Decision No:  C1/09-10(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 24 June 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the unanimous decision of the tribunal, affirming the decision of the decision-maker, to the effect that the claimant was not incapable of work in accordance with the personal capability assessment (and therefore is not entitled to credits on the basis of ongoing incapacity for work) from and including 15 January 2008.

2.	Leave to appeal was granted by a Commissioner on 10 June 2009 for the following reasons:

“It is arguable that the decision was wrong in law, because –

(i)	the tribunal has failed to explain adequately which evidence it accepted or rejected and in addition which evidence it preferred;

(ii)	the tribunal failed to take into account that a bottle of vodka in the fridge is capable of amounting to motivation to get up and dress in relation to descriptor 16(a).”

3.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

4.	The claimant is represented by Mr Gerard O’Neill, Citizens Advice Bureau, Banbridge, while Mr John Kirk of Decision Making Services has represented the Department. 

5.	The claimant became unfit for work on 1 March 2005 and claimed incapacity benefit (IB) from that date by reason of alcoholism and depression.  The personal capability assessment applied from 1 March 2005.  As the claimant was not entitled to IB – as he did not satisfy the contribution conditions for the receipt of that benefit – he was awarded, instead, a national insurance contribution credit for each complete week that he was incapable of work.  After an earlier finding that the claimant was incapable of work in accordance with the personal capability assessment, the claimant was reassessed and on 15 January 2008 a decision was made superseding the award, giving entitlement to incapacity credits on the grounds that the claimant was not incapable of work in accordance with the personal capability assessment and was not, therefore, entitled to credits on the basis of ongoing incapacity for work from and including 15 January 2008.  The claimant appealed.  The decision was looked at again but was affirmed.  Thereupon the claimant appealed.  

6.	On appeal the tribunal gave the following reasons for its decision:

“The Appellant disputed mental health descriptors having been awarded 7 points in the Personal Capability Assessment and sitting in the physical descriptors.

The points were 15e, 16b. c, e, 17a ands [sic]18d.

At the outset Mrs Brown [the Departmental Officer] disputed the award of 16b, and 16c and stated that 17a should be 17f.

The Appellant lives alone in a private rented house he is separated from his wife and has access to his children.  He drinks regularly and has been abstinant [sic] on occasions of 5/6 weeks.  He spends a lot of time in bed and drinks with friends.  He eats carry outs at the time of the medical examination.  He had been off drink for 4 weeks.  He lost his last job through alcohol.  He can be bad tempered.  He denied going out but had told the Doctor that he went out to the pub and grocery shopping.  The Tribunal found that the account given to the Doctor on examination was accurate.  The Tribunal found that the Appellants [sic] inactive lifestyle was as a result of his own personal choice although we did find that he does go out more than claimed.  We accepted the examining doctors [sic] assessment that the Appellant had given eye contact and report, [sic] no cognitive impairment and no signs of anxiety.

The Tribunal decided that the points for 16b and c should remain 16b because there have been regular relapses when alcohol has been needed before midday and 16c because there is evidence of mood fluctuation.  We found that 17f is appropriate rather than 17a as the Appellant stopped work because he left his job due to alcohol.  We were satisfied that the Appellant has day time sleep problems.  We also found that he could be irritated.

The Tribunal considered all the other areas of mental health and did not find that any additional points should be awarded.

The Tribunal found that there is no evidence of any difficulty with sitting and no award was appropriate.  The decision is therefore that the appeal is disallowed.”

7.	In this case the relevant test that decides whether the claimant is entitled to IB is the personal capability assessment (see part III of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995).  The assessment is applied by measuring prescribed activities using descriptors which, when given the relevant numerical scoring value, 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.  Accordingly in the present case, in light of the total score of seven points all for physical disability descriptors, the tribunal held that the claimant failed the personal capability assessment from and including 15 January 2008 and was not entitled to IB from that date.

8.	The reasons for granting leave to appeal set out at paragraph 2 adequately set out the appropriate grounds of appeal in this case.

9.	In relation to the first ground both Mr O’Neill and Mr Kirk agree that the tribunal has erred in this respect, namely, that the tribunal has failed to explain adequately which evidence it accepted or rejected and, in addition, which evidence it preferred.  Mr O’Neill has referred to the fact that letters were submitted by the claimant from his GP and psychiatrist.  While these letters are mentioned in the documents listed as being considered by the tribunal, there is no reference to them in the reasons for decision.  Accordingly Mr O’Neill has contended that the reasons for decision are unclear as to whether the tribunal ascribed any weight to those documents or whether it accepted or rejected those pieces of evidence.  Consequently he submitted that the tribunal has erred in law by failing to explain adequately its decision.

10.	These documents were potentially relevant to the issues in this case.  It is not necessary, in my view, to set out the details of the letters but, suffice to say, they deal with matters that are relevant to the issues in the case, as they refer to matters such as (i) the claimant’s incapacity, particularly his symptoms of low mood, constant fatigue and poor sleep, (ii) the fact that the claimant finds normal activities associated with daily living to be difficult and constantly requires motivation, and (iii) problems with agoraphobia.

11.	As Mr Kirk has pointed out, it may well be the case that the tribunal did not place any weight on the letters and, therefore, rejected this evidence, or on the other hand, felt that as the letters post-dated the decision under appeal, it could or should not take them into account.  However, either way the tribunal should have made clear whether it accepted, rejected or preferred other evidence.

