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Jim
Look at Para 7 of this one - expands on the principle of "reasonable regularity" just what you need possibly? I know it's NI, but equally persuasive............
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Commissioner's File (NI): C1/95 (IB)
Mr Commissioner Chambers QC
21 June 1996
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL
ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Claim for: Incapacity Benefit
Appeal Tribunal: Belfast SSAT
Tribunal date: 18 September 1995
1. This is an appeal by the Adjudication officer against the decision of Belfast Social Security Appeal Tribunal, whereby it was held that the claimant was entitled to incapacity benefit from 13 June 1995.
2. The Tribunal's decision was based upon the following recorded findings of fact:-
"'s date of birth is 12 September 1953. She last worked no later than 4 June 1994. From 13 April 1995 the all work test is applicable. We accept the scoring on the "All work test score sheet" except that we find that cannot walk more than 200 metres without stopping or severe discomfort. We consider that she cannot walk up and down a flight of 12 stairs without holding on and taking a rest and we consider that can stand for more than 30 minutes before needing to sit down but she would need to move around.
prepares meals for her family, does washing, goes out to meet friends at times and goes to a shopping centre once per week but is unable to regularly repeat these activities."
From these findings the claimant was said to score 17 points as set out in the "All work assessment" and made up as follows:-
PHYSICAL HEALTH DESCRIPTORS
Activity: Walking on level ground with a walking stick or other aid if such is normally used.
Descriptor: 1(d) Cannot walk more than 200 metres without stopping or severe discomfort.
Points: 7
Activity: Walking up and down stairs.
Descriptor: 2(c) Cannot walk up and down a flight of 12 stairs without holding on and taking rest.
Points: 7
Activity: Standing.
Descriptor: 4(f) Cannot stand for more than 30 minutes before needing to move around.
Points: 3
TOTAL: 17
The Tribunal's reasons for decision were:-
"'s capacity for the various activities involved in the descriptors varies from day to day. Certain activities eg washing, some meal preparation (which involves standing) - she appears to repeat with reasonable regularity but we do not consider that she could with reasonable regularity walk 200 metres without stopping and she appears always to need a rest on stairs. There are some limits on her standing in one spot but she does appear with some regularity to be able to stand for 30 minutes. We have taken the view that some degree of repetition of the descriptors is necessary bearing in mind that some relate to a working situation. We have therefore awarded points where we consider reasonably frequent repetition could not be carried out. The score in our view should be 17 points which satisfies the all work test."
3. The grounds of the Adjudication Officer's appeal to the Commissioner are:-
"1. The tribunal erred in law when deciding the total points scored for assessment under the all work test. Regulation 26(2) of the Social Security (Incapacity for Work)(General) Regulations (NI) 1995 provides that only one descriptor shall be counted when determining a person's score where descriptors specified for activities 1 and 2 in Part 1 apply to him.
Accordingly I would submit that the tribunal's decision is erroneous in law as the score of 7 points for walking activity 1) and the score of 7 points for walking up and down stairs (activity 2) have both been counted.
2. The tribunal erred in law by introducing an additional condition to the all work test. When determining which descriptor applied in respect of the activities, the tribunal took the view that a test of 'reasonable regularity' was appropriate, bearing in mind a working situation where some repetition would be necessary (see Part 4 of AT3). I submit that the relevant statutory rules do not contain anything to support this approach and therefore the wrong test has been applied."
4. In her written observations on the appeal the claimant supported the Appeal Tribunal's approach to the question of the regularity with which she could perform the various tasks, and expressed her disagreement with certain of the conclusions of the Medical Officer and the Adjudication Officer. She asked that a broader view be taken in assessing her score, as was taken by the Appeal Tribunal.
5. I held an oral hearing at which the claimant was present, accompanied by her husband. The Adjudication officer in attendance was Mr S J McAvoy.
Mr McAvoy stated that his main ground of appeal was that the Tribunal had evidently overlooked the provisions of regulation 26(2) of the Social Security (Incapacity for Work)(General) Regulations (NI) 1995, (the Incapacity for Work Regulations), which reads as follows:-
"26(2) In determining a person's score where descriptors specified for activities 1 and 2 in Part I apply to him, only one descriptor shall be counted and that shall be the descriptor with the highest score in respect of either activity which applies to him."
