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[1997] UKSSCSC CIB_15325_1996 (12 June 1997)

R(IB) 5/98

Mr. J. P. Powell CIB/15325/1996

12.6.97

All work test - evidence of incapacity - whether claimant can be held to be incapable of work in the absence of form Med 4

The claimant became incapable of work and received benefit, which from 13 April 1995 was incapacity benefit. Subsequently, he was issued with an incapacity for work questionnaire and was also asked to obtain a form Med 4 from his general practitioner. He returned the questionnaire, but the form Med 4 was not produced. Following examination by a medical officer, the adjudication officer decided that the claimant did not satisfy the all work test and benefit was disallowed. The claimant appealed. The tribunal allowed the appeal on the grounds that, in the absence of a Med 4, the adjudication officer's decision had been taken on insufficient evidence (having regard to regulation 6(1) of the Social Security (Incapacity for Work) (General) Regulations 1995 and regulation 2(1)(c) of the Social Security (Medical Evidence) Regulations 1976). The adjudication officer appealed to the Commissioner.

Held, allowing the appeal, that:

the wording of regulation 2(1)(c) of the Social Security (Medical Evidence) Regulations 1976 empowered the Secretary of State to request a form Med 4, however it did not oblige him to do so;

where that discretion was exercised so that a form Med 4 was requested, that request was not irrevocable; and if no form Med 4 were produced, then a decision to proceed without it could be taken;

a form Med 4 is not therefore necessary before an applicant can be assessed to see whether he or she satisfies the all work test.

The Commissioner set aside the tribunal's decision and referred the case to a different tribunal for rehearing.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This is an appeal by the adjudication officer, with the leave of the chairman, against the decision of the social security appeal tribunal ("the appeal tribunal") given on 3 April 1996. For the reasons set out below, that decision is erroneous in point of law. I therefore set it aside and refer the case to another social security appeal tribunal ("the new tribunal") for rehearing.

This appeal raises a short point of construction. Namely, whether a person who is receiving incapacity benefit, and to whom the all work test test provided for by section 171C of the Social Security Contributions and Benefits Act 1992 applies, can be held to be no longer incapable of work in the absence of a doctor's statement in form Med 4.

I am not aware of any decision which deals with the point and would, therefore, have preferred the assistance of an oral hearing. However, the claimant is both unrepresented and has written saying, candidly, that he does not understand what the appeal is all about. That being so, there seemed little point in directing a hearing. My decision is, therefore, given without the arguments being tested at a contested hearing.

The all work test is set out in regulation 24 of the Social Security (Incapacity for Work) (General) Regulations 1995, SI 1995 No. 311 (the "General Regulations"). Regulation 24 provides:

"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."

The Schedule to the General Regulations consists of a list of "activities" and "descriptors". The latter are a series of levels of performance of the relevant activity. Points are awarded when the performance of any particular activity falls below a certain level. Regulation 25 then provides that a person satisfies the all work test when his total score exceeds a certain number of points.

The facts can be shortly stated. The claimant, who was born on 19 June 1967, developed arthritis in his right ankle and foot following an injury which he suffered. He became incapable of work from 11 May 1994, as a result of which he was in receipt of benefit. From its introduction on 13 April 1995, the relevant benefit became incapacity benefit. The claimant had, by then, been incapable of work for more than 196 days. As a result, he was obliged to satisfy the all work test. However, payment of benefit continued until he had undergone the test.

On 8 June 1996, the claimant was issued with an incapacity for work questionnaire and he was asked to obtain a form Med 4 from his general practitioner. The claimant completed the questionnaire and returned it to his local branch of the Benefits Agency on 16 June 1995. However, no form Med 4 was forthcoming. No explanation for the lack of this form appears on the court file and it is not apparent whether he was pressed to obtain one. The claimant was examined by a medical officer of the Benefits Agency Medical Service on 24 August 1995. After considering the questionnaire which the claimant had completed and the medical officer's report, the adjudication officer decided on 15 September 1995, that the claimant did not satisfy the all work test and that from and including that date he was not entitled to incapacity credits. The adjudication officer did not, of course, have the benefit of a form Med 4.

The claimant appealed to the appeal tribunal, which heard his appeal on
3 April 1996. The claimant had previously indicated that he would not be attending and did not do so. The appeal tribunal made the following findings of fact:

"1) There is no evidence of incapacity for work in accordance with Social Security (Medical Evidence) Regulations 1976 (which prescribe the form of doctor's statement or other evidence required in each case).

2) Appellant asked to obtain completed Med 4 from his GP."

The unanimous decision of the appeal tribunal was as follows:

"Appeal succeeds. The appellant is incapable of work. The adjudication officer's decision is based on insufficient information or evidence, regulation 6(1), Incapacity for Work (General) Regulations."

