Appeal No: C23/00-01(IB)

SOCIAL SECURITY ADMINISTRATION (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 the decision of
Armagh Social Security Appeal Tribunal 
dated 6 August 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of the Tribunal to the effect that the claimant does not satisfy the All Work Test and accordingly may not be treated as incapable of work from and including 7 May 1999.

2.	I grant leave to appeal and with the consent of the claimant and Mr Toner, the Departmental Official now concerned with this case, I treat the application as an appeal and proceed to determine any questions arising on the application for leave as though they were questions arising on an appeal.  Having considered the circumstances of the case, I am satisfied that this application (and appeal) can properly be determined without a hearing.

3.	The claimant was originally awarded Sickness Benefit from 22 September 1990 followed by Invalidity Benefit from 6 April 1991.  Due to changes in legislation from 13 April 1995 this award became a transitional award of Incapacity Benefit.  As she had been incapable of work for more than 196 days on 13 April 1995 an Adjudication Officer decided that the All Work Test was applicable.  After the receipt of the usual questionnaire giving details of how the claimant’s illness affected her ability to perform various activities, along with her doctor’s statement and after a medical examination by a Medical Officer of the Department an Adjudication Officer reviewed the decision that the claimant was incapable of work from 12 November 1993 and the decision awarding Invalidity Benefit from and including that date.  The Adjudication Officer gave a revised decision for the period from and including 7 May 1999 to the effect that the claimant was capable of work and not entitled to Incapacity Benefit.  The claimant then appealed to a Social Security Appeal Tribunal.

4.	The Tribunal on appeal unanimously came to the conclusion that the claimant did not satisfy the All Work Test and accordingly was not to be treated as incapable of work from and including 7 May 1999.

5.	The claimant sought leave to appeal on the grounds that the Tribunal failed to make adequate findings of fact in relation to incontinence and failed to deal adequately with the mental health descriptors or, in the alternative, failed to set out an adequate statement of its reasons in relation to the mental health descriptors.  The legally qualified member of the Tribunal refused leave to appeal on 20 January 2000.

6.	The claimant, who is represented by Mrs Carty of the Law Centre (NI) then sought the leave of a Commissioner to appeal.  As stated at paragraph 2 herein, I have granted leave to appeal.

7.	The relevant test in this case is the All Work Test (see Part III of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995).  This test is applied by measuring prescribed activities using descriptors which have to reach a total of 15 points for physical disability descriptors, 15 for combined physical and mental disability descriptors or 10 for mental disability descriptors.  The Adjudication Officer originally awarded the claimant zero points for physical disability descriptors and zero points for mental health descriptors.  One point was awarded originally under descriptor 18(d) in relation to the activity “interaction with other people” as the Adjudication Officer decided that the claimant “gets irritated by things that would not have bothered (her) before (she) became ill”, but as the total mental disability score was less than six, then this score of one point was disregarded under regulation 26(1)(b) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.

8.	In relation to physical descriptors the Tribunal awarded eight points for activity 14 (remaining conscious without having epileptic or similar seizures during waking moments).  In relation to mental disability descriptors the Tribunal awarded the claimant zero points under each of the relevant activities and applied no descriptor to any of them.  Accordingly the claimant scored a total of eight points for physical disability descriptors and this score was substantially less than the required 15 points for physical disability descriptors.  In these circumstances the claimant failed the All Work Test.

As the scoring under the mental disability descriptors amounted to less than six points, under the relevant legislation the total of one point under the mental health descriptors was disregarded.

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

“1.	Medical complaints include depression, low platelets, probable blackout  on 6 May 1999 (per General Practitioner), panic attack, light heads, lately low back pain.

2.	Was on tablets for bowel infection which cleared up with medication.

3.	Admits eyesight ‘okay’.

4.	No psychiatric referral.  No Community Psychiatric Nurse.  States sees a member of CRUISE Bereavement.

5.	Blood pressure recently checked – satisfactory.

6.	Waiting to see haematologist reference low platelets.

7.	No seizures or epilepsy.  Lies down, if takes pain, until it passes.

8.	To have barium enema.

9.	Adopt the clinical findings of the Examining Medical Officer in report dated 8 April 1999 and accept as accurate the Examining Medical Officer’s comments and observations therein.

