Decision No: C34/99(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 a Tribunal's decision
dated 4 March 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by the Chairman, against a decision dated 4 March 1999 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast.  The Tribunal had disallowed claimant's appeal against the determination of an Adjudication Officer, in connection with claimant's claim for National Insurance Contribution credits, that he was not incapable of work from and including 17 December 1998.  

2.	The grounds of appeal were contained in an OSSC1 (NI) form dated 6 July 1999.  On that form Ms Slevin of the Law Centre (NI) representing the claimant submitted that the Tribunal's decision was erroneous in law as follows:-

		"The tribunal failed to make adequate findings of fact or to 
		give proper reasons for their decision in relation to the 
		disputed Activity of "sitting in an upright chair with a back 
		but no arms".  

3.	Ms Slevin submitted that the claimant had stated on his IB50 form that "I cannot sit comfortably for more than one hour without having to move from the chair" and had continued on the form "I cannot sit for very long as the pain in my shoulder and down my arm would be unbearable as I would have no support for my arm or shoulder".  The Tribunal in Ms Slevin's submission had not dealt with the need to have support for the arm and shoulder and it had therefore erred by failing to pay attention to the precise statutory wording of the activity.  Similarly the Tribunal had recorded observations which it had made but had not recorded the chair in which claimant was sitting and similarly the Examining Medical Officer did not specify the type of chair which was used at the medical examination.

4.	In support of her submission Ms Slevin cited CSIB/12/96 and in particular paragraph 5 thereof where the Commissioner stated:-

		"In the first place that (the tribunal's) reasoning does not 
		record any consideration of the designated type of chair nor 
		does it show how, from the evidence, about the amount of sitting 
		the claimant could do in the chairs that she described, an 
		appropriate deduction could be or was made or, for example, that 
		the tribunal chair was of the prescribed kind.  That failure was 
		an error in law."

5.	By letter of 29 September 1999 Mr Fletcher of Central Adjudication Services opposed the appeal.  He said that the Tribunal's findings indicated that the Tribunal had found as a fact that claimant had difficulties sitting in an upright chair with a back but no arms.  It was therefore highly improbable that the Tribunal applied incorrect criteria when considering the activity.  Mr Fletcher submitted that the Tribunal was entitled to use its ocular observations to assess the evidence presented.  The observation that claimant appeared comfortable while sitting for forty minutes was particularly relevant given that the chairs used for Tribunal hearings in Belfast were of the nature prescribed by activity three.  It was also apparent that the Tribunal heard oral evidence from the claimant and sought medical advice from the Medical Assessor as to whether a frozen shoulder normally caused pain radiating to the limbs.  He submitted that having considered the oral evidence against the contrary evidence of the Medical Support Services report and having used its own observations and the advice from the Medical Assessor to assess the evidence, the Tribunal was entitled to reject claimant's evidence.

6.	Mr Fletcher also cited to me decision C4/96(IB) which recognised that, generally, an allegation advanced at the outset of a fact finding exercise would carry more weight than one which comes at the last minute.  It was he contended clear that the Tribunal had adopted this principle and decided that claimant's contention at the hearing that he could sit no longer than thirty minutes carried little weight as he had earlier completed the questionnaire indicating that he could sit no longer than one hour.  

7.	Mr Fletcher submitted that CSIB/12/96 a Scottish decision, had persuasive value but was not binding in this jurisdiction and considered that it might also be relevant that the decision was given at the time when the All Work Test was very much in its infancy.

8.	He also cited to me decision C46/97(IB) a decision of the Chief Commissioner in Northern Ireland and decision R(SB)5/81 as authority for his view that the Tribunal's decision met the standards of adequate reasoning in this case.

9.	In her further comments on Mr Fletcher's observations Ms Slevin stated that the Examining Medical Officer's report failed to address the question of claimant's need for support for his arm in order to sit comfortably.  She also stated that the Independent Tribunal Service had informed her that chairs with arms were often used at Tribunals.  In those circumstances she stated that it was imperative that the Tribunal record whether it observed claimant sitting in a chair of the type prescribed by the legislation.

10.	Ms Slevin submitted that the Tribunal failed to explain in its reasons why it rejected claimant's evidence that sitting in a chair with a straight back but no arms would cause him a lot of pain because of his shoulder.  Claimant was consequently left in the position where he could not understand why his evidence was rejected.

11.	I think it is important in this case to record the submission made and the evidence given with relation to the descriptor at issue at the oral hearing.  The claimant's representative, Mr W…, stated:-

		"Appellant has a disabling shoulder and Medical Examiner agrees.  
		Not just shoulder which is affected.  Pain goes up into head and 
		radiates down into back and hips.  Also affects top part of legs 
		as well.  

		No medical evidence to offer re this.  Shoulder is mishapen Scans 
		have been done.  These showed up on scan.  Has had two steroid 
		injections.  Is awaiting a further, more detailed, scan.  It was 
		thought to be torn tissue but specialists at Musgrave Park have 
		said this is not the case and shoulder is simply mishapen.  No 
		mention of capsulitis and no treatment offered.  
		