Finally, they gave the following reasons for their decision:

"The tribunal agree that information required for the purposes of determining whether a person is capable or incapable of work by the adjudication officer is not present".

The appeal tribunal referred to regulation 2(1)(c) of the Social Security (Medical Evidence) Regulation 1976, SI 1976 No. 615, as amended (the "Medical Evidence Regulations"). In other words, the appeal was allowed on the grounds that the adjudication officer's decision was fatally flawed because he did not have a form Med 4, completed by the claimant's general practitioner, when he made his decision.

The adjudication officer appeals from the decision of the appeal tribunal with the leave of the chairman on the grounds that the appeal tribunal erred in law by deciding that the adjudication officer could not reach a decision without form Med 4. His submissions are set out in writing and are dated 25 July 1996. The claimant opposes the appeal but says, frankly, that he does not understand the matter.

The starting point is section 171A of the Social Security Contributions and Benefits Act 1992:

"(1) For the purposes of this Act, save where otherwise expressly provided, whether a person is capable or incapable of work shall be determined in accordance with the provisions of this Part of this Act.

(2) Regulations may make provision as to-

(a) the information or evidence required for the purpose of determining whether a person is capable or incapable of work, and

(b) the manner in which that information or evidence is to be provided, and may provide that if a person without good cause fails to provide that information and evidence, or to do so in the manner required, he shall be treated as capable of work.

(3) Regulations may provide that in any case where a question arises as to whether a person is capable of work-

(a) he may be called to attend for such medical examination as may be required in accordance with regulations, and

(b) if he fails without good cause to attend for or submit himself to such examination, he shall be treated as capable of work.

(4) Regulations may prescribe for the purposes of this section-

(a) matters which are or are not to be taken into account in determining whether a person does or does not have good cause for any act or omission, or

(b) circumstances in which a person is or is not to be regarded as having or not having good cause for any act or omission."

The relevant regulations are the General Regulations, the relevant parts of which are as follows:

"6.-(1) Subject to paragraphs (2) and (3) the information or evidence required for the purposes of determining whether a person is capable or incapable of work is-

(a) where the own occupation test or the all work test applies, evidence of his incapacity for work in accordance with the Social Security (Medical Evidence) Regulations 1976 (which prescribe the form of doctor's statement or other evidence required in each case);

(b) where the all work test applies, such information as the Secretary of State may request in the form of a questionnaire relating to a person's ability to perform the activities referred to in the Schedule;

(c) such additional evidence relating to the relevant test as the Secretary of State may request.

(2) Where the Secretary of State is satisfied that he has sufficient information for a determination whether a person is capable or incapable of work without the information specified in paragraph (1)(b), that information shall not be required for the purposes of that determination.

(3) ...

7.-(1) Where a person fails without good cause to comply with a request of the Secretary of State to provide the information referred to in regulation 6(1)(b) (all work test questionnaire) he shall, subject to paragraph (2), be treated as capable of work.

(2) A person shall not be treated as capable of work under paragraph (1) unless-

(a) at least 6 weeks have elapsed since the Secretary of State sent that person the first request for that information: and

(b) the Secretary of State has sent that person a further request at least 4 weeks after the first, and at least 2 weeks have elapsed since that further request was sent.

8.-(1) Where a question arises as to whether a person is capable of work, he may be called by or on behalf of a doctor approved by the Secretary of State to attend for a medical examination.

(2) Subject to paragraph (3) where a person fails without good cause to attend for or submit himself to such an examination, he shall be treated as capable of work.

(3) A person shall not be treated as capable of work under paragraph (2) unless written notice of the time and place of the examination was sent to him at least seven days beforehand, or unless he agreed to accept a shorter period of notice."

Regard should also be had to regulation 28:

"28.-(1) Where the all work test applies, the test shall, if the conditions set out in paragraph (2) are met, be treated as satisfied until a person has been assessed or until he falls to be treated as capable of work in accordance with regulation 7 or 8.

(2) The conditions are-

(a) that the person provides evidence of his incapacity for work in accordance with the Social Security (Medical Evidence) Regulations 1976 (which prescribe the form of a doctor's statement or other evidence required in each case); and

(b) ..."

If one looks at the General Regulations alone, it would appear that the appeal tribunal were right to allow the appeal. Regulation 6(1)(a) provides that the information or evidence required for the purposes of determining whether a person is capable or incapable of work includes evidence of his incapacity for work in accordance with the Medical Evidence Regulations. Further, while regulation 6(2) expressly empowers the Secretary of State to proceed without the questionnaire referred to in regulation 6(1)(b), there is no corresponding provision relating to regulation 6(1)(a). Regulation 28 provides that, pending assessment, a person is treated as satisfying the all work test provided that he provides evidence of his incapacity for work in accordance with the Medical Evidence Regulations, that is, a statement from his general practitioner in form Med 4. If he does not provide such medical evidence, he cannot be treated as satisfying the all work test and benefit cannot be paid to him until he has been assessed.

