England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSION

		Royal Courts of Justice Strand, London, WC2A 2LL
		6 February 2009

Lord Justice Moses :

Introduction

1. This appeal concerns the interpretation of a regulation designed to identify the circumstances in which a benefit claimant may be treated as incapable of work on the grounds that he would be a substantial risk to his own or another's health, were he found capable of work.
2. The evaluation of the risk has proved to be a source of some controversy between Commissioners who have had to consider Regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311) ("the 1995 Regulations").

The Statutory Scheme

3. A claimant who satisfies the statutory criteria for being assessed as incapable of work may apply for incapacity benefit, for income support and for national insurance contribution credits on the grounds of such incapacity.
4. Employment Support Allowance benefit has replaced Incapacity Benefit for new claimants. The previous statutory scheme is the one which is relevant to this appeal but the question of interpretation remains relevant to the regulations made under the new scheme introduced by the Welfare Reform Act 2007.
5. Whether a person is capable or incapable of work must be determined in accordance with the provisions of Part XIIA of the Social Security Contributions and Benefits Act 1992 (s.171A(1)). Power to make regulations relating to the information or evidence required in order to determine capacity or incapacity is conferred by s.171A(2).
6. When a claimant has been working for more than eight weeks in the past twenty-one weeks he must satisfy "the own occupation test", designed to assess incapacity by reference to what he could reasonably be expected to do in the course of the occupation in which he had been engaged (s.171B). A claimant not subject to the own occupation test because, for example, he has not worked in the recent past, will be assessed in accordance with a Personal Capability Assessment (s.171C). The power to make regulations defining a Personal Capability Assessment and the manner in which that person shall be assessed is conferred by s.171C(2). The assessment regulations are Regulations 24-25 and the Schedule to the 1995 Regulations. Regulation 24 defines the Personal Capability Assessment as:-

"…an assessment of the extent to which a person who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in the Schedule or is incapable by reason of such disease or bodily or mental disablement of performing those activities."

7. Regulation 25 provides the total score which a person must achieve in respect of descriptors specified in parts I and/or II of the Schedule before he can be assessed as being incapable of work. Part I of the Schedule sets out physical disabilities by identifying, in one column, certain activities and under the descriptor column the nature of the difficulties in relation to that activity. Each difficulty or disability is then given a number of points. Part II sets out mental disabilities which, it should be noted, score far fewer points than those specified in Part I. Thus a person's functional limitation is expressed by the number of points awarded. They are added together, but the mental descriptors are weighted lighter than physical descriptors.
8. There are various circumstances in which a person will be deemed to be capable or incapable of work regardless of either the application of the "own occupation" test or the Personal Capability Assessment. The power to make regulations as to the circumstances in which a person shall be treated as capable or as incapable of work is conferred by s.171(D)(1) of the 1992 Act. Chapter III of the 1995 Regulations is headed "Persons Treated as Incapable". For example, under Regulation 10, persons suffering from a progressive disease with death reasonably to be expected within six months are treated as incapable of work (see Regulation 10(1) and Regulation 10(2)(b)). Under Regulation 13 a person receiving identified types of regular weekly treatment shall be treated as incapable of work on any day on which he is engaged in that treatment (Regulation 13(1) and (3)). Regulation 13 makes no reference to Personal Capability Assessment at all. Both those regulations entitle a person to be deemed incapable of work without the need for any Personal Capability Assessment being undertaken. Regulation 10(1) begins:-

"Where the question of whether a person is capable or incapable of work falls to be determined in accordance with a Personal Capability Assessment, a person should be treated as incapable of work on any day in respect of which any of the circumstances set out in paragraph (2) apply to him." (my emphasis)

9. By way of contrast, Regulation 27, with the rubric "Exceptional circumstances", applies only where a person has failed to obtain one of the total scores identified in Regulation 25(1). For the purposes of this appeal Regulation 27 provides:-

"A person who does not satisfy the all work test shall be treated as incapable of work if in the opinion of a doctor approved by the Secretary of State –

(a) he suffers from a previously undiagnosed potentially life-threatening condition; or

(b) he suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work; or

(c) he suffers from a severe uncontrolled or uncontrollable disease; or

(d) he will, within three months of the date on which the doctor so approved examines him, have a major surgical operation or other major therapeutic procedure."

