Decision No:  C13/08-09(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 21 October 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of the legally qualified member granted on 22 February 2009, against a decision of the appeal tribunal whereby it was held that the claimant had failed the personal capability assessment and is therefore not entitled to incapacity benefit (IB) from and including 14 February 2008.  The decision of the tribunal affirmed the decision of the decision-maker made on 14 February 2008.

2.	Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

3.	The claimant has been represented by Mr Roddy of Omagh Independent Advice Services while the Department has been represented by Mr Collins of Decision Making Services.

4.	In this case the relevant test that decides whether the claimant is entitled to incapacity benefit is the personal capability assessment (see part III of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995).  The Assessment is applied by measuring prescribed activities using descriptions which, when given the relevant numerical scoring value, 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.

5.	The claimant was in receipt of IB when her capacity for work was reassessed.  After all the relevant available evidence was examined, the Department decided that the claimant scored zero points and therefore was not incapable of work in accordance with the personal capability assessment.  Accordingly the decision awarding IB was superseded on 14 February 2008.  Therefore she was not entitled to IB from and including that date.  The claimant then appealed.  The decision of 14 February 2008 was looked at again but on 28 April 2008 it was decided that the decision should stand.

6.	On appeal, the tribunal awarded the claimant nine points for the physical disability descriptors.  Accordingly, under the regulations, the claimant failed the personal capability assessment.

7.	The claimant sought leave to appeal to a Commissioner and such leave was granted.

8.	The main issue in the case is whether or not the tribunal erred in its choice of descriptor, given its acceptance of the claimant’s evidence in relation to her ability to bend and kneel.  In relation to the activity ‘bending and kneeling’, three points are awarded if a claimant “sometimes cannot either, bend or kneel, or bend and kneel as if to pick up a piece of paper from the floor and straighten up again” (descriptor 6(c)).  In the present case the tribunal awarded three points under 6(c).  However a claimant is entitled to 15 points if he “cannot either, bend or kneel, or bend and kneel as if to pick up a piece of paper from the floor and straighten up again” (descriptor 6(b)).

9.	At the hearing the claimant told the tribunal:-

“If I bent I couldn’t have got up without holding on and try to pull myself up”.

	Indeed her representative at the hearing, Mr Roddy, observed:

“Various observations of Examining Medical Practitioner do not necessarily correlate with descriptors.  Reflux – worse on bending over”.

10.	In its statement of reasons the tribunal stated, (inter alia):-

“She said however that if she bent down she could not get up without holding on and trying to pull herself up and the panel accepted this in the light of her history of sciatica and accordingly scored her 6(c) for this descriptor”.

11.	Therefore, although the tribunal accepted the claimant’s evidence in relation to this issue, it still awarded points for descriptor 6(c) as opposed to 6(b).

12.	Both advocates have urged me to conclude that the tribunal had adopted the wrong approach or applied the wrong test and, in the circumstances, has erred in law in relation to this issue.

13.	I have no hesitation in coming to the conclusion that Mr Roddy and Mr Collins are correct in their submissions.  It is clear to me that, in light of what the tribunal accepted, it ought to have awarded 15 points to the claimant under descriptor 6(b) as the descriptor was clearly applicable in light of the tribunal’s findings.

14.	Accordingly, the decision, in my judgment, is erroneous in point of law and therefore I allow the appeal and set the tribunal’s decision aside.  In the circumstances I conclude that it is appropriate for me to exercise the power, set out in Article 15(8)(a)(i) to give the decision which I consider the tribunal should have given.  Accordingly I allow the claimant’s appeal and hold that the claimant has scored 18 points for the physical disability descriptors, namely 15 under descriptor 6(c) and three points (which were not an issue) under descriptor 2(d) in relation to walking up and down stairs.  Therefore the claimant is entitled to IB from and including 14 February 2008.

15.	There were other issues in the case which, in light of my findings on the primary point, are no longer relevant and in the circumstances it is not necessary for me to adjudicate upon them.

(signed)  J A H Martin QC

Chief Commissioner

17 November 2009