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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Capello v Secretary Of State For Work And Pensions [2004] ScotCS 219 (28 September 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/219.html Cite as: [2004] ScotCS 219, 2005 SCLR 28 |
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OUTER HOUSE, COURT OF SESSION |
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P1782/03
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OPINION OF LADY PATON in the petition of DOMINIC CAPELLO (Assisted Person) Petitioner; against SECRETARY OF STATE FOR WORK AND PENSIONS Respondent: for Judicial Review of a decision of a Social Security Commissioner to refuse leave to appeal
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Petitioner: R.D. Sutherland, Advocate; Anderson Strathern (for Quinn Martin and Langan, Solicitors, Glasgow)
Respondent: P.J. Brodie, Advocate; Solicitor to the Advocate General
28 September 2004
Incapacity benefit: ability to lift and carry
[1] The petitioner, Dominic Capello, was born on 4 December 1952. When aged 45, he applied for incapacity benefit, claiming inability to work due to pain in his neck, back and right knee. On 11 February 1998, he completed a social security questionnaire, form IB50. In an introductory part of the form, he explained that he was unable to work as he had "neck pains and lower back pains, probably osteoarthritis". [2] In another section of the form, under the heading "Lifting and carrying", the petitioner was invited to state whether he had any difficulties lifting or carrying things. The form explained:"By lifting we mean to pick up an object from a height that does not involve bending or reaching. For example, lifting something from a desk.
By carrying we mean to move the object to a different position involving the upper part of your body only."
I have no problem with lifting and carrying
I cannot pick up a paperback book with either one of my hands
I cannot pick up and carry a 0.5 litre (about one pint) carton of milk, with either one of my hands
I cannot pick up and pour from a full saucepan or kettle of 1.7 litres (about 3 pints) capacity, with either one of my hands
I cannot pick up and carry a 2.5 kilo (about 51/2 lbs) bag of potatoes, with either one of my hands
I cannot pick up and carry a 0.5 litre (about one pint) carton of milk with one hand but I can with the other
I cannot pick up and carry a 2.5 kilo (about 51/2 lbs) bag of potatoes, with one hand but I can with the other
The statements reflected descriptions of activities (known as "descriptors") set out in Part I of the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995, S.I. 1995 No.311, referred to in greater detail in paragraphs [9] et seq. below.
[4] The petitioner did not tick any of the statements. Instead, he wrote at the side:"None of these [apply] as my arms and hand muscles are not weak."
"...tell us anything else you think we may need to know about the difficulties you have ... lifting and carrying. In particular you could tell us about any pain or tiredness you feel while doing or after doing [lifting and carrying]. Also tell us if it varies from day-to-day ..."
"I cannot carry bags or any items of grocery etc. at all without being in constant pain to my lower back region, and if I try to lift anything more than about 5 - 10 lbs in weight I get constant throbbing."
Medical examination
[7] On 29 April 1998, the petitioner was examined and interviewed by a doctor from the Benefits Agency Medical Service (BAMS). Such a doctor has been approved by the Secretary of State and is accredited as able to assess applicants for benefits. In order to achieve such accreditation and approval, the doctor has to undertake a training course, pass a written test, and satisfy the training officer that he has the necessary practical skill to carry out an assessment of a person's capacity to perform the activities prescribed in the 1995 Regulations. [8] Having examined and interviewed the petitioner, the doctor completed a medical report form IB85. In the section headed "Lifting and carrying (Activity 8)" the printed instructions in form IB85 advised the doctor inter alia:"... The ability to walk with the object should not be considered."
The doctor ticked "No problem with lifting and carrying". In response to the question "Do you agree with the customer's choice of descriptor?" the doctor ticked "Yes" and added "States no problem". In a section headed "Relevant features of clinical examination" the doctor noted:
"Arms - full range of movement
Normal muscles and power
Hands - no deformity
full dexterity and grip"
The All Work Test: 1995 Regulations
[9] The test applicable to the petitioner at the relevant time was the "All Work Test". That test was an assessment of the extent to which a person was able to perform certain activities. In terms of section 171C(2) of the Social Security Contributions and Benefits Act 1992, it was provided that there should be regulations -"(a) 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, and
(b) as to the manner of assessing whether the all work test is satisfied."
"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.
