Decision No: C2/03-04(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 13 December 2002

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by the Legally Qualified Panel Member, by the claimant against the decision dated 13 December 2002 of an Appeal Tribunal sitting at Belfast.  That Tribunal had disallowed the claimant’s appeal against a decision of the Department superseding an award of incapacity benefit (IB).  The grounds for supersession were that the Department had made a determination that the claimant was no longer incapable of work following receipt of medical evidence under regulation 8 of the Social Security (Incapacity for Work) Regulations (Northern Ireland) 1999.  It was not in dispute that the relevant medical evidence had been received and the relevant determination made.  In effect, as it was not contended that the claimant’s capacity for work was to be determined other than under the personal capability assessment, the only issue which the Tribunal had to decide was whether or not as at 16 September 2002 the claimant was incapable of work according to that assessment.  The Department’s decision was dated 16 December 2002.

2.	None of the physical descriptors were an issue in the case and the only descriptors which the Tribunal had to consider were under the mental health descriptors.  The claimant attended the hearing before the Tribunal at which she was represented by Mr Gibson of the Citizens Advice Bureau who has also represented her in the appeal to me.  In the appeal to me the Department has been represented by Mr Toner of the Decision Making and Appeal Unit.  I am obliged to both gentlemen for their considerable assistance in the case.

3.	At the hearing before the Tribunal Mr Gibson stated that there were only two issues to put before the Tribunal.  He stated that these were that the claimant satisfied the “Completion of tasks” descriptor 15(f) and the “Coping with pressure” descriptor 17(c).  The Tribunal considered these descriptors but also considered other mental health descriptors and in particular descriptor 16(c) in the activity of “daily living”.  It decided she should not be awarded points for that descriptor.  The Tribunal disallowed the appeal deciding that the claimant did not satisfy the personal capability assessment.

4.	I held an oral hearing of the appeal which the claimant did not attend (I was informed by Mr Gibson that she had another commitment) and which Mr Gibson and Mr Toner attended.  The grounds of appeal, as comprised in the OSSC1 form and pursued at hearing were, firstly, that the Tribunal had erred in its application of descriptor 15(f) in that it did not adequately investigate this descriptor.  Descriptor 15(f) is a descriptor within the activity “Completion of tasks” and reads as follows: - 

“Overlooks or forgets the risk posed by domestic appliances or other common hazards due to poor concentration.”  

Mr Gibson submitted that the Tribunal had reasoned that descriptor 15(f) was not satisfied because evidence given by the appellant of leaving the grill on was stated as:-

“being due to distraction or doing something else – TV, mentioned. - At the same time that grill is on rather than a mental reason within mental descriptor.”

Mr Gibson submitted that the distraction referred to by the Tribunal was a manifestation of the claimant’s poor concentration and was a mental reason which satisfied the descriptor.  He contended that the Tribunal should have more fully investigated the matter and in particular should have investigated whether there were any incidences pre-illness of the claimant having been distracted by TV, etc.  In reply to questions based on the record of  proceedings Mr Gibson stated that the claimant had been questioned on this matter and had replied: -

“I did not normally do these”.

Mr Gibson submitted that it was a common thing for people to multi-task and that those without mental health problems could watch TV and remember that they were cooking at the same time.

5.	In relation to this ground Mr Toner stated that his problem was with the reasoning.  He considered that the Tribunal accepted that there was a mental illness and accepted also that the claimant had at times left the grill on. He considered that on the evidence the conclusion that the distraction did not amount to a loss of concentration within the descriptor was one which was open to the Tribunal.  However, he would have preferred fuller reasoning.  For example, Mr Toner submitted that if the Tribunal had said that there was no mental health reason for the leaving of the grill on, simply that other things had taken up the claimant’s mind this might have been enough.  In response to my question, as to whether or not this was in fact what the Tribunal had said, Mr Toner stated that he found the reasoning unclear in that he was not certain whether that was actually what the Tribunal was saying or not.

6.	Mr Toner also made reference to descriptor 15(g).  This descriptor reads as follows: -

“Agitation, confusion or forgetfulness has resulted in potentially dangerous accidents in the three months before the day in respect of which it falls to be determined whether he is incapable of work for the purposes of entitlement to any benefit, allowance or advantage.”

Mr Toner submitted that the Tribunal had covered both descriptors 15(f) and (g) and that the incident, described by the claimant of meat boiling dry had happened outside the time limit in descriptor 15(g).  He nonetheless, as mentioned earlier, found himself to be puzzled as to the Tribunal’s reasoning.

7.	The second ground of appeal related to descriptor 16(c) which reads as follows: -

	“Is frequently distressed at some time of the day due to fluctuation of mood.”

