GH-v-Department for Social Development (IB) [2010] NICom 36

Decision No:  C2/09-10(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 5 June 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with leave from the legally qualified member (LQM) granted on 5 September 2009, against the decision of the appeal tribunal, affirming the decision of the decision-maker, to the effect that the claimant is not incapable of work in accordance with the personal capability assessment and that there were grounds to supersede a decision awarding incapacity benefit (IB) from and including 4 December 2008.

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

3.	In this case the relevant test that decides whether the claimant is entitled to IB is the personal capability assessment (see Part 3 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.

4.	The claimant, an unemployed butcher, became unfit for work on 26 January 2007 and claimed and was paid IB by reason of shoulder pain, stiffness and upper/lower back pain.  Later doctor’s statements received in support of the claim referred to shoulder pain and irritable bowel syndrome.  The personal capability assessment applies from 26 January 2007.  In order to assess her capacity for work the claimant was requested to complete a questionnaire giving details of how her illness affected her ability to perform various activities.  She completed the form on 8 July 2008 and returned it.  She was examined by a medical officer of the Department on 28 October 2008.  The Department then considered all the available evidence and decided that the claimant scored 9 points and was not incapable of work in accordance with the personal capability assessment.  The decision awarding IB was superseded on 4 December 2008.  As it was held that the claimant was not incapable of work and therefore not entitled to IB from and including 4 December 2008 the claimant asked for the decision of 4 December 2008 to be looked at again.  It was looked at again but on 31 December 2008 it was decided that the decision should stand.  Thereupon the claimant appealed on 12 January 2009.  On 5 June 2009 the appeal tribunal unanimously disallowed the claimant’s appeal and, in so doing, awarded the claimant 9 points for physical health descriptors.

5.	The tribunal gave the following reasons for its decision:

“Submission considered in full.

Tab 1	Refers to shoulder pain and irritable bowel syndrome on 7.7.2008.

Tab 2	Considered in full.

Tab 3	Considered in full.

Tab 3(18)	Right shoulder abduction to 70°.  Flexed 80° but informally to 100° 110°.  No muscle wasting of shoulder muscles.

	Left shoulder normal.  Normal grip of left.  Right grip weakened.  Normal movements of elbows/wrists/hands.

Tab 3(19)	Mild-moderate right shoulder dysfunction.

Tab 3(29)	Occasional faecal incontinence owing to irritable bowel syndrome.

The General Practitioner report – dated 28.5.09 – also refers to pain in right shoulder extending down into right hand resulting in restricted movement and an inability to pull up items with the right hand and raise then above her head.  Also refers to occasional loss of bowel control owing to irritable bowel syndrome.

The Examining Medical Practitioner (Tab 3(29)) and the General Practitioner both refer to occasional incontinence owing to irritable bowel syndrome.  The appellant’s oral evidence refers to this happening 1-2 times per week.  We felt this conflicted with the objective evidence and to be exaggerated and therefore (to an extent) incredible.”

6.	The LQM made the following record of proceedings:

“Ms McCreanor
Appellant’s condition is subject to flare-ups of irritable bowel syndrome.

Appellant
It can vary.  Sometimes very constipated.  Other times I cannot hold it, and I have to carry pads.  I use a towel on bed at night.  I get pads in chemist myself.  I always have a change of underwear.  This is once per week.  If it is really bad, it could be 2 per week.  I then get a lot of constipation.

Reaching
I cannot raise my right hand above my head.

I can lift right arm to a certain level.  Then a lot of pain sets in.  I have had physiotherapy.  Stopped 6 months ago.  But physiotherapist tells me it will not work.  Acupuncture not successful either.

I don’t have great strength in my right arm.
My grip is not strong in that hand.
I can sign my name, with difficulty.

I can make toast.  I cannot butter it with right arm.  Therefore I eat it dry.  I cannot chop vegetables.  I can hold a knife but I cannot chop with it.  I eat with left hand.  Pain excruciating.  Painkillers take edge of pain only.

Grip not strong.  Cannot lift heavy things, eg 2 litre milk has to be lifted with left hand.  Could lift small carton of milk, with difficulty.

I have not received JSA or ICA since 4.12.08.”