25. (1) A person satisfies the all work test when one or more of the descriptors in Part I or Part II 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
(b) 10 points in respect of descriptors specified in Part II; or
(c) 15 points in respect of descriptors specified in Parts I and II ...".
(a) Cannot pick up a paper-back book with either hand.
Refusal of incapacity benefit and appeal to tribunal
[17] On 10 June 1998 an adjudication officer, having considered the petitioner's case, awarded zero points, and refused his application for incapacity benefit. The petitioner appealed to a Social Security Appeal Tribunal. His appeal came before the tribunal on 22 February 2000. [18] The tribunal had form IB50, completed by the petitioner; form IB85, completed by the BAMS doctor; and a letter dated 13 February 2000 by Dr. Durward, an independent consultant neurologist unconnected with BAMS. Dr. Durward had examined the petitioner, and given an opinion. The tribunal also had the benefit of hearing evidence from the petitioner, as recorded in the Record of Proceedings number 6/4 of process. [19] Applying the terms of Part I of the Schedule to the 1995 Regulations, the tribunal formed a different view from that reached by the adjudication officer. The tribunal decided to give the petitioner points. [20] In respect of Activity 1, "Walking on level ground with a walking stick or other aid as such aid is normally used", the tribunal gave the petitioner 3 points as qualifying in terms of descriptor 1(e), namely "Cannot walk more than 400 metres without stopping or severe discomfort". [21] In respect of Activity 2, "Walking up and down stairs", the tribunal gave the petitioner 3 points as qualifying in terms of descriptor 2(d), namely "Cannot walk up and down a flight of 12 stairs without holding on". However, Regulation 26(2) of the 1995 Regulations provides that "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". Accordingly the tribunal awarded the petitioner only 3 points in total in respect of both descriptors 1(e) and 2(d). [22] In respect of Activity 3, "Sitting in an upright chair with a back, but no arms", the petitioner was awarded 3 points as qualifying in terms of descriptor 3(d), namely "Cannot sit comfortably for more than 1 hour without having to move from the chair because the degree of discomfort makes it impossible to continue sitting". [23] In respect of Activity 4, "Standing without the support of another person or the use of an aid except a walking stick", the petitioner was awarded 3 points as qualifying in terms of descriptor 4(f), namely "Cannot stand for more than 30 minutes before needing to move around". [24] The tribunal awarded the petitioner no points in respect of the remaining ten activities in the Schedule, namely -5. Rising from sitting in an upright chair with a back but no arms without the help of another person
6. Bending and kneeling
7. Manual dexterity
8. Lifting and carrying by the use of the upper body and arms (excluding all other activities specified in Part 1 of this schedule)
9. Reaching
10. Speech
11. Hearing with a hearing aid or other aid if normally worn
12. Vision in normal daylight or bright electric light with glasses or other aid to vision if such aid is normally worn
13. Continence (other than enuresis (bed wetting))
14. Remaining conscious without having epileptic or similar seizures during waking moments.
"The total points from physical descriptors - 9 points - is not enough to satisfy the All Work Test. On the remaining descriptors we preferred the evidence from the medical assessment on 29/4/98 to that of the claimant. The evidence from Dr. Durward's letter was a generalised history and offered opinion on physical descriptors without detailed evidence as to why the descriptors chosen would apply in the case of the claimant. We are satisfied that the medical assessor approved by the Secretary of State [i.e. the BAMS doctor] is more familiar with the methodology for assessment. The claimant has a full range of arm movements - lifting/carrying is not appropriate. No mental descriptors were claimed."
Application for leave to appeal
[27] The petitioner wished to appeal further. In terms of section 14 of the Social Security Act 1998, an appeal lay to a Social Security Commissioner from the decision of the appeal tribunal "on the ground that the decision of the tribunal was erroneous in point of law". On 10 July 2000, the chairman of the tribunal refused leave to appeal. The petitioner applied for leave to the Social Security Commissioner. By undated letter addressed to the Office of the Social Security Commissioner, the petitioner stated:"I am seeking leave to appeal to the Social Security Commissioner in respect of the Social Security Appeal Tribunal decision of 22/02/2000.
The ground for this application is that although it was suggested at the tribunal hearing that points were appropriate for the following descriptors, sitting, rising from sitting, bending, walking, walking on stairs, standing and lifting and carrying, no explanation is given as to why no points were awarded in respect of rising from sitting, bending and lifting and carrying.
