DGRISH/10

Commissioner's File:          CIB/14587/1996

SOCIAL SECURITY ADMINISTRATION ACT 1992
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the social security appeal tribunal given on 26 April 1996 is erroneous in point of law, and accordingly I set it aside.  I direct that the appeal be reheard by a differently constituted tribunal, who will have regard to the matters mentioned below.

2.	This is an appeal by the claimant, brought with the leave of a Commissioner, against the decision of the social security appeal tribunal of 26 April 1996.  In view of the fact that I was not persuaded by the written submissions of the adjudication officer now concerned, I directed an oral hearing in order to have the benefit of argument.  At that hearing the claimant, who was present, was represented by Mr Jan Luba of Counsel, whilst the adjudication officer appeared by Mr S Sriskandarajah of the Solicitor's Office of the Department of Social Security.

3.	The question for determination by the tribunal was whether the claimant was able to satisfy the "All Work Test" i.e. to show that he was incapable of all work.  In order to succeed, he had to qualify for 15 points, as provided for in the Schedule to the Social Security (Incapacity for Work) (General)    Regulations 1995    1995    No    3111.         The adjudication officer had not been prepared to award any points, but although on appeal the tribunal accepted that the claimant scored 14 points, this was not enough to satisfy the All Work Test, with the result that the claimant could not be regarded as incapable of work.

4.	The particular activities which were in issue in this
case were "bending and kneeling". The BAMS doctor who

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examined the claimant, whilst accepting that the claimant had 1. a constant ache in neck and between shoulder blades.  This pain is worse with activity eg. after housework.  Does not take analgesics" was satisfied that the claimant had "no problem with bending and kneeling".  He observed that the claimant did all his housework and still played pool, that he was able to get on and off the couch easily, that he was able to touch his toes when standing, and was able to kneel.

5.	On the other hand, the claimant contended that he did
have difficulties bending and kneeling.  Thus, he wrote on 17 May 1995:-

"The longer I have to bend the more pain and discomfort I get in my neck and back."

and

I can get severe pains in my neck and back if I bend over for any length of time

The claimant also relied on the statement on form IB85 dated 18 September 1995 where the EMO recorded as follows:-

",The pain in the neck is present nearly all the time. it becomes worse with activity eg. bending and kneeling or lifting heavy objects".

In his appeal to the tribunal the claimant wrote on 6 October 1995 as follows:-

I get pains in my neck and back especially if I am bending over reading or writing.  The pains in my neck and back build up and get unbearable.

2..... I can bend or kneel but the longer or more often I have to bend the worse the pains in my neck and back become.  I have problems after doing my housework, dishes, ironing etc.  The pains build up gradually then I have to go and get private treatment every 6 weeks."

Further, at the tribunal hearing the claimant, in answer to a question about his capacity to bend or kneel, said "yes, but
not repeatedly". 	Mr Luba contended that the tribunal had
either failed to	take into account the claimant's evidence, or
if they did, had failed to explain why they rejected it.

6.	I think there is force in Mr Luba's contention.  It may well be that the tribunal took the view that the BAMS doctor was both medically informed and disinterested, and that his evidence should be preferred to that of the claimant.  But if that was their view, then they should have said so.  Alternatively, if they simply disbelieved the claimant, again

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they should have so stated.  The claimant should not have been left in the dark as to why he had failed.

7.	It follows from what has been said above that I must set aside the tribunals decision, and direct that the appeal be reheard by a differently constituted tribunal.  However, before leaving this matter, I think it would be desirable if I gave the new tribunal some guidance as to how they should approach the appeal.  There would seem to be no doubt that the claimant is capable of bending and kneeling.  However, can he do so without discomfort, and can he do so with reasonable frequency?  For I do not think that it is enough to treat him as capable of bending or kneeling if he can only do so subject to excruciating agony or, if having bent or knelt once, he is unable to repeat the exercise for hours or days thereafter.  It is all a matter of degree.  Can he bend and kneel without, at least too much discomfort, and can he repeat the exercise within a reasonable time.  In other words, can he in the general sense of the word, in the course of his normal everyday activities, be said to be capable of bending and kneeling?  It will be a matter for the tribunal to determine.

8.	However, I stress that they will decide this issue from
the standpoint of normal everyday living.  I make the point, because Mr Luba contended that the capacity to bend and kneel should be judged in a "work context".  He argued that the underlying purpose of the test was to judge the claimant's capacity for work, and it was in this context that the matter should be determined.  In support of this contention Mr Luba
drew	to my attention the forms devised by the DSS.  He pointed
out	that the instructions to claimants for filling up
form	IB50 contained, inter alia, the following:-

“Your answers on this form will help us to get a clear picture of how your illness or disability affects your ability to work [my emphasis]."

