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Mr. J. G. Mitchell QC CSIB/13/1996
All work test - virtually blind claimant - whether visual defect entitles scores under more than one activity
Review - incapacity benefit - requirement to review transitional award
The claimant was virtually blind. He had scored twelve points relative to vision under descriptor 12(d) of Schedule 1 of the Social Security (Incapacity for Work) (General) Regulations 1995. A social security appeal tribunal upheld that award but held that the same disability entitled him to a further three points for inability to walk down a flight of stairs without holding on. The adjudication officer appealed to the Commissioner.
Held, allowing the appeal, that:
1. there was no reason under regulation 24 for imposing a restriction on any of the activities and descriptors to which a particular disability might apply. The fact that the claimant’s disability qualified for a score under activity 12 did not preclude it from also scoring under activity 2. The tribunal had, however, failed to explain their reasoning;
2. the tribunal had failed to consider the question of review. A transitional award of long term incapacity benefit could not be terminated except by a process of review and revisal.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the social security appeal tribunal dated 10 October 1995 is erroneous in law and is set aside. The decision which I give in its place is that the claimant has satisfied the all work test for incapacity benefit as at 12 June 1995 by scoring 15 points from descriptors as detailed below. Accordingly grounds for revisal on review of the decision awarding him long term incapacity benefit are not established as at that date.
2. This is an appeal by the adjudication officer against the above mentioned tribunal decision of 10 October 1995 which allowed the claimant’s appeal against the decision of an adjudication officer. That officer held that the claimant did not satisfy the “all work test” for incapacity benefit and was not eligible for that benefit on the ground of incapacity for work from 12 June 1995. An oral hearing of the appeal was held before me at which the adjudication officer was represented by Mr. Neilson acting in Scotland on behalf of the Department of Social Security and the claimant, who did not attend, was represented by Mr. Ian Davidson, Welfare Rights Officer, Glasgow City Council Social Work Department. I adjourned that hearing towards the end pending the outcome of a direction to the adjudication officer regarding the procedure adopted by the local adjudication officer at first instance. The point which arose is dealt with in paragraphs 8 and 9 below. In due course I received the adjudication officer’s submission. The claimant’s representative did not lodge any further comments and neither party asked for a further hearing. Having considered the matter I have decided that a further hearing is unnecessary.
3. The claimant, who was born on 4 November 1966, is virtually blind in the right eye and has poor visual acuity in the left eye. He had an indefinite award of invalidity benefit in respect of incapacity for work from 21 April 1993. Consequent upon the replacement of invalidity benefit by incapacity benefit with effect from 13 April 1995 the award of invalidity benefit became a transitional award of long term incapacity benefit in terms of regulation 17(1) of the Social Security (Incapacity) (Transitional) Regulations 1995. Regulation 17(2) of those regulations provides¬:
“(2) Subject to the provisions in Part VI, a person’s entitlement to a transitional award of long term incapacity benefit shall be subject to him being incapable of work as determined in accordance with Part XIIA of the 1992 Act (Incapacity for Work).”
It is accepted that the “all work test” applied for the purposes of the determination therein mentioned. Section 171C(2)(a) of the Social Security Contributions and Benefits Act 1992 provides for regulations defining the “all work test” by reference to the extent of a person’s incapacity by reason of some specific disease or bodily or mental disablement to perform such activities as may be prescribed. The prescribed activities and descriptors are in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995. It was a matter of agreement that no mental health descriptors were applicable in the present case and that a total of 15 points was required from physical descriptors to enable the claimant to reach the threshold for the all work test in terms of regulation 25(1) of the Social Security (Incapacity for Work) General Regulations.
4. In the light of a medical advisor’s assessment an adjudication officer held that the claimant scored only twelve points on the physical descriptors and that he accordingly failed the “all work test” and was not entitled to incapacity benefit from 12 June 1995. The claimant appealed to a social security appeal tribunal.
5. At the tribunal hearing the ascription of twelve points for the claimant’s defective vision in terns of descriptor 12(d) of Schedule 1 to the General Regulations (“cannot see well enough to recognise a friend across a room”) was not challenged but it was argued on behalf of the claimant that points should be added under descriptor 2(d) of activity 2 relative to walking up and down stairs (“cannot walk up and down a flight of twelve stairs without holding on.”) in consequence of his defective vision. The presenting officer argued that consequences of defective vision could not be used to “add on” points relative to any activity other than vision.