10.	Adjudication Officer’s decision is dated 7 May 1999.

11.	Concur with the descriptors selected by the Examining Medical Officer/Adjudication Officer save, on balance, we have accepted that descriptor 14(e) is applicable in view of the General Practitioner’s comments that he/she assumes, in the absence of other explanations, that the appellant had a blackout on 6 May 1999.”

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

“The appellant had indicated a significant number of physical descriptors as being applicable to her when she completed her questionnaire.  The General Practitioner’s certificate in March 1996 referred only to depression, as did the report of 2 December 1998 with anxiety/agitation.  Appellant admitted today that she is not too bad when she takes one antidepressant before going to bed.

Appellant’s questionnaire indicated significant physical problems her evidence was somewhat different today, for example, she admitted her eyesight was okay whilst original questionnaire would have us believe that she could not even tell light from dark; the questionnaire referred to walking ability less than 200 metres (between 50 metres – 200 metres) yet today she could give no indication as to how far she could walk.  As we considered the appellant’s evidence somewhat unreliable we preferred the Examining Medical Officer’s assessment at report date.  Given the findings, comments and observations in the Examining Medical Officer report we believe that the choice of descriptors therein gives the more accurate assessment of functional ability.

Since the Examining Medical Officer report the appellant, on balance, seems to have suffered a blackout.  As this was prior to the Adjudication Officer’s decision, that is the day before, we have awarded 8 points under 14(e).  Regarding incontinence we are not sure if the appellant is mixing up bladder/bowels.  Whilst the questionnaire refers to loss of control of bladder once a month the medical evidence does not seem to refer to bladder problems.  Appellant stated today that she had a bowel infection which cleared and no bowel problem noted on questionnaire.  In all we cannot say that the appellant, on balance, satisfies any of the criteria in relation to continence and again we prefer the Examining Medical Officer assessment in this regard.

Regarding the mental criteria the questionnaire indicated or ticked both box ‘no’ and box ‘yes’.  She then referred to panic attacks, nervous rash, dizzy spells and problems handling pressure with no specific reference to depression and she also noted ‘no treatment’.  However the General Practitioner does refer to depression and certificate on 16 December 1998 refers to Prosac following father’s death.  Today reference was made to panic attacks although the General Practitioner does not seem to have knowledge of same, whilst the General Practitioner referred to tearful and moody the questionnaire did not.  Again we prefer the Examining Medical Officer’s assessment which was to some extent, regarding mental descriptors, based on appellant’s comments to the Examining Medical Officer at the time.  The General Practitioner referred to tearful and moody.  The criteria requires for example, to be frequently distressed at some time of the day due to fluctuation in moody.  The Examining Medical Officer addressed his/her mind to the specific criteria and we accept the Examining Medical Officer’s assessment as being the most reliable assessment within the meaning of the specific area.  In the circumstances no points allocated under mental descriptors.

The Tribunal is satisfied that the Adjudication Officer correctly reviewed and revised decisions 12 November 1993 and discharged the onus of proof as set out per submission papers, paragraph 29.”

11.	In relation to the issue of incontinence Mrs Carty submitted that the Tribunal erred in failing to make a specific finding of fact on whether the claimant suffered from urinary incontinence and, if so, the extent and frequency of such problems.

12.	Mr Toner, the Departmental Official now concerned with this case, submitted that whilst the Tribunal made no finding of fact in the usual places, namely at part 2 of form AT3 or on the Score Sheet, it did deal with this issue in the third paragraph of the reasons for its decision.  Relying on the former Chief Commissioner’s decision C1/96(IB) at paragraph 5 he submitted that the defect of inserting a finding of fact under the heading “reasons for decision” rather than “findings of fact material to the decision” was not a defect of substance.

13.	Bearing in mind decision C1/96(IB) I conclude that the Tribunal was entitled to come to the conclusion that it came to, in light of the evidence before it, in relation to incontinence and has not erred in law as submitted by Mrs Carty.

14.	Mrs Carty also submitted that the Tribunal failed to make adequate findings of fact and give adequate reasons for its decision in relation to the mental activities of daily living, coping with pressure and interaction with other people.  In particular she submitted that the claimant’s evidence and evidence from her doctor put descriptor 16(c) and (e), 17(b), 18(c) and (d) at issue and the Tribunal ought to have made appropriate findings of fact and reasons in relation to these descriptors.

15.	Mr Toner submitted that the Tribunal had made proper findings of fact in respect of these activities by completing the score sheet and he relied on Mrs Commissioner Brown’s decision in C62/98(IB) to support this proposition.

