Appeal No: C29/01-02(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 15 November 2000

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant (leave having been granted by myself) against a Tribunal decision dated 15 November 2000.  The claimant’s grounds of appeal were contained in an OSSC1(NI) form dated 9 May 2001.  These grounds were that, based on the available evidence, the Tribunal could have awarded points on descriptors 15(e), 17(a) and 18(f) of the Personal Capability Assessment.  Secondly, its explanations for not so doing were inadequate and consequently the reasons for the decision were inadequate.  Throughout the appeal to me the claimant has been represented by Miss Loughrey of the Law Centre (NI).

2.	I granted leave on 6 February 2002 and cited as my reasons for so doing that arguable issues appeared to arise as to the application of descriptor 15(e) and 17(a) of the Personal Capability Assessment, as to the effect of the work which the claimant was doing on any determination on her capacity to work and on the application of Regulation 27 of the Incapacity for Work (General) Regulations (Northern Ireland) 1995.  Descriptors 15(e) and 17(a) and 18(f) are all contained in the Mental Health part of the Personal Capability Assessment.  Descriptor 15(e) is “Mental condition prevents him from undertaking leisure activities previously enjoyed.”  Descriptor 17(a) is “Mental stress was a factor in making him stop work” Descriptor 18(f) is “Is too frightened to go out alone.”

3.	The Department made observations on the appeal by letter dated 13 March 2002 from Mr Toner of the Decision Making and Appeals Unit.  Mr Toner opposed the appeal.  He submitted that the Tribunal had been entitled not to award a point in relation to descriptor 15(e) –

“Mental condition prevents her from undertaking leisure activities previously enjoyed”.

 Mr Toner submitted that the evidence which the claimant gave to the Tribunal was that she had given up swimming as she only went swimming if someone came with her.  Her sister was not available to accompany her now and she was too anxious to go swimming alone.  On the basis of this evidence Mr Toner concluded that the claimant would be capable of undertaking activities if someone was available to accompany her and he submitted that the Tribunal was entitled not to award a point in respect of the descriptor.

4.	As regards descriptor 17(a), Mr Toner referred to the report of the Medical Support Services (MSS) Doctor dated 2 August 2000, that the claimant had given up work in 1996, prior to taking ill, due to her employer not paying her enough.  This, he submitted, was in keeping with the evidence given by the claimant to the Tribunal that she had given up her earlier job as a beauty therapist as it was paying only £2 an hour.  In Mr Toner’s submission the reasons for the decision showed that the Tribunal, as it was entitled to do, accepted the assessment of the MSS Doctor.  He made this submission not withstanding that there was what he described as a “puzzling entry” in the evidence given to the Tribunal under descriptor 17(a) regarding the claimant having done temporary work in “Boots Chemists in 1998”, given that the claim for benefit had been in existence since 13 February 1997.  I deal later with Miss Loughrey’s comments on this temporary work.

5.	As regards descriptor 18(f) Mr Toner submitted that the claimant had, in her questionnaire, completed on 8 April 2000 made reference to having been confined to her home for approximately a year, to not being able to travel on her own, to not being able to travel on buses and to a time when she was not able to go out and shop for her needs.  She also indicated that she could undertake the 2 minute walk to her part-time job.  In box 56 of the MSS dated 2 August 2001 Doctor’s report, it was recorded that the claimant would go to work alone or go alone to visit relatives who lived close by but would not travel long distances alone.  The Tribunal, while not specifically recording that it had taken evidence under descriptor 18(f) had taken evidence that the claimant attended her General Practitioner alone.  (It is worthy to note that the claimant also gave evidence to the Tribunal that she could go shopping alone).  Mr Toner submitted that while it would have been preferable for the Tribunal to have recorded the evidence it took in respect of descriptor 18(f) such an omission was not an error of law.  The Tribunal was entitled to accept the assessment of the MSS Doctor when giving its decision and this it had clearly done.  He therefore opposed this ground of the application.

6.	As regards whether or not the Tribunal erred in not considering the effect of the work which the claimant was doing, Mr Toner submitted that, as the claimant had failed to satisfy the Personal Capability Assessment, the question of treating the work which she had undertaken (some 13 hours per week) as exempt under Regulations 16(1)(a) and 17(1)(a)(i) of the Incapacity for Work (General) Regulations (Northern Ireland) 1995 did not arise and the Tribunal did not err in not considering the effect of the work on the determination of capacity for work in the Personal Capability Assessment.

7.	As regards whether or not the Tribunal erred in not considering the application of Regulation 27 of the said Regulations, Mr Toner referred to decision R4/01(IB) and submitted that it was a condition of that Regulation that there be in existence medical evidence as to the requirement for a major surgical operation to be carried out within 3 months of the date of the MSS examination.  He submitted further that the decision was authority for the proposition that the medical evidence must have existed on the date the Decision Maker made the decision under appeal and if it did not exist then Regulation 27(2)(a) and (c) had no application.  He submitted therefore that had the Tribunal considered Regulation 27 it would have to have decided that because medical evidence of a major surgical operation did not exist at the date of the decision under appeal and Regulation 27 could have no application.  Accordingly any omission to consider it did not amount to an error of law on the part of the Tribunal.

