UK Social Security and Child Support Commissioners' Decisions

[1997] UKSSCSC CIB_14332_1996 (01 January 1997)


 


MJG/CW/LB/4

Commissioner's File: CIB/14332/96

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

[ORAL HEARING]

1. I dismiss the adjudication officer's appeal against the decision of the social security appeal tribunal dated 21 February 1996 as that decision is not erroneous in law: Social Security Administration Act 1992, section 23.
2. This is an appeal to the Commissioner by the adjudication officer from a majority decision of a social security appeal tribunal, dated 21 February 1996, which allowed the appeal of the claimant, a man born on 10 November 1938 against a decision of the adjudication officer issued on 8 November 1995 as follows,

"This decision is given in respect of [the claimant's] claim for Incapacity Benefit. The test of incapacity for work in respect of [the claimant] from and including 01-07-95 is the all work test. The own occupation test is not applicable from that date. This is because he has been incapable of work for 196 days in the spell of incapacity preceding 01-07-95. He cannot be treated as incapable of work from and including 08-11-95 because none of the exempt conditions apply. He does not satisfy the all work test from and including 08-11-95 because he has not reached 15 points from physical descriptors. The total points were NIL. Therefore he is not incapable of work and cannot be treated as incapable of work because in the opinion of a doctor approved by the Secretary of State there are no exceptional circumstances. As a result I have reviewed the decision of the adjudication officer awarding Incapacity Benefit from and including 01-07-95. The decision awarded benefit for days after the date of claim and the requirements for entitlement are not satisfied. This is because [the claimant] is capable of work. My revised decision only for the period from and including 08-11-95 is as follows:

'[the claimant] is not entitled to incapacity benefit from and including 08-11-95.'"

The facts of the case and the circumstances in which the adjudication officer came to give that decision are set out in detail below.

3. The appeal was the subject of an oral hearing before me on 27 February 1997 at which the claimant was not present but was represented by Ms H Whitehead of the Bristol Citizens Advice Bureau. The adjudication officer (whose appeal it was) was represented by Mr S Sriskandarajah of the Office of the Solicitor to the Departments of Health and Social Security. I am indebted to Ms Whitehead and Mr Sriskandarajah for their considerable assistance to me at the hearing and for the depth of research that they had made into the particular problem involved in this case.
4. The reason the claimant's appeal succeeded before the social security appeal tribunal was the majority on the tribunal found that he satisfied the physical disability test set out in paragraph 13 of the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995, S.I. 1995 No. 311. In particular the tribunal found that he satisfied descriptor 13(d), "Loses control of bowels at least once a month" which carries a 'score' of 15 points, which is enough to show entitlement to incapacity benefit. The whole of paragraph 13 reads as follows:

"SCHEDULE

DISABILITIES WHICH MAY MAKE A PERSON INCAPABLE OF WORK

PART I

PHYSICAL DISABILITIES

.......................................................

Activity Descriptor Points

13. Continence 13(a) No voluntary

control over bowels. 15

(b) No voluntary

control over bladder. 15

(c) Loses control of

bowels at least once

a week. 15

(d) Loses control of

bowels at least once

a month. 15

(e) Loses control of

bowels occasionally. 9

(f) Loses control of

bladder at least once

a month. 3

(g) Loses control of

bladder occasionally. 0

(h) No problem with

continence. 0"

5. The original tribunal made the following findings of fact relating to this matter,

"[A medical report] dated 31.1.96 refers to the claimant suffering from Irritable Bowel Syndrome. This means he gets episodes of constipation for 3 or 4 days interspersed with days when he has 3 or 4 bowel evacuations in rapid succession, very urgently and with explosive diarrhoea..the claimant has always been able to find a toilet in time. He has not yet had an accident."

6. The claimant's representative had said to the tribunal on this subject, "When [the claimant] has to run and if he doesn't reach a toilet the outcome would be messy. Consider that having to seek out a toilet at short notice amounts to loss of control". A Medical Assessor was at the hearing and was asked for her understanding of incontinence. According to the chairman's note of evidence, "She said that she considered it was one who doesn't have any control. Loses control. She would not suggest that urgency would amount to incontinence, that it would need to be a spontaneous loss of control. {She] said that 20% of the population suffer from Irritable Bowel Syndrome".
7. In their reasons for decision the majority said,

"To us control means in command, having a restraint or check. This suggests to us a choice that most people have but we heard evidence, not disputed, that [the claimant] had no choice on these various occasions but to hurry to a toilet in order to avoid, as he put it to his Representative, 'messing himself'. We reject the suggestions that just because he has always succeeded in reaching the toilet in time, this should be accepted as his not having lost control."

