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DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, brought by the claimant with my leave, against a decision of the Warrington social security appeal tribunal dated 4 February 1999 whereby they dismissed her appeal against a decision that she was not entitled to incapacity benefit from 5 June 1996 to 1 May 1997 because she was not incapable of work. I held an oral hearing of the appeal at which the claimant was represented by Mr D C Matthews of the Welfare Rights Office of Halton Borough Council and the Secretary of State was represented by Mr Huw James, solicitor, acting as agent for the Solicitor to the Departments of Social Security and Health. I am grateful to both representatives for their helpful submissions.
2. The claimant had been regarded as incapable of work since 23 June 1995. After periods of entitlement to statutory sick pay and invalidity benefit, she became entitled to incapacity benefit. On 24 February 1996, she completed the standard questionnaire and on, 9 May 1996, she was examined by a Benefits Agency Medical Service doctor. In the light of the doctor’s report, the adjudication officer, on 5 June 1996, reviewed the award of incapacity benefit and decided that the claimant was no longer entitled to the benefit. The claimant appealed. A questionnaire was completed and a further examination was arranged and took place on 21 January 1997. It was still not accepted that the claimant satisfied the all work test but her appeal to the tribunal succeeded on procedural grounds. However, the tribunal’s decision was set aside by a Commissioner (CIB/4237/97) on appeal by the adjudication officer and the case was referred to a differently constituted tribunal for determination. Meanwhile, the claimant had reapplied for incapacity benefit and had been awarded benefit from 2 May 1997, so that only the limited period from 5 June 1996 to 1 May 1997 was in issue before the tribunal. The tribunal, sitting on 4 February 1999, accepted that the claimant scored six points on the all work test, under the “activity” of “manual dexterity” (descriptor 7f), but they did not accept that she scored points in respect of any other “activity”.
3. Mr Matthews’ first submission was that the tribunal erred in their approach to the “activities” of “sitting in an upright chair with a back but no arms”, “standing without the support of another person or the use of an aid except a walking stick” and “walking on level ground with a walking stick or other aid if such aid is normally used”. In their summary of reasons, given on the decision notice, the tribunal chairman wrote:
“3. The Appellant was suffering from a serious painful condition which affected her right shoulder and upper arm. She could use her left arm in a normal manner.
4. The tribunal did not award any points for walking, standing or sitting because it was felt the Appellant could perform all those functions freely and they were not the source of her pain/discomfort.”
In the full statement of the tribunal’s decision, the chairman wrote:
“5. The Tribunal considered firstly - the functions of Sitting, Standing and Walking.
6. The Tribunal found both paras. 1-4 of the Submission and the Appellant’s oral evidence unconvincing. The Tribunal felt the appellant was exaggerating her problems, possibly on advice received from her advisor. When the appellant completed her first Incapacity for Work Questionnaire dated 24 02 96 (although suffering from the same incapacity and having received treatment) the appellant stated that she had no problems with these functions. She scored herself 6 points (Descriptor 7F) in her first score sheet (page 55 of the Schedule of Evidence).
7. The appellant’s second questionnaire dated 14 10 96 was clearly completed by her advisor and resulted in a score of 74 points.
8. When the EMO examined the appellant on the 21 01 97 he found her lower spine to be functionally normal and no clinical reason for her inability to sit, stand or walk (see Box 10 Page 92 of the Schedule of Evidence) and (Boxes 18 and 22,pages 94 and 95 of the Schedule of Evidence). Likewise, the EMO could find no reason why she could not walk up/down a flight of 12 stairs without holding on. Appellant told the EMO that she used the stairs twice a day.
9. The Additional Medical Evidence (Pages 62 and 62A of the Schedule of Evidence) did not add anything to the appellant’s claim in respect of these functions.”
Mr Matthews submitted that the tribunal had erred because they had taken the view that only spinal problems could justify the award of points under the “activities” of sitting, standing and walking and that the claimant’s arm and neck conditions could not be relevant.
4. It is clear from both the written submission made to the tribunal and the chairman’s note of the claimant’s oral evidence that the claimant contended that the pain in her arm and neck did affect her ability to sit without discomfort, her ability to stand without moving around, and her ability to walk without severe discomfort. The claimant, who was not represented at the hearing before the tribunal, says that the medical assessor said that the symptoms of which she complained were consistent with the diagnoses but that the presenting officer submitted that the “activities” were designed to take account of spinal function. It is submitted that either the tribunal took the view that only loss of spinal function was relevant or, alternatively, that their reasoning does not adequately show why the claimant’s submission was rejected or does not show that the tribunal did not adopt an erroneous approach.
