Decision No: C31/02-03(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to the Social Security Commissioner
on a question of law from the decision of the Appeal Tribunal
dated 17 May 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of a Commissioner granted on 20 December 2002, against the decision of the Appeal Tribunal in which it was held that the claimant failed the Personal Capability Assessment from and including 26 November 2001 and, accordingly, was not entitled to National Insurance Contribution Credits on the basis of ongoing Incapacity For Work.

2.	Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

3.      The appellant became unfit for work on 11 August 2000 by reason of back pain.  Her employer paid her statutory sick pay from then until 6 March 2001.  From 7 March 2001 the claimant made a claim for Incapacity Benefit.  Later doctor’s statements received in support of the claim referred to back pain.  The Personal Capability Assessment applied from 7 March 2001.  The claimant was not entitled to Incapacity Benefit as she did not satisfy the contribution conditions for the receipt of that benefit.  Instead she was awarded a National Insurance Contribution Credit for each complete week that she was incapable of work.  In order to determine capacity for work the claimant was requested to complete the usual questionnaire giving details of how her illness affected her ability to perform various activities.  It seems that the claimant completed this form and returned the document.  However, as the relevant form (IB50) has apparently been mislaid by the authorities, the details of the date of the return are not known.  A medical officer of the Department also examined the claimant on 20 September 2001.  It appears that this medical report has also been mislaid by the authorities.  The Department then considered all the available evidence, including the IB50 questionnaire and the medical report, and decided that the claimant scored 9 points under the Personal Capability Assessment.  The Department therefore determined on 26 November 2001 that the claimant was not incapable of work in accordance with the Personal Capability Assessment from and including 26 November 2001 and was not entitled to credits on the basis of ongoing incapacity for work.  The claimant then appealed.  When the appeal was received in the Department on 14 December 2001, in the circumstances, the decision of 26 November 2001 was looked at again but on 21 March 2002 it was decided that the decision should stand.   

4.	In this case the relevant test that decides whether the claimant is entitled to National Insurance Contribution Credits 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.  In the present case there was no issue in relation to mental disability.  Accordingly the relevant threshold score was 15 points for physical disability descriptors.

5.	     On appeal the unanimous decision of the Tribunal was as follows: -

“Appeal disallowed.  There are grounds to supersede the decision that the claimant is incapable of work being relevant change of circumstances as she scores 12 points only in accordance with the personal capability assessment.  She is therefore not incapable of work from and including 26.11.01 and not entitled to credits on the basis of ongoing incapacity.”

6.	The summary of the decision of the Tribunal in relation to physical health descriptors was in the following terms: -

“PHYSICAL HEALTH DESCRIPTORS

Activity					Descriptor			Points

Walking on level ground with		1(f)				0
a walking stick or other such aid
if normally used.

Walking up and down stairs		2(e)				3

Sitting in an upright chair with		3(e)				0
a back, but no arms.

Standing without the support		4(f)				3
of another person or the use of
an aid except a walking stick

Rising from sitting in an upright	5(c)				3
chair with a back but no arms
without the use of another person.

Bending and kneeling.			6(c)				3

Manual dexterity			
Lifting and carrying 			8(g)				0
(by use of upper body and arms
(excluding all other activities
specified in Part1)).

Reaching

Speech

Hearing with a hearing aid or other aid
if normally worn.

Vision in normal daylight or bright
electric light with glasses or other
aid to vision if such aid is normally
worn.

Continence (other than enuresis
bedwetting)).

Remaining conscious other than for 
normal periods of sleep without
having epileptic or similar seizures
during walking moments.

WHEN CALCULATING THE TOTAL, ONLY INCLUDE THE HIGHER OF THE SCORE FROM THE WALKING/STAIRS FUNCTION.
…………………………………………………………………………………

PHYSICAL HEALTH TOTAL 12”

7.	The reasons for the Tribunal’s decision were set out as follows: -

“The tribunal considered that it was appropriate to proceed to determine the appeal today despite the missing documents, which were unlikely to become available for any future hearing.  We had the General Practitioner letter of 26.4.2002 describing her medical condition, oral evidence from the claimant and some extracts from the Examining Medical Officer report which were apparently taken before this document was lost and there was no reason to suggest that these extracts were not accurately reproduced.

