PLH                                                                          Commissioner's File:  CIB 3069/04

	SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  		Incapacity Benefit
Appeal Tribunal: 		York 
Tribunal Case Ref:  	U/01/009/2004/00274
Tribunal date:		21 July 2004
Reasons issued:		30 July 2004

     1.     	This claimant’s appeal must be dismissed, as in my judgment there was no material error of law in the decision of the York appeal tribunal on 21 July 2004  to confirm the determination of the Secretary of State that he was no longer to be treated as incapable of work for the purpose of incapacity credits from 4 March 2004.
     2.     	The claimant is a man aged 44, who had been accepted as incapable of work on the ground of back pain and sciatica from which he suffers, for a continuous period from 7 March 1998.  It appears that the question of his capacity had already been reconsidered once, in May 2002, when a medical examination was carried out and the claimant was accepted as continuing to count as incapable.  The appeal to the tribunal arose out of a further reconsideration of his case in early 2004 when after the claimant had completed an incapacity questionnaire he was sent for another medical examination which took place on 11 February 2004.  On this occasion this examining doctor assessed him as qualifying for only 9 points on the descriptor scales, well short of the incapacity threshold of 15 on the personal capability assessment, and a decision was given by an officer on behalf of the Secretary of State on 4 March 2004, superseding the previous determination and pronouncing him capable of work from that date.  There is no room for any dispute that the fresh medical assessment for the PCA was a proper occasion for the question of his capacity for work to be reconsidered.
     3.     	The tribunal which dealt with the case on the 21 July 2004 consisted of a legal chairman and a medical expert member. They heard detailed evidence from the claimant himself as to the effect of his back problems in particular on the left side of his body, giving him quite serious pain at the bottom of his back, which shoots both downwards all the way down his left leg and upwards in his left arm, especially on bad days so that both his leg and arm feel numb and he is unable to lift anything because he finds it impossible to grip, and it causes him agonising pain to raise that arm above the shoulder.  
     4.     	The tribunal’s assessment of the evidence focused on the activities of sitting, rising, standing, walking and going up and down stairs.  These were the five the claimant had specifically indicated on his appeal form as the ones on which he disagreed with the Secretary of State’s assessment and wished to have reconsidered on appeal:  see page 2.  The tribunal’s decision on these was to confirm the relevant descriptors as selected by the Secretary of State, with the exception of that for rising from sitting, where the tribunal substituted an award of 3 points (instead of none), accepting the claimant’s evidence that on days when his back was worse and his left leg was affected, he would need to hold on when rising from a chair.  That gave him a total of 12 points (as against the Secretary of State’s 9) but still not enough to qualify him as incapable of work, with the result that the Secretary of State’s decision on incapacity was confirmed.
     5.     	In these incapacity cases questions such as whether a claimant cannot sit comfortably for more than 30 minutes in a chair because of discomfort (which scores 7 points) or can manage more than 30 minutes but less than an hour (which only scores 3) are very much matters of fact and degree for the tribunal hearing and seeing the evidence to assess; and since the tribunal includes an expert medical member and is experienced at hearing evidence and determining such questions in similar cases, there will rarely be any valid ground for its decision on that kind of question to be disputed or set aside on appeal under section 14 Social Security Act 1998 which is limited to questions of law.  
     6.     	In the present case, the tribunal’s contemporaneous record of proceedings and statement of reasons issued to the parties on 30 July 2004 show that all of the evidence was given careful consideration and that on each of the activity descriptors the claimant had put in issue on the appeal, the tribunal gave a decision which was a proper and reasonable one having regard to the evidence and supplied an adequate explanation of the grounds for reaching it.  In his notice of appeal dated 23 August 2004 at pages 59-65 the claimant himself does not in fact seek to take issue with the tribunal’s findings on any of those descriptors.  The sole ground he puts forward for his appeal, and the only reason I granted leave for it to be pursued, is the complaint at pages 60-61 that the tribunal had wrongly failed to address a material issue: namely whether, given that all the other difficulties with his back and particularly his left arm were accepted as genuine by the tribunal which they were, that did not also raise a case that had to be considered on whether some points were also merited for “lifting and carrying”.  In his words: 