8. The dissenting member of the tribunal gave the following reasons for dissent,

"Incontinence means an inability to control natural functions or discharges (i.e. faecal incontinence: inability to control the movements of the bowel;..). The claimant has always been able to exercise this control. The fact that this often involves arranging to be close to a toilet and thereby able to avoid losing control does not bring him within any of the provisions of [paragraph] 13(a) to (g)."

The dissenting member then referred to the view of the Medical Assessor which I have quoted above.

9. The adjudication officer has appealed from that decision on the ground put shortly in the application for leave (granted by the chairman) as follows, "The majority have incorrectly interpreted the meaning of 'losing control' in relation to continence. The phrase does not relate to a person who has control so that he is able to reach a toilet in time to avoid an accident". In the subsequent appeal (dated 14 May 1996) the adjudication officer elaborates on this by submitting (paragraph 14),

"I submit that losing control in effect means just that, and does not cover situations where control is exercised until the nearest toilet is reached. There is no evidence to suggest that the claimant has ever lost control involuntarily and the claimant's..bowel problems do not therefore appear to warrant a score of 15 from the continence descriptor."

10. Although given at a date (12 February 1997) subsequent to the hearing before the tribunal, there is before me (put in on behalf of the claimant) a detailed medical report from Dr. K.W.H. a consultant physician who has considerable expertise in Irritable Bowel Syndrome and allied matters, as was evidenced by a list of his Qualifications and Research papers handed to me at the hearing. The report reads as follows,

"..Urgency of defaecation is a well recognised symptom of Irritable Bowel Syndrome, but not one suffered by all patients with IBS. It is sometimes so severe that patients are restricted in their activities and afraid to go out. This urgency is disabling and perhaps 10 - 15% of patients with IBS and a similar proportion are unable to work. You are of course right in saying there is a wide range of severity and in the type of symptoms suffered by patients with IBS, ranging from mild discomfort to excruciating pain and mild bowel irregularity to severe irregularity suffered by [the claimant]. The urgency suffered by patients with IBS does occasionally lead to incontinence of faeces. You ask if there is a medical definition of losing control of the bowels. The term used by doctors is faecal incontinence and this covers anything from minor stain on the underpants when evacuating wind to liquid running down the legs. Obviously the distress caused by incontinence varies with its severity. However fear of incontinence is very severe in some people and has even made IBS patients suicidal. You ask if there is a medical definition of the bowel and does this include the external anal sphincter. The term bowel is not a precisely definable one and it is better to talk about the specific part of the intestines such as the small intestine, large intestine, rectum and anus. Obviously 'bowel function' in the ordinary sense of the word is greatly determined by the efficiency and function of the anal sphincters (internal as well as external). Finally you ask if treatment of IBS with antidiarrhoeal drugs can lead to an increase in abdominal pain. The answer is yes it certainly can and this causes considerable problems in management. I hope you have luck in respect of [the claimant] and in respect of the many other sufferers from the severer forms of IBS, whom I believe deserve much more sympathy than they usually get."

11. Also cited to me by Miss Whitehead were the relevant passages from the current edition of the Benefit Agency's "Medical Services Incapacity Benefit Handbook for Medical Services Doctors" (referred to hereafter as "the Handbook"). The statements in the Handbook are of course not law and cannot be used to override or vary the words of the law itself, as stated in the 1995 Regulations. Nevertheless, if there are problems of interpretation, it is permissible for me to consider the official advice that is given to the medical Services Doctors. In the Handbook, under the head of "Continence", the following statement is made,

"Clients with gastro-intestinal problems or frequency of micturition should be considered as having no voluntary control when their problem is such that they would become incontinent if they did not leave their work place immediately or within a very short space of time." (para. 7).

