AD-v-Department for Social Development (ESA) ]2011] NICom 206
Decision No:  C5/10-11(ESA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 25 June 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 25 June 2010 is not erroneous upon a point of law.  The appeal fails.  I dismiss it.

2.	The claimant has appealed against the decision of the tribunal.  That decision disallowed her appeal and found that there were grounds to supersede the decision on employment and support allowance (ESA).  It found that the claimant did not have limited capability for work and was not entitled to the allowance from and including 12 March 2010.  The grounds of appeal are related to an assertion that the tribunal did not explain the merits of the evidence contained within the claimant’s MRI report from Mr P Nolan dated 19 April 2010 which concluded that:

“There is evidence of discovertebral degeneration maximal at C5-6 and C6-7.  At C5-6 there is associated disc protrusion centrally and to the right hand side with mass effect on the merging right sided nerve root.”

	It is asserted that this evidence supports the claimant’s condition in the ESA questionnaire that she suffers from pain in her neck and back which inhibits her movement and ability to carry out the activities in relation to standing and sitting, bending and kneeling, reaching, picking up and moving, and manual dexterity.  It is also submitted that the claimant indicated on her claim form that she required ongoing support from her physiotherapist to help manage her condition.

3.	The Department for Social Development does not support the claimant’s appeal.  In the submission from the Department it is said:

“16.	It is contended that the tribunal did not give proper consideration to the evidence contained in the MRI scan report which supports (the claimant’s) contention that she suffers from back and neck pain which inhibits her ability to carry out activities in relation to standing and sitting, bending and kneeling, reaching, picking up and moving and manual dexterity.  Entitlement to ESA is dependent upon a person having limited capability for work and … that issue is determined by assessing a person’s ability to perform prescribed physical and mental functions.  The MRI scan report describes the condition of (the claimant’s) spine but it does not contain any detail of how the noted spinal changes affected her physically or address her ability to perform the prescribed physical activities.

17.	The Tribunal considered all the evidence in the case and found that neither the clinical findings recorded by the HCP nor (the claimant’s) description of a typical day supported a significant level of disability in relation to any of the specified descriptors.  It further found that the HCP’s acceptance that there was mild restriction of forward function but that all other physical functioning was normal in keeping with the results of the MRI scan.  It is my submission that the Tribunal fully considered all the evidence in the case and that the reasons clearly show that it considered the MRI scan and that there is no merit in this point.

18.	Miss Kyne further contends that the fact that (the claimant) stated on her claim form that she received physiotherapy indicates that she requires ongoing support to manage her condition.  That may be so but as stated above entitlement of ESA is dependent on a person’s ability to perform prescribed physical and mental functions and the Tribunal found that (the claimant’s)` condition would not support a significant level of disability in relation to any of the descriptors.  I submit there is no merit in this point.”

4.	I find myself persuaded by the Department’s submission.  I would also add that it is apparent that the tribunal had regard to the MRI scan report.  It is also apparent that the tribunal did not find the claimant to be a reliable witness.  In their reasons they said:

“On consideration of all the documentation available to us, including the further evidence forwarded by (the claimant) (MRI scan report) we agree with this choice of descriptors.  Neither the clinical findings noted at examination, nor the description of daily functional ability given by (the claimant) at examination would support a significant level of disability in relation to any of the specified mental or physical functions.

The Examining Healthcare Professional accepted that there was mild restriction of forward bending but that all other physical functioning was normal.  This finding would be in keeping with the results of the MRI scan provided by (the claimant).  With regard to mental function, the Examining Healthcare Professional commented that there had been no psychiatric referral, treatment was with Tamazepam and low dose Amitriptyline to aid sleep and there was no evidence of severe mental health problems.

We accept and prefer the assessment made by the Healthcare Professional to (the claimant’s) claims.  We did not consider (the claimant’s) assessment in the questionnaire to be particularly accurate or realistic – she stated that she could only sit for “10 minutes before my back hurts and pain shoots through my arms” – yet at examination she was noted to sit “in no apparent discomfort for 34 minutes”.  Similarly, although she indicated problems with going out, concentration and propriety of behaviour in her self assessment form and letter of appeal, she confirmed at examination that she had “no concerns going out to local shops etc” that concentration was “ok” and that she “gets on well with people”.

We are satisfied that the Healthcare Professional conducted a thorough examination relevant to the Work Capability Assessment and that this provides a more accurate and objective summary of (the claimant’s) condition than her own assessment.”

5.	Assessment of evidence was a matter for the tribunal.  It is abundantly clear that the tribunal had not only made their assessment of the evidence but set out a reasoned basis for that assessment.  On the evidence accepted by them the tribunal came to a conclusion which they were entitled.  There are no grounds for the Commissioner to interfere.

(signed)  D J MAY QC

Deputy Commissioner

5 September 2011