Decision No:  C10/00-01(IB)

SOCIAL SECURITY ADMINISTATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 4 January 2000 

DECISION OF THE SOCIAL SECURITY COMMISSIONER  

1.	This is an appeal, leave having been granted by myself, by the claimant, against a decision dated 4th January 2000 of an Appeal Tribunal (hereinafter called “the Tribunal”) sitting at Belfast.  That Tribunal had disallowed the claimant’s appeal against a decision dated 26th October 1999 wherein a decision maker superseded an earlier decision that the claimant was incapable of work from 17th June 1999.  The supersession was on the grounds that there had been a relevant change of circumstances since that decision was given.  That change of circumstances was stated to be that the claimant was no longer incapable of work.  The superseding decision was to the effect that from and including 18th October 1999 the claimant was capable of work and could not be treated as incapable because none of the exempt conditions applied.

2.	Before the Tribunal there was no contention and there appears to be none before me that the exempt conditions did apply and it appears that the only issue relates to whether or not the claimant continued to satisfy the All Work Test in connection with Incapacity Benefit.  Whether or not he was capable of work from 18th October 1999 depended on whether or not he continued to satisfy that test.

3.	A hearing was requested but having perused the papers in this case I consider that I can properly decide same without a hearing.  My decision is given in the final paragraph.

4.	The claimant’s grounds of appeal were contained in the document dated 2nd March 2000 enclosed with a letter from Mr Stockman of the Law Centre (NI), the claimant’s representative.

5.	The first ground was that the Tribunal had based its decision on inadequate evidence or alternatively had made a perverse decision.  In support of this the claimant submitted that with relation to the sitting descriptor the Tribunal had based its findings on three pieces of evidence, each of which was flawed.  Firstly it had based its evidence on the hearsay evidence of the Examining Medical Officer who had indicated that the claimant could drive for an hour.  The claimant had indicated to the Tribunal that this was not what he had said to the Medical Officer and that in fact he was unable to do his normal job because it involved driving of up to one hour.  The claimant had produced corroborating evidence from his GP to this effect and, he alleged, the Tribunal had erred in preferring the hearsay evidence of the Examining Medical Officer.

6.	In further support of this ground the claimant stated that the Tribunal had based its conclusion with regard to the activity of sitting on a finding that the claimant could sit to use a computer.  This did not equate to the All Work Test which required that the claimant be assessed sitting in a chair with no arms.

7.	It was thirdly submitted, in support of the first ground of appeal, that the Tribunal’s finding was based on an observation of the Examining Medical Officer that the claimant sat comfortably for 40 minutes.  The Tribunal’s finding, it was submitted, implied that this was continuous sitting for 40 minutes as required by the All Work Test whereas in fact the Examining Medical Officer’s report confirmed that the claimant rose several times.  Mr Stockman submitted that the evidence that the claimant sat comfortably for 40 minutes was therefore unreliable and inadequate.

8.	The second ground of appeal was that the Tribunal had erred in relation to the activity of going up and down stairs.  Mr Stockman submitted that the evidence had been that the medication gave rise to feelings of dizziness.  There was no contrary evidence.  The Tribunal had no evidence on which to base the conclusion that the claimant would not have to hold on while climbing or descending stairs.

9.	Observations on the appeal were made by letter dated 1st August 2000 from Mr Toner of the Decision Making and Appeals Unit.  Mr Toner opposed the appeal.  He stated that the first and third points made in support of the first ground of appeal had merely restated issues previously raised by the claimant to the Tribunal.  These in Mr Toner’s submission, did not identify points of law in which the Tribunal had erred.  As regards the evidence of the claimant’s GP, his letter of 17th December 1999 showed that the doctor confirmed that the claimant was unfit to drive because he was on a high dose of analgesics and diazepam.  It did not corroborate, as the claimant claimed, that the claimant was not fit to sit comfortably for more than one hour without having to move from his chair.

10.	As regards the second point submitted in support of the first ground, Mr Toner stated that while it was agreed that the ability to sit to use a computer did not equate with the All Work Test activity of sitting in a chair with no arms, he submitted that that was not the test applied by the Tribunal but rather was one of the factors used by the Tribunal when making its finding that the claimant could not sit comfortably for more than one hour without having to move from the chair (i.e. an upright chair with a back but no arms) because the degree of discomfort made it impossible to continue sitting.

