Decision No:  C8/00-01(IB)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

		SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

	INCAPACITY BENEFIT

	Application by the claimant for leave to appeal and appeal 
	to the Social Security Commissioner on a question of law
	from Cookstown Social Security Appeal Tribunal
	dated 4 August 1999

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against a decision of the Appeal Tribunal.  The Tribunal had disallowed the claimant's appeal and decided that the claimant did not satisfy the All Work Test and accordingly could not be treated 	as incapable of work from and including 24 May 1999.

2.	I grant leave to appeal and with the consent of the claimant and Mr Fletcher, the Departmental Official now concerned with this case, I treat the application as an appeal and proceed to determine any questions arising on the application for leave as though they were questions arising on an appeal.  Having considered the circumstances of the case, I am satisfied that this application (and appeal) can properly be determined without a hearing.

3.	The claimant became unfit for work on 28 July 1997 by reason of a heart condition.  He was not entitled to Incapacity Benefit as he did not satisfy the contribution conditions for the receipt of such benefit.  Instead he was awarded a National Insurance contribution credit for each complete week in which he was incapable of work.  As he had not worked more than eight weeks in the 21 weeks before his incapacity the Adjudication Officer decided that the All Work Test was applicable and he was treated as having satisfied the test pending assessment.  In order to assess the All Work Test the claimant was required to complete the usual questionnaire giving details of how his illness affected his ability to perform various activities.  This questionnaire was completed on 10 February 1999.  He was also examined by a medical officer of the Department on 5 May 1999.  The Adjudication Officer then considered all the available evidence, applied a descriptor to each relevant activity, decided that the claimant scored three points and accordingly also decided that the claimant had failed the All Work Test.  In the circumstances the Adjudication Officer decided that the claimant was not incapable of work from and including 24 May 1999.  Accordingly the Adjudication Officer, on review, gave a revised decision for the period from and including 24 May 1999 that the claimant was capable of work.  The claimant then appealed to a Social Security Appeal Tribunal.
	
4.	The Tribunal on appeal unanimously came to the same conclusion as the Adjudication Officer and held that the claimant did not satisfy the All Work Test and accordingly was not to be treated as incapable of work from and including 24 May 1999.

5.	The claimant sought leave to appeal on the grounds that the Tribunal failed to give adequate reasons for its decisions.  However, the legally qualified member of the Tribunal refused leave to appeal on 21 January 2000.
	
6.	The claimant, who is represented by Mr P… C…, then sought the leave of a Commissioner to appeal to a Commissioner.  As stated at paragraph 1 herein, I have granted leave to appeal.
	
7.	The relevant test in this case is the All Work Test (see Part III of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995).  This test is applied by measuring prescribed activities using descriptors which have to reach a total of 15 points for physical disability descriptors, 15 for combined physical and mental disability descriptors or 10 for mental disability descriptors.  In relation to physical descriptors the Tribunal awarded three points for activity 2 "walking up and down stairs" under descriptor 2(e) - "can only walk up and down a flight of 12 stairs if he goes side ways or one step at a time."  In relation to mental disability descriptors the Tribunal awarded the claimant one point for activity 15 "completion of tasks" under descriptor 15(e) - "mental condition prevents him from undertaking leisure activities previously enjoyed", two points for activity 17 "coping with pressure" under descriptor 17(a) - "mental stress was a factor in making him stop work" and one point for activity 18 "interaction with other people" under descriptor 18(d) -"gets irritated by things that would not have bothered him before he became ill."  The Tribunal also specifically awarded the claimant zero points under activity 16 "daily living" and accordingly applied no descriptor to this activity.  As the scoring under the mental health descriptors amounted to less than six points, under regulation 26(1)(b) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 the total of four points under the mental health descriptors was disregarded.

8.	I do not consider it necessary to set out at length the findings of fact material to the Tribunal's decision, the reasons for its decision and the record of proceedings produced by the Chairman.  Suffice to say that the record of proceedings indicate that the claimant specifically raised descriptors 15(c) and (d), 16(b) and (e), 17(a) to (f) and 18(a) and (d) of part II of the schedule of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 and thus these descriptors were in contention at the hearing.  The decision also relied heavily on a stated preference for the Examining Medical Officer's assessment of functional ability.  However in its findings of facts the Tribunal made it clear that it accepted that the claimant suffered from a degree of depression and specifically decided that descriptors 15(e), 17(a) and 18(d) were appropriate scores in light of his mental health problems.  At the same time it also found that the other mental health descriptors raised by the claimant were not applicable - namely descriptors 15(c) to (d), 16(b) to (e) and 18(a).

9.	Mr Fletcher, in his written observations dated 30 March 2000 on the claimant's application for leave to appeal, submitted that the Tribunal's reasoning was defective in that it purported to rely heavily on the stated preference for the Examining Medical Officer's assessment of functional ability, whilst at the same time did not take account of the fact that the Examining Medical Officer considered that the claimant did not suffer from a mental illness and, on that basis, declined to carry out a functional assessment (box 30 of form IB85 dated 5 May 1999 makes this clear).  Mr Fletcher has submitted that, as the Tribunal took an entirely different view to that of the Examining Medical Practitioner on a fundamental issue, namely the question as to whether the claimant actually suffers from a mental disablement, it could not rely on the Examining Medical Officer's report form (IB85) as evidence to support its findings in relation to the mental health descriptors that it had rejected, namely descriptors 15(c) to (d), 16(b) to (e) and 18(a).  In the circumstances Mr Fletcher has supported the claimant's submission that the decision is erroneous in point of law on those grounds.

10.	I accept Mr Fletcher's submission that there is a fundamental defect in the Tribunal's reasoning and that in the circumstances the Tribunal has erred in law.  The Examining Medical Officer's report does not support the Tribunal's findings in relation to mental disability descriptors as the Examining Medical Practitioner in his words found "no evidence of any mental health problems from the client's history and today's examination."

11.	As the application is now being treated as if it were an appeal, I allow the appeal and specifically hold that the Tribunal's decision was erroneous in point of law and accordingly set it aside.  In the circumstances I also refer the case to a differently constituted Tribunal to rehear the case on the merits.  The allowance of this appeal should not be taken as an indication that the claimant will ultimately be successful in his appeal to the Tribunal.

(Signed): J.A H Martin QC

CHIEF COMMISSIONER

	6 June 2000