10. I should record, although it has no relevance to the appeal, that the reference to the opinion of the doctor was held to be an unlawful delegation of the Secretary of State's decision-making responsibility (R v Secretary of State for Social Security ex-parte Moule 12 September 1996). When the Secretary of State sought to exclude Regulation 27(b), the Court of Appeal (in Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623) [2003] ICR 405 CA, held that such exclusion was invalid, as a consequence of defects in the consultation process. Thus, for the purposes of this appeal, the relevant wording is set out above.
11. Incapacity Benefit is a contributory benefit paid to those who are over 16 and under State Pension age, who have made sufficient National Insurance Contributions and are incapable of work, as tested in accordance with Part XIIA (see ss. 30A and 30C(1) of the 1992 Act). I should note at this stage that the entitlement to both short-term and long-term Incapacity Benefit is an entitlement in respect of any day of incapacity (see the full-out words in s.30A(1) and s.30A(5)).
12. Where a claimant does not fulfil the contribution conditions for Incapacity Benefit but is either incapable of work or treated as incapable of work he will generally be entitled to Income Support, pursuant to s.124(1)(e) and the Income Support (General) Regulations 1987 (SI 1987/1967) (see in particular Paragraph 7 of Schedule 1(b) of those regulations).
13. A claimant who would be granted Incapacity Benefit but for failing to fulfil the contribution conditions or who is granted Incapacity Benefit or some other qualifying benefit will be credited with National Insurance credits, known as Incapacity Credits, to count towards satisfying contribution conditions for Incapacity Benefit or other benefits in the future (see Regulation 8(B) of the Social Security (Credits) Regulations 1975 (SI 1975/556)).
14. As I have already indicated, for new claimants the Welfare Reform Act 2007 has introduced Employment Support Allowance Benefit. Pursuant to Schedule 2 Paragraph 1 of the Act, Regulation 29 of the Employment and Support Allowance Regulations 2008 has introduced Regulation 29(2)(b) which contains the same wording as the Regulation 27(b) in issue in the instant appeal.

Facts and History of the Claim

15. The facts relevant to this appeal and the history of the appellant's claim cast light on the practical application of the interpretation of the regulation in issue.
16. The appellant is 34 years old and suffers from alcohol dependency syndrome. He applied for Incapacity Benefit, based on incapacity for work due to alcoholism from 25 July 2005. He had never worked and thus had not made sufficient contributions to qualify for Incapacity Benefit. On making his claim he was regarded as being incapable of work until such time as a Personal Capability Assessment could be undertaken (see Regulation 28 of the 1995 Regulations). In his incapacity for work questionnaire he did not rely on the application of any of the physical descriptors, nor did he think he had a mental health problem but he recorded dizzy spells because of drink.
17. The appellant was seen by an approved doctor on 23 January 2006. The form was completed electronically by the doctor. The doctor diagnosed alcohol misuse as a condition which had started 20 years ago, dyspepsia, anxiety and depression. In his description of a typical day, the doctor recorded that the appellant drank about ten cans a day, which he began to consume on rising. He used tranquillisers and cannabis every day and recorded that he had suffered a minor fire due to poor concentration a week before. But in his description of a typical day he recorded that the appellant managed to keep himself clean, dress himself, made "ready meals" and managed to tidy up. He lives in a house with his grandmother.
18. The doctor then confirmed that the appellant suffered no physical limitations as measured by the Personal Capability Assessment. However, during the course of the mental health examination the appellant was awarded two points in respect of his need to drink alcohol before mid-day and one point in respect of his fear or anxiety regarding work. Thus he failed to satisfy the Personal Capability Assessment since his score on grounds of mental health was well below the ten points required.
19. The electronic form completed by the doctor also contains a heading "non-Functional Descriptors" and continues:-