8.	In her further submissions dated 11 April 2002 Miss Loughrey submitted that the claimant’s inability to maintain swimming as a leisure activity derived primarily from her need to be accompanied by reason of her mental illness rather than her choosing to be accompanied to the places where the activity would be performed.  She submitted further that it was necessary to consider the activity previously enjoyed.  A leisure activity such as swimming necessitated a person leaving home and entering a public place such as a leisure centre.  Therefore the claimant’s main disabling condition, i.e. anxiety with, by her own assessment, agoraphobic tendencies was her primary reason for being unable to undertake the leisure activity of swimming which was the activity in question in this case.  Miss Loughrey therefore submitted that the Tribunal should have offered the claimant an explanation for why it decided that descriptor 15(e) was not relevant and in failing to do so it had erred in law.

9.	As regards the application of descriptor 17(a) Miss Loughrey stated to me that she had taken instructions as to the situation in December 1998 as regards the evidence of working in Boots.  She was instructed that the claimant had given up work in Boots in 1996.  The work in 1998 had been when the claimant started work in a factory but due to illness had to give it up after one week and reclaim benefit.

10.	Miss Loughrey referred to decision CIB/2213/1999, a decision of Commissioner Jacobs in Great Britain.  Commissioner Jacobs had held that a correct interpretation of descriptor 17(a) was that stress need only be a factor in the stopping work, it need not be the sole factor.  Miss Loughrey submitted that, in her questionnaire, the claimant had explained how anxiety/depression began to seriously affect her when she was 15 years old and appeared to have recurred during 1996-1997.  As that period coincided with the time when she left work and her date of claim (13 February 1997) Miss Loughrey submitted that stress may have been another factor in making her stop work.

11.	As regards the effect of the work which the claimant was doing, Miss Loughrey agreed with Mr Toner that, once a person was found to not satisfy the Personal Capacity Assessment, the issue of exempt work, within Regulation 17(1)(a) ceased to be relevant.  She submitted however that, in deciding whether someone satisfied the said Assessment, the Tribunal had to consider all the circumstances in a case and in this case the Tribunal should have taken into account the fact that the claimant was engaged in exempt work and how her participation in that work affected her.

12.	As regards Regulation 27 of the said Regulations Miss Loughrey submitted that there was evidence before the Tribunal in the form of the IB85 Medical Report dated 2 August 2000 that the claimant was awaiting surgery although a date had not yet been set.  In her further letter of appeal dated 26 September 2000 the claimant had stated that it was hoped she would be ready to undergo surgery in 3-6 months.  The Department had requested more information about her impending surgery on 2 October 2000.  Miss Loughrey, while conceding that medical evidence did not exist as to the need for surgery within 3 months of the date of the Medical Examination on 2 August 2000, submitted that the Tribunal should have considered whether Regulation 27(2)(c) had any application.  She submitted that its failure to do so was an error of law.

13.	Reasoning

I think it is important to set out here the reasons for the Tribunals decision:

“The Tribunal accept and adopt the Examining Medical Officer’s choice of descriptor in respect of the one disputed physical activity of sitting because we find it is justified by the Examining Medical Officer’s findings on clinical examination in boxes 10 and 11 of his report and secondly because the appellant confirmed in oral evidence that she has no problems sitting in an upright chair.  Furthermore we find that the Examining Medical Officer’s choice of descriptor is consistent with the appellant’s details of daily living recorded in boxes 7 and 8 including sitting to read and watch Television and in train journeys.

The Tribunal accept and adopt the Examining Medical Officer’s assessment of the mental health descriptors because we find that they are justified by the appellant’s answers and the comments recorded in the mental health section of his report.  Furthermore we find that the Examining Medical Officer’s assessment of these descriptors are consistent with the appellant’s oral evidence to the Tribunal.  The Appellant has not submitted any medical evidence which disputes the Examining Medical Officer’s assessments.

The medical evidence from her General Practitioner refers to a diagnosis of anxiety.  The Tribunal is satisfied that the Examining Medical Officer has taken this into account as indicated in particular by boxes 7, 46 and 57 of the Examining Medical Officer’s report.”

14.	It appears to me that as regards descriptor 15(e), where an issue arises as to the applicability of this descriptor, a Tribunal should ascertain what leisure activities were enjoyed prior to the onset of the relevant mental condition and whether or not the claimant was, at the time of the decision under appeal, prevented by that mental condition from undertaking those leisure activities.  “Undertaking” in this context does not appear to me to necessitate enjoyment but the taking on of the leisure activity.  I consider that certain peripheral matters, if necessary to the undertaking of the activity, may, depending on the circumstances, also be embraced in the word “undertaking”.  However, the statutory phrase does not indicate that it is necessary to have the ability to undertake the leisure activities alone or at a particular venue or in a particular manner.  Whether or not a person is prevented from undertaking a leisure activity by a mental disablement, must I think, be left to the common sense of the Tribunal as far as possible.

