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Commissioner's decision follows:
Commissioner's File: CIB/4315/1997
SOCIAL SECURITY ADMINISTRATION ACT 1992
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. For the reasons given below this appeal by the .adjudication officer does not succeed. I confirm the decision made by the social security appeal tribunal on 28 April 1997 to the effect that the claimant continues to be incapable of work from and including 8 January 1997.
2. In this case the question of capacity to work depends on the application of the All Work Test. The test is defined in regulation 24 of the Social Security (Incapacity for Work) (General) Regulations 1995. The rules for satisfying the test are set out in regulations 25 and 26. The test itself is set out to the Schedule to those regulations. Subject to the provisions of regulation 27, the claimant's capacity for work depends on whether he has scored at least 15 points for physical descriptors on the All Work Test. Mental health issues do not seem to be involved in this case. Regulation 27 sets out exceptional circumstances in which a person who does not satisfy the All Work Test shall be treated as incapable of work. Clearly, if a person does satisfy the All Work Test, it is not necessary to consider regulation 27. Further details of the relevant law have been set out in the adjudication officer's submission to the original tribunal, of which All parties have a copy, and I do not propose to repeat what has been said in that document except in so far as is necessary to explain my decision.
3. The claimant was born on 8 November 1968. So far as concerns the present appeal, he was certified as incapable of work from 14 September 1993 because of dermatitis. deal with the nature of the dermatitis in more detail below. On
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8 September 1995 a doctor who examined the claimant on behalf of the Benefits Agency Medical Service considered that his dermatitis, which is allergic in nature, was sufficiently severe to justify an opinion that the claimant suffered from a severe uncontrolled or uncontrollable disease and should be treated as incapable of work by virtue of regulation 27(b) of the regulations. On 25 September 1996 the claimant returned to the Department of Social Security or Benefits Agency form IB50, an incapacity for work questionnaire. On this form he gave details of some of his difficulties, but did not indicate any difficulty with manual dexterity. On 2 December 1996 the claimant was examined by a different doctor on behalf of the Benefits Agency Medical Service. This doctor was of the opinion that regulation 27(b) did not apply. However, he or she did confirm that the claimant suffered from dermatitis and was allergic to nickel, cobalt and chromium, that he had a right shoulder injury and was almost blind in his left eye. The doctor was of the opinion that the claimant had difficulties with reaching (descriptor 9(e) carrying 6 points) and lifting and carrying (descriptor 8 (e) carrying 6 points) . The adjudication officer considered the matter, allocated 12 points for the All Work Test, and since this was below the 15 point threshold decided that the claimant was no longer incapable of work. I point out at this stage that it has been accepted by all parties that the two descriptors identified by the doctor do apply and carry 12 points between them. The disputed issue relates to other matters.
4. On 9 January 1997 the claimant appealed to the social security appeal tribunal against the decision of the adjudication officer. On 19 March 1997 the claimant's GP reported as follows:
"This patient has been diagnosed as suffering from an allergic response to nickel, cobalt and potassium dichromate. He has also been under Professor Wallace with a problem with his right shoulder which has been diagnosed as impingement, probably as a result of a painful shoulder which then gave a weak rotator cuff. He was last seen in Professor Wallace's clinic in August 1995.
With regard to allergies, should he be expected to come into contact with nickel, chrome or cobalt with regard to work, then I would expect his dermatitis to recur. With regards to his ability to picking up coins, silver coins do contain nickel therefore with direct contact I would expect him to develop dermatitis, in the same way should taps or a cooker contain any of the aforementioned metals, again I would expect his dermatitis to recur.
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lie was last prescribed Betnovate for his dermatitis in Septernber 1996 and with regard to prognosis, I would expect his allergy to be long-term."
The tribunal also had before it a document from a Department of Dermatology giving examples of items containing cobalt and chrome and activities which would cause contact with them. This document is reproduced on pages 60 and 61 of the file.