I submit that the decision cannot be supported by evidence. Specifically, the tribunal cannot rely on the evidence via the Benefits Agency Medical Service [Doctor's] Report, as no points were considered appropriate therein and since the tribunal considered that certain physical descriptors do apply to me and correspondingly points are awarded, this is an inconsistent and unsupportable position ..."
" ...The suggested grounds for appeal do not appear to me properly to be arguable as issues of law. When the tribunal decision is read as a whole it is clear that there is no inconsistency of approach. Assessment of the evidence is a matter for the tribunal and they have set out a reasoned basis for their conclusion on it."
Judicial review of commissioner's refusal to grant leave to appeal
[29] The petitioner then sought judicial review of the commissioner's refusal to grant leave to appeal. There was delay in processing the judicial review. Legal aid was eventually granted on 18 July 2002, but the petition for judicial review was not lodged until 2 December 2003. The delay provoked a plea of mora, taciturnity and acquiescence from the Secretary of State for Work and Pensions ("the respondent").Respondent's plea of mora, taciturnity, and acquiescence
Submissions on behalf of the petitioner
[30] Counsel for the petitioner explained that delay in the judicial review had occurred partly because of the agents' difficulties obtaining a full set of papers, and partly as a result of oversight. The agents had eventually managed to obtain papers and to make an application for legal aid. However once the legal aid certificate had been granted on 18 July 2002, the agents simply overlooked the case. In November 2003 they discovered their mistake, and instructed counsel to draft a petition. The petition was lodged in court on 2 December 2003. [31] The agents very much regretted their oversight. Nevertheless counsel contended that the respondent had suffered no prejudice. The respondent had received full intimation of the petitioner's application for legal aid, and also of the granting of legal aid. While therefore the subsequent silence and lack of activity might have puzzled the respondent, it had not caused any prejudice. If the petitioner were to be successful in his judicial review, the matter would be referred back to a differently-constituted tribunal, and an assessment made of the petitioner's incapacity as at 10 June 1998 (the date of the adjudication officer's decision). Social Security Appeal Tribunals often considered matters of some antiquity. It was not uncommon for a case to be sent back to a tribunal for a fresh fact-finding exercise. Reference was made to paragraphs [7] to [9] of Singh v Secretary of State, 2000 S.L.T. 533; Sodagar Chowdry, 2000 SCLR 663, at pages 675F to 677F; Noble v City of Glasgow Council, 2001 S.L.T. 2; and Bett Properties Limited v The Scottish Ministers, 2001 S.C. 238. Counsel invited the court to repel the respondent's plea of mora.Submissions on behalf of the respondent
[32] Counsel for the respondent accepted that, for the plea of mora to be successful, some form of prejudice suffered by the respondent had to be demonstrated. He submitted that the delay had prejudiced the good administration of the social security system. Also if the matter were to be remitted back to a tribunal, that tribunal would be prejudiced in that they would have to attempt to assess the physical condition of the petitioner as at 10 June 1998. Thus if a new hearing could be arranged in 2005, the subject of assessment would be a physical condition which had existed some seven years previously. That was too long a period. It compared unfavourably with the time-limits in the statutory appeals system, which were intended to give some finality to the adjudication of benefits. In England, a claimant had only three months within which to seek judicial review of a decision. Reference was made to Kwik Save Stores Ltd v Secretary of State for Scotland, 1999 S.L.T. 193, at pages 196G-197C; R. v Dairy Produce Quota Tribunal for England and Wales, ex parte Caswell [1990] 2 AC 738, at page 749F. The court should sustain the respondent's plea of mora, and refuse the petition.Response on behalf of the petitioner
[33] Counsel for the petitioner responded by pointing out that in Caswell, the possibility of further challenges following the challenge in question meant that a quota allocation might have to be re-opened: there was therefore an obvious prejudice to the interests of good administration. The present case was quite different. In Kwik Save Stores Ltd the Secretary of State had received no intimation of any challenge. By contrast, in the present case the respondent had received notice of a challenge when the petitioner applied for legal aid, and when legal aid was granted. Accordingly both Caswell and Kwik Save Stores Ltd. could be distinguished.Decision on mora, taciturnity and acquiescence
[34] A plea of mora, taciturnity, and acquiescence must be determined on the facts of a particular case. In the present case, while criticisms could be made of the petitioner's agents, I have not been persuaded that the respondent has demonstrated prejudice arising from the delay sufficient to justify sustaining the plea. It would not be too difficult for a differently-constituted tribunal to re-assess the petitioner's state of health and incapacity as at 10 June 1998. Moreover from the point of view of good administration, no major administrative decisions are likely to be affected by the outcome of this case, nor is it likely that any administrative procedure would be seriously prejudiced as a result of the passage of time. I therefore repel the respondent's second plea-in-law.Submissions on the merits
