[1997] UKSSCSC CIB_1665_1997 (12 December 1997)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CIB/1665/1997

SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL FROM THE SOCIAL SECURITY APPEAL TRIBUNAL UPON A
QUESTION OF LAW

DEPUTY COMMISSIONER: A J GAMBLE

Appellant:                               Respondent: 
Tribunal: 			Tribunal Case No:

DECISION OF SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the Doncaster social security appeal tribunal of 26 November 1996 is erroneous in law.  I set it aside and remit the case to a freshly constituted social security appeal tribunal, sitting with a medical assessor, for redetermination.

2. The claimant has been incapable of work since 22 September 1993.  On 13 April 1995, when incapacity benefit replaced invalidity benefit she was a recipient of invalidity benefit.  By virtue of regulation 17(1) of the Incapacity Benefit (Transitional Regulations) 1995 the claimant's award of invalidity benefit was converted into to one of long-term incapacity benefit.  However, under section I71C(1) read along with section 171B(3) of the Social Security Contributions and Benefits Act 1992, as applied to the claimant by regulation 17(2) of the said regulations, she was subject to the all work test of incapacity for work as from 13 April 1995.  By virtue of regulation 3 1 (1) and (2) of the said regulations she did not actually have to satisfy that test until it was applied to her so long as medical certificates of incapacity were supplied.  An all work test questionnaire was sent out to the claimant and this was returned to the Department of Social Security along with an MED 4 form from her GP.  The questionnaire and the MED 4 were received by the Department on 3 January 1996.  On 6 March 1996 the claimant received a BAMS medical examination for the purposes of the all work test.  On receipt of the report of that examination, an adjudication officer awarded the claimant only 3 points for physical descriptors and zero points for mental descriptors under the said test.  The 3 points were awarded for the physical activity of sitting.  He thus held that the claimant had failed to satisfy the said test and that her entitlement to incapacity benefit fell to be reviewed and revised as from 13 March 1996 so that the claimant was not entitled to that benefit from that date.

3 . The claimant appealed against that decision to the tribunal.  The tribunal also reached the conclusion that she did not satisfy the all work test.  However they reached that conclusion on a different basis from that used by the adjudication officer.  The tribunal awarded the claimant a net total of 9 points for physical descriptors under the all work test.  Three points each were awarded for walking, walking up and down stairs, standing and bending and kneeling (double counting of the pointage for walking and walking up and down stairs is not permitted, given the terms of regulation 26(2) of the Incapacity for Work (General) Regulations 1995.) The tribunal took a different view in regard to the physical activity of sitting from the adjudication officer and awarded the claimant zero points for that activity.  The' claimant now appeals with leave of the tribunal chairman.  Her appeal is supported by the adjudication officer now concerned.

4.	The adjudication officer took his decision in this case under regulation 17(4) of the Claims and Pavments Regulations 1987.  I accept the submission of the adjudication officer now concerned, based upon the decision of the Tribunal of Commissioners in CSIS/137/94, that the tribunal did not err in law in accepting the formal validity of the adjudication officer's decision.  I consider that use of the said provision does not per se invalidate an adjudication officer's decision provided there exist actual grounds of review under any of the provisions of section 25 of the Social Security Administration Act 1992. 1 further hold that in this case there were actual grounds of review under section 25(1)(b) of the said Act ie a relevant change of circumstances.  I identify that as being the imposition on the claimant of the all work test as from 13 April 1995 and her failure to satisfy that test in the view of the adjudication officer as from 13 March 1996.

5.	The gist of the claimant's appeal to the Commissioner as laid out on documents 81 and 83 relates to the tribunal's assessment of her limitations in the physical activity of sitting.  No finding of fact is recorded in regard to sitting in the findings of fact made by the tribunal as laid out in box 2 on documents 76 and 77. I note in passing that much of what the tribunal have recorded as "findings of fact" are not truly such.  Rather they are merely narrations of evidence, oral or written, given to the tribunal.  It is the duty of a tribunal to make specific focused findings of fact stating what they themselves consider, on balance of probabilities the facts to be rather than merely rehearsing evidence presented to them.  It is for the tribunal to draw conclusions from the evidence and these conclusions, whether of primary or secondary fact, should be recorded by the tribunal as their findings of fact.  Here the first 4 paragraphs on page 77 are merely a potted summary of what was recorded by the BAMS doctor following his medical examination and interview of the claimant.  They are certainly not independent findings of fact.  Nor do the tribunal state in terms that they adopt them as their own.  In fairness I should state that the last 2 paragraphs in the findings of fact recorded on page 77 are much better expressed and are cast in appropriate terms although they could have been more focused on relevant descriptors.  The matter of sitting is actually dealt with as part of the reasons for decision on page 78.  The tribunal expressed themselves thus on that question:-