11.	Mr Toner submitted, as regards the second ground of appeal that the Tribunal had rejected the claimant’s contentions (which were the same as those made in his appeal to me), in relation to the opinion of the doctor from Medical Support Services who examined the claimant on 27th September 1999 and had given reasons for so doing. 

12.	In response to my question as to whether or not the reasons for the decision adequately explained it, Mr Toner submitted that the reasons for decision adequately addressed all the points made by the claimant in his grounds of appeal.  Mr Toner opposed the appeal.

13.	Mr Stockman made further observations by letter dated 4th September 2000.  As regards the sitting descriptor he submitted that the GP’s evidence as to the claimant’s unfitness to drive, contained in the letter dated 17th December 1999 mentioned both the fact that the claimant had a neck injury and that he was on high doses of analgesics before confirming unfitness to drive.  The claimant’s own letter of 13 December 1999 confirms a prohibition on driving due to the effect of medication but also referred to pain in selecting gear with his left hand precluding driving.  Mr Stockman submitted that the point was to question the accuracy of the Examining Medical Officer’s evidence on which the Tribunal partly based a finding that the claimant could drive for an hour.  The Examining Medical Officer’s evidence was hearsay consisting of a recollection of that Medical Officer’s conversation with the claimant recorded by her after the event, albeit a short time after.  Mr Stockman submitted that the Tribunal’s finding was an irrational one in light of the corroborated evidence of the claimant on this point.

14.	As regards the sitting descriptor Mr Stockman submitted that the finding in relation to the use of a computer had no probative value one way or another towards the question of whether or not the claimant could sit in an upright chair with a back but no arms and as such was an irrational finding on which to base a conclusion on this point.  He submitted that sitting at a computer was “only one of the factors used by the Tribunal along with the finding on driving and the finding on sitting for 40 minutes”, which last he submitted, was manifestly contradicted by the record of the examination.  He submitted that the reliance on those combined factors made the finding of the Tribunal on sitting an irrational and unreliable one.

15.	As regards the mental health descriptors and the effects of medication Mr Stockman submitted that the Tribunal erred in finding that the effects of the claimant’s medication did not amount to a mental disablement.  In this he relied on C42/99-00, a decision of my own where I had stated in connection with the Disability Living Allowance legislation that to be disabled meant to “lack power or to be impaired”.  Mr Stockman submitted that many treatments for mental illness include physical medication aimed at correcting chemical imbalances in the brain which affect cognitive processes and behaviour.  This, he submitted, suggested that chemical treatments for physical illness could equally have an influence on the chemical balance of the brain and affect behaviour such as bringing about drowsiness.  To the extent that medication had the effect of impairing the functioning of the brain the consequences thereof could fairly be said to constitute a mental disablement.  He therefore submitted that the Tribunal had erred in its treatment of the issue of what constituted a mental disablement.

16.	In subsequent correspondence Mr Stockman agreed that the Tribunal’s reasons could be readily understood but stated that he was questioning whether or not they were good reasons.  A point had been raised originally at issue as to a document which it appeared Mr Stockman did not have.  This was subsequently supplied to him.  He had no comment to make on that document once supplied and it had also been before the Tribunal.  I can see no issue in relation to same.

17.	As regards the first ground of appeal, the Tribunal’s decision with regard to the sitting descriptor is fully reasoned.  It is not based solely on any observation by the Examining Medical Officer but is based in part on this and also on the absence of any joint or anatomical deformity of the spine, hips or legs and on a normal MRI scan.  It is also quite apparent when reading the reasons as a whole that the Tribunal did not accept the claimant’s evidence as reliable.  As regards its reliance on the Examining Medical Officer’s report, it is noted in that report:-

“Sat comfortably for   40 minutes

Rose unaided several times.”

[It appears likely that this sign “~” must mean approximately but it would be helpful if Examining Medical Officers would fully set  out what they mean].