16.	In light of that decision I conclude that the Tribunal did not err in law by making its findings in the score sheet.

17.	However, Mrs Carty has also submitted that the reasoning of the Tribunal was defective.  Mr Toner supports Mrs Carty’s submission on this point.  In my view it is appropriate at this stage to set out Mr Toner’s written submissions on this point contained in a letter dated 13 April 2000.  He submitted, inter alia, as follows: -

“Further contentions made on behalf of [the claimant] are that the Tribunal, in its reasons for its decision, inaccurately recorded that [the claimant] had been on Prozac following her father’s death (Christmas 1998) when she had told the MSS doctor that she had been on that medication for 3-4 years, and that the Tribunal purported to rely on the MSS doctor’s assessment to support its decision.  It is submitted that the doctor’s assessment failed to address the relevant descriptors and that in some instances the answers recorded are irrelevant to the question the doctor was asked to address.  A number of examples are cited, namely the answers at descriptors 15(c), 15(d), 15(e), 16(c), 17(a), 17(f), 18(c) and 17(f).  Set out below are the questions associated with those descriptors in the questionnaire and the answers given by the MSS doctor -.

Descriptor 15(c)
Q.	Can he or she concentrate to read a magazine article or follow a radio or television programme?
A.	Yes.  “Used to watch Coronation St. but went off it.”

Descriptor 15(d)
Q.	Can he or she use a telephone book or other directory to find a number?
A.	Yes. “Can use a washing machine.”

Descriptor 15(e)
Q.	Does his or her mental condition prevent him or her from undertaking leisure activities previously enjoyed?
A.	No.  “None mentioned”.

Descriptor 16(c)
Q.	Is he or she frequently distressed at some of the day due to fluctuation of
      mood?
A.	No.   “No history of mood swings.”

Descriptor 17(a)
Q.	Was mental stress a factor in making him or her stop work?
A.	 No.  “Hasn’t worked for many years.”

Descriptor 17(f)
Q.	Is he or she scared or anxious that a return to work would bring back or worsen his or her illness?
A.	“Hadn’t intended going back to work.”

Descriptor 18(c)
Q.	Do mental problems impair his or her ability to communicate with other people?
A.	No.  “Communication fine – vague when asked to be more specific about symptoms – physical and mental.”

Descriptor 18(d)
Q.	Does he or she get irritated by things that would not have bothered him or her before becoming ill?
A.	Yes.  “Sometimes she shouts at her husband.”

I submit that the MSS doctor’s answers address the questions at issue in descriptors 16(c) and 18(c) but do not address the questions at issue in descriptors 15(c), 15(d), 15(e), 17(a), 17(f) and 18(d).  I further submit that the Tribunal, having stated in its reasons for its decision that the MSS doctor addressed his/her mind to the specific criteria for the mental descriptors and having found that assessment as the most reliable assessment, having accordingly erred in law and to that extent I support the application.”

18.	It is noteworthy that there is no record of the Tribunal clarifying the relevant descriptors with the claimant.  It is also relevant that, whilst the Tribunal has relied on the doctor’s assessment, that assessment appears somewhat ambiguous.  The Tribunal has had the disadvantage of having to deal with the answers of the Examining Medical Practitioner (more properly now known as the Medical Support Services Doctor) which perhaps demonstrate that she was not appreciating the issues that were in question when coming to her (that is the Examining Medical Practitioner’s) conclusion.  The Tribunal specifically stated in its reasons that the Examining Medical Practitioner addressed her mind to the specific criteria for the mental descriptors.  However Mrs Carty and Mr Toner have persuaded me that it is far from clear that the Examining Medical Practitioner ever did so, in light of the specific answers set out in the relevant questionnaire.  Accordingly I come to the conclusion that the Tribunal erred in law in this respect as the Examining Medical Practitioner’s answers, which were relied on by the Tribunal, do not address the questions at issue in descriptors 15(c) (d) and (e), 17(a) (f) and 18(d).

19.	As the application is now being treated as if it were an appeal, I allow the appeal and specifically hold that the Tribunal’s decision was erroneous in point of law and accordingly I set it aside.  In the circumstances I also refer the case to a differently constituted Tribunal to rehear the case on the merits.  The allowance of this appeal should not be taken as an indication that the claimant will ultimately be successful in her appeal to the Tribunal.

(Signed):  J A H MARTIN QC

CHIEF COMMISSIONER

10 OCTOBER 2000