"With regard to sitting, it is clear that [the claimant] was uncomfortable for part of the time today but she has sat for one and a quarter hours without actually having to rise from her chair which we think is descriptor 3(e) and scores no points."

Although this statement is placed in the reasons for decision, I am prepared to accept that it is effectively a finding of fact or at least includes one.  Clearly it forms the basis of the tribunal's decision on the matter of sitting.  In it the tribunal indicate why they chose the descriptor which they did for this physical activity and why in particular they awarded zero points for descriptor 3(e) when on the one hand the claimant had previously been awarded 3 points for descriptor 3(d) by the adjudication officer and on the other it was the claimant's position that she should be awarded 7 points under deseriptor 3(c). (See document 65).

6.	I hold that the tribunal erred in law in their assessment of the poifitage for sitting.  I accept the submission of the claimant, largely supported by the adjudication officer now concerned, that the tribunal have by the statement cited above laid an inadequate foundation for the decision which they reached on that question.  The stated reason indicates that the tribunal based their conclusion on sitting wholly on their observation of the claimant at the tribunal hearing which they record in that reason.  I hold that a tribunal dealing with a case relating to the all work test can make use of ocular observation of the claimant.  Such a tribunal is in the same position as regards this matter as a disability appeal tribunal where it has been held in CDLA/21/94 paragraph 5 and CSDLA/169/94 paragraphs 23 and 24 that such observation can be used as part of the overall evidence in deciding a case.  There is no objection, therefore, per se to the tribunal using ocular observation.  However the use of such observation, according to the cases just cited is subject to certain qualifications.  In paragraph 5 of CDLA/21/94 Commissioner Skinner put matters like this:-

"It seems to me that a tribunal are entitled to have regard to what they see provide that the weight to be accorded to it is considered carefully."

In CSDLA/169/94, paragraph 23, Commissioner Walker puts matters thus:-

"A disability appeal tribunal is quite entitled to use any material they have observed about the claimant within the tribunal room when coming to their decision.  My only qualification would be that they must express what they observed in their findings or reasons and must take it within the context of the evidence as a whole bearing in mind both that they have seen the individual only for what amounts to a snap-shot of his experience. They must also bear in mind such other factors as the circumstances of the hearing and the possible consequences thereof upon a claimant and any explanations such as fluctuations of ability spoken to in the evidence."