6. The tribunal unanimously upheld the claimant’s appeal. Their findings were:¬
“It is held as proved that the claimant is incapable for work. The pointage for items stated as detailed in the accompanying form AT3 (AWT) is 15.”
The tribunal’s reasons were as follows:
“Claimant’s assessment under the all work test is 15 points and Social Security (Incapacity for Work) Regulations 1995, regulation 25(1)(a) applies.”
The accompanying form showed that twelve points were ascribed under vision in relation to descriptor 12(d) and three points were ascribed for walking up and down stairs under descriptor 2(d) making a total of 15 points.
7. Before me, Mr. Neilson for the adjudication officer argued that the tribunal decision was erroneous in law in allowing the claimant’s vision defect to “count twice’”. That was resisted by Mr. Davidson who however felt obliged to agree with Mr. Neilson’s second submission that the tribunal decision was in any event erroneous in law because of inadequate findings and reasons. It is obvious that even if the tribunal correctly upheld the claimant’s argument for ascribing additional points under activity 2 they wholly failed to explain their reasoning. On that ground alone I must hold the decision erroneous in law and set it aside.
8. A further point however arose before the tribunal and eventually led to the adjournment of the hearing before me referred to above. It is convenient to deal with that procedural point now. In his written submission to the tribunal the adjudication officer asked the tribunal to treat a corrected version of the adjudication officer’s original decision as the decision appealed against. This arose because the decision initially reproduced as the decision appealed against did not bear to be a decision made on review of the claimant’s award of invalidity benefit (which as mentioned above had become a transitional award of incapacity benefit) but took the form of a direct rejection of a claim for incapacity benefit. That was also the form of the decision as intimated to the claimant. This did not square with the adjudication officer’s statement of facts regarding the decision which had been made. The statement of facts narrated that the award of benefit had been reviewed and revised to terminate the claimant’s entitlement to benefit from 12 June 1995.
9. As the tribunal upheld the claimant’s appeal and reversed the adjudication officer’s decision they may have considered this point to be of little practical importance. However that may be, they wholly failed to deal with the question of a need for review. Before me Mr. Neilson was disposed to argue that no review was required. I entirely reject that argument. It is in my judgment clear that, as the adjudication officer now concerned indeed accepts, the transitional award of long term incapacity benefit could not be terminated except by a process of review and revisal. Of course if the proper conclusion on the assessment of the claimant was that he failed the all work test that would manifestly be a relevant change of circumstances warranting review and revisal to terminate the award of benefit. In response to the direction given by me the adjudication officer has made a submission which seeks to establish that the adjudication officer did in fact carry out a review in this case. He also seeks to show that the decision in question was made on 12 August 1995 and not, as previously appeared, retrospectively on 29 August 1995. The importance of this point is that, as the adjudication officer accepts, the material date for the purposes of a decision as to whether the claimant satisfies or does not satisfy the all work test under regulation 31(1) of the Transitional Regulations is the date when the adjudication officer makes his decision on the assessment of that test. In view of my conclusion below on the merits of the case the only remaining importance of the review issue in this case is to emphasise that a review on statutory grounds is a requisite for the termination of such awards of benefit and that the effective date for any resulting decision is the date on which the adjudication officer makes his assessment.
10. I come now to the main point on the merits of this case. Regulations 24 to 26 of the Social Security (Incapacity for Work) (General) Regulations 1995 contain the following material provisions:
“The all work test
24. The all work test is a test of the extent of a person’s incapacity, by reasons of some specific disease or bodily or mental disablement, to perform the activities prescribed in the Schedule.
Assessment under the all work test
25. (1) A person satisfies the all work test when one or more of the descriptors in Part I or ... [inapplicable] ... apply to him if, by adding the points listed in column (3) of the Schedule against the descriptor, he obtains a total score of at least-
(a) 15 points in respect of descriptors specified in Part I; or
26. (1) [inapplicable]
(2) In determining a person’s score where descriptors specified for the 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.
(3) In determining a person’s score in respect of descriptors specified in Part I where more than one descriptor specified for any activity applies to him, only one descriptor shall be counted and that shall be the descriptor with the highest score in respect of each activity which applies to him.
11. In this case the tribunal accepted evidence that by reason of his defective sight the claimant “cannot walk up and down a flight of twelve stairs without holding on” in terms of paragraph 2(d) of Schedule 1 to the General Regulations. That was accepted as the appropriate descriptor specified in the relevant activity of “walking up and down stairs.” The issue is whether ascribing points for the claimant’s inability to walk up and down a flight of stairs without holding on involves an impermissible double counting, where the cause of the claimant’s inability to do so is his defective vision and he also scores points under a descriptor specifically related to vision in paragraph 12. The importance of the point in this particular case is of course that if the claimant cannot do so he fails to reach 15 points whereas if he can he succeeds in reaching that threshold.
