[2006] NISSCSC C9_05_06(IB) (03 July 2006)

Appeal No:  C9/05-06(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 18 March 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 18 March 2005 of an appeal tribunal sitting at Belfast.  That tribunal had disallowed the claimant’s appeal against a decision of the Department and decided that the claimant from and including 1 July 2004 failed the personal capability assessment, scoring nought on the physical descriptors and seven on the mental descriptors.  It found that from and including 1 July 2004 he was capable of work and not entitled to incapacity benefit (IB) and that grounds to supersede an earlier decision awarding IB had been established.  

2.	I held a hearing of the appeal which the claimant attended and at which he was represented by Mr McVeigh of the Citizens Advice Bureau.  Mr Hinton of Decision Making Services branch attended to represent the Department.  I am grateful to both gentlemen for their considerable assistance in this matter.  

3.	Both expressed the view that the tribunal had erred in law.  There was some degree of agreement between the two representatives as to the manner in which the tribunal had erred in law.  Both considered that there had been inadequate exploration of descriptors 15(b) and 16(a) in the personal capability assessment.  Both considered that the claimant’s evidence as regards these descriptors had been discounted without explanation and that this was an error of law.

4.	The issue of these two descriptors was raised by the claimant’s representative as recorded in the record of proceedings.  Descriptor 15(b) is within the activity “Completion of tasks”.  It reads:

	“Often sits for hours doing nothing.”
	The claimant gave evidence in the hearing that:

	“Most days – TV on and leave it on.”

	He also stated that he went out early and drank.  There was evidence in the examining doctor’s report dated 1 June 2004 in relation to this descriptor in the section of the report to do with the claimant’s description of a typical day.  The claimant is recorded as having told the doctor that he usually drank in the morning to stop the shakes and that he played music or watched TV while drinking.  He also stated that he would drink excessive amounts until he fell asleep and that he pursued no useful activities.  The tribunal concluded that the claimant did not sit for hours doing nothing.  It is apparent from the score sheet that it did not consider he satisfied that descriptor.  Other than that sheet its only referral to the matter in the reasons for decision is the sentence:

	“In other areas we found ourselves in agreement with the Decision Maker.”

	This appears to me to refer back to the Departmental decision-maker’s decision on the matter where there is no actual finding in relation to this descriptor but the personal capability assessment stencil form makes clear that there is no award in relation thereto.  The Departmental decision-maker has recorded:

“Watches TV, listens to music, sees friends, drinks, no mishaps last 12/12.  No frequent distress, no panic, disruptive behaviour.  Neatly dressed.  Lives alone. Attends to own needs.  Communication ok – sees friends/family, can go to off licence.”

5.	On the basis of the evidence in the examining doctor’s report the tribunal was certainly entitled to the conclusion that no points should be awarded for this descriptor.  The claimant at hearing had told the tribunal that most days he just put the TV on and left it on.  He stated that he would go out early and drink, he did not watch the TV, that he had it on for company and that his family looked after the house.  It has been contended to me that the tribunal did not discount the claimant’s evidence which it should have done if it was not going to award points for this descriptor.  I do not agree.  It appears to me that on the claimant’s own evidence it is highly unlikely that this descriptor could be satisfied.  It appears that the claimant began to drink early in the day and drank continuously.  He appears to have told the examining doctor that he would drink himself to sleep and this appears to have been repeated to the tribunal where he stated:

	“Drink and sleep.  Go out early and drink.”

	On that basis I do not consider that there was any evidence of the claimant’s which had to be rejected by the tribunal.  Indeed the claimant’s own evidence of drinking most of the day would of itself bring him outside that descriptor.  Drinking as the claimant did is certainly not a useful activity but it is an activity.  The descriptor appears to relate to claimants who due to mental disablement often carry out no activity whatsoever (with the implied exception of involuntary bodily activities eg breathing) for hours at a time. I do not consider that the tribunal erred in concluding that the descriptor was not satisfied in this case.

6.	As regards 16(a), this reads:

	“Needs encouragement to get up and dress.”

	The descriptor was also specifically put in issue by the claimant’s representative.  At hearing the only evidence which I can trace as being relevant to this descriptor is as follows:

	“Rising – I have had to really struggle last 4 days.
	When normal self I don’t get out of them.”

	I take this to mean that he did not get out of his night clothes ie get dressed.  The evidence to the examining doctor had been that the claimant lived alone and woke at varying times and usually drank in the morning to stop the shakes and would play music and watch TV while drinking alcohol.  There was also evidence that his brother or sister might bring round a cooked meal.  The doctor observed that the claimant rose at variable times and lived alone and that there was no encouragement given to get up and dress.  He was noted to be neatly dressed at examination.