"My advice based on the Personal Capability Assessment medical examination I have carried out as a doctor approved by the Secretary of State is that this person:

Is not suffering from a severe uncontrolled or uncontrollable disease

Is not suffering from some specific disease or bodily or mental disablement and because of this there would not be a substantial risk to the mental or physical health of any person if they were found capable of work

Is not suffering from a previously undiagnosed potentially life-threatening condition

Will not within 3 months have a major surgical or other major therapeutic procedure"

20. The report of the doctor was then sent for determination by a decision-maker who determined, on the basis of that report, that the appellant had not achieved the necessary ten points from the appropriate descriptors and continued:-

"He cannot be treated as incapable of work in connection with the Personal Capability Assessment and is not entitled to incapacity credits from and including 30/01/2006."

21. The appellant appealed to a Tribunal which increased the number of points awarded from three to five, which still fell below the necessary ten. It then cited a previous decision of Commissioner Jacobs as to the meaning of Regulation 27(b). But the Tribunal concluded that there was no evidence that the appellant would be a substantial risk to the mental or physical health of any person if he were found capable of work.
22. The appellant appealed, with the Commissioner's permission, to Social Security Commissioner Dr Williams. Dr Williams concluded that the Tribunal had erred in failing to give adequate reasons for its conclusion.
23. The Commissioner concluded that the appellant was suffering from a specific disease or disablement, namely alcohol dependency syndrome. Since this is not in issue in this appeal I do not need to expand upon the reasons which the Commissioner gave for reaching his conclusion.
24. The Commissioner then turned to the question whether the disease he identified gave rise to a substantial risk to the mental or physical health of any person if the appellant were found capable of work. He concluded that the appellant had to show, on the balance of probabilities, that there would be a substantial risk as identified in Regulation 27(b) (see § 32). He said that the assessment of the risk must depend "to some extent" on the kind of work that the claimant may be asked to do. He asked the following questions:-

"What has the claimant done in the past?

What was the claimant doing at the time of the decision?

What are the claimant's qualifications?" (see § 43)

25. The Commissioner ruled that it was necessary to show a link between the work and the risk. The probability of a substantial risk to the claimant or another person must arise because of a finding that the claimant is capable of work. Risks which arise whether or not the claimant is found to be capable of work would not satisfy Regulation 27(b) (see § 44).
26. The Commissioner then applied that approach to the instant appeal, concluding that the appellant had no work experience, skills or qualifications. Nor did he suffer from any relevant physical limitations. He wrote:-

"Does that evidence (the evidence of the doctor's report and the evidence given before the Tribunal) suggest the probability of a substantial risk to C's health if he is expected to work in the kind of work to which a person of no physical limitations, no qualifications, no skills and no experience might be directed? I think not.

….

In my view, this is a case where there is no link established on the evidence between the general risk to C's health posed by C's disease or disablement and the finding that he is no longer incapable of work. Such evidence as there is suggests that the risk to health may be reduced by going to work. The other risk is of C injuring himself by carelessness. I have been shown no significant evidence to suggest that C is any more at risk from accidents while at work than if he continues his existing lifestyle. The link is again not present." (§ 48)

27. The Commissioner then considered whether there was any substantial risk to others and concluded there was not. He rejected the possibility that the claimant would work in any caring activity and continued:-

"More probable, as I have suggested, is a context of straightforward and structured unskilled work. I also take into account the description of C that arises from the Personal Capability Assessment. In such a context, there is a risk of incidents caused by C's carelessness. I assess the risk to others from such carelessness, while undoubtedly present, is not likely to be substantial in the kind of work setting that C might be expected to enter. Indeed, as with the risk to himself, it may be that the risk he presents to others in a work setting is less than the risk to others that he presents in a domestic context. The one example of an incident of carelessness at home is potentially less of a risk in a work setting – where there will be management structures and fire and similar safety features in place – than at home. In my view, it has not been established that the risk to others presented by C if he found (sic) capable of work is probably a substantial risk."(§ 49).

