Decision No:  C7/00-01(IB)

 

SOCIAL SECURITY ADMINISTRATION (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 25 January 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER  

1.	This is an appeal by the claimant, leave having been granted by the Tribunal Chairman, against a decision dated 25th January 2000 of an Appeal Tribunal (hereinafter called “the Tribunal”) sitting at Belfast.  That Tribunal had disallowed the claimant’s appeal against a decision by the Department dated 4th October 1999.  That decision superseded an earlier decision of a Social Security Appeal Tribunal which had awarded the claimant Incapacity Benefit from 7th May 1998.  The Departmental decision was to the effect that there had been a relevant change of circumstances since the decision of 7th May 1998 was satisfied. That change was that the claimant was no longer incapable of work and that from and including 30th September 1999 he was capable of work and not entitled to Incapacity Benefit from and including that date.

2.	It appears to be undisputed that the claimant’s entitlement to Incapacity Benefit depended on whether or not he satisfied the All Work Test and that if he was proven to cease to satisfy it then grounds for review and supersession had been established.  The onus of proof that such a change had taken place was, of course, on the Adjudication Officer.  No issue has been raised before me and none is apparent that any wrong standard of proof was applied by the Tribunal.

3.	The Tribunal in this case held a hearing, no request for hearing has been made to me and I consider that I can decide the case without hearing.

4.	The claimant appealed the Tribunal’s decision by making an application for leave to appeal in a document dated 30th April 1999.  His grounds of appeal were as follows:-

1.	The Tribunal did not provide adequate reasons for its decision.

2.	The decision was not supported by the evidence.

5.	In amplification of his grounds the claimant stated that the Tribunal had ignored the problems which he stated he had with walking, sitting and lifting despite the fact that he had drawn them to the Tribunals attention.  The claimant also submitted that it was incorrect of the Tribunal to state that by his own account the claimant had no problems with bending, kneeling and climbing stairs.

6.	The Tribunals reasons were relatively brief and I set them out here under:-

“The claimant clearly has a purple and slightly swollen right hand which causes pain.  This does not however cause manual dexterity problems as defined in [sic] score.  This is borne out by 70% right hand grip in medical report and consultant’s report of April 1999 which stated there was good power throughout all muscle groups in upper limbs.

On his own account he had no problems bending, kneeling or reaching or climbing stairs as described in the factors.  His evidence was that he got up and down and therefore there was no indication he had problems rising.  He stood throughout and stated it was a comfortable position.

He gave no additional evidence to alter the score of 2 on mental health.  The objective medical evidence gave no basis for impaired function of his back or lower limbs.”

7.	In its letter of 29th August 2000 Mr Toner of the Decision Making and Appeals Unit of the Department made observations on the appeal.  Mr Toner opposed the appeal.  Part of that letter reads as follows:-

“In this case, and in addition to the evidence from [the claimant], the Tribunal had before it medical evidence from the doctor from Medical Support Services dated 17 September 1999, a report from Dr M Y…, Senior House Officer to Dr M W…, Consultant Neurologist dated 29 April 1999 and a report from Dr T S…, Registrar, Regional Urology Service, Belfast City Hospital which was typed on 28 September 1998.

The summary of the decision of the Tribunal shows that the Tribunal made findings on all disputed activities and the reasons for decision shows that the Tribunal, as it was entitled to do, found that the “objective medical evidence gave no basis for impaired function of his back or limbs.”  I submit that [the claimant] has failed to identify a point of law upon which the Tribunal have erred and that the Tribunal, on the evidence before it, were [sic] entitled to come to the decision it did.”

8.	Further observations on the appeal were made by the claimant’s representative, Mr McVeigh of the Northern Ireland Association of Citizens Advice Bureau by letter of 4th October 2000.  Mr McVeigh stated that the claimant disputed that he had given an account that “he had no problems with bending, kneeling or climbing stairs.”

9.	I am in agreement with Mr Toner that the Tribunal, on the medical evidence before it was entitled to conclude, as it did, that “the objective medical evidence gave no basis for impaired function of his back or lower limbs”.  In my view, the Tribunal was also entitled to its conclusions as to the claimant’s upper limb function.  It has clearly relied on the medical evidence and its conclusions based on that evidence are sustainable.  I can see no error of law in relation to that.

10.	As regards the matter of the claimant’s own account of the limitations being the functions and the All Work Test of bending and kneeling, reaching and climbing stairs, Mr McVeigh’s contention as to the Tribunals reasoning is not wholly accurate.  What in fact the Tribunal said was that on his own account the claimant had no problems with bending and kneeling, reaching or climbing stairs “as described in the factors.”  The word “factors” may well be a misprint for functions but in any event it is quite clear that it refers to the functions in the All Work Test.  The Tribunal in fact was not stating that the claimant had no problems at all with these activities but was saying that he had no problems within the functional impairments set out in the All Work Test.  It is quite possible for someone to have a problem with an activity but not to come within any of the levels of impairment set out in the descriptors in the All Work Test.

11.	In connection with the activities of bending and kneeling, the claimant informed the Tribunal that his bending was “not too bad” and that if he was on his knees for any length of time he had pain.  The questionnaire, completed by the claimant was somewhat confusing in that the claimant had initially ticked that he sometimes could not either bend or kneel or bend and kneel as if to pick a piece of paper from the floor and straighten up again (descriptor 6(c) which would have given him 3 points) however he had also indicated on the questionnaire that he had not ticked the box for this activity and indeed there was a “X” indicating that he intended to delete the tick which he had made and he had stated:-

“I have not ticked a box for this but if I kneel on my right leg I get groin and leg pains. (right side)”

12.	As the descriptor does not specify that it is kneeling on the right knee which must be done, I consider that the Tribunal was quite entitled to its conclusion in this case that the claimant’s own account did not qualify him under the relevant activity.

13.	As regards the activity of “walking up and down stairs” at hearing the claimant told the Tribunal that he could walk up stairs and in the questionnaire he had stated that he could only walk up and down a flight of 12 stairs if he went side ways or one step at a time.  The claimant had stated further with regard to this activity:-

“In the morning my groin and leg pain is usually at its worst and walking up or down stairs is quite hard.  I have not ticked a box for this because its not all the time.”

He had again marked a “X” on the questionnaire and it appears that he did not intend to tick a box for it.  It therefore seems to me yet again that the Tribunal was entitled to its conclusion that on the evidence of the claimant he had no problems within the activity of walking up and down stairs which were included within the descriptors within that activity in the All Work Test.

14.	As regards the activity of reaching in the questionnaire the claimant had ticked the box that he had no problem reaching with his arms and he informed the Tribunal that he could reach but had problems with his right arm but could put his hands above his head.  Again, therefore, I am of the view that the Tribunal was entitled to its conclusion that on his own evidence the claimant had no problems with the activity of reaching which were included within the descriptors in the All Work Test.

15.	I can ascertain no error of law in the Tribunals reasoning.  In some aspects it could, perhaps, be better expressed.  It is, however, nonetheless quite clear how the Tribunal reached the decision which it did.  It relied on the objective medical evidence and with regard to the three activities dealt with in detail above on the claimant’s own evidence.

16.	I can ascertain no error of law in the decision either as alleged by the claimant or otherwise and I therefore dismiss the appeal.

(Signed):  M F Brown

COMMISSIONER

9 January 2001