15.	In this particular case, on the evidence, the Tribunal does appear to have been justified in its conclusion with relation to the claimant’s activity of martial arts.  With regard to the leisure activity of swimming the claimant does not appear to have mentioned this to the Doctor at the time of the Medical Report and the evidence to the Tribunal was that she had given up swimming and went swimming only if someone came with her, that her sister was not available to accompany her now, that she was too anxious to go swimming alone and that she always preferred company.  On the basis of that evidence I do agree with Miss Loughrey that there was an issue raised which does not appear to have been properly dealt with.  The Tribunal should have explored this matter further with the claimant.  I come later to whether or not this should lead to the setting aside of the decision.

16.	As regards the application of descriptor 18(f) it does not appear to me that on the evidence before the Tribunal there was any question that descriptor 18(f) was raised or satisfied.  It is quite apparent that the claimant went out alone and with a reasonable degree of regularity.  The evidence from the claimant was that the claimant went alone to the shop where she worked which she said was 2 or 3 minutes walk from her home, that she went to a local shop for specific items (but went with her mother to the supermarket when she needed more provisions) that she attended her General Practitioner alone, that she could go shopping alone and could go to local shops alone if there was not a long queue.  Against that background I do not consider that there was any possibility that the claimant fulfilled descriptor 18(f), i.e. that she was too frightened to go out alone.  I therefore do not consider that the issue of this descriptor was raised to the Tribunal and the Tribunal’s reasoning appears to me to be perfectly adequate with relation to that descriptor.

17.	As regards descriptor 17(a) – “Mental stress was a factor in making him stop work”, it appears to me that on the basis of the claimant’s evidence to the Tribunal – that she had been laid off by Boots in December 1998 with no reason being given by the firm and that she had given up her earlier job as a beauty therapist because the pay was too low, no issue was raised that mental stress had been an operative factor in the claimant giving up work.  Even if it had been taken that the job in Boots in December 1998 was the relevant job it did not appear from the evidence to the Tribunal that the claimant stopped work because of any mental condition.  She had stated that she was anxious and didn’t want extra hours which Boots wanted her to work.  However, on the evidence, there was no indication that she was not able to fulfil the contract which she had with them.  She did not give up the job, her job was temporary, other temporary workers were laid off after her and Boots did the laying off and did not say why.  This does not indicate that any mental condition played a part in her giving up work.  Against that background it does not appear to me that descriptor 17(a) was properly in issue before the Tribunal and I do consider that the Tribunal’s reasoning was adequate to cover it.  The Tribunal has adopted the Examining Medical Officer’s assessment in relation to this matter and it is perfectly clear why it would do so and that reasoning is itself quite clear.  With regard to that descriptor the reasoning is that the claimant had given up work due to the work not paying enough.  I can find no error of law in this respect.

18.	As regards the application of Regulation 17, I am unable to determine on the basis of the evidence before me whether the claimant was engaged in exempt work as defined in Regulation 17.  If the work was in fact exempt work, once the claimant was found not to satisfy the Personal Capability Test the fact that she did this work would be irrelevant, though her ability to perform the work and the activities it entailed could be relevant to whether or not she satisfied the test.  I can find no indication that the Tribunal excluded the claimant’s ability to cope with the work in the shoe shop from its considerations.  Indeed it has adopted, with regard to the mental health descriptors, the reasoning of the Examining Doctor and he has specifically included this work as part of his reasoning.  I can find no error in this respect.

19.	As regards application of Regulation 27(1)(c) this provides that a person who is not incapable of work in accordance with the Personal Capability Assessment Test shall be treated as incapable of work if:

“There exists medical evidence that he requires a major surgical operation or other major therapeutic procedure and it is likely that that operation or procedure will be carried out within three months of the date of a medical examination carried out for the purposes of the Personal Capability Assessment”.

It is particularly relevant in relation to this case that the Examining Doctor on 2 August 2000 (this being the medical examination for purposes of the said Assessment) made reference to the claimant awaiting possible breast surgery but no date had been set.  It is also relevant that in her letter of 4 October 2000 the claimant stated that she hoped to be ready for plastic surgery around December 2000 or January 2001 with the endometriosis operation shortly afterwards.  Against that background there does not appear to be any issue raised that it was likely that the claimant would have any operation or surgical procedure within 3 months of the said medical examination.  Even on the claimant’s most optimistic estimate the earliest date would be in December 2001 which was more than 3 months after the examination.  As the issue does not appear to have been raised by the claimant and is not clearly apparent on the evidence I can find no inadequacy of reasoning in relation thereto.

      20.	I do not consider that the Tribunal’s error indicated above renders it’s decision in error of law.  The Tribunal decided, in my view correctly, that the claimant scored insufficient points to satisfy the Personal Capability Assessment which it considered (again correctly, in my view) was applicable in her case.  Even had the claimant been awarded a further point for satisfaction of descriptor 15(e) this would still not have led to her satisfaction of the test.  The Tribunal’s error does not therefore vitiate it’s decision and the appeal is dismissed.

	M F Brown

	COMMISSIONER

	17 JUNE 2002