5. Some support for the claimant’s account may be derived both from the specific reference to the spine in paragraph 8 of the tribunal’s decision and from the chairman’s record of proceedings. The chairman records the tribunal noting that the diagnoses were right brachial and ulnar neuritis which meant the inflammation of the brachial and ulnar nerves going from the neck into the arm, causing pain along the nerves. The chairman also records the medical assessor stating that if a person was in pain all the time, she would hold her arm in the most comfortable position, which appears to be a reference to the what the claimant had said about the way the pain affected her when she was walking. There then appears the following note:
“Query was the walking causing her pain ?
No - the pain came from the Brachial and Ulnar Neuritis.”
Later, there is a reference to the presenting officer submitting that the claimant should “not be given points for walking etc.”, but the reasoning advanced by the presenting officer is not recorded.
6. Mr Matthews drew my attention to CSIB/13/96, in which the Commissioner held that one loss of faculty might be relevant to a number of “activities”, and to CSIB/38/96, in which it was held that a condition was relevant to an “activity” if the “activity” either caused or aggravated the condition which then limited the claimant’s capacity to perform the “activity”. Mr James did not disagree with Mr Matthews’ submission that the tribunal would have erred if they had accepted a submission that only spinal conditions should be taken into account in considering the “activities” of sitting, standing and walking. However, he argued that, looking at the tribunal’s decision as a whole, they had plainly taken the view that the claimant’s condition was not aggravated by those “activities” and he accordingly submitted that the tribunal had not erred in law.
7. Clearly, if pain experienced when sitting still can be alleviated by moving about, it can be said that sitting still aggravates the condition causing the pain. However, before its amendment from 6 January 1997, descriptor 3(b) read:
“Cannot sit comfortably for more than 10 minutes without having to move from the chair”.
Thus discomfort was relevant only if it required movement from the chair to alleviate it. Otherwise, the words “without having to move from the chair” would have had no purpose. Discomfort that could be alleviated by moving the upper body without rising from the chair was not material. The point has been made clearer by the 1997 amendment, which has added the words “because the degree of discomfort makes it impossible to continue sitting” and possibly requires the discomfort to be more severe than was previously the case. Descriptor 3(b) gives rise to a score of 15 points. Descriptors 3(c) to 3(e) are in similar terms but refer to periods of 30 minutes, 1 hour and 2 hours, giving rise to scores of 7, 3 and 0 points respectively. Descriptor 3(a) is simply:
“Cannot sit comfortably”
but that gives rise to a score of 15 points (the maximum) and so the word “comfortably” must be construed in the same sense as it is used in the later descriptors to avoid the anomaly that would arise if the descriptor applied where discomfort was less disabling than that required for descriptor 3(c).
8. Like both Mr Matthews and Mr James, I do not consider that, as a matter of law, only discomfort due to loss of spinal function can be relevant to the “activity” of sitting, although loss of spinal function may be the most likely cause of relevant discomfort. However, the significance of the description of the neuritis, which was accepted as the cause of the present claimant’s pain, is that it contains nothing to suggest that rising from a chair would alleviate discomfort caused by the neuritis while the claimant was sitting. In that sense, it was not shown that the “activity” of sitting aggravated the condition causing the pain. I accept Mr James’ submission that that is what the tribunal found.
9. The same reasoning applies in relation to the “activity” of standing. It also applies in relation to walking. Even though the descriptors envisage that a person may continue to walk notwithstanding the experience of severe discomfort, the capacity to walk with such discomfort is excluded from consideration. This is not really any different from the “activities” of sitting and standing because claimants cannot reasonably be expected to continue sitting if rising will alleviate severe discomfort and cannot reasonably be expected to continue standing if sitting or moving around will alleviate severe discomfort. In the different, but not materially distinguishable, context of disability living allowance, it has been held by the Court of Appeal that severe discomfort is material to the capacity to walk only if brought on by the act of walking (Hewitt v. Chief Adjudication Officer, reported as R(DLA) 6/99).
10. I, therefore, reject Mr Matthews’ first submission. I should add that the tribunal do not appear to have doubted the claimant’s basic descriptions of her symptoms which were, as Mr Matthews submitted, corroborated by medical evidence. It was the attribution of practical consequences, in terms of the descriptors, that they considered had been exaggerated by her on advice from her advisor.
11. Mr Matthews’ second submission was that the tribunal erred in proceeding in his absence so that the claimant was unrepresented. The claimant had asked for representation but Mr Matthews was called away to deal with an emergency case half an hour before he would have set off to the hearing in the present case. He said that the claimant was “persuaded by the tribunal” not to have an adjournment. That implies that she agreed to abandon her request for an adjournment, which would, of course, have had the disadvantage from her point of view of delay. The question of an adjournment was a matter for the discretion of the tribunal. They were not obliged to adjourn. The case was not obviously one where the claimant could not be expected to manage without a representative. I do not consider that any error of law is shown in this respect.
12. Accordingly, I dismiss the claimant’s appeal.
17 January 2001