Submissions on behalf of the petitioner
[35] Counsel for the petitioner submitted that his attack upon the Social Security Commissioner's refusal to grant leave to appeal inevitably involved an attack upon the assessment made by the appeal tribunal. He contended that the petitioner ought to have been assessed as qualifying in terms of descriptor 8(d) for Activity 8 (Lifting and carrying). The petitioner should accordingly have received an additional 8 points, bringing out a total of 17 points. The petitioner would then have qualified under the All Work Test. At the very least, the petitioner had been entitled to be assessed under descriptor 8(d). It was clear that the tribunal had never carried out such an assessment. [36] Counsel argued that the petitioner had provided all the necessary information. Although he had ticked none of the boxes in relation to Activity 8, he had added in the section headed "More information" certain facts which made it clear that he had trouble lifting and carrying. The petitioner had given details of a range of weights which he was "capable" of lifting, but which resulted in throbbing pain. Anything over 5 lbs led to constant throbbing, and 10 lbs was the maximum which he felt able to lift. As 2.5 kg was equivalent to 5.5 lbs, the petitioner met the minimum weight requirement set by the descriptors. [37] In those circumstances, the tribunal had erred in two ways. First, the tribunal recorded that the petitioner had "a full range of arm movements - lifting/carrying is not appropriate". But the test was not the range of arm movements. The test was whether the applicant could pick up and hold an object. The tribunal had therefore applied an inappropriate test. Secondly, even if the first argument was not correct, and if it were assumed that the tribunal had taken into account all relevant information, the tribunal had failed to carry out a proper assessment. They had failed to consider material showing that the petitioner was capable of qualifying in terms of descriptor 8(d). [38] Counsel added by way of clarification that, although the letter from the consultant neurosurgeon Dr. Durward was referred to by the tribunal (and was, by implication, favourable to the petitioner), that letter could not now be found. The petitioner did not seek to rely upon Dr. Durward's letter. [39] Counsel suggested that it was clear from decisions of Social Security Commissioners that there was some uncertainty about the effect of the amendment to the 1995 Regulations, resulting in Activity 8 being changed from "Lifting and carrying" to "Lifting and carrying by the use of the upper body and arms (excluding all other activities specified in Part I of this schedule)". It was the petitioner's contention that the tribunal should view "carrying" as implying the ability to move from one place to another while holding an item. The tribunal should also have regard to the extent of pain caused by lifting and carrying, and how that pain impacted on the individual's ability to lift and carry. For example, for how long could the petitioner hold an item before being forced to put it down because of pain. The tribunal had not properly performed that exercise. [40] Reference was made to (i) paragraph 1634 of the 20th edition of "Rights Guide to Non-Means-Tested Benefits" by Poynter and Martin, provided by the Secretary of State to medical advisers to assist them in carrying out assessments for incapacity benefit; (ii) a decision of Social Security Commissioner Rowland dated 7 June 2001 reference CIB/483/2001; (iii) a decision of Social Security Commissioner Parker dated 24 March 1999 reference R(IB) 4/03, particularly paragraphs 14 and 16; (iv) a decision of Social Security Commissioner Jacobs dated 24 March 1999 reference CIB/5744/1997; (v) a decision of Social Security Commissioner Turnbull dated 23 May 2002 reference R(IB) 5/03 (said by counsel for the petitioner to be erroneous). Counsel submitted that both the activity and the descriptors had to be considered. The descriptors for Activity 8 supported the proposition that "carrying" must involve movement from one place to another. It defied common sense to assess a capacity to carry without considering the necessary concomitant of capacity to walk. It was also relevant to assess whether carrying an item caused pain which forced the person to stop carrying. Had the tribunal properly applied their minds to lifting and carrying, they would have taken into account the material included in the section headed "More information", and then checked whether the petitioner's estimates of weights were accurate, whether he could lift, whether he could carry, and if there was throbbing, at what point was he forced to put an object down because of pain. The tribunal had to have regard both to the activity being measured, and to the descriptors. The tribunal had erred, either by applying the wrong test, or by failing to take into account material showing that the petitioner