He also cited what was said at page 89 of the "Medical
Services Incapacity Benefit Handbook for Medical Services
Doctors".  Paragraph 17 reads as follows:-

"There will be instances where the client can carry out an activity, but the action promotes moderate pain.  Consider whether the client could carry out such an action reliably, safely and repeatedly in the work-place [my emphasis] . Reasonable risk cannot be ignored, and if, for example, the client would be at risk of falls when climbing stairs, this should be taken into account."

Mr Luba contended that the language employed above suggested that the assessment of the claimant's physical capacity was to be undertaken   in   a   work   environment.   reject    that
submission.

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·	The "All Work Test"' consists of a variety of tests as to
a claimant's physical capacity under various heads.  Shortcomings will result in the award of points, and if the claimant obtains 15 points or more, he will have satisfied the "All Work Test,"' and will be deemed to have demonstrated his incapacity for all forms of work.  But these individual tests relate to the claimant's capacity to carry out ordinary functions in every-day life.  They are a convenient means of assessing the claimant's physical condition, on the basis of which he can, depending on the results, be treated as either capable or incapable of work.  The individual tests are not themselves to be evaluated on the basis that, at the time they are applied, the claimant is deemed to be at work, and subject to the normal demands of his employment.  Thus, his ability to bend or kneel will not be subject to the requirements and pressure incidental to employment; it will be adjudged by reference to the nominal needs of every-day living at home.

10.	I find support for the above interpretation of the ambit of the "All Work Test" in what was said by the Chief Commissioner of Northern Ireland in paragraph 6 of CI/95(1B)

“...... The tribunal had also been wrong to have regard to the fact that some of the descriptors might in their view relate to a working situation.  The intention had been to select activities of an ordinary every day kind, which could be easily understood.  Any reference to a working situation was accordingly inappropriate."

11.	I find further support for my interpretation from what was said in paragraph 33 of CIB/13161/96 and CIB/13508/96, where the Commissioner said as follows:-

"While the heading to the Schedule and its legislative context identify its sole reason for existing as being to test for disablement from work, the 14 activities themselves are specified in entirely general terms.  They consist of things like walking, sitting, standing, bending, lifting, reaching and so forth that are in no way restricted to a work situation.  The descriptors too refer only to common place situations in daily life such as turning the knob on a cooker, using a pen or carrying a carton of milk or a bag of potatoes, and are obviously intended to reflect a measurement of only the most basic physical and manual skills.  There is no indication or apparent scope for any separate or more substantive enquiry into how far a claimant's condition has really depleted his working skills or whether those he has left are saleable in any real sense to an employer."

12.	It should also be mentioned that if a claimant's capacity to carry out the activities appearing in the Schedule were to be evaluated in a "work context", difficulty would arise in

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determining which was the particular work context applicable to the claimant in question.  What form of employment was he expected to undertake, on the basis of which the tests were to be judged? In my view, this kind of difficulty has been deliberately side-stepped by requiring the tests to be evaluated from	the standpoint of general every-day living.

13.	Accordingly, when the new tribunal come to consider whether or not the claimant in this present case can be awarded points under the activity ""bending and kneeling", they will not consider the matter in a "work context".  They will adjudge the relevant activities in the normal context of every-day life at home.  The claimant will ensure that he presents to the new tribunal whatever evidence he wishes to rely upon.  In his submissions to me, Mr Luba suggested that at the hearing before the tribunal of 26 April 1996 the claimant was under the impression that the tribunal were seised of all the earlier medical reports brought into existence to enable the claimant's earlier claim for invalidity benefit to be determined.  The claimant must make no assumptions, but present to the new tribunal whatever evidence he wishes to rely on, and the new tribunal will decide the matter solely on the evidence all before them.  For completeness, I should also mention that the fact that the claimant previously received invalidity benefit, and does not see how his condition has changed, is totally irrelevant in deciding whether or not he satisfies the "All Work Test".  Incapacity benefit is a wholly different benefit from invalidity benefit.

14.	If the claimant contends that he is entitled to points under any other head than "bending and kneeling", eg.  "lifting and carrying"', he will be at liberty to try to persuade the new tribunal to make appropriate awards.

15.	I allow this appeal.

(Signed)	D G RICE Commissioner

(Date)      U L 1997

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