The Tribunal does not state and neither does the Examining Medical Officer that the Tribunal was observed to sit comfortably for 40 minutes at a stretch.  I also note that the Medical Examiner in relation to the claimant’s driving recorded at box 8 “can no longer drive for long periods  one hour” and at box 11 recorded:-

		“I note he can only sit in a car for  one hour”.

18.	In the light of this I do not think that either the Tribunal or the Examining Doctor were making any finding as to the claimant’s driving ability.  It was in connection with the activity of sitting that this was being mentioned.  It was his ability to sit in a car which was relevant.  I can see no error in the Tribunal preferring the hearsay evidence of the Examining Medical Officer in this respect.  Whether the claimant was actually driving or merely sitting in the car was not important.  It was the ability to sit which was relevant.  Having looked at the Examining Medical Officer’s report in full in relation to this matter I can see no grounds for considering that it was unreliable in relation to this activity.  Further, the claimant’s GP’s evidence in relation to driving contained in the letter of 17th December 1999 did not indicate anything about the claimant’s ability to sit in a car and could not be read as corroborating anything about his ability to sit.  In addition the claimant himself gave evidence to the Tribunal that he could not drive due to slowed reactions. 

19.	As regards the claimant’s sitting to use his computer, again I do not consider that the Tribunal has erred in reliance on this.  It is only the one of the factors which has led the Tribunal to its conclusion.  Had it been the sole factor then perhaps the Tribunal should have explored the matter more fully but it was not.  Sitting at a computer is not irrelevant to the descriptor in question though not necessarily determinative with regard to it.  It is merely one of the factors which led the Tribunal to its factual assessment.

20.	As regards the submission in relation to the unreliability of the Examining Medical Officer’s report, in particular in relation to the Examining Medical Officer’s observations of the claimant’s sitting, I have dealt in large measure with this above.  I would add however, that the claimant did not make any contention to the Tribunal that he had been examined in a lying position for approximately ten minutes though this contention was made in his application for leave to appeal to me.  I do not consider that it was unreasonable of the Tribunal to rely on the Examining Doctor’s observations in this case.  Those observations were not as inconsistent as the claimant alleges and were very far from being the sole reasons on which the Tribunal relied.

21.	I can find no error in relation to the first ground.

22.	As regards the second ground of appeal in relation to the descriptor of going up and down stairs, it is quite apparent that the Tribunal did not accept the claimant’s evidence finding it to be unreliable.  It relied in part on the doctor’s clinical findings in relation to his knee, hip and back power.  In addition Mr Toner is quite correct that the side effects reported by the claimant in relation to his medication were, nausea, sleepiness after taking tablets and slight dizziness if taking two doses close together.  In light of this I consider that the Tribunal was entitled to reach the conclusion which it did as regards to the descriptor of going up and down stairs.  In addition, even in the absence of contrary evidence, if the Tribunal considers that the claimant’s evidence is inherently improbable or unreliable it is entitled to reject it.  However in this case it does appear that because of the report of the Examining Medical Officer the Tribunal had evidence on which it could rely for its conclusion.

23.	As regard the mental health activities the contention of Mr Stockman is that the Tribunal was incorrect to refuse to accept that the side effects of the medication amounted in this case to a specific mental illness or mental disability.  The Tribunal recorded:-

“He is also disputing the mental health activities.  But before we can award points for these, we must make a specific finding as to which specific mental illness or disablement he suffers from – see C53/98(IB).  However, in his questionnaire he indicated that he did not think he had a mental health problem and was on no medication for mental illness.  Further, he indicated no mental illness or mental health problems or treatment to the Examining Medical Officer who said, “No evidence of mental illness on examination.  No complaint or written report of psychiatric illness.”  It is first mentioned in his letter of appeal dated 26.10.99 (i.e. after Adjudication Officer’s decision of 18.10.99) where it states, “Your decision is based purely on my physical condition, and doesn’t take into account any mental health disabilities I suffer, especially with regards to the limitations of my abilities due to medication.”  We do not accept that the side effects of medication he refers to, such as drowsiness, impaired judgement and impaired ability to drive, amount in this case to a specific mental illness or mental disability but are physical manifestations of his medication (which is merely diazepam 2mgs x 3 daily for muscle spasm and co-dydramol 6-8 daily, a moderate painkiller.”