was eligible under descriptor 8(d). [41] Counsel then turned to the Social Security Commissioner's refusal of the petitioner's request for leave to appeal. The test to be satisfied before granting leave to appeal was as set out in R v Social Security Commissioners (ex parte Anayet Begum) [2002] E.W.H.C. 401, paragraphs [18] to [20]; and in Mooney, petitioner, April 23, 2004, an unreported decision of Lord Brodie. The test was whether there was an arguable point of law, and if the point being founded upon was not properly focused in the application for leave to appeal, the point had to be one which (a) should have been obvious to the commissioner, and (b) had strong prospects of success. The petitioner's submission was that both tests were satisfied. The point of law had been flagged up in the petitioner's undated letter. But even if the court took the view that the letter did not have that effect, the commissioner, properly directing his mind to the statutory provisions, ought to have recognised that the tribunal had erred, or at least that there was an arguable point (with strong prospects of success) that the tribunal had erred. [42] Accordingly the commissioner should have granted leave to appeal. Counsel invited the court to repel the respondent's first and third pleas-in-law, to sustain the petitioner's first plea-in-law, and to reduce the commissioner's determination dated 25 August 2000 refusing leave to appeal.Submissions on behalf of the respondent
[43] Counsel for the respondent invited the court to sustain the respondent's third plea-in-law, and to refuse the petition. The respondent's first plea-in-law was not insisted upon. [44] The commissioner had not erred in law in refusing to grant leave to appeal. The statutory scheme prescribed the means of measuring a person's ability to perform activities. The descriptors were the key to assessing incapacity. Activity 8 had been amended by parliament. It must be assumed that parliament made that amendment for a purpose. [45] The proper hierarchy of decisions and case-reports was as set forth in R(I) 12/75 Industrial Injury Benefit, at paragraph 17 et seq. The decisions of Commissioners Parker and Turnbull had greater weight than that of Commissioner Rowland. The descriptors made no mention of time-periods, nor did they focus on ability to move any significant distance. The focus of descriptor 8(d) was on the upper body and arms, i.e. whether the applicant was capable in the upper body and arms of lifting and carrying. [46] Counsel then turned to the circumstances in which a commissioner was entitled to refuse an application for leave to appeal. Section 14 of the Social Security Act 1998 restricted appeals to decisions which were "erroneous in point of law". Reference was made to Mooney, petitioner, cit. sup.; R. v Secretary of State for Social Services, ex parte Connolly [1986] 1 All E.R. 998; R. v. Secretary of State for the Home Department, ex parte Robinson [1998] QB 929; R. v. Social Security Commissioners (ex parte Anayet Begum) [2002] E.W.H.C. 401; and Cooke v. Secretary of State for Social Security [2002] 3 All ER 279. If, as the respondent contended, the petitioner's letter failed properly to focus the point or points of law in issue, the commissioner could only be faulted for refusing leave to appeal where, after a consideration of the papers, a point of law was identifiable as having strong prospects of success. [47] Against that background, counsel submitted that the tribunal had not erred in law; and in any event the commissioner had not erred in law. [48] Counsel contended that, in the light of the evidence before the tribunal, they were entitled to conclude that the descriptors for Activity 8 were not satisfied. The tribunal's Statement of Reasons did not show that they had applied the wrong test. Even if they had, the evidence was such that they were entitled to conclude that lifting and carrying were really not in issue. Reference was made to the completed form IB50. The petitioner's response in relation to the lifting and carrying section did not so obviously satisfy the descriptors that a tribunal (or a commissioner) should have concluded that some or all of the descriptors were satisfied. Reference was then made to the doctor's assessment, contained in form IB85, and to the oral evidence given to the tribunal as noted in the Record of Proceedings. [49] In relation to the applicant's undated letter seeking leave to appeal, the second paragraph seemed to focus on the inadequacy of the reasons given. The third paragraph seemed to contend that if a tribunal accepted a BAMS doctor's report, they could not give points where the BAMS doctor had given none. That contention was patently wrong. The grounds upon which the petition for judicial review was based did not appear to be reflected in the petitioner's undated letter. Accordingly the test in Begum was applicable: i.e. whether, on a consideration of the papers, there was a point of law identifiable as having strong prospects of success. There was no such point in the present case. On a consideration of the evidence as a whole, the tribunal's conclusion in relation to lifting and carrying was entirely reasonable. So far as the commissioner's decision was concerned, applying the guidance in Connolly, Cooke, and Begum, it could not be said that the commissioner had erred in law such that his refusal of leave to appeal should be reduced. [50] The court was invited to sustain the respondent's third plea-in-law, and to refuse the petition.Final response on behalf of the petitioner
