CIB/1690/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This appeal to the Social Security Commissioner succeeds. My decision is that the decision of the Portsmouth appeal tribunal on 16 January 2007 under reference 201/06/00591 is erroneous in point of law for the reasons given below.  I therefore set its decision aside, and, as I consider that it is appropriate for me to make fresh findings of fact in substitution for the tribunal’s assessed findings, I substitute my own decision for that of the tribunal under section 14(8)(a)(ii) of the Social Security Act 1998.  My decision is that the claimant is entitled to incapacity benefit from and including 31 July 2006 because he satisfies the personal capability assessment from this date.

2.	The claimant suffers from tenosynovitis in the left hand, wrist and forearm.  He has a fractured scaphoid bone in his left hand which is unhealed.  He also has arthritis in the left hand.  He says that these conditions cause him severe pain when he attempts to use the left hand and the wrist.  He had been in receipt of incapacity benefit from 10 July 2000.  

3.	Following a medical examination for the purposes of the personal capability assessment (“PCA”) on 24 July 2006, incapacity benefit was disallowed from and including 31 July 2006 because he did not satisfy the PCA.  On the claimant's form IB50 he scored himself in excess of 15 points in respect of certain physical activities, but, in particular, 10 points in respect of descriptor 7(e) Manual dexterity, “cannot tie a bow in laces or string”.  The medical examiner only scored the claimant 6 points in respect of descriptor 7(f).  A decision maker accepted the medical examiner's report and did not award the claimant any further points. The claimant entered an appeal.  The tribunal disallowed the appeal.

4.	The claimant now appeals the tribunal's decision with the leave of a Commissioner who gave as his reasons that it is arguable that descriptor 7(e) requires the ability to tie a useful bow in laces or string, and that in order to do so it is necessary to be able to pull with both wrists and that it is also arguable that the tribunal failed to take into account the effect of pain.  The Secretary of State’s representative supports the appeal. 

5.	In its statement of reasons for its decision, in relation to descriptor 7(e), the tribunal said, 

“On his IB50 the [claimant] had claimed he was unable to tie a bow in a piece of string which scores more points.  He said his wife tied his shoelaces.  The tribunal accepts the doctor's assessment because it is not necessary to move the wrist backwards or forwards to tie a bow and because, for a right-handed person, most of the movement to tie a bow is made by the right hand.  The string can rest over the left index finger and does not need to be gripped.  The twisting over and under is done by the right hand which then makes a loop which is pushed under the left piece of string by the right hand and the fingers of the right hand can hook the left string through to make a bow”. 

6.	The tribunal considered the actions necessary to tie a bow, but the descriptor does not test an ability to tie any bow, but a bow in laces or string.  In my judgement, although the tribunal was right to consider whether the claimant could tie shoe laces, it took too narrow a view on the actions necessary to tie a bow in laces or string because it considered finger movements only.  The final stage in the process must be that the bow, to be useful, should reasonably hold fast.  To complete this, the bow, formed by the action of the fingers, must be drawn tightly, in effect making a knot.  This involves a gripping action of one loop by the fingers of the left hand and the other loop by the fingers of the right hand and then a pulling action by both wrists.  In my view this is the case whether the bow is in shoe laces or string.  The statement of reasons does not indicate that the tribunal considered this issue.  The tribunal's findings of fact are therefore deficient and the statement of reasons is inadequate.  Accordingly the tribunal's decision must be set aside as erroneous in point of law.

7.	  Having considered all of the claimant’s evidence, I am able to make further findings of fact.  I find that the claimant cannot tie a bow in laces or string because his left wrist is too painful to enable him to satisfactorily complete the action.  He is therefore entitled to 10 points in respect of descriptor 7(e).  I also find, as did the tribunal, that the claimant cannot pick up a carton of milk with his left hand.  He therefore satisfies descriptor 8(e) and is entitled to a further 6 points, 16 points in total.  I substitute my own decision, which is given in paragraph 1, for that of the tribunal. 

                                            

                                            (signed on the original)             P J THOMAS
		Deputy Commissioner
		
		26 November 2007