12.	Both advocates submitted that the tribunal erred in law by not so doing.  Mr Kirk also relied specifically on paragraph 54 of the decision of Mr Commissioner Mullan in C16/08-09(DLA) where he stated as follows:

“Nonetheless, there is a clear duty on appeal tribunals to undertake a rigorous assessment of all the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.”

13.	Mr Kirk also conceded that although the letters post-dated the decision that was under appeal, it may well be the case that the evidence contained within the letters was pertinent to the date of the decision that was subject to the appeal and, therefore, the tribunal could have taken these matters into account in determining the appeal.

14.	 I conclude that Mr O’Neill and Mr Kirk are correct in their submissions.  Accordingly, I find that the statement of reasons produced by the tribunal does not explain adequately the tribunal’s decision in the respects set out above and, accordingly, I hold that the tribunal has erred in law.

15.	The second ground of appeal concerns the issue whether or not the tribunal erred in law, when dealing with descriptor 16(a), by failing to take into account that a bottle of vodka in the refrigerator was capable of amounting to motivation to get up and dress.  Mr O’Neill was realistic enough, when making his submission before the tribunal, to realise that this point was somewhat ‘tenuous’.

16.	Descriptor 16(a) concerns mental disabilities and, in particular, comes under the activity of Daily Living.  The descriptor is in the following terms:

“16(a) Needs encouragement to get up and dress.”

	If applicable, two points are awarded under the personal capability assessment.

17.	Mr O’Neill has relied on the fact that the word ‘encouragement’ ultimately comes from the French word ‘corage’ which is literally defined as ‘courage’.  He submitted that courage need not be provided by another human being and, therefore, the legislation should be interpreted widely enough to encompass such situations as an alcoholic getting up with the sole purpose of obtaining a drink.  Accordingly it was incumbent upon the tribunal to deal with the issue of the existence of a bottle of vodka in the refrigerator being capable of amounting to motivation to get up and dress.

18.	Mr Kirk emphasised in his submissions that the word ‘needs’ in descriptor 16(a) requires an element of necessity or compulsion.  He relied on the statement of Mrs Commissioner Brown in R1/00(IB) when considering the meaning of the word ‘needs’ in relation to descriptor 16(b) (needs alcohol before midday), where she stated at paragraph 10:

“While many may like a drink before midday this is not per se indicative of any functional limitation nor any disablement or illness.  Obviously what the descriptor is aimed at are persons who are alcoholic and who do not have their alcoholic desires under any sort of reasonable control so that they are compelled or obliged to drink before midday.  I therefore share the views of the Great Britain Commissioner in CIB/17254/1996 when he states – ‘The fact that a person wishes for something does not mean that he has a need for it.  A person may wish to own a Rolls Royce, but it does not follow that he has a need for a Rolls Royce.  Although the claimant may well like a drink before midday, it is clear that he is able to resist the temptation to have one, and in so doing he shows that there is no need for him to have a drink.”

19.	In relation to the meaning of the word ‘encouragement’ Mr Kirk has submitted that there must be an element of another person, as opposed to an object, being involved in offering encouragement.  In addition Mr Kirk has made the point that, whilst desire for alcohol may motivate the claimant to get up, there would be no specific need for him to get dressed in order to avail himself of such alcohol.  Also Mr Kirk has submitted that descriptor 16(b), also potentially awarding two points, is the relevant legislation for alcohol need.  This descriptor is in the following terms:

“16(b) Needs alcohol before midday”

	If it had been the intention of the legislature to permit the mere existence of alcohol to be a factor when considering whether a person needs encouragement to get up and get dressed, it would have been made clear by using a different wording in this descriptor or a separate descriptor would have been created for such a dependency on alcohol.

20.	While I accept that Mr O’Neill’s submissions on this point are ingenious, I find that I cannot accept them.  In my view encouragement must come from a person rather than through the agency of the existence of something such as a bottle of vodka in a refrigerator.  Otherwise, in my view, I would be extending the meaning of the words ‘needs encouragement’ beyond their natural meaning.  ‘Need’ for alcohol has been dealt with by descriptor 16(b) and, in my view, should not be linked with descriptor 16(a).  By attempting so to do, Mr O’Neill has been trying to put a square peg into a round hole.  It is a courageous submission but one grounded on little merit.  Accordingly I accept Mr Kirk’s submissions and conclude that the tribunal has not erred in law as contended.

21.	In any event, even if the claimant got the extra two points under the personal capability assessment for descriptor 16(a), the extra two points that would have been given would still have resulted in the claimant being below the relevant threshold of 10 points required to pass the assessment.  Therefore, in any event, the claimant’s position could not have been improved even if I had overruled the tribunal on this point.

22.	An additional point arises.  In the reasons for its decision the tribunal has stated that the claimant has satisfied descriptor 17(f) (Is scared or anxious that work would bring back or worsen his illness).  However, in the score sheet attached to its decision, the tribunal has indicated that the claimant satisfied descriptor 17(a).  The relevant score for 17(f) is one point while the relevant score for 17(a) is two points.  The points awarded in the score sheet reflect the relevant points for 17(f), namely two.  Therefore it is relatively clear to me that the error is no more than a slip of the pen which would equate to an accidental error as opposed to an error in law.  Accordingly in my view in the present case it is not an error of any substance.

23.	Nevertheless for the reasons stated at paragraphs 9 to 14 herein, I allow the appeal, set aside the decision and refer the case to a freshly constituted tribunal to re-decide the appeal.  This tribunal should bear in mind what I have stated in this decision when deciding the appeal.

(signed):  J A H Martin QC

Chief Commissioner

24 November 2009