[2009] NISSCSC C4_08_09(IB) (04 March 2009) 

Decision No: C4/08-09(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 23 April 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of the legally qualified 	member (LQM) from a decision of a tribunal, affirming a decision of a 	decision-maker, to the effect that the claimant is not incapable of work in 	accordance with the personal capability assessment from and including 3 	April 2007.

2.	Having considered the circumstances of the case and any reasons put 	forward in the request for a hearing, I am satisfied that the appeal can 	properly be determined without a hearing.

3.	The claimant, through his representative Mr McLarnon, has submitted that 	the tribunal erred in law on the grounds that in reaching its decision it did 	not consider fully all of the medical evidence available to it.  The 	Department, through Mr Toner of Decision Making Services, has opposed 	the appeal.  

4.	The LQM, in granting leave to appeal on 6 August 2008, ticked a box 	stating that leave to appeal was granted.  The signing of this box 	confirmed that the LQM was “satisfied that grounds have been established 	that the decision of the tribunal is, or may be, erroneous in point of law.”  	However, in the relevant form (COMM12) there is a space for the LQM to 	insert the point of law.  Unfortunately, in this particular case no point of law 	was set out.  

5.	In the circumstances of this case I consider that it is apposite to set out the 	very detailed reasons for the tribunal’s decision.  They were as follows:

	“1.	The Claimant’s date of birth is 23.09.1966.  He became unfit 	for work on 19.09.2005, claiming Incapacity Benefit from 	06.04.2006 by reason of low back pain and subsequently 	depression also.

 	2.	The Claimant completed a questionnaire about his condition 	and returned it with a statement from his doctor on 	06.07.2006 to the Department.

 	3.	The claimant was examined by a Medical Officer of the 	Department on 05.03.2007 who recorded his clinical findings 	and observations.  The Medical Officer noted the Claimant 	had normal function in his spine and lower limbs.  He had 	normal contours of the spine and full forward and lateral 	flexion.  He was found to have full lateral rotation.  He had 	full straight leg raising left and right and normal movement of 	hips, knees and ankles.  The Medical Officer found the 	Claimant had no physical problem with the disputed activities 	of sitting, rising from sitting, bending and or kneeling, 	standing, walking and stairs.

 	4.	The said Medical Officer also found that the Claimant had 	normal function in his neck and upper limbs.

	 5.	In relation to the mental health assessment the Medical 	Officer noted the Claimant to be on Cipralex, for depression, 	prescribed 10 months previously after his father had died and 	that the medication had helped.  The Medical Officer found 	normal mental state and function and found that the Claimant 	was not clinically depressed.

 	6.	The Claimant is not receiving any psychiatric care.

 	7.	Whilst it is the Claimant’s case that he stopped driving 8 	months ago due to the effects of Cipralex we note he is on a 	10mg does which we consider to be a low maintenance does 	and are satisfied that it should not affect his ability to drive.  	We do not accept the Claimant’s evidence in this regard.

 	8.	We also considered the General Practitioner’s factual report 	dated 22.10.2007, the physiotherapy report 18.10.2007 and 	x-ray result of lumbar spine dated 26.09.2005, and letter 	regarding back classes in conjunction with the report from Dr 	Jenkins, Accredited Specialist in Occupational 	Medicine.

 	9.	We note in particular that Dr J… who examined the 	Claimant on 18.06.2006 found on physical examination, 	some restriction of movement but no neurological deficit.

	10.	Said Dr J… found the Claimant to be unfit now and in the 	foreseeable future to carry out his usual job (that of a 	builder/maintenance worker) and in particular found the 	Claimant to be unable to bend, stoop, lift and carry.

	11.	It is the Claimant’s own direct evidence that his back pain 	varies on a daily basis and we accept, on balance that 	sometimes the Claimant may have difficulty with the activity 	of bending and kneeling and we award 3 points for this 	activity.

	12.	Dr J… was of the opinion however that the Claimant 	could 	undertake other work which does not involve lifting and 	carrying, bending and stooping and we accept this finding.

	13.	With regard to the activities we are required to consider 	under the descriptor of lifting and carrying, we are satisfied, t	he Claimant could perform same.  Dr J… did not suggest 	that the Claimant had any problem with his upper body and 	we note the example the Claimant himself gave to Dr J…	in respect of carrying was in relation to the shopping.  We 	find therefore, the Claimant does not merit any points in the 	activity of lifting and carrying.