We accept that the claimant has a specified medical condition, as noted in the General Practitioner letter dated 26.4.2002, which is permanent, ongoing and progressive and has probably been exacerbated by childbirth.  We accept that mobility and other activities are limited as a result.  We consider it relevant that she has had only physiotherapy treatment with no hospital or other referral and does not require strong pain killing medication.  We accept that her stomach problems would limit her ability to take certain medication, but she does not require medication every day and on some days only minimal medication.

The claimant has been found by the Department to be limited in the scheduled activities of walking, standing, sitting, walking up and down stairs, and rising from sitting.  The tribunal agrees that she has some limitation in these activities and the claimant has agreed with the Department’s assessment with regard to standing.  She has selected a different descriptor with regard to climbing stairs, but the points awarded for this would not differ with regard to rising from sitting, the claimant’s evidence today indicated that the appropriate descriptor would be (c) as she is sometimes able to do this, and we consider this is consistent with the medical observations and clinical findings noted in the papers.  We consider that she would be similarly restricted in the activity of bending and kneeling.

With regard to walking, we do not consider the claimant’s own assessment that she is limited to not more than 200 metres without stopping or severe discomfort as accurate.  She stated in her evidence that she was “not good at distances” but that she could walk for 10 to 15 minutes in time before stopping and we consider that this would indicate an ability to walk up to 800 metres which is what would reasonably be expected as a consequence of her medical condition.  We accept that her gait may be stiff.  With regard to sitting, we consider the claimant’s assessment to be overstated and noted that she sat with apparent discomfort in excess of 30 minutes at the hearing.  We accept that she would experience some discomfort whilst sitting but that she could reasonably sit for 2 hours before having to move from her chair due to discomfort.  We also considered the activity of lifting and carrying but could not identify any relevant descriptor.

We did not consider there was evidence to suggest that the claimant was limited in any other scheduled activity.”

8.	The record of proceedings made by the legally qualified member was in the following terms: -

“Chairman explained the issues arising and noted that the IB50 questionnaire and the Departmental medical report had been mislaid and not available and indicated that the Tribunal would have to consider whether it was appropriate to proceed without such evidence.  Noted that claimant could give oral evidence today, so absence of IB50 may not be important and the Tribunal also had evidence from claimant’s General Practitioner.  Suggested that Tribunal might proceed to hear evidence and if we felt that it was not appropriate to make a decision, we would adjourn.

	Claimant had no objection to this course.

Dr Patterson to Claimant – Question difficulties?  Back and hips – across bottom of back into sides – hips – pain when walking.

Pars defect at bottom of spine effects hip – swells up at times – affects right leg more than left.

Also have gastritis – can’t take strong painkillers – only paracetamol – 6-8 per day – good day take 2-4 – some days in week I may not have to take any.

Over a month – more bad days than good – couple of good days a week.

	Have had physiotherapy.

Back has always been sore – since I had my son 10 years ago – paid off work last May.  Last actually worked 8.8.2000 – back gradually getting worse at work – bent over.  Back to “normal movement” but not 100%.  Live with my son in house (stairs).  Partner (not living with me) does things for me.  Can do some housework – (not hovering) – some ironing – could make meals.

	Come into town – do messages.

	No Occupational Therapist assessment has been done.

	Stairs – 1 bannister – hold on to it if sore – not every day.

	Sitting – 25-30 minutes – uncomfortable.
	Go in car with partner – furthest is to Coleraine.

	Rising – possibly sometimes without holding on.

Walking – 200 metres – don’t know how I measured it – not good at distances – at slow pace – could manage 10-15 minutes before stopping.  No walking aids.

	Only sat for 15 minutes at examination.

	Need help with shoes/boots.

	Bending down – get down on knees.

Getting into car – holding onto roof – hold door and – slide in.  Hold on to side of seat getting out of car.

	Nothing to add.” 

The Dr Patterson referred to in the Record of Proceedings was the medical member of the Tribunal who sat along with the legal member.

9.	At the hearing the appellant was present but was not represented.  In addition there was no Departmental presenting officer.