I hold that the tribunal have not demonstrated that these necessary qualifications on the use of ocular observation have been considered by them.  This is important because the warning of the danger of a snap shot approach is especially apt in a case involving the all work test.  Ocular observation was only one aspect of several pieces of evidence presented to the tribunal on the matter of sitting.  The tribunal had before them on that question the following pieces of evidence viz statements in the all work test questionnaire (document 4), the clinical history taken by the BAMS doctor (document 26), his assessment of the function of sitting (document 27), the GP's letter at document 64, written evidence from the claimant's representative on document 65, oral evidence from the claimant herself recorded in the handwritten note of evidence from the bottom of page 72 to approximately the middle of page 73 and a brief comment in oral evidence made by her partner as recorded in the middle of the handwritten note of evidence at page 73.  It is clearly the duty of a social security appeal tribunal to decide a case on the basis of all of the evidence before it.  By focusing exclusively on their observation in their recorded statement on the matter of sitting, the tribunal have not shown that they have taken proper account of all the evidence presented to them on that question.  In particular they have given no explanation as to why they have placed so much weight as they did on their observation especially given that the conclusion drawn from that observation differed from the whole tenor of most of the rest of the evidence.  For the avoidance of doubt, I specifically hold that the information contained on page 65 was presented as evidence from the claimant's representative and should have been treated as such and not merely regarded as ex-parte statements made by him.  The terms in which the information is cast clearly indicated that it was intended to be a statement of his own observation of the claimant e.g. at prior interviews.  Thus it should have been considered as evidence, for what it was worth.  It would also have been better in these circumstances had the tribunal seen fit to lead oral evidence briefly from him on these points.  Further it would have been much better, for reasons of fairness, had the tribunal put the question of their observation of the claimant to her in the course of the hearing given that they were obviously placing so much emphasis upon it.  There is no record that they did so.  The statement made in regard to sitting is further flawed by reason of the principle in RA(1/72).  That decision lays down that a claimant is entitled to know why his evidence failed to satisfy a tribunal. Here, as just mentioned, there was a considerable body of evidence on the question of sitting which was presented by the claimant or was to some extent favourable to her interest.  The tribunal have not clearly explained why that evidence was not accepted.  They have not even stated that they preferred their ocular observation to that evidence.  This is left as a matter of inference only.  The claimant was entitled to an adequate explanation as to why the observation had so much weight placed upon it and why the rest of the information before the tribunal was discounted in the light of it.  She did not receive it.  It seems to me that this is all the more important given that the tribunal in the first paragraph at the top of page 78 described the claimant and her partner as "good witnesses".  The claimant and her partner may then understandably ask why their evidence in regard to sitting was not accepted and conclusions drawn from a snap-shot observation were preferred.  No answer is forthcoming from the tribunal.  Finally the statement in regard to sitting is also inadequate in that it does not clearly relate the observation, such as it was, to the precise activity prescribed in respect of sitting in Schedule I of the Incapacity for Work (General) Regulations 1995 ie "sitting in an upright chair with a back, but no arms." I follow CSIB/12/96, paragraph 5 on that matter.  The tribunal do not record on what kind of chair the claimant sat during the tribunal hearing.  It may well have been the case that that chair had arms.  If so the claimant may well have been able to sit somewhat longer in such a chair than she would have been able to in the hypothetical chair specified in the prescription of the physical activity of sitting.  Further the statement made by the tribunal states that the claimant was "uncomfortable for part of the time" but did not actually have to rise.  She may in other circumstances have had to rise but may have felt that it was impolite for her to rise in the course of the tribunal hearing or to seek to do so.  Indeed she may not have known that it was possible for her to ask permission to rise.  Again this underlines that it is the best practice if a tribunal intend to lay emphasis on observation to put their comments thereon to the claimant so that he or she can respond.  It further underlines the necessary restrictions on how much use can be made of observation by a tribunal.  For all these reasons therefore I satisfied that the tribunal erred in law in their treatment of sitting in this case.

7.	I direct the new tribunal to deal with the case as follows:-

(a)	They should accept the formal validity of the adjudication officer's decision for the reasons given in paragraph 4 above/

(b)	They should remember that the adjudication officer bears the onus of proof in this case given that it is an appeal against a review decision (see R(S)3/90, paragraph 6.)

(c)	They should establish on the basis of all the evidence presented to them oral and written which physical activities are relevant to the claimant's situation and under each relevant activity which is the appropriate descriptor. In reaching that decision they should follow the approach of reasonableness laid down in CIB/13161/96 and CIB/13508/96 especially paragraphs 39 and 41. I direct that a copy of that decision should be made available to the new tribunal in the tribunal papers.  The tribunal should apply the test of whether it is reasonable for the claimant to be expected to perform the relevant functions under any physical descriptor for most of the time.            They should then aggregate the score for all descriptors selected by them as appropriate for the purposes of regulation 25 of the Incapacity for Work (General) Regulations 1995.

(d)	Having regard to the decision of the Tribunal of Commissioners in CS/12054/96, CIB/14430/96 and CIS/120151/96 and the common Appendix there to, they should carry out the above assessment not only as at the date of the adjudication officer's decision but also down to the date of the rehearing before them, taking account in particular of any deterioration in the claimant's condition.  I direct that the decision of the Tribunal of Commissioners just referred to, including the common Appendix, be supplied with the tribunal papers to the new tribunal.  In the event that the claimant has made a fresh claim for incapacity benefit which has been adjudicated upon the tribunal should only deal with matters down to the date immediately before the date of such adjudication and not down to the date of the rehearing.

8.	The claimant's appeal is successful.  My decision is given in paragraph 1. and my directions to the new tribunal are given in paragraph 7.

(signed)
A J GAMBLE
Deputy Commissioner
Date:	12 December 1997