DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under section 14 of the Social Security Act 1998. It is:
The decision of the Grimsby appeal tribunal under reference U/01/004/2004/00612, held on 11 November 2004, is not erroneous in point of law. 

History and background
2.	This case concerns the claimant’s capacity for work. He was born on 31 October 1980 and according to his GP has had ME since he was 14 years old. He claimed incapacity benefit on 22 October 2003 and was awarded credits from that date. In 2004, a personal capability assessment of his capacity for work was undertaken. His GP provided a statement of diagnosis. He then completed a self-assessment questionnaire, in which he identified no physical disability relevant to the assessment, but wrote about fatigue and about the effort required to undertake any activity. He was then interviewed and examined by a medical adviser. The doctor found no abnormality on physical examination on what the claimant said was for him a good day. The doctor recorded that the claimant performed all movement ‘enthusiastically, energetically and with apparent ease.’ Under the mental disabilities, the doctor identified only one relevant descriptor (need encouragement to get up and get dressed), which carried two points. The claimant exercised his right of appeal and gave a detailed commentary on the medical adviser’s report. In support of the appeal, the claimant produced a diary of his condition for October and early November 2004. He also provided two letters from his GP, which said nothing about disabilities, and one letter from a Consultant, which was written in 1995. He attended the hearing of his appeal and gave oral evidence. He was not represented. The tribunal rejected the descriptor identified by the medical adviser, but found other relevant descriptors giving a score for the mental disabilities of 7. As this was insufficient to satisfy the personal capability assessment, the tribunal had to dismiss the appeal. The claimant obtained the services of a representative from the CAB and applied for leave to appeal. A district chairman refused leave. The renewed application was referred to the Chief Commissioner. He rejected three of the representative’s arguments, but granted leave on the ground that the tribunal may not have properly dealt with the variation in the claimant’s disabilities. The Secretary of State has supported the appeal on that ground and the claimant’s representative has made a ‘no further comment response’. The letter requesting a response made clear that the Commissioner might not accept the Secretary of State’s submission. The Chief Commissioner has now transferred the case to me for decision. 
The grounds of appeal rejected by the Chief Commissioner 
3.	As I have said, the Chief Commissioner rejected three of the grounds of appeal put forward by the representative. They were set out on the second page of the grounds and numbered 1-3. I gratefully adopt what the Chief Commissioner wrote. I reject those grounds for the reasons he gave. 
4.	I would also add this. A theme linking the points is that as the claimant has never worked and has been disabled by ME since the age of 14, the terms of the descriptors either do not allow him to score points or make it difficult for him to be able to give relevant evidence. I take that point, which is well made. However, the appeal tribunal and the Commissioners have to take the personal capability assessment as it is set out in the legislation. We cannot alter it for the unusual circumstances of a particular claimant. It is a regular experience of all those involved in applying the assessment that there are cases for which it does not seem particularly well designed. However, the terms of the test can only be amended by legislation. 
Variation
5.	In R(IB) 2/99, a Tribunal of Commissioners decided that variation and repetition had to be taken into account in applying what is now called the personal capability assessment. Put simply, the tribunal had to make an overall assessment of the claimant’s disabilities, taking account of the extent to which they varied from time to time. 
6.	Variation is not relevant to all the descriptors. For some descriptors, it has no application at all. For example, it has no relevance to whether mental stress was a factor in making the claimant give up work. For others, it is relevant but the descriptors themselves provide a time frame within which a decision must be made. This time frame may be specific, as in the specific frequency specified for continence, consciousness and descriptor 15(g). Or the time frame may be more open-ended, as in ‘occasionally’ (descriptor 13(g)), ‘sometimes’ (descriptors 5(c) and 6(c)), ‘often’ (descriptor 15(b)), and ‘frequently’ (descriptors 16(c) and 17(b) and (c)). It is only for the others that the Tribunal of Commissioners decision is relevant. 
7.	If that decision applies, it does not require a formulaic approach. Quite the reverse. It does not necessarily mean that the tribunal has to make specific findings on the nature, range and frequency of variation, although this may be necessary in a particular case. Nor does it mean that the terms of the descriptors have to be put aside in favour of a broad brush approach to the application of the personal capability assessment. The decision has to operate within the context of the language of the legislation. The precise mechanism varies according to that language. The decision operates by way of interpretation of that language. For example, many of the descriptors use the word ‘cannot’; for them the decision informs the interpretation and application of that word.