10.	The claimant then sought leave from the legally qualified member of the Tribunal to appeal to a Commissioner on the grounds that there was a breach of the principles of natural justice in the proceedings as the medical report from the Examining Medical Practitioner was not available to the Tribunal.  However leave to appeal was refused on 15 August 2002.  Nevertheless, as stated at paragraph 1 herein, a Commissioner granted leave on 20 December 2002.  The substantive point in the claimant’s application for leave to a Commissioner was that there was a breach of natural justice as the medical report from the Examining Medical Practitioner was not before the Tribunal, yet the case still went ahead.  The claimant did accept that she agreed to go ahead with her case without such a report but submits in the circumstances that the Tribunal ought to have adjourned for more time or for a further medical to be obtained from an Examining Medical Practitioner.  

11.	The claimant’s appeal is opposed by the Department.  Mrs Gunning of the Decision Making and Appeals Unit has made the following relevant submission by letter dated 15 January 2003: -

“[The claimant] contends that it was unfair that the report from the Medical Support Services doctor was not in the papers which were before the tribunal and that the tribunal should have adjourned to allow more time or directed that she be sent for another examination.

The question before the tribunal was whether [the claimant] was incapable of work in accordance with the personal capability assessment.  It is unfortunate that the report of the Medical Support Services doctor was not available to the tribunal.  That report was, however, available to the decision maker on 26 November 2001 when he decided that [the claimant] was capable of work.  Appended to that decision is form IB58 which sets out the assessments of [the claimant], the Medical Support Services doctor and the decision maker.  Form PA1 is also attached on which the decision maker recorded extracts from the Medical Support Services doctor’s report on the relevant activities.
I submit that this case is distinguishable from Commissioner’s decision C18/02-03(IB) (…..), a case also concerning a missing medical report.  In [the claimant’s] case the Record of Proceedings shows that the tribunal chairman explained the relevant issues to her, advised her that the tribunal proposed to proceed with the case and that if it felt it was not appropriate to make a decision it would adjourn.  [The claimant] has no objection to this course of action.

The tribunal consisted of the legally qualified member (who acted as chairman) and a medically qualified member.  The Record of Proceedings indicates [the claimant] responded to questioning by the medical member and that the tribunal considered all the disputed activities plus bending and lifting and carrying.  The tribunal attributed a score to each of the relevant activities and fully explained the reasoning behind its decision.  It is my submission that [the claimant] was in no way disadvantaged by the fact that the Medical support Services Doctor’s report was not available to the tribunal.

In conclusion I submit [the claimant] has not identified an error of law in the tribunal decision and I oppose the application.”

Inadvertently in the last sentence of the quoted passage Mrs Gunning has referred to “the application”.  Of course, as stated in this decision, the case is actually an appeal and this has been overlooked by Mrs Gunning in her submissions.

12.	I am concerned in this case with the fact that not only did the Tribunal proceed without the missing medical report but also the Tribunal did not have the benefit of the missing IB50 as well.  The IB50 sets out, in substance, what the claimant’s case was.  This is normally an important document for the Tribunal to consider when determining a claimant’s appeal.  Of course the Tribunal still had the benefit of the claimant’s oral evidence but for an unrepresented claimant it is very difficult for such a person to make all the relevant points without even having an IB50 before the Tribunal as an aide memoire.  The lack of the medical report from the Examining Medical Practitioner is also a considerable loss to the Tribunal even though form PA1, which included extracts from the Examining Medical Practitioner’s report, was available.  

13.	There is no doubt that the Tribunal had considerable concern for the situation it found itself in – namely that it was not in possession of the two relevant important documents.  It also very properly explained that if it felt at any stage that it was not appropriate to make a decision in the case in light of the evidence available to it it would adjourn the case.  It is also relevant that the claimant had no objection to this course.

14.	The final outcome in this case was relatively close in that the points scored by the claimant, namely 12, were not far short of the relevant statutory threshold in this case of 15 points for physical disability descriptors.  It is also relevant that the decision maker acting on behalf of the Department had only awarded the claimant 9 points which accorded with the Examining Medical Practitioner’s score.

