SMcC-v-Department for Social Development (IB) [2011] NICom 244
Decision No:  C7/11-12(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 25 November 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	In all the circumstances I do not consider that it is necessary to hold an oral hearing of this appeal.  On the basis of the papers before me and the observations of the parties, I grant leave to appeal.  (With the consent of the parties) I proceed to determine the application for leave as an appeal.

2.	I consider that the decision of the appeal tribunal dated 25 November 2010 contains a material error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision.  My reasons for reaching this conclusion are set out below.

3.	I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because further findings of fact require to be made which I consider to require the input of a medically qualified panel member of the appeal tribunal.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

4.	It is important that the appellant notes that, while the decision of the appeal tribunal has been set aside, the issue of his entitlement to incapacity benefit (IB) remains to be determined by another appeal tribunal.  The newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal, subject to the directions I have made below.

Background

5.	The appellant claimed IB from 19 May 2006 on the basis of a knee injury and anxiety.  He was examined by a medical officer of the Department on 13 August 2010.  Following the examination, the Department decided that the appellant scored 6 points under the personal capability assessment.  On 20 September 2010 the Department superseded the decision to the effect that the appellant was incapable of work and disallowed incapacity credits from and including that date.

6.	He appealed and attended a hearing before the appeal tribunal on 25 November 2010.  The appeal tribunal considered the applicability of both physical and mental health descriptors under the personal capability assessment.  The appeal tribunal awarded a total of 13 points for physical descriptors and four points for mental health descriptors.  As the points for mental health descriptors totalled fewer than six, they fell to be disregarded in the calculation of the combined score for physical and mental descriptors.  The combined score was 13 points, which was below the 15 points required.  The outcome was that the appeal tribunal therefore disallowed the appeal.  The appellant sought a statement of reasons for the appeal tribunal’s decision on 25 November 2010 and this was issued to him on 13 April 2011.

	Grounds of application for leave to appeal to the Commissioner

7.	The appellant applied to the legally qualified panel member for leave to appeal on 12 May 2011.  Leave to appeal was refused on 26 May 2011 and the determination to this effect was issued to the appellant on 2 June 2011.  He made an application for leave to appeal directly to the Social Security Commissioner on 1 July 2011.

8.	For the reasons which I indicate below, I do not propose to set out the appellant’s grounds of application for leave in detail.  Suffice to say, these grounds were focused on the appeal tribunal’s treatment of the medical evidence before them, its findings and reasons and the rationality of its decision.

9.	The Department was invited to make observations on the appellant’s grounds of appeal and on 8 September 2011 Mr Collins for the Department indicated that the Department did not support the application.

10.	On a consideration of the papers, I directed further observations from the parties on two issues, relating to the walking and standing descriptors in the personal capability assessment.

11.	Observations were received from Mr Collins, and from Ms Deans of Causeway CAB, on 14 and 16 November 2011 respectively.  It is clear that the parties are now in agreement that the decision of the appeal tribunal contains an error of law not expressly raised by the appellant.

12.	On this basis, I grant leave to appeal and proceed to consider all matters arising from the application as if they arose on the appeal.  I further consider that I can decide this appeal without a hearing.

	Assessment

13.	Medical evidence before the appeal tribunal, in the form of a letter dated 14 October 2010 from Mr McC...... consultant orthopaedic surgeon, showed that the appellant had a tear in the cartilage of his left knee joint, with some laxity of the medial collateral ligament.  He was prone to dislocation of the patella on that side.

14.	It appears from the report of the Department’s medical assessor that the appellant had experienced a dislocation of his left patella on a date approximately 10 days before his examination.  The appellant was walking and standing with the aid of two crutches at the date of examination.

15.	From the record of the appeal tribunal proceedings, it further appears that the appellant was still using two crutches at the date of the appeal and therefore, by implication, was likely to have been using two crutches at the date of the decision appealed.

16.	The appeal tribunal was required to apply the personal capability assessment under regulations 25 and 26 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 (“the Incapacity for Work Regulations”).  In particular, regulation 26(2) reads:

“In determining the extent of a person’s incapacity to perform any activity listed in Part I he shall be assessed as if her were wearing any prosthesis with which he is fitted or, as the case may be, any aid or appliance which he normally wears or uses.