8.	In this case, the Secretary of State has criticised the tribunal for not enquiring sufficiently about the claimant’s variation. I reject that argument. The tribunal had the claimant’s diary that covered a period of a month shortly before the hearing. It also had his detailed letter of appeal, which included (in the fourth paragraph) a rating of variation comprising okay, rough, poor and very poor. The tribunal had sufficient evidence on which to make a decision. His other written evidence and the evidence which he gave at the hearing of his appeal was given in the context of that specific evidence on variation. 
9.	Having received all the evidence, the tribunal then had to assess it as a whole and make findings of fact relevant to the terms of the personal capability assessment. The chairman’s explanation dealt with each of the mental descriptors, identified whether it was in issue on the evidence and, if it was, made clear what facts the tribunal found relevant to it. Each of those explanations is soundly based in a careful analysis of the evidence and supports the tribunal’s conclusion on that descriptor. Take this coverage of whether the claimant needed encouragement to get up and dress:
‘[The medical adviser], during his examination, found that [the claimant] would require encouragement to get up and dress, basing his finding on the observation that he often lies in bed until the afternoon on most days. However, the Tribunal, having considered the evidence given by [the claimant], did not feel that this descriptor was appropriate. [His] evidence was indeed that he would often lie in bed for a significant period after waking, but did not suggest that this was due to a lack of prompting from members of his family, or that such prompting would result in [the claimant] rising from his bed. In his appeal, [the claimant] stated that he would stay in bed for between 2 and 6 hours before he could do anything, and did not suggest in his evidence that a decision or ability to rise from his bed was linked to him being prompted to do so by another person. The Tribunal did not feel therefore that an award of points could be made under this descriptor.’
Notice that the tribunal had evidence on variation – ‘often’ and ‘on most days’ – that it took into account, on this occasion finding that it was not relevant because it did not involve variation relevant to the terms of the descriptor. 
10.	The claimant’s representative has made six points about the tribunal’s treatment of variation. Two of them (points 2 and 6) are covered by the point I have already made that the tribunal had to apply the terms of the personal capability assessment even if it was not perhaps most appropriately designed for the circumstances of this particular claimant. For the most part, the others present different evidence from that given to the tribunal or rely on a different analysis of the evidence that was given. My comments on these are as follows. 
•	Point 1 relates to taking a message. The tribunal relied on the lack of any evidence that this was a problem for the claimant. What else could the tribunal do? His representative says that he cannot do this when he is at his worst and could not make the effort to write down the message. But that evidence was not put to the tribunal. The claimant had completed the relevant forms, been interviewed by the medical adviser, and produced written evidence for the hearing. He had the chance to say anything he wanted at the hearing. There was nothing to suggest that this descriptor might present a problem for the claimant. Why should the tribunal investigate further than it did?
•	Point 3 relates to concentration. The tribunal relied on the evidence that the claimant was undertaking A level study. On the evidence before the tribunal, it was entitled to draw the inferences that it did from this evidence. His representative says that he cannot attend all the classes, but that is not what the claimant told the tribunal as recorded by the chairman. He said that he went ‘each Tuesday’ and felt exhausted on Wednesday.
•	Point 4 relates to using a directory. The tribunal relied on evidence that showed that the claimant could concentrate ‘more often than not for periods significantly longer than would be required to’ do this. His representative says that he cannot think straight enough to do this on a bad day. However, the tribunal was entitled to make the findings it did on concentration on the evidence before it. 
•	Point 5 relates to communication with other people. The tribunal found that the claimant was able to present his case both verbally and in writing. His representative says that the tribunal hearing was on a good day for which the claimant prepared over three days. Otherwise he would get tongue tied and would stutter. Again, that evidence was not before the tribunal. It cannot be faulted for not taking account of evidence that was not given. Nor, given the fluency of the claimant’s written and oral presentation, had it any reason to investigate beyond appearances. I also notice that his mother and brother attended the hearing with him. They could have added anything to correct any misapprehensions that might arise from his evidence. 
Disposal
11.	I dismiss the appeal. 

Signed on original
on 4 May 2005

Edward Jacobs
Commissioner