	14.	The x-ray of the Claimant’s lumbar spine confirms minor 	degenerative changes only.

	15.	The Claimant’s General Practitioner in report dated 	22.10.2007 confirms the Claimant is unable to undertake his 	normal occupation which we accept.

	16.	The Claimant did attend physiotherapy and was discharged 	on 30.10.2006 with moderate benefit being achieved.  He 	was directed into the back rehabilitation programme, which 	he completed with good effect.

	17.	Having considered all the evidence in this case, we find the 	Claimant has no significant limitations in any of the disputed 	physical activities other than in relation to the activity of 	bending and kneeling for which we accept, sometimes the 	Claimant would have a difficulty in this regard and we 	therefore award 3 points for this.  We are also satisfied, the 	Claimant has no significant limitation in relation to mental 	health and he scored 0 from mental health descriptors.

	18.	The Tribunal therefore conclude that the Claimant is not 	incapable of work; he has not scored sufficient points to 	satisfy the personal capability assessment and accordingly, 	the appeal is disallowed.”

6.	In light of the nature of the appeal I also consider it appropriate to set out 	the note taken by the LQM of the documents considered and the record of 	tribunal proceedings.  These were as follows:

		“1.	DOCUMENTS CONSIDERED:

	Written submission from Department and all documents 	attached plus further submission and all additional medical 	evidence and reports submitted on behalf of Claimant.

	 	2.	RECORD OF TRIBUNAL PROCEEDINGS …

			Presenting Officer
			Rely on submission at this stage.
		
	Claimant
	When worked for D… C…l complained about 	back 1 - 1½ 	years – job – building maintenance.  Asked to go 	and 	see Doctor – Dr J…s – he referred me for 	physiotherapy and x-rays.  Off work for a year and 	subsequently discharged.  Heavy work – labouring work.  No 	employment attempted since that time.  Referred to 	physiotherapy by General Practitioner as well.  2 courses.  	Also scan Dr G… – NILGOS – and he agreed I unfit for 	work – to do with my pension.

	Disability Living Allowance claim – was on Disability Living 	Allowance and then reapplied.  Doctor came out 2 weeks 	back, but I had a bug and that postponed.

	General Practitioner – no specialist referral.  General 	Practitioner’s physiotherapy came first.  2007 was last 	physiotherapy.  Tends to ease it a bit and gives more 	movement but it does not last.  Pains round bottom of spine –	 shooting pains down back of legs – it is a muscular type of 	thing.

	Any variation?

	Does vary throughout the day.  Morning not so bad but as 	day goes on it tends to get worse.  Don’t do a big pile about 	the house.  Can’t bend or lift.  Don’t do housework.  Most of 	time spent lying in room.  Don’t sleep that well.  Live in 	household – Wife – 2 children – 10 years and 7 years.

	I have a driving licence but I don’t drive.  Medication leaves 	me drowsy – anti-depressants leave me drowsy.  Cipralex 10 	mg.  One a day.  Wife works part time.

	Wife encourages me to get up.  Get up a while – end up 	going back.  Just don’t do a big pile.  No desire to do 	anything.  Stopped driving 8 months ago.  On and off 	Cipralex.  Now on it 7 months.

	Doctor
	Were on it at time of examination?

	Claimant
	I asked doctor to take me off it as it makes me sick.  Left dry 	mouth and upset stomach with anti-depressants.

	RECORD OF TRIBUNAL PROCEEDINGS [Continued]
	Take odd co-codamol – just as an extra – take maybe 4 a 	day.
	I have a walking stick but don’t use it.  Wife helps me.
	No Occupational Therapy assessment.
	Can use shower.  Not use a bath.  Wife helps me.  I have 	stumbled in bath.  Shower is over the bath.  
	If dropped something have pick it up.
	I would find it hard – not with great ease.  I would struggle 	with it.  I would have to steady myself.  
	Kneel down?
	Hurts my back if try to bend down.  If £10.00 note on floor – if 	tried to bend down to pick something up it would hurt me.
	Constant pain there.  Does tend to get a lot worse at end of 	day.  If up walking about affects back.  Told General 	Practitioner lie in bed all day?

	Claimant
	Yes that is where anti-depressants come in – lost my father – 	lost job and he prescribed medication.  
	What makes you stay in bed?

	Claimant
	I think it is a combination of both.
	I am going to my doctor to see if he send me on.  I have had 	depression for 2 years but have not seen anyone other than 	my doctor. 

	Presenting Officer
	Given exercises by physiotherapist?