[51] Counsel for the petitioner contended that little weight could be given to the report by the BAMS doctor in form IB85. Partly as a result of the lay-out of the form, the doctor's views about the petitioner's complaints of pain when carrying shopping bags were not clear. Nor could it be assumed that the tribunal's Record of Proceedings was a full and complete note of all the evidence. [52] The respondent placed great reliance upon the fact that the petitioner had not ticked any of the boxes under Activity 8. But it was significant that the petitioner had not ticked the descriptor "I have no problem with lifting and carrying". The petitioner had set out his own views about his incapacity under the heading "More information". [53] The case of Connolly had to be read subject to the observations in Robinson, and also bearing in mind the fact that the point in Connolly was how should the court approach the commissioner's refusal of leave to appeal when the commissioner provided no reasons. [54] Counsel finally commented that, having been told by the petitioner that he had problems with his shopping bags, and bearing in mind the greater specification that the petitioner had included in form IB50, it was not within the bounds of common sense to give the petitioner zero points for Activity 8, lifting and carrying. Counsel provided dictionary excerpts relating to the verb "to carry".Opinion
[55] The issue before me is whether the Social Security Commissioner erred in refusing leave to appeal. [56] In terms of section 14(1) of the Social Security Act 1998, an appeal lies to a commissioner from any decision of an appeal tribunal on the ground that the decision was erroneous in point of law: R. v. Social Security Commissioners (ex parte Anayet Begum) [2002] E.W.H.C. 401 paragraphs [18] to [20]; Mooney, petitioner, 23 April 2004 (Lord Brodie).(i) The petitioner's appeal letter
[57] In my view, the petitioner's undated letter seeking leave to appeal failed to focus the alleged errors of law which were argued in the course of the first hearing in the judicial review. The second paragraph of the letter appeared to complain of a lack of reasons and an inconsistency of approach. But those complaints were not repeated in the submissions made before me, and in my view, on the material before the commissioner, he was entitled to conclude that "when the tribunal decision is read as a whole it is clear that there is no inconsistency of approach. Assessment of the evidence is a matter for the tribunal and they have set out a reasoned basis for their conclusion on it." [58] The third paragraph of the letter appeared to suggest that the tribunal were bound to accept or reject the report by the doctor from BAMS in its entirety. As the doctor's report had concluded that the petitioner was not entitled to any points, yet the tribunal had, despite the doctor's report, awarded the petitioner some points in respect of certain physical descriptors, the petitioner claimed that the tribunal had adopted an "inconsistent and unsupportable position". But in my view the tribunal were entitled to choose what evidence to accept and what evidence to reject. They were entitled to accept some parts of the doctor's report, and not other parts. [59] Accordingly the commissioner cannot in my view be criticised for refusing leave to appeal on the basis of the content of the petitioner's letter.(ii) Point of law with strong prospects of success
[60] The petitioner's second argument was that the commissioner, properly directing his mind to the statutory provisions, should have seen, on reading all the papers in the case, that there had been an error in law on the part of the tribunal in that they had either applied the wrong test in respect of Activity 8 (lifting and carrying), or alternatively they had failed to consider material entitling the petitioner to qualify in terms of a descriptor for Activity 8. [61] I am not persuaded by those arguments. [62] Section 171C of the Social Security Contributions and Benefits Act 1992 and the 1995 Regulations (as amended) set up a specialised and technical scheme for measuring a person's capability of performing certain clearly-defined activities. Two of the underlying aims of the scheme are consistency and the avoidance of double-counting. The regulations endeavour to provide a precise method of measuring a person's capacity or incapacity. Thus the focus is upon a person's ability to perform certain physical acts, and not upon a general assessment of a person's medical condition. The descriptors relevant to each activity in the Schedule to the 1995 Regulations are clearly (and quite restrictively) defined. [63] Against that background, the petitioner's first complaint is in my view without merit. The tribunal were working on the basis of the descriptors and points set out in the Schedule to the 1995 Regulations. They had to bear in mind the restricted parameters of the descriptors relevant to Activity 8. The evidence before the tribunal included the petitioner's response to the seven statements reflecting those descriptors, namely:"None of these [apply] as my arms and hand muscles are not weak."