In Mr McAvoy's submission the effect of this provision was that the Tribunal had been wrong to include the claimant's score for both descriptors 1(d) and descriptor 2(c). Only one of these scores should have been counted, which meant that the claimant only scored a total of 10 points and therefore did not satisfy the all work test.
While making it clear that they considered it unfair that only one score should be counted, the claimant and her husband confirmed that they fully understood the effect of regulation 26(2) of the Incapacity for Work Regulations and accepted that the Tribunal had failed to apply its provisions. further indicated that he and the claimant disagreed with the conclusion of the Tribunal in relation to other descriptors. In particular, he expressed the opinion that the claimant should have been awarded points for a sitting descriptor.
6. Mr McAvoy then dealt with the second ground of appeal. In his submission the Tribunal's comment in their reasons for decision that "we have taken the view that some degree of repetition of the descriptor is necessary bearing in mind that some relate to a working situation" demonstrated an improper approach to the work test assessment. It was correct to say that, in relation to a few of the descriptors, it was necessary to consider whether a person was sometimes unable to perform the activity in question; but that did not necessarily mean that regularity of performance was an element which should be considered in all cases. The Tribunal had also been wrong to have regard to the fact that some of the descriptors might in their view relate to a working situation. The intention had been to select activities of an ordinary everyday kind, which could be easily understood. Any reference to a working situation was accordingly inappropriate.
In conclusion, Mr McAvoy suggested that, if the claimant felt that her condition had deteriorated since the date of the Tribunal hearing, she should consider submitting a further claim.
said that the Tribunal had appeared to be somewhat uncertain as to whether the various activities should be considered in the context of a working situation, but he expressed the opinion that their approach had been reasonable. So far as the suggestion that the claimant might consider submitting a further claim was concerned, his wife had decided not to go back along that route, and he was of the same mind. They did not wish to go before another Appeal Tribunal.
7. As I indicated at the hearing, there is in my opinion no doubt that the Tribunal overlooked the provisions of regulation 26(2) of the Incapacity for Work Regulations, and wrongly included the claimant's scores for both descriptors 1(d) and 2(c). Only one of those scores should have been counted, with the result that the claimant's total score should have been 10 points rather than 17. In this respect the Tribunal's decision was clearly erroneous in point of law.
The position with regard to Mr McAvoy's second ground of appeal is clear-cut. I agree that, apart from those few descriptors in which the word "sometimes" appears, there is no specific requirement that a claimant must be able to perform the activity in question "with reasonable regularity". Nevertheless, a Tribunal must in my opinion have regard to some such concept in reaching their decision. The real issue is whether, taking an overall view of the individual's capacity to perform the activity in question, he should reasonably be considered to be incapable of performing it. The fact that he might occasionally manage to accomplish it, would be of no consequence if, for most of the time, and in most circumstances, he could not do so. I consider moreover, that this approach is broadly supported by the inclusion in a small number of the descriptors of the word "sometimes". The effect of the inclusion of this word is that, whereas in most cases a claimant who could perform the activity "most of the time", but who sometimes was unable to do so, would normally not score any points, whereas these few descriptors are concerned he qualifies for a modest score. Accordingly, as I see it, there must be an overall requirement of "reasonableness" in the approach of the Tribunal to the question of what a person is or is not capable of doing, and this may include consideration of his ability to perform the various specified activities most of the time. To that extent "reasonable regularity" may properly be considered. On the further subject of a "working situation", I agree that a Tribunal should not have regard to this factor; but should confine their considerations to the claimant's ability to perform the everyday activities specified in the descriptors.
8. For the reasons given in paragraph 6 above I allow this appeal and set aside the decision of the Appeal Tribunal. Quite apart from the fact that the claimant and her husband have indicated that they do not wish to go before another Appeal Tribunal, this is a case in which it is in my view appropriate that I should give the decision which the Tribunal should have given. I can do so without making any fresh or further findings of fact. My decision is that the claimant scored a total of 10 points on the all work test assessment and that accordingly she is not entitled to incapacity benefit from and including 13 June 1995.
(Signed)
R R Chambers
Chief Commissioner
21 June 1996
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