		Has had physio treatment prior to having the steroid injection.  
		Five or six sessions.  Tried stretching neck.  No improvement.  

		Mr W… feels descriptor 3e is satisfied because of the pains 
		down his back and legs.

		Appellant:	"just sits and then gets up and walks about a bit" 
		to ease pain.

		Appellant:	Doesn't know why he ticked 1 hour on questionnaire.  

		Appellant goes to Coleraine on the train every now and again to see 
		his parents.  Doesn't just sit on the train.  Gets up and moves 
		about.  

		Gets up and down when watching TV..."

12.	The Medical Assessor stated:-

		""Frozen shoulder" is a term used to describe restriction of 
		movement, with pain, in the shoulder, of unknown origin.

		Usually treated by physio, pain killers and steroid injection.  
		Sometimes shoulder is immobilised until inflammation settles.  

		This condition does not usually cause referred pain elsewhere 
		in body.  Medication is simple pain killers.  Steroidal pain 
		killers are usually used unless they have side effects."

13.	The Adjudication Officer, Miss Murray, is quoted as stating:-

		"Accepts that appellant has a bad left shoulder.  Medical 
		Examiner has acknowledged this and actually awarded more points 
		than appellant scored himself.  Thus the Medical Examiner's 
		views are reliable."

14.	As regards its own observations the Tribunal has recorded "After forty minutes sitting appellant stood up.  Until then he appeared to be quite comfortable."  This observation is recorded in brackets.

15.	It does appear that at the hearing both the claimant's representative and the claimant were contending that he had to get up from sitting to walk about a bit to ease pain.  His representative has actually contended that the descriptor 3e was satisfied "because of the pains down his back and legs".  It would appear that the claimant in saying that he had to get up and walk about a bit to ease pain was also supporting this contention.  In the IB50 form dated 14 October 1998 the claimant stated that he could not sit comfortably for more than one hour without having to move from the chair and had stated "I cannot sit for very long as the pain in my shoulder and down my arm would be unbearable as I would have no support for my arm or shoulder."

16.	The Tribunal recorded clearly that it did not accept that the shoulder pain radiated down the arms, back and legs as claimed and recorded also its reason for this in that it accepted the views of the Medical Assessor.  It has nowhere recorded that its observations were any part of the reasons for the decision.

17.	It appears to me quite clear in this case that the claimant at the hearing was contending that he needed to get up and move about because of the pains down his back and legs.  Support to the shoulder would not be increased by doing this nor pain due to lack of support be alleviated  Against that background and in light of the background given by the Medical Assessor and the absence of medical evidence it is quite clear why the Tribunal did not consider that the left shoulder incapacity was likely to affect the claimant's ability to sit to the extent contended.  At hearing, when he was questioned on the matter, he did not indicate that he needed support for the shoulder, rather he indicated that he had to rise and move about to relieve the pain thereby indicating that support was not a factor.  Support would be less likely when walking about than even when sitting in a chair with no arms.

18.	It is quite apparent from the findings of fact, which actually contain reasons for the decision, that the Tribunal did not accept that the claimant's ability to sit was affected to any great extent by his shoulder problems.  Indeed it considered it likely that he would get relief from pain by sitting rather than standing.  I can therefore find no indication that the Tribunal did not consider the exact wording of the descriptor.  Rather the reverse as it has assessed the claimant as having a problem after two hours sitting in a chair with no arms.

19.	It has also specifically stated that in light of the Medical Assessors views and the absence of supportive medical evidence it does not accept that pain radiates down the arms, back and legs.  It has also indicated that it does not consider the claimant's own assessment on this descriptor reliable as he changed it after advice.

20.	As regards the question of the chairs used in the Tribunal room and indeed in the Medical Examiner's room, there is no evidence recorded in relation to either but that does not mean that the doctor's observations are irrelevant.  Doctors are trained observers of movement and indications of discomfort.  If they observe discomfort it is likely that they will indicate this in whatever chair the claimant is sitting.  As regards the Tribunal's own observations the recording of same does not appear to have been influential in its decision.  Even if it had been it would not necessarily be an error for the Tribunal's observations of the claimant sitting in a chair with arms to be used as part of its assessment of evidence.  Tribunal's are not required to sit with closed eyes.  It would be in a situation to ascertain whether or not the claimant used any chair arms for support etc.  However, in this case, there is no indication that the observations influenced the Tribunal in its decision, rather the reverse as they are not recorded as part of the reasons for the decision nor in the findings.

21.	I am in agreement with Mr Fletcher that the findings and reasons are adequate in this case and adequately explain the decision.  There is no indication that the exact statutory terminology was not considered.  As Mr Fletcher said CSIB/12/96 was decided at a time when the All Work Test was in its infancy.  That is not the case now. 

In any event the Tribunal has attributed a descriptor to the claimant in relation to sitting in an upright chair with a back but no arms.  It has also considered his evidence of getting up and walking about to ease pain.

22.	I am unable to ascertain any error in the Tribunal's decision in the manner alleged by the claimant or in any other manner and I therefore dismiss the appeal.

	(Signed):  M F Brown

	COMMISSIONER

	9 March 2000