Perhaps more importantly, the tribunal also had the evidence of a specially trained BAMS doctor, in other words, someone not only medically qualified but also with specialised training in the application of the scheme. That doctor, having examined and spoken to the petitioner, and having applied his dual expertise, gave his opinion that the petitioner did not qualify within the descriptors in Activity 8.
[64] On the basis of that evidence, the tribunal were in my view entitled to reach the view they did, even bearing in mind any additional information provided by the petitioner in the section headed "More information" and during his evidence in the course of the tribunal hearing. That additional information simply confirmed the petitioner's capability to lift and carry in the restricted sense defined in the descriptors for Activity 8: contrast with the physical incapacity under consideration by Social Security Commissioner Jacobs in paragraphs 15 and 16 of CIB/5744/1977:" ... the claimant ... attributed his difficulties with lifting and carrying to his arms being tired [italics added]. Those difficulties related to the claimant's upper body and arms. So, they fell within the governing words of the activity."
"11. The amendment to activity 8 has undoubtedly introduced a scoring limitation. The claimant is not able to score by a descriptor for lifting and carrying where the activity impaired is ancillary to lifting and carrying and is itself a separate activity under part I. Thus a person may, depending upon his original position, have to bend or reach before lifting and carrying an object or after having done so; usually a person walks while carrying. But none of these activities are essential concomitants of lifting and carrying. A person may pick up and carry an object from a table nearby and at waist level and may even do so while moving around in a wheelchair. Therefore, it is possible to isolate the activity of lifting and carrying from other activities specified in Part I of the Schedule which are otherwise often associated with lifting and carrying, because they are each separate components of one continuous manoeuvre. In addition to walking, reaching and bending, other such activities might be walking up and down stairs, standing and rising from sitting. The limitation introduced by amendment seems certainly to preclude taking into account impairment of these activities when considering whether the claimant is able to lift and carry by the use of upper body and arms ...
15. ... the amendment ... was clearly designed to reinforce the policy behind the guidance for examining doctors already referred to, i.e. that activities which could be compartmentalised from lifting and carrying, such as walking, climbing stairs etc. should not assist the claimant to score points for lifting and carrying in addition, simply because they were sometimes associated with lifting and carrying ..."
"7. ...Contrary to the view of the Commissioner in CIB/483/2001 [Commissioner Rowland], I think that it is reasonably clear that "carry" in the descriptors in para.8 of the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 involves merely moving the relevant object by the use of the upper body and arms, no walking being involved. That is because the activity in para.8 is described as
"Lifting and carrying by the use of the upper body and arms (excluding all other activities specified in Part I of this schedule)".
8. Until 6 January 1997 the activity was described simply as "lifting and carrying". In my judgment it is clear that the position since that amendment has been that the descriptors in para.8 which refer to the claimant's ability to "pick up and carry" an object do not require him to be able to do more than move the object by means of his upper body and arms, and in particular do not require him to be able to walk with it ..."
"3. ...It is common ground, and I agree, that the tribunal applied the wrong test, because "carry" connotes a degree of movement from one place to another. Merely handing something to someone is not carrying it. The claimant's case is that he could lift a 2.5 kilogramme bag but that he could not carry it and it is therefore plain that his case must be considered by another tribunal."
Those observations followed upon an express concession, and possibly without the benefit of full argument.
[77] Thus it appears to me that in the specialised and technical context of the social security methodology for assessing degree of incapacity, the tribunal cannot be said to have erred when they assessed the petitioner's capacity to lift and carry excluding from consideration the activity of walking. [78] I do not therefore accept that, on a perusal of the whole papers in the petitioner's case, the Social Security Commissioner should have seen that there was an arguable point of law with strong prospects of success. I am not persuaded that his decision refusing the petitioner leave to appeal should be reduced.Conclusion
[79] For the reasons given above, I shall sustain the respondent's third plea-in-law, and refuse the petition.