Interpretation of Regulation 27(b): Risk at Work

28. The appellant challenges the Commissioner's interpretation of Regulation 27(b). His approach was to require additional risks relating to work and the workplace to be established, over and above those risks arising from the appellant's medical condition in his life generally. The claimant argues that it is sufficient to demonstrate risks either to his own or to another's safety whether they might arise in a domestic setting or at work.
29. The correct interpretation of Regulation 27(b) lies in the context of that regulation within the scheme of the Statute and the Regulations. The test whether a claimant is incapable of work is that which is identified either in s.171B, "the own occupation test", or the Personal Capability Assessment under s.171C. The need to consider whether to treat a person as incapable or capable of work under Regulation 27(b) only arises in circumstances where the statutory own occupation or Personal Capability Assessment tests have not been satisfied. The opening words of Regulation 27 underline the circumstance that the claimant has failed to satisfy either the own occupation test or the Personal Capability Assessment and, thus, is, apart from Regulation 27(b) capable of work : he is one who "does not satisfy the all-work test".
30. When a claimant has failed those tests, Regulation 27(b) requires, firstly, a decision whether the person suffers from some specific disease or bodily or mental disablement, which does not of itself cause such functional limitation as to justify a total score sufficient to warrant a finding of incapability. If he does suffer from such a condition, then a second decision is required as to whether by reason of such disease or disablement there would be a substantial risk to the mental or physical health of any person, if the claimant were found capable of work.
31. It must be recalled that by virtue of the statutory provisions in s.171 A, 171B and 171C, the claimant would have been found capable of work. The only inhibitions on such a finding are the opening words of Regulation 27 itself. Those words are in striking contrast to a provision such as Regulation 10 (cited in §8). Regulation 27 only bites where the claimant has taken the Personal Capability Assessment test ( when the own occupation test does not apply) and failed. The essential key to the correct interpretation of Regulation 27 is the very circumstance that it cannot apply before the claimant has been tested under the Personal Capability Assessment. Regulation 10 does not require a claimant to take such a test at all.
32. Regulation 27(b), unlike Regulation 10, is not a substitute for a Personal Capability Assessment but an additional route to a determination whether a claimant is incapable of work under Part XII of the Act. The words "if found capable of work" underline the effect of s.171D which confers power to extend the category of those determined to be incapable of work. Reg 27(b) is designed to provide an additional test of incapability not a substitute test ; the claimant may be deemed incapable despite the fact that he is capable of performing those everyday tests which, but for Regulation 27(b), would demonstrate that he is capable of work.
33. Once it is appreciated that Regulation 27(b) applies only when a claimant's functional abilities in the performance of everyday tasks have been established, it becomes clear that the risk to be assessed must arise as a consequence of work the claimant would be found capable of undertaking, but for Regulation 27. Were it not so, there would be no statutory purpose in requiring a claimant to have undergone an assessment before consideration of the effects of any disease or disablement on his or others' safety.
34. Regulation 27(b) may be satisfied where the very finding of capability might create a substantial risk to a claimant's health or to that of others, for example when a claimant suffering from anxiety or depression might suffer a significant deterioration on being told that the benefit claimed was being refused. Apart from that, probably rare, situation, the determination must be made in the context of the journey to or from work or in the workplace itself.
35. The Commissioner was correct to construe Regulation 27(b) as requiring a causative link. But I do question his apparent search for evidence of a greater risk at work than from his existing lifestyle generally (§ 48 penultimate sentence). The question Regulation 27(b) poses is not whether there is a greater risk than that arising during the course of the performance of everyday tasks as tested by the Personal Capability Assessment. The descriptors specified in the Schedule test a claimant's functional limitations, both physical and mental, not the risks to which they might give rise. It is Regulation 27(b) which raises the question of whether a substantial risk arises from disease or disablement. But despite what I perceive to be an error in making a comparison which is not justified by the regulation, in the end the Commissioner does (in § 49) ask and answer the correct question posed by the regulation, namely whether a substantial risk should be foreseen in the light of the work the claimant might be expected to perform in the workplace in which he might be expected to be. This gives rise to the second issue in the appeal: how the decision-maker is to identify the nature of claimant's work and workplace.