Mr Gibson submitted that the Tribunal only had two descriptors put to it.  These did not include descriptor 16 (c) which was raised by the Tribunal.  He conceded that the descriptor had been read to the appellant as had her answer, but he considered that the Tribunal should have looked at all the mental health descriptors if it was going to reopen one of them.  It should not have just picked out one.  He submitted also that the investigation of this descriptor should have been fuller and submitted that perhaps the claimant had not understood what was meant by “distress” and what might satisfy the descriptor.  In response to my questions as to the Tribunal having asked the claimant as to the effect of her being distressed and her having stated that she felt tired and slept during the day, Mr Gibson submitted that tiredness would not necessarily tie in with being distressed.  He submitted that perhaps the claimant had not been prepared to be asked about this descriptor.  Mr Gibson did concede that the Tribunal, in light of what had been recorded in the Examining Doctor’s report was entitled to consider descriptor 16(c), the Examining Doctor having simply described her mood as being up and down and that she found that medication helped.  

8.	I shall deal firstly with the second ground of appeal.  I consider that it does not have any merit.  The Tribunal has an inquisitorial role.  This role is often exercised in favour of a claimant but it can also be exercised where the Tribunal considers that the claimant does not satisfy a descriptor for which points have been awarded by the Department.  It is not for one of the parties to limit the Tribunal’s discretion. In this case there was an obvious question over the awarding of points in relation to descriptor 16(c) and I consider that the Tribunal was entitled to investigate whether or not this descriptor was satisfied.  I also consider that the Tribunal, in quoting the descriptor to the claimant and the answers which she had given to the Examining Doctor in relation thereto and questioning her on the descriptor, was indicating quite clearly that it was considering the said descriptor.  The claimant was accompanied by an experienced representative and I can ascertain no natural justice point arising therefrom.  I also agree with Mr Toner in that the Tribunal was quite entitled to reach the conclusion that the claimant did not satisfy the descriptor on the basis of the evidence which she gave to it.  

9.	As regards the first ground – that related to descriptor 15(f).  I have found this a finely balanced decision.  I do not consider that the Tribunal erred in its reasoning in relation to this descriptor.  It has clearly set out that it did not believe that any mental health problem was the origin of the overlooking or forgetting of any hazards but rather going and doing something else.  It is important, in this connection, to look at the legislation.  That indicates that only functional limitations coming from a specific disease or bodily or mental disablement can be taken into consideration (regulation 24).  It appears quite clear to me that the Tribunal in this case did not consider that the instances of overlooking or forgetting risks posed by domestic appliances or other common hazards were due to the claimant’s mental health problems.  Everyone is guilty of forgetfulness or of carelessness at some time and the mere existence of instances when this has occurred, even where mental illness is also present, is not necessarily going to satisfy the descriptor 15(f).  It is important to note that the overlooking or forgetting must come from poor concentration.  This appears to me to entail some impairment of the ability to come to a single purpose or aim, bearing in mind that it is part of the activity of  “Completion of tasks”.  Unlike the forgetfulness mentioned in descriptor 15(g), the forgetting or risks descriptor 15(f) can only be taken into account if it has a particular origin, i.e. poor concentration.  This appears to me to indicate some sort of mental state where a claimant is incapable of focusing on the task in hand and thus overlooks and forgets risks posed by domestic appliances and other common hazards.  The underlying origin must of course be mental illness or disablement.  It does not include the ordinary carelessness or lapse of concentration induced by deciding to do two or more things at once where there is no impairment of the ability to concentrate but a mere lapse because too many tasks are undertaken.  Nor does it include simply allowing one’s attention to wander where one’s ability to concentrate is not impaired.

10.	On very fine balance, however, I do agree with Mr Gibson that there should have been some further questioning on this matter.  Descriptor 15(f) was expressly raised at hearing as relevant by the claimant.  She should have been asked about her general state of mind, if there had been any other instances of overlooking domestic hazards, as to  comparison between the state of her concentration prior to and post her illness, etc.  

11.	I do consider that the Tribunal erred in not investigating this matter adequately.  Had it done so it could also have clarified the somewhat strange replies noted in relation to enquiries on previous incidences of overlooking domestic risks and in relation to distress.

12.	I set the decision aside as in error of law.  I do not consider that this is a case where I can give the decision which the Tribunal should have given.  As requested by Mr Toner and Mr Gibson I remit the matter to a differently constituted Tribunal for rehearing.  The claimant should be aware that any descriptor may be reopened by that Tribunal and should be in a position to deal with this matter.  My remitting the matter does not give any indication as to the final outcome of the appeal.  

(Signed):  M F Brown
 
COMMISSIONER

28 November 2003