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THE SOCIAL SECURITY COMMISSIONERS
Commissioner’s Case No: CIB/2945/2000
SOCIAL SECURITY ACT 1998
APPEAL FROM DECISION OF AN APPEAL TRIBUNAL
ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
MR COMMISSIONER A LLOYD-DAVIES
1. My decision is that the decision of the tribunal held on 2 March 2000 is erroneous in law. Accordingly I set it aside and remit the case for rehearing by a differently constituted tribunal.
2. The claimant became incapable of work in December 1998, because of severe tinnitus. Incapacity Benefit was paid from 21 June 1999. On 2 August 1999 the claimant completed an incapacity for work questionnaire. The claimant was examined by a BAMS doctor on 11 October 1999 in respect of the all work test. Following this examination the decision maker decided that the claimant scored only 8 points in respect of the all work test, these points being scored on the activity of hearing. Incapacity benefit was accordingly disallowed from and including 11 November 1999. The claimant appealed. The tribunal disallowed the appeal. The claimant appeals with the leave of the Commissioner. The appeal is supported by the Secretary of State. The claimant’s representative requested an oral hearing on the grounds that novel points of law might arise. That request was granted.
3.. At the oral hearing the claimant was represented by Mr Collins of a local Welfare Benefits Advice Unit and the Secretary of State by Miss Heywood of the Office of the Solicitor to the Department. I am grateful to them both for their submissions.
4. The parties agree that the decision of the tribunal should be set aside. The tribunal stated that it had considered the descriptors of stairs, standing and bending and kneeling, but found no problem in these areas. It then, however, appeared to contradict itself by stating that it did not accept that the claimant’s difficulties in these areas was sufficiently severe for her to be awarded any points. In my judgment it was incumbent upon the tribunal to explain what the difficulties were and why the difficulties were insufficient for the claimant to score any points.
5. As indicated above the claimant was awarded 8 points by the decision maker and by the tribunal in respect of hearing, on the grounds that she could not hear well enough to understand someone talking in a normal voice in a busy street. It is to be noted, however, that the medical examiner stated that some questions had to be repeated and that the claimant herself stated that because of her deafness and tinnitus she had a problem with the telephone and if she could not see peoples’ lips she could not lip read. In my judgment the comment of the medical adviser and the difficulties that the claimant had with the telephone indicated that the tribunal should have considered whether any of the higher scoring descriptors on the activity of hearing applied to the claimant. This it failed to do. It is accepted on behalf of the Secretary of State that when considering the descriptors relating to the activity of hearing, an ability to lip read should be wholly discounted.
6. The other activities in issue were reaching, and bending and kneeling. The question that arose was whether the claimant’s alleged problems with balance should be taken into account when considering either of these activities. As regards the activity of bending or kneeling, this clearly requires the claimant to move from a standing position to perform the various descriptors and to straighten up. In my judgment any ability on the part of the claimant to perform the descriptors which can only be achieved if she is holding on to something should be discounted. Her ability should be measured by what she can achieve without holding on.
7. As regards the descriptor activity of reaching, however, I come to a different conclusion. It is urged on behalf of the claimant that if the claimant had difficulty reaching when standing up because of her balance problems, then such difficulty could be taken into account. I have considered this submission with care. I have come to the conclusion, however, that the activity of reaching is concerned only with the claimant’s upper limb functions and does not have to be tested when the claimant is standing up. All the reaching descriptors can perfectly well be judged when the claimant is sitting down and I do not think that there is to be implied in the activity a further requirement that the claimant should be standing up when the descriptors are sought to be applied. If such an additional factor had been intended to be imported, I consider that the regulations would have expressly so provided.
8. For the above reasons I allow this appeal. I remit the case to a new tribunal for rehearing, which tribunal should consider the activities in issue in accordance with the guidance I have given above.
(Signed) A Lloyd-Davies
(Date) 12 October 2001