Assessment of the type of work for the purposes of Regulation 27(b)

36. Regulation 27(b) requires the decision-maker to assess risk in the context of the work or workplaces in which the claimant might find himself. The controversy between the claimant and the Secretary of State relates to the extent to which the decision-maker must identify the type of work which the claimant would perform on the hypothesis that he had been found capable of work.
37. The claimant contends that a decision-maker must identify what he describes as "actual positions of employment" and must concentrate upon the job that the claimant will undertake, the nature of its duties and its location. Without such analysis a decision-maker will, so he contends, be unable properly to assess risk to safety both to himself and to others. The Commissioner's identification of the type of work the claimant might be expected to undertake is too vague and too broad.
38. The answer to this submission lies in the purpose of Regulation 27(b), that is to assess risk at work. In order to determine whether there is any health risk at work or in the workplace it is necessary to make some assessment of the type of work for which the claimant is suitable. The doctor, the decision-maker and, if there is an appeal, the Tribunal, should be able to elicit sufficient information for that purpose. The extent to which it is necessary for a decision-maker to particularise the nature of the work a claimant might undertake is likely to depend upon the claimant's background, experience and the type of disease or disablement in question. It is not possible and certainly not sensible to be more prescriptive. The most important consideration is to remember that the purpose of the enquiry is to assess risk to the claimant and to others arising from the work of which he is capable. No greater identification of the type of work is necessary other than that which is dictated by the need to assess risk arising from work or the workplace.
39. The correct approach has been identified by Deputy Commissioner Paines in CIB/360/2007:-

"17. The degree of detail in which [the consequences of a finding that the claimant is capable of work] will need to be thought through will depend on the circumstances of the case… A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant's background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b).

18. Regulation 27(b) requires one to start by identifying a disease or disablement; the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial."

40. Unfortunately, that approach has not found favour with other commissioners. Commissioner Jacobs in CIB/0026/2004 and Commissioner Parker in CSIB/33/04 adopted an approach which required the decision-maker to consider the work which would be defined in a Jobseeker's Agreement should the claimant have made a claim to Jobseeker's Allowance.
41. Mr Drabble, on behalf of the claimant, supported that approach. He based that submission upon what he asserted to be the link between entitlement to Incapacity Benefit and entitlement to Jobseeker's Allowance. He drew attention to Regulation 17A. Under that Regulation:-

"A person should be treated as capable of work throughout any period in respect of which he claims a Jobseeker's Allowance, notwithstanding that it has been determined that…he is or is to be treated as incapable of work under Regulation…27 if…

(b) he is able to show that he has a reasonable prospect of obtaining employment."