5. The tribunal considered the matter on 28 April 1997 and
allowed the appeal. In addition to the two descriptors
referred to above the tribunal also found that descriptor 7(g)
applied ' This is that the claimant cannot pick up a coin
which is 2.5 centimetres or less in diameter with one hand,
but can with the other. I am not sure that that descriptor accurately reflects the tribunal's findings of fact, since both hands were equally affected, but since the claimant was taken over the 15 point threshold it is not important to
decide whether a more appropriate descriptor carrying a larger
number of points should have been identified. The tribunal's
findings of fact included the following statement:
"He suffers from right shoulder damage which reduces his
movements to only 20'-300 and contact dermatitis being allergic to nickel, cobalt and chromium. He is almost blind in his left eye but this is not relevant to the All Work Test criteria. dermatitis is extreme, he is allergic to many materials commonly in existence both in the home and working environment. The allergy is severe enough for him to react even through layers of clothing and the wearing of gloves is inappropriate since the wearing of rubber gloves causes overheating, sweating and itchiness while gloves of other materials can irritate his condition due to the fibres. Even when taking steps to avoid contact he still needs regular use of Betnovate Cream, applying this several times a day, seemingly more than would be recommended by medical advisers."
6. The tribunal's reasons included the following statement:-
"The presenting officer argued that the manual dexterity test is simply looking at a person's functional ability to pick up and perform activities with the hands. The appellant's representative argued that... he could not perform manual dexterity functions reliably because of his allergic react-ion to commonly occurring materials, that reaction being of severe dermatitis. He cannot alleviate his problem with gloves and is only able to control his problems by avoiding contact and still using a high level of treatment. The tribunal accept that in a work situation it would be impossible to avoid the long list of items that the medical evidence indicates would create an adverse reaction (documents 52 to 57) They find therefore on a balance of probability that points
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should be scored in the manual dexterity f ]-I accepting evidence that if his skin had flared up he would not be able to pick up a coin. His evidence to the tribunal is that if he has a reaction his skin can 'bubble and itch and if he touches the affected area the blisters can burst and bleed, the sores being very painful' . Stress can also set off the dermatitis and the tribunal find this is another factor that has to be taken into account."
7. On 9 July 1997 the adjudication officer applied for leave to appeal to the Social Security Commissioner against the decision of the social security appeal tribunal and leave to appeal was granted by the chairman of the tribunal on 23 July 1997.
8. The adjudication officer submits that the tribunal erred in law by considering manual dexterity in the context of the work situation, by including the effects of contact dermatitis and by wrongfully taking account of the effect of picking up an object rather than the functional ability to pick it up. The adjudication officer refers to the decision by the Commissioner in CSIB/20/1996. In paragraph 12 of that decision the Commissioner declined to accept the assertion that there is an implication that the words "safely or in safety" should be written into the descriptor. However, it seems to me that approach is not compatible with the nature of the test. If in practice it is not possible to carry out an activity, then it is not possible to carry it out for the purposes of the descriptor. agree with the following observations made by the claimant's representative:
"Manual dexterity involves a number of activities including movement of the hand and fingers, a gripping action, contact with objects as well as the sense of touch, and all these activities are inextricably intertwined and can be considered as a whole when determining any ability to carry out the manual dexterity function."
9. it is now established in several decisions by Commissioners that, unless the context indicates otherwise, the word "cannot" in the descriptors is not to be taken too literally. My own summary of the effect of those decisions is that a claimant cannot carry out an activity unless it can be carried out with reasonable regularity without an unreasonable degree of pain or discomfort. If that is so, then arguments over whether it is correct or incorrect to take account of a work context will not usually take the matter much further. As indicated by Mr Commissioner Goodman in CIB/14332/1996 (*38/97) (paragraph 12) and in my own decision in CIB/1636-7/1996 I would wish to consider the question of the relevance of the work context very carefully before reaching a conclusion, but in my view it is not necessary in the present
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case to reach a concluded view on that wade with the submission of the claimant's representative that the tribunal has mentioned a work situation as an example but in fact the relevant materials occur everywhere and there is no basis for supposing that the tribunal would have reached a different conclusion had they excluded the work context from consideration.
10. In the submissions to the Commissioner the adjudication officer has also raised questions as to the way in which the tribunal treated descriptors relating to the ability derived from sitting, and the question of whether the tribunal should have considered regulation 27. As I have indicated above, it is not necessary to consider regulation 27 if at least 15 points have been obtained on the All Work Test, and it is not necessary to go on to consider other descriptors once the threshold has been reached.
11. For the above reasons this appeal by the adjudication officer fails.
(Signed) H Levenson
Commissioner
(Date)
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