7.	Apart from the score sheet, the tribunal’s findings in relation to that matter again are non-specific and included in the phrase:

	“In other areas we found ourselves in agreement with the Decision Maker.”

	The decision-maker had noted that the claimant lived on his own and attended to his own needs. I do consider that the tribunal should have made findings as to whether or not it accepted the claimant’s evidence in relation to not getting out of his night clothing.  This is an error of law, though of itself it might not have been enough to vitiate the decision.  However, I consider that there is another error of law.  

8.	This error is in relation to descriptor 15(e) which reads:

“Mental condition prevents him from undertaking leisure activities previously enjoyed.”

	The tribunal removed the point in relation to this on the basis that although the medical officer considered that he had ceased to fish because of his mental health problems the tribunal “felt his interests had changed rather than he gave up due to mental health problems.”  I can find no exploration of this matter by the tribunal.  The implication is that the tribunal found that the claimant’s sole interest was in the drinking of alcohol.  This appears to be the very disease from which he suffers and if that has led to an inability to undertake a previous hobby as opposed to a lack of desire to do so then that is a matter which could earn a point under descriptor 15(e).  The tribunal reasoning is inadequate with regard to this matter.

9.	Because of the above mentioned errors of law I set aside the decision of the tribunal.

10.	I do not consider that this is a case where I can give the decision which the tribunal should have given and I therefore remit the matter to a differently constituted tribunal.  That tribunal will, hopefully, have assistance from someone from Mr McVeigh’s organisation who can indicate precisely what descriptors are in issue.  The tribunal should indicate clearly its exploration of these issues and its findings in relation thereto.  

11.	As regards two other issues which arose in the course of the submissions to me, in light of the above it is not strictly necessary that I decide thereon. However I have received observations on each so I give some guidance in the hope that it will be of assistance.  The first issue is as to the interpretation and application of descriptor 16(c) which reads:

	“Is frequently distressed at some time of the day due to fluctuation of mood.”

	This is a descriptor within the activity:

	“Daily Living”

	The tribunal had found that the claimant’s distress came from the situation regarding his children rather than from fluctuation of mood.  It appears that there were access problems and some disharmony between the claimant and his former partner which led to his not having what he considered to be sufficient access to his children and that this caused him some distress.  To begin with the disability must come from a mental disablement or disease (regulation 25(3) of the Social Security (Incapacity for Work) (General) Regulations 1995).  It must also be due to fluctuation of mood.  The verb “to fluctuate” is defined in Collins English Dictionary as meaning:

	“to change or cause to change position constantly”; or

	“to rise and fall like a wave.”

	This appears to me, while I would not wish to substitute my own words for those of the legislation, to relate to distress coming from something akin to mood swings which occur due to illness.  It does not relate to distress which arises from external circumstances and not from fluctuation of mood due to mental disability.  It is a matter for the tribunal as the fact finding body to determine whether a claimant suffers from fluctuation of mood due to a mental disability and this fluctuation produces distress.  It is also for the fact finding body to determine whether this distress is of sufficient frequency.  Provided its conclusions on these matters are reasonable on the accepted evidence they should not be disturbed by an appellate body.

12.	The second issue which arose was as to the interaction between descriptor 16(c) and descriptor 18(d).  The latter descriptor reads:

	“Gets irritated by things that would not have bothered him before he became ill.”

	In the submissions it appeared to me that there was some suggestion that irritation and distress were linked concepts.  At hearing both representatives accepted that the two descriptors were quite separate in concept, albeit both were of the view that descriptor 18(d) could encompass a wider range of circumstances than descriptor 16(c).  In relation to descriptor 18(d) it is worth noting that again it relates to increase in irritation brought about by a mental disability.  Otherwise the activity and consequently the relevant descriptor would not apply.  It is therefore increased irritation brought about by a mental disablement that is relevant.  Everyone feels more irritable at times than others and there are certain things which are apt to produce irritation in everyone.  It is again a matter for the fact finding body to reach its conclusion as to whether or not any accepted increased irritation is as a result of the mental disablement or of external factors not related thereto.  It is also obvious that distress and irritation are by no means identical concepts.  The dictionary referred to above defines “distress” as “mental pain or anguish” and defines the verb to “irritate” as “to annoy or to anger”.  These are quite obviously different concepts though they may of course be present at the same time.  The distress must, however, come from fluctuation of mood and from a mental disablement and the irritability must also come from a mental disablement and must be greater than would have been present before the relevant person became ill.

13.	I set the tribunal’s decision aside for the reasons given above and remit it to a differently constituted tribunal for rehearing.  As this matter has been going on for some considerable time it would be helpful if the Tribunal Appeals Service would list it for hearing with some degree of urgency.

(signed):  M F Brown 

Commissioner

3 July 2006