	Claimant
	Was given exercises to do every day or 2/3 times a week.  I 	try to do them.  One or two help me but have not done them 	in a while.  Medication eases pain a wee bit.

	RECORD OF TRIBUNAL PROCEEDINGS [Continued]
	Representative
	That’s it.  His employers have deemed him unfit for work – 	fair account both physical and mental.

	Claimant
	Nothing further to say.”

7.	Although Mr McLarnon was given an opportunity to expand on his 	submissions (by being sent letters by the Office on 11 December 2008 and 	8 January 2009) he did not take the opportunity so to do.

8.	Mr Toner, by letter dated 31 October 2008, set out detailed reasons why 	he opposed the appeal.

9.	Mr Toner has demonstrated that the tribunal had sight of many documents 	relating to the claimant’s medical condition, including a report dated 26 	September 2005 to the claimant’s general practitioner (GP) notifying x-ray 	results, a letter dated 20 March 2006 from South Tyrone Hospital notifying 	the claimant that he had been referred to the Dungannon Physiotherapy 	Department, a questionnaire completed by the claimant on 6 July 2006 on 	which he assessed his ability to perform a range of physical activities, a 	letter dated 6 September 2006 from the claimant’s former employer 	notifying him that for medical reasons his employment was being 	terminated, a report dated 18 July 2006 from Dr J… MB FRCP 	FFOM 	on which the decision to terminate the claimant’s employment was 	based, 	a letter dated 8 November 2006 from South Tyrone Hospital 	concerning 	the claimant’s attendances and non-attendances at 	physiotherapy 	appointments, a report dated 5 March 2007 from a medical 	officer of the 	Department who had examined the claimant in connection 	with the 	personal capability assessment, a letter dated 22 October 2007 	from 	the claimant’s GP and an undated letter from South Tyrone Hospital 	notifying the claimant of physiotherapy appointments in November 2007 	and December 2007.

10.	It is entirely clear from the tribunal’s statement of reasons, that the tribunal 	has taken especial care (see, in particular paragraphs 6 to 18 of the 	reasons) in dealing with the medical evidence.  The statement of reasons 	demonstrates that every aspect of the claimant’s medical condition was 	looked at and the only possible blot in the tribunal’s consideration of the 	case, and, in the circumstances a blot of no relevance, is that Dr 	J… 	has been described as Dr J… throughout.

11.	It is entirely a matter for the tribunal as to what weight any particular 	evidence should be given.  I can only disturb these findings of fact if I 	come to the conclusion that no reasonable tribunal could have reached the 	conclusions to which the tribunal came.  This is now settled law, as Mr 	Toner has pointed out, because of the decision R3/04(DLA) – a decision 	which was subsequently confirmed by the Court of Appeal in Quinn v The 	Department for Social Development [2004] NICA 22.

12.	It must be borne in mind that, in this and every similar case, a tribunal is 	entitled to draw its own inferences and reach its own conclusions and, 	however profoundly a Commissioner as an appellate tribunal on an appeal 	from a tribunal on a point of law, may disagree with its views of the facts, a 	Commissioner is not able to upset that tribunal’s conclusions unless:

(a)	there is no or no sufficient evidence to found them – which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal, or

		(b)	the primary facts do not justify the inference or conclusion 				drawn but lead irresistibly to the opposite conclusion, so that 				the conclusion reached may be regarded as perverse.

	In this case I find that it would be very difficult to disagree with the 	tribunal’s inferences and conclusions.  However, even if I were in 	disagreement, that does not render the decision erroneous in point of law, 	as the tribunal’s conclusions are based, in my view, on sufficient evidence, 	its assessment of the evidence was entirely reasonable and the primary 	facts found justify the conclusion.

13.	In my view, it is unfortunate in this case that the LQM did not set out, either 	shortly or in detail, the point of law on which leave to appeal to a 	Commissioner had been granted.  In my view, it is good practice for LQMs 	to fill in form COMM12 in such a way that there is no doubt which point or 	points the LQM finds worthy of consideration.  In this particular case I have 	been unable to ascertain what point or points the LQM considered to be 	justiciable and, in the circumstances, the claimant has been given false 	hope that there was substance in his appeal.  In my view, this should not 	have happened.

14.	In the circumstances I disallow the appeal and affirm the decision of the 	tribunal.

	(Signed):  J A H Martin Q C

	CHIEF COMMISSIONER

	4 March 2009
C40809IB.JM