15.	However, I would have expected that the Tribunal, in the process of disallowing this particular claim by deciding that the claimant was only worthy of a 12 point score, would have returned to the issue of the propriety of proceeding to hear evidence in the absence of the IB50 questionnaire and the Departmental medical report.  It seems very likely to me that the Tribunal has inadvertently lulled the claimant into a false sense of security by stating that it would adjourn the case if it felt that it was not appropriate to make a decision.  The claimant could well have considered that the case would be adjourned if it was going badly for her but, on the other hand, if it was going well for her it would proceed to finality. 

16.	The Tribunal felt able to proceed to come to a decision with the extracts of the medical report included in the summary which in turn was taken from the decision maker’s score sheet, and with the oral evidence of the claimant rather than the usual IB50.  Also the Tribunal apparently did not have any General Practitioner comments at the rear of the IB50 although it did have a letter from the General Practitioner dated 26 April 2002.  

17.	The claimant was unrepresented and I consider that there was a duty on the Tribunal to ensure in such circumstances that any proceedings were scrupulously fair when it decided to continue despite the absence of the IB50 and the medical report.  

18.	If the score given to the claimant by the Tribunal under the Personal Capability Assessment had been well below the threshold figure of 15 points for physical disability descriptors there might have been no reason not to continue.  However, the Tribunal having given a score of 12 points, there is no doubt that the claimant was reasonably close to success.  In such circumstances I consider that the Tribunal should have considered the position of the claimant with considerable caution.  At the very least I would have expected the Tribunal to explain to the unrepresented claimant that having heard the available evidence it was in a position to come to a decision but also explain that it could give the claimant an opportunity to adduce further evidence in light of the fact that the usual evidence from the Examining Medical Practitioner and the IB50 was not available to the Tribunal.  The Tribunal Chairman might also have thought it appropriate to direct the claimant to complete a fresh IB50 questionnaire, under the provisions of regulation 38(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 (even though with the passage of time such a questionnaire is not so relevant as, by virtue of the provisions of Article 13(8) of the Social Security (Northern Ireland) Order 1998, an Appeal Tribunal shall not take into account any circumstances not obtaining at the time when the decision appealed against was made).  The Tribunal ought also to have considered specifically whether or not a further medical examination was necessary in the circumstances.

19.	Mrs Gunning has put considerable weight on the fact that the claimant did not object to the course of action being taken by the Tribunal.  However, as stated earlier in this decision, I do not consider that one can assume that an unrepresented claimant would be in a position to understand the implications of an agreement to go on with the case.  At the very least I consider that, before the Tribunal came to its decision which was a decision against the claimant, it ought to have considered specifically whether or not to obtain a further medical report and/or an IB50.  I can conceive of a situation where the Tribunal could have been correct to continue if the clear implications of what was happening had been explained to the claimant.  However, the very full record of proceedings in this case does not show that the matter was dealt with by the Tribunal in any way.  

20.	Accordingly, for the reasons stated, I consider that the Tribunal’s approach to this issue was in breach of the principles of natural justice and therefore the decision of the Tribunal was erroneous in point of law.  I therefore allow the claimant’s appeal and set aside the decision of the Tribunal and refer the case back to a freshly constituted Tribunal for rehearing.  I direct that this new Tribunal specifically considers prior to the hearing whether it is appropriate to direct that the claimant has the opportunity to complete a fresh IB50 questionnaire and/or to arrange for another medical examination of the claimant.  I leave the matter whether such further evidence is necessary to the Tribunal as, from experience, I am aware that it is possible that the appropriate missing documents or secondary evidence of their contents will turn up before the new Tribunal re-hears the case.  

21.	It goes without saying, however, that I deprecate the fact that the adjudicating authorities in this case appear to have lost two of the most important documents necessary for this appeal.  All efforts should be made to make sure that the claimant is not put at a disadvantage because of the documents being mislaid.  Regrettably this is far from being an unknown occurrence and I hope that steps are being taken to ensure that a repetition of the present situation is unlikely to happen again in the future.  

22.	The success of this appeal to a Commissioner should not be taken as an indication that the claimant’s appeal to the Tribunal is ultimately going to be successful.

	(Signed):	J A H MARTIN QC
			CHIEF COMMISSIONER

	(Dated):	31 MARCH 2003