42. It is unnecessary to divert the proper focus of this issue by an elaboration of the provisions in relation to Jobseeker's Allowance. It is sufficient to point out that entitlement to a Jobseeker's Allowance pursuant to the Jobseeker's Act 1995 and to the Jobseeker's Allowance Regulations 1996, requires a Jobseeker's Agreement to be made with the claimant providing the yardstick as to what is expected of the claimant in terms of his obligation actively to seek work. The contents of the Jobseeker's Agreement (pursuant to Regulation 31 of the Jobseeker's Allowance Regulations 1996) requires there to be any restrictions on the location or type of employment and a description of the type of employment which the claimant is seeking.
43. In my judgement the link which Mr Drabble seeks to establish is far too fragile to bear the weight which his argument imposes. There is no warrant within the wording or context of Regulation 27(b) for requiring a decision-maker to embark upon the almost impossible and certainly impractical task of imagining what hypothetical agreement might have been made should the claimant have applied for Jobseeker's Allowance
44. There are a number of reasons why a hypothetical Jobseeker's Agreement is not an appropriate guide to entitlement to incapacity benefit. A Jobseeker's Agreement sets out the minimum requirements as to the type of work for which a claimant must be available in order to retain entitlement to a Jobseeker's Allowance. In assessing risks arising from work or the workplace pursuant to Regulation 27(b) the decision-maker is not limited to the minimum requirements which might be specified in a Jobseeker's Agreement. The requirements in a Jobseeker's Agreement will include those restrictions upon availability sought by a claimant to Jobseeker's Allowance and considered reasonable by the Secretary of State. The decision-maker would have to imagine the terms of future hypothetical negotiations between the claimant and a Job Centre. For the purposes of Regulation 27(b) there is no basis for limiting the analysis of risk arising from work by reference to restrictions which might be suggested by a claimant and regarded to be reasonable by the Secretary of State.
45. For those reasons I would hold that those decisions which suggest that it is necessary to speculate as to the type of job which would have been set out in an hypothetical Jobseeker's Agreement were wrong. The correct approach is that which was identified by Deputy Commissioner Paines. The decision-maker must assess the range or type of work which a claimant is capable of performing sufficiently to assess the risk to health either to himself or to others.
46. Sufficient information may be elicited by reference to the claimant's completion of the initial questionnaire, questioning during his medical examination, or by any evidence he may choose to give on an appeal to the Tribunal. The process to be adopted by the decision-maker or Tribunal is to be regarded as inquisitorial and not adversarial. It is a process described by Diplock J in R v Medical Appeal Tribunal (North Midland Region ex-parte Hubble) 1958 2 QB 228 at 240 as a fact-gathering exercise in which there is no formal burden of proof on either side. There should be no difficulty provided the decision-maker or Tribunal recall that the essential question is whether there is an adequate range of work which the claimant could undertake without creating a substantial risk to himself or to others.
47. This conclusion is consistent with the practical application of these regulations. Any interpretation must bear in mind that the regulations are designed to provide a fair and effective system for assessing entitlement to incapacity benefit and to allied benefits when a claimant has passed the Personal Capability Assessment. It would not be possible to achieve the aim of those regulations were the decision-maker to be required to make findings of the particularity for which the claimant contends. The decision-maker, it must be recalled, will be provided only with the report of the doctor based upon the doctor's interview with the claimant and the claimant's completion of the questionnaire. It is quite impossible for the decision-maker to identify actual positions of employment or the nature of the duties and location of any job which the claimant might undertake, not least because the decision-maker may often be based in Belfast, or elsewhere, and can have no possible means of discovering employment circumstances throughout the country. The conclusion which requires no more than that the decision-maker or Tribunal assess the range of work of which the claimant is capable for the purposes of assessing risk to health has the merit of achieving the objective of the regulations.
48. Commissioner Williams found that the claimant was capable of performing the kind of work:-

"…to which a person with no physical limitations, no qualifications, no skills and no experience might be directed (§ 48) and that he could undertake straightforward and unstructured, unskilled work."

49. These findings are challenged by the claimant because they do not specify with any particularity the type of work which the Commissioner had in mind. In my view, for the reasons I have given, the Commissioner was under no obligation to go any further than he did. This claimant had never worked, had no qualifications and no skills, but did not have any physical limitations. Provided the work was supervised and structured, the Commissioner found as a fact that the claimant could undertake that work without substantial risk to himself or to others. That factual assessment cannot be challenged in this appeal. Since the claimant has never worked and has no training it is an understandable and reasoned conclusion. Indeed, I suggest it would have been difficult, if not impossible, for the Commissioner to make any more detailed a finding. The essential conclusion is that he could do some work without risk to himself or to others. Such a conclusion is consistent with the obligation imposed by the Regulation to assess risk to the safety of the claimant and to others arising from work. For those reasons I would dismiss this appeal.

Lord Justice Lloyd:

50. I agree.

Lord Justice Pill:

51. I also agree.