12. Mr. Neilson for the adjudication officer argued that there cannot be any such duplication. The proper approach, he said, was to look at the source of the claimant’s problem. The disability limited the possible score to the activity under which it was found. Thus where the problem was with vision and not with walking, the descriptors listed in relation to vision were the only ones which could be applied. He accepted that this had to be regarded as a matter of implication in the absence of any express limiting provision.
13. Mr. Davidson submitted that there was nothing to support the implication urged by Mr. Neilson. He referred to the breadth and generality of the wording in regulation 24 describing the all work test as “a test of the extent of a person’s incapacity, by reason of ... bodily ... disablement, to perform the activities described in the Schedule.” He noted that an overlap was recognised in relation to activities numbers 1 and 2 and that regulation 26(2) specifically prevented double counting in that case. He also referred to reported decision R(I) 8/85 in which a tribunal of Commissioners held that the existence of one specifically applicable definition of a qualifying occupation for the purposes of occupational deafness did not preclude the possibility of showing that another more generally defined provision was also applicable. His submission was that provided the claimant’s disablement directly applied to more than one “activity” in the Schedule, descriptors in both activities could, subject only to regulation 26(2) (and of course regulation 26(3)), be applied and counted.
14. There is much to be said for either view. On the one hand a common sense approach might suggest that points arising from defective vision should only be scored under the head of vision. On the other hand the legislature has provided an express scoring limitation in relation to activities 1 and 2 in regulation 26(2) but not in this case. Furthermore a physical disability (such as rheumatoid arthritis) could clearly lead in an appropriate case to scoring under a number (and indeed perhaps most of the first nine activities in the Schedule) so that Mr. Neilson’s limiting approach based on identifying the disability and linking it to the appropriate activity is not capable of universal application. Part of the problem, as it seems to me, lies in the lumping together under the head of “activities” of a mixture of specified movements or positions and other things perhaps better described as physical faculties or functions (such as speech, hearing and vision). If the latter were intended to be capable of scoring only in a self contained way they might have been expected to be separately dealt with. Looking at the descriptors applicable to activity number 2 relative to walking up and down stairs, it can be readily be appreciated that a person might qualify to score under one or other of those descriptors either as a result of a physical problem of mobility, through for instance joint disease, or as a result of severe breathlessness from heart or lung disease, or as a result of blindness or defective vision, or indeed from a balance problem such as vertigo.
15. It is no doubt a powerful consideration that blindness and degrees of defective vision have been specifically included among the “activities” to which a score can be ascribed. This specific feature does enable it readily to be argued that the intention is that all of the consequences for capacity for work related to that problem have been taken into account in the gradings of descriptors under that head. On the other hand, however, the legislature has prescribed a range of activities deemed to be relevant in testing capacity for work and as Mr. Davidson has pointed out regulation 24 directs attention to the “extent” of a person’s inability to perform the “activities” described. Why, one might ask, cannot a claimant, who meets the criteria, obtain a score under activity number 2 even if he is subsequently found to qualify for a score under head 12 as well? Certainly, as already pointed out, a person may readily be able to score under several of the first nine heads in consequence of the same disabling condition. It has never been suggested that this was not permissible. The scope for the overlapping of points between these heads and the remainder of the heads of “activities” in Part I may well be much more restricted, but no distinction has been made in the regulations and no limitation expressed save in relation to activities 1 and 2.
16. Having weighed the considerations pointing either way in the tight of the general wording of regulation 24 I can find no compelling reason for implying a scoring limitation which could have been but has not been made explicit. There has been no suggestion that the evidence did not entitle the tribunal to find descriptor 2(d) satisfied if it could competently be included in the points scored by the claimant. I accordingly uphold the tribunal’s decision on this matter for the fuller reasons given above.
17. In the circumstances I am able to dispose of this case without a remit by substituting my decision for that of the tribunal. That decision affirms that as the claimant satisfied the all work test as at 12 June 1995 the adjudication officer was not entitled on review to revise the decision awarding incapacity benefit to the claimant at that date.
18. Although the decision of the tribunal has required to be set aside, for practical purposes the adjudication officer’s appeal fails.
Date: 2 April 1997 (signed) Mr. J. G. Mitchell QC