12. That statement is of course in favour of the claimant's case. Mr Sriskandarajah contended, however, repeating written submissions by the adjudication officer, that the statement was not binding and that "there is nothing to support this interpretation in the relevant legislation" (adjudication officer's written submission of 15 November 1996, paragraph 3). Moreover Mr Sriskandarajah drew my attention to two decisions, one of the Chief Commissioner for Northern Ireland on file CI/95(IB) and one by a Commissioner in Scotland on file CSIS/17/96. Both of those decisions indicate that in considering whether there is compliance with the activities specified in the descriptors in the Schedule to the 1995 Regulations, one must not have regard to them in the context of a working situation but simply in relation to activities generally. I do not wish to comment in detail on those two decisions, though I would wish to consider the matter carefully if it became critical, bearing in mind that the whole of the Schedule to the 1995 Regulations is headed "Disabilities which may make a person incapable of work".
13. I do not however consider that those decisions prevent me from considering the guidance given in the Handbook. Although I have cautioned myself against applying that guidance as if it were the law or in any way to vary unambiguous words of the 1995 Regulations, nevertheless what is said in the Handbook reinforces the view that appears to me to be correct from all the evidence that was before the tribunal, as well as the additional evidence. I ultimately conclude that on the facts of this case the conclusion to which the majority of the tribunal came was a conclusion of fact which could not be assailed on the ground of 'perversity', i.e. by alleging that no reasonable tribunal properly directed as to the law could have arrived at such a conclusion. It must be borne in mind that here the evidence was that the claimant suffered from Irritable Bowel Syndrome of considerable severity.
14. Moreover, I cannot see that the tribunal in any way misconstrued the law as set out in paragraph 13 of the Schedule to the 1995 Regulations, particularly bearing in mind that that paragraph makes a distinction between "no voluntary control over bowels" (paragraph 13(a)) and "loses control of bowels" (paragraph 13(d)). It may be that the difference in wording between "no voluntary control" and "loses control of" is merely a difference in terminology. Nevertheless, I consider that the expression "loses control of bowels" is apt (as indeed the Handbook indicates) to include a situation like this where the claimant suffers from severe Irritable Bowel Syndrome. He lost control of his bowels at least once a month (indeed it appears once a week probably) in the sense that he is not able to 'hold himself', as the normal person can do even when faced with a considerable urge to defaecate. If the claimant did not immediately rush to the lavatory, he would indeed "mess himself".
15. I therefore conclude that on these facts the tribunal were entitled to come to the conclusion they did. I have therefore dismissed the adjudication officer's appeal, though in my view that appeal was properly brought in view of the problems in this type of case, which I gather is the first of its kind to come before a Commissioner. Moreover the tribunal itself was split on the subject and I was informed at the hearing before me that the dissenting member was the Chairman of the tribunal. Clearly, therefore the adjudication officer was fulfilling his duty in bringing this appeal to the Commissioner. It is only after considerable thought that I have decided that it should be dismissed.
16. I should emphasise that this decision relates entirely to the particular facts of this case and is not to be regarded as any precedent for a view that every sufferer from Irritable Bowel Syndrome (which is widespread) could be said to fulfil any of the descriptors in paragraph 13. The likelihood is that the majority of such sufferers could not comply with any of those descriptors. There are of course other diseases where these problems arise e.g. Crohn's Disease and they must await decision when cases involving them arise. My decision is however a precedent for the ruling that the expression "loses control of bowels" can comprehend a situation where a claimant does not in fact "mess himself", provided he is able immediately to rush to a nearby lavatory.
17. Lastly, I should record that there were also contentions before the tribunal and before me that the claimant might be able to achieve the necessary number of points by reference to problems that he has in lifting and also to the mental state of depression (he and his wife are looking after a demented mother-in-law at home). It was also contended that in any event, even if he could not attain the requisite number of 15 points, his diabetes mellitus was causing such problems that he could bring himself within regulation 27(c) of the 1995 Regulations ("exceptional circumstances") in that his diabetes is "a severe uncontrolled or uncontrollable disease" (Regulation 27(c)). I have not ruled on those matters or dealt with them, in view of the fact that I have upheld the tribunal's decision that he in fact attained the necessary 15 points because of his continence problems. I merely record that these contentions were made.

(Signed) M J Goodman

Commissioner

(Date)