“The tribunal agreed I had problems with the sitting, standing, bending and kneeling, rising from sitting.  I feel that it makes sense that I would have problems with lifting and carrying, and had this issue been discussed I would have been awarded points accordingly”.  
     7.     	Having now had the opportunity of considering this point more fully with the assistance of the submission on behalf of the Secretary of State by Ms Jane Clark dated 17 October 2004 at pages 78-79, I am satisfied that the tribunal’s decision cannot be said to have been erroneous in law for not having addressed this point expressly, or not making an award of additional points for one of the lifting and carrying descriptors.   In the first place, as Ms Clark’s submission points out, the claimant himself in his notice of appeal to the tribunal had not listed “lifting and carrying” among the activities where he wanted the Secretary of State’s assessment reconsidered on appeal.  I do not wish to be taken as saying that this is a sufficient answer to the appeal by itself: as the tribunal is an inquisitorial body, what a claimant happens to mention on his or her appeal form should never be taken as the be-all and end-all of what the appeal is really about.  Every tribunal and Commissioner must have seen cases where points that clearly do require to be addressed identify themselves in the light of the evidence as it emerges, whether or not at an earlier stage the claimant or any one else has actually asked the tribunal to do so.  
     8.     	However, this was not in my judgment such a case. The claimant has very properly and straightforwardly made clear throughout that his back pain and sciatica affect primarily his left arm and the left side of his body.  There was no suggestion or evidence before the tribunal that the difficulties with numbness, shooting pain and loss of grip he described extended to both sides of his body, or made it impossible to pick things up with his right hand and right arm instead.  All his evidence at the tribunal summarised above about the restriction on his lifting ability due to the pain in his back and limbs related to the left side of his body, and as he said himself in the questionnaire at page 12 his left arm was the one he had problems with.  He also specifically said that he could carry a weight of 5 pounds with his right hand for 200 yards, and ticked the descriptor indicating that while he could not pick up and carry a 2.5 kg bag of potatoes with one hand, he could with the other.  The appropriate descriptor for that degree of disability of one side of the body only for the “lifting and carrying” activity is number 8f and the score for it is no points, which is the only score the tribunal could have possibly awarded on that activity had they expressly referred to it.  That being the claimant’s own clear evidence and the descriptor score being apparently undisputed by him, it was in my view quite reasonable for the tribunal to take the view that they did not need to make any express reference to it. Even if their omission to do that might arguably be accounted a defect, it was one that could not have made any practical difference to their decision.
     9.     	For those reasons, I do not consider that there was any error on the part of the tribunal such that I have any power to set aside their decision on a question of law.  In those circumstances I dismiss the appeal and I also decline the claimant’s request in his observations in reply dated 23 October 2004 at pages 91-92 for an oral hearing of the appeal before me.  It is quite plain that the points he would wish to advance are solely concerned with the facts of his case, and to clear up any misunderstanding about them which he thinks must have arisen by the inclusion in the appeal bundle at pages 80-84 of a copy of the decision given by a deputy Commissioner on another claimant’s case, which he thinks must have been confused with his.  In fact that copy decision had been included in the bundle for a different purpose as it was referred to in the Secretary of State’s submission to illustrate a point of principle involved in the “lifting and carrying” descriptor; and it has not been necessary for me to refer to the facts of that other case at all.  Having gone through the record of proceedings and statement of reasons at the tribunal that did consider this claimant’s case at York on 21 July 2004 I am quite satisfied that there was no material confusion and that all the relevant facts about him were carefully and properly taken into account, so that an oral hearing to explain the factual differences between that other case and this one is not needed.
     10.     	The appeal is dismissed accordingly.

(Signed)

P L Howell
Commissioner
14 December 2004