CSIB/597/97

The Social Security and Child Support Commissioners
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This claimant’s appeal succeeds. I hold the decision of the Edinburgh social security appeal tribunal dated 6 January 1997 to be erroneous in point of law and, accordingly, I set it aside. I refer the case to the tribunal for determination afresh in accordance with the directions which follow, and in particular those at paragraphs 7, 11, 12 and 14 hereof. However these directions are subject to any supervening effect of the Social Security Act 1998. In light thereof the adjudication officer is directed to prepare an up to date submission for the new tribunal’s hearing.

2. This case came before me by way of an oral hearing which I had directed because of some concern about the written submissions by the adjudication officer on the appeal. I deal with these in detail below. At the hearing the claimant was represented by Mr Chris Lindsay, a welfare rights officer with the Advice Shop at Bathgate. The adjudication officer was represented by Mr I D Armstrong, Advocate, instructed by the Solicitor in Scotland to the Department of Social Security. I am indebted to both for their assistance.

3. The history of the case, so far as relevant, is that in July 1996 an adjudication officer reviewed the claimant’s award of incapacity benefit and revised it by holding her not entitled in respect of a failure to satisfy the "all work" test. There was no doubt that that was, as a matter of law, the appropriate test. The adjudication officer’s award of points under the test totalled 8. That figure wholly arose from satisfaction of description (e) of activity 14 as set out in the schedule to the Social Security (Incapacity for Work) (General) Regulations 1995, whereof regulations 24 and 25 determine the nature and applicability of the all work test as also the scoring system in relation to it. In short the adjudication officer held that the claimant:-
"Has had an involuntary episode of lost or altered consciousness once in the last 6 weeks [sic]" - document 59 of the bundle.
The question, however, in terms of said activity related to the period of:-
"... the 6 months before the day in respect of which it falls to be determined whether [the individual] is incapable of work for the purposes of entitlement to any benefit, allowance or advantage." [Descriptor (e)].
If, as appears, the adjudication officer was only looking at the previous 6 weeks that was an error of law in his decision. Indeed it may explain why he did not look more widely at the history as after discussed. The claimant appealed the adjudication officer’s decision to the tribunal who did not note that possible error.

4. Indeed the tribunal upheld the adjudication officer’s decision although they found that in place of the 8 points awarded by the adjudication officer the claimant was entitled to a score of 14 points in respect of physical disabilities. That was one point short of entitlement to retain benefit.

5. It was common ground between Mr Lindsay and Mr Armstrong that it was not clear whether the tribunal had, as they should have done, considered and determined matters down to the date of their hearing - the Common Appendix to CIB/14430/96 by a Tribunal of Commissioners. It is certainly not clear that the tribunal so considered matters because, as Mr Lindsay pointed out, they did not expressly record that they did so consider matters. I am well aware that the Tribunal decision post-dated this tribunal decision and so no criticism applies to them. Part of my concern was as to whether they may not have in fact considered matters down to the date of their hearing. Much of their decision is couched in the present tense. On the other hand in their reasons they said this:-
"On considering all the available evidence, the tribunal note the BAMS report as showing most accurately the appellant’s overall condition as at the date of decision."
That quotation tends to indicate a limitation upon consideration to the date of decision. In view of the uncertainty I must hold the decision to be in error of law because matters were not considered to the date of decision. That is in addition to the possible error in the adjudication officer’s decision which does not appear to have been corrected by the tribunal although they do refer to the correct part of the schedule. And they did themselves apply the correct test because their third finding of fact is this:-
"The appellant’s condition is such that she has infrequent episodes of blackouts resulting [in] unconsciousness, no more frequently than once in 6 months."
But that, in turn, leads to another error of law.

6. That error is a failure to explain properly why the tribunal came to that conclusion. It is not clear what was the appellant’s evidence or that of her father as mentioned in the reasons. The chairman’s note of evidence is largely illegible. The evidence before the tribunal, from the claim form, was that the claimant had fits at least once a month and there were quoted the dates of the last two fits in successive months, the latter being in the month when the claim form was completed - document 23 of the bundle. The medical service doctor at document 46 accepted only that there had been an involuntary episode of lost or altered consciousness once in the last 6 months and noted that the claimant could not:-
"... remember date of last blackout but thinks it was at least 4 months ago and cannot remember the previous one. These were fully investigated at her previous doctors and no cause was found. She claims that they are not frequent and never come more often than once every 2 months."
The adjudication officer proceeded as already indicated and whilst, as Mr Armstrong submitted, little might have been required to explain why the doctor’s evidence was preferred, in my judgment and since the issue here was one of historical fact rather than something involving medical opinion rather more was to be expected of the tribunal. I therefore uphold the first ground of appeal which is that there is no reason given as to why the BAMS report was preferred to the evidence of the claimant and her father. But that is not an end of the matter.

7. Mr Armstrong adopted in part what was said by the adjudication officer at paragraph 9 of his submission to the Commissioner dated 12 December 1997. It is therein submitted that it was necessary for the tribunal to make a finding on the normal frequency with which the claimant experienced an involuntary episode of lost or altered consciousness and, further, it was necessary to make findings on the dates on which such an episode had occurred in the 6 months prior to the date of assessment. As was emphasised by Mr Armstrong, at the date of the adjudication officer’s decision there had been the two episodes in successive months according to the evidence, in the 6 months prior to the date of that decision. That date is, as noted, the day in respect of which it falls to be determined whether the claimant is incapable of work. Certainly that date at the least was the date upon which the adjudication officer had made his decision. It immediately follows from that that unless there was some reason to reject the claimant’s evidence, uncommented upon by the tribunal, then 12 points should have been awarded in respect of activity 14 descriptor (d) and so, with the points which they themselves awarded, the claimant’s appeal should have succeeded. Unless, then, there is cogent evidence before the new tribunal persuading them that the claimant’s evidence in respect of the two episodes mentioned is unreliable or in error then I direct them to allow the appeal from the decision of the adjudication officer - which will have to be done anyway for the reasons already discussed - and, unless again they are to differ for similar reasons in respect of activity 7 descriptor (g) from the old tribunal, then they should make a finding that the claimant as at 19 July 1996 remained entitled to benefit.
8. I have not given that decision myself because there is another matter to which I now turn and which was properly raised by Mr Armstrong. It will require a tribunal, as the body authorised by Parliament primarily to deal with the facts of a case, to consider rather than a Commissioner. That concerns not only the need for matters to be considered down to the date of decision but also whether that is on a daily basis and if not then upon what basis, and how, is the matter to be approached. It is to that that I now turn.

9. In decision CIB/13161/96 and another, Mr Commissioner Howell QC determined that the test of whether an individual can perform the activities set out in the schedule is to be determined by considering his normal ability to do each of those activities as and when required. I agree and remind the new tribunal so to proceed. However Mr Commissioner Howell went on to say that where the disabling condition may fluctuate then matters have to be considered on a day to day