He has some good days, some bad".  The evidence which the claimant gave before the Tribunal was that he leaves the room when visitors call.

13.	I consider that the Tribunal erred in not awarding points for descriptor 16(c) and 18(d) which would amount to 2 points.  It also erred in thinking that medical evidence was required to contradict the recording of claimant's statement to the Examining Medical Practitioner relating to claimant's mental condition.

14.	For that reason I granted leave to appeal and allowed the appeal as the Tribunal heard as I have indicated above.  I therefore set aside the decision of the Tribunal.

15.	As this matter has been going for some time I think it is only fair that I should give the decision which the Tribunal should have given. 

16.	I accept and endorse the findings of the Tribunal in relation to descriptor 16(b), 17(d) and (f) and 18(b) and (c) which amounts to 8 points.  I would add to that 1 point in respect of 16(d) and 1 point in respect of 18(d) making a total of 10 points.  Consequently the claimant has passed the All Work Test and is consequently incapable of work from and including 6 November 1996.

(Signed):  C C G McNally

COMMISSIONER

28 June 1999