	The tribunal noted that it considered the following documents:

“1.	Department’s submissions dated 1.2.09 and signed by M Tarbuck.

2.	Submission of Banbridge Citizens Advice Bureau dated 5.6.09.
3.	
4.	General Practitioner report dated 28.5.09.”

7.	The claimant then sought leave to appeal to a Commissioner.  Such leave was granted by the LQM on 5 June 2009.

8.	The claimant is represented by Ms Sandra McCreanor, Banbridge Citizens Advice Bureau, while the Department is represented by Mr John Kirk of Decision Making Services.  I have had the benefit of written submissions from both advocates.

9.	The grounds of appeal set out by Ms McCreanor are that the tribunal erred in law in that:

(i)	it failed to discharge its inquisitorial role in relation to its consideration of form IB50 – the incapacity for work questionnaire – and also in relation to its consideration of the extent of the variability of her condition of irritable bowel syndrome;

(ii)	the tribunal breached the claimant’s right to a fair hearing by failing to give her or her representative the opportunity to rebut the issue of credibility; and

(iii)	it failed to explain adequately how it dealt with the evidence set out in Tab 2 – the incapacity for work questionnaire – and Tab 3 – the incapacity for work medical report form – of the documents scheduled to the case.

10.	The third point made by Ms McCreanor is a very general one.  Mr Kirk supports the ground in so far as it relates to the issue of the claimant’s ability to pick up and carry a 0.5 litre of milk (descriptor 8(e)).  In the questionnaire the claimant has indicated that she “cannot pick up and carry a 0.5 litre (about one pint) carton of milk, with one hand but (she) can with the other”.  In relation to lifting, the examining medical practitioner concluded that she “cannot pick up and carry a 2.5 kg bag of potatoes with one hand but can with the other” but concluded that she could carry the carton of milk etc.  Mr Kirk submits, and in my view, correctly, that the tribunal has dealt adequately with the issue of credibility in relation to the claimant’s bowel incontinence.  However, he concedes that there is no mention as to how the tribunal has dealt with the problems that the claimant has in relation to descriptor 8(e).  It is clear that the reasons for decision reiterate the evidence contained in Tab 3 – the medical report – but it does not go far enough to deal with the claimant’s contentions in relation to descriptor 8(e).  Mr Kirk submits that the tribunal could well have found that the claimant’s evidence in relation to descriptor 8(e) is not credible.  However, he concedes that, if that is the case, it should have stated so and, in failing to do so, the decision is erroneous in law.

11.	I find, on balance, that Mr Kirk’s support of Ms McCreanor in relation to the third point is appropriate and proper.  In my view the tribunal ought to have dealt with this issue and, in failing so to do, has erred in law.

12.	However, in relation to the first point, I can see no error on the part of the tribunal in finding that the objective medical evidence only supported the conclusion that the claimant suffered from occasional incontinence.  In the circumstances, the tribunal was entitled to award nine points only for descriptor 13(e).  In addition it seems to me clear that the tribunal dealt with and took into account the incapacity for work questionnaire and the oral evidence and, in all the circumstances, was entitled to come to the conclusion to which it came in relation to the other issues in the case.

13.	In relation to the second point concerning credibility, the tribunal is entitled to come to conclusions in relation to such matters.  Findings in relation to credibility are made by tribunals in a large percentage of cases and, as Mr Kirk has pointed out, are a necessary part of a tribunal’s decision-making process consequent upon a hearing.  It is clear that the finding of lack of credibility has not been welcome to the claimant.  However, findings of this sort do not breach Article 6 of the European Convention on Human Rights – rather such findings are the natural result of a decision-making process concerning the facts made by a bench of judges or, as in this case, a tribunal consisting of more than one member.  I find no merit in this point.

14.	For the reasons stated at paragraphs 10 to 11 I conclude that the tribunal has erred in law.  Accordingly, I allow the claimant’s appeal and set aside the decision of the tribunal.  I refer the appeal back to a freshly constituted tribunal for rehearing.  However, the fact that the case has been remitted to another tribunal should not be considered as an indicator of the ultimate success of the claimant’s appeal.

(signed):  J A H Martin QC

Chief Commissioner

27 April 2010