The Tribunal also accepted as correct a submission from a Mr Pete Nelson dated 13th December 1999.  At paragraph (f) of that submission Mr Nelson submitted:-

“[The claimant] also feels that the mental health test does apply to him as he fits some of the criteria within the mental health test.  However, there is no mental health diagnosis or medication and in view of this I would refer the Tribunal to Commissioners decision C53/98(IB) which states that a Tribunal should be hesitant to award points in mental health assessment in cases where there is no supportive medical evidence to indicate that the customer was indeed suffering from a mental health incapacity.”

24.	In this case the only contention that the claimant was suffering from any mental health incapacity was his claim that the side effects of his medication constituted a mental disablement.

25.	In light of its reasoning as regards the dizziness it appears to me quite apparent that the Tribunal did not necessarily accept the claimant’s view of the side effects of the medication.  In addition it has indicated that it considers his evidence unreliable.

26.	Regulation 24 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 provides:-

“The all work test is a test of the extent of a person’s incapacity, by reason of some specific disease or bodily or mental disablement, to perform the activities prescribed in the Schedule.”

27.	Regulation 25(3) of those Regulations provides that for points to be awarded in relation to the mental health activities they must come from some “specific mental illness or disablement.”  For the Tribunal to determine that the side effects of the medication, even had they been fully accepted, to be taken into account, it would have to have classified them as specific mental illnesses or mental disability.  The claimant himself did not contend that he had suffered from any mental illness.  It is the question of whether or not the side effects of the medication could be classed as a mental disability in this case which is relevant.

28.	I ask myself, as it appears did the Tribunal whether there was any mental disablement and if so what it was.  It appears that the Tribunal answered this question saying that there was no such disablement simply physical manifestation of the claimant’s medication and this would certainly be so in relation to drowsiness and dizziness.  The claimant’s contentions with relation to the matter were that he suffered, due to the side effects of the medication from inability to give a reliable message (CTA), from an inability to concentrate to read a magazine article or follow a radio or television programme (CTC).  He stated “whilst I can sit for a while reading or watching television I do tend to wander and more than often sleep”.  He also stated that he could not due to the injury and the medication undertake the leisure activities he had previously enjoyed and therefore considered that CTE applied.  He also considered that DLE applied i.e. sleep problems interfered with his daytime activities and that OPE applied i.e. he preferred to be alone for six hours or more each day.  I pause to note that it is difficult to understand how this last contention could be related to the side effects of the medication.

29.	More fundamentally however it is necessary to consider whether the side effects of the medication can be classed as a mental disablement.  It appears from the Regulations mentioned above that the specific mental disablement must be something other than the functional impairments in activities listed in the All Work Test.  In other words there must be some underlying condition separate from those impairments and disablement and disabilities are to be differently interpreted.  If that were not so there would be no need for Regulation 25(3) as it would be meaningless.  The claimant’s underlying mental ability had to be impaired.  The side effects of medication do not mean that a person is suffering from a mental disablement.  Mentally, he is quite normal, he simply because of the physical effects of the drugs cannot perform certain activities (if his evidence is accepted).  His mental powers may be affected by drugs but they are not impaired of themselves.  It is straining language artificially to say that the side effects of medication for a physical condition constitute a specific mental disablement unless they do impair these underlying mental powers.  I find it impossible, and it is obvious that the Tribunal also found it impossible to ascertain what if any specific mental disablement the claimant suffers.  The medication is not itself a condition it is simply a compound of ingredients.  The descriptors in the All Work Test are not themselves a specific mental disablement or there would be no need for a specific mental disablement to be referred to separately in the Regulations.  They are impairments in the activities on the test not specific physical or mental disablement.  I consider that the Tribunal was quite entitled to its view that there was no mental disablement or mental illness in this case.

30.	I would refer further to the decision of Mr Commissioner Goodman in Great Britain in CIB/14202/96 approved by me in decision C53/98(IB) both of which establish the need for a mental disablement in the nature of an illness before points can be awarded under Part II of the All Work Test.

31.	I can find no error in the Tribunal’s decision either as alleged by the claimant or in any other way and I therefore dismiss the appeal.

(Signed):  M F Brown

Commissioner

!8 January 2001