However, regulation 6(1) of the General Regulations does not say that the adjudication officer is obliged to obtain a form Med 4. What it actually says is "evidence of his incapacity for work in accordance with the" Medical Evidence Regulations. The relevant regulation is regulation 2(1), which, in its amended form, is as follows:

"2.-(1) Subject to regulation 5 (which provides for self-certification for the first seven days of a spell of incapacity for work) where a person claims he is entitled to any benefit, allowance or advantage (other than industrial injuries benefit or statutory sick pay), and his entitlement to that benefit allowance or advantage depends on his being incapable of work, then in respect of each day until he has been assessed for the purposes of the all work test, he shall provide evidence of such incapacity-

(a) by means of a certificate in the form of a statement in writing given by a doctor in accordance with the rules set out in Part I of Schedule 1 to these Regulations on the form set out in Part II of that Schedule; or

(b) ...

(c) where the all work test applies and the Secretary of State so requests, a statement in writing given by a doctor in accordance with the rules set out if Part I of Schedule lA to these Regulations on the form set out in Part II of that Schedule; or

(d) where it would be unreasonable to require a person to provide a statement in accordance with sub-paragraphs (a) to (c), such other evidence as may be sufficient to show that he should refrain (or should have refrained) from work by reason of some specific disease or bodily or mental disablement."

Form Med 4 is the form of statement referred to in regulation 2(1)(c). It is important to note that the statement is permissive so far as the Secretary of State is concerned. He is given power to request the relevant statement but he is not obliged to do so. It follows that there was no obligation on him in the present case to request a form Med 4 and, had he not done so, there could be no grounds for criticising the assessment. However, the claimant was asked for one but failed to provide it. Does that affect the position? I think not, even assuming in the claimant's favour, as I do, that the decision to press ahead without the form Med 4 was not communicated to the claimant. Regulation 2(1)(c) of the Medical Evidence Regulations confers a discretion on the Secretary of State, but does not say that, once exercised, the decision to request a form Med 4 is irrevocable. Accordingly, if having requested such a statement, none is forthcoming, I see no reason why a further decision should not be taken to proceed without it.

Some people might object that a statement from an applicant's general practitioner is an extremely important document and that no decision should be taken without it. To that, there are two answers. First, the provision of such a statement lies in the hands of the person seeking benefit. In the present case, the claimant was asked for one but failed to provide it. Had he provided one, or any other medical evidence such as a letter from his general practitioner, the adjudication officer or the appeal tribunal would have been bound to consider it. The latter would have been bound to consider it even if it was produced at the hearing.

Secondly, when it comes to assessing whether a person satisfies the all work test, the form Med 4 is not necessarily as important as it might seem. The form will be found in Part II of Schedule 1B to the Medical Evidence Regulations. It is a relatively simple document. In connection with the all work test, it says "Note for Doctor – We are making an assessment of your patient's eligibility for incapacity benefit and other state benefits under the terms of the all work test. Please complete the following boxes." These are "Main diagnosis (be as precise as possible)" and "other diagnoses". There is also a section for "Doctor's remarks" which the notes in Part III of the Schedule say "should be used to provide additional information; including further details of diagnosed conditions, the disabling effect of such conditions, and notes on the patient's treatment and progress. Accuracy and detail will avoid requests for completion of a medical report." However, payment of benefit depends not on a favourable doctor's statement but on satisfying the test propounded by regulation 24 and the Schedule to the General Regulations. In many cases, particularly where the person claiming benefit is severely disabled, what a doctor says will be important. However, in many other cases what the doctor says will not assist in connection with the test, because the disabling effects of the relevant medical condition are problematical or because the doctor does not say much, and it will be necessary to call the applicant in for a medical examination. That is what happened in the present case.

In summary, I hold that a form Med 4 is not necessary before an applicant can be assessed to see whether he or she satisfies the all work test. I accept the submissions of the adjudication officer now concerned and have incorporated those submissions in my reasons. I also hold that the adjudication officer had sufficient information to enable him to decide whether or not the all work test was satisfied.

The claimant did not attend the hearing on 3 April 1996, and, apart from what he said in his letter of appeal, offered no evidence in support of his appeal. In the circumstances, I have considered whether I should deal with the appeal myself. Although tempted to do so, I feel that this might be unfair to the claimant. I therefore remit the appeal for rehearing. The claimant should appreciate that if he does not appear at the rehearing, or support his appeal in some other way, he is unlikely to be successful. For these reasons, my decision is as in paragraph 1 above.

Date: 12 June 1997 (signed) Mr. J. P. Powell

Commissioner