17.	It is clear from the record of proceedings and statement of reasons that the appeal tribunal has assessed the appellant’s incapacity to perform the disputed physical descriptors on the basis of using two crutches.

18.	In relation to the walking descriptor the appeal tribunal, having heard the appellant’s evidence, awarded seven points on the basis that he could not walk more than 200 metres without stopping or severe discomfort, using his crutches.

19.	In relation to the stairs descriptor, the appeal tribunal found that the appellant could only go up or down stairs if he goes sideways or one step at a time, awarding three points, which in any event overlapped with points for walking and could not be added to the points total.

20.	In relation to rising from sitting, the appeal tribunal found that the appellant sometimes had to hold on to something when rising from sitting.  This attracted a score of an additional three points.

21.	When addressing the standing descriptor, the statement of reasons of the appeal tribunal reads:

“In the circumstances, the Tribunal found that it was likely that, with the use of his crutches, the Appellant could stand for more than 30 minutes without needing to sit down …”.

	This led to an award of three points for standing.

22.	The difficulty which I identify, which the parties also accept, is that the heading to the functional descriptors for standing in paragraph 4 of Part I of the Schedule to the Incapacity for Work Regulations reads “Standing without the support of another person or the use of an aid except a walking stick”.

23.	The standing descriptor is the sole descriptor among the physical descriptors which expressly qualifies the general approach to be taken under regulation 26(2).  This normally requires that an appellant should be assessed as if he were wearing any prosthesis with which he is fitted or, as the case may be, any aid or appliance which he normally wears or uses.  However, in the case of the standing descriptor, the use of an aid to stand, except a walking stick, must be disregarded.  Crutches are an aid.  The use of crutches falls to be disregarded therefore, and the correct approach would have been to assess the ability to stand without the use of crutches.

24.	It is an inescapable conclusion that, in assessing the extent of the appellant’s incapacity under this functional descriptor with the use of his crutches, the appeal tribunal has erred in law.  An assessment of his standing ability without crutches would, I believe, lead to a conclusion more favourable to the appellant than that reached by the tribunal.  The error of law was therefore material to the decision of the appeal tribunal.

25.	For completeness I add that, since no evidence indicated that the appellant normally used a walking stick, the appeal tribunal would not have been entitled to consider the hypothetical situation of the appellant’s ability to stand using a walking stick in place of his crutches.

26.	I had intended to invite the parties to make observations on a further matter, namely the relevance, if any, of Great Britain Commissioner’s Decision R(M)2/89 to the findings of fact which would be required of the appeal tribunal in the particular circumstances of the present case.  Inadvertently, I directed the parties to a different case in the relevant correspondence.  I do not think that any useful purpose would be served by reissuing that invitation with a reference to the case I intended, in the light of the parties’ observations on the standing descriptor.  However, I would observe that it does appear to me that the extent of the capacity of the appellant to weight bear on the left leg may have a bearing on whether what he was doing when moving with the aid of his two crutches amounted to walking.

27.	I do not comment on the merits of the original grounds of application submitted by the appellant for the reason that it is unnecessary to do so in the light of my conclusions on other matters.

28.	I do not consider that I can make the decision which the appeal tribunal could make on the basis of the evidence before me.  I consider that I require to remit the appeal for rehearing by a newly constituted appeal tribunal.

29.	In doing so, I direct the appeal tribunal as follows:

1.  the appeal tribunal is to bear in mind that it is required by Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 to assess the appellant on the circumstances obtaining at the date of the decision to supersede his IB entitlement, namely 20 September 2010;

2.  in its consideration of the personal capability assessment, the appeal tribunal must assess the standing descriptor as required by the legislation, without taking into account the appellant’s use of crutches at that date;

3.  when considering the walking descriptor, if necessary for the determination of the appeal, the appeal tribunal may wish to have regard to R(M)2/89, and to assess whether the extent of the appellant’s capacity to weight bear on his left leg might have affected the question of whether the appellant had any ability to walk at that date.

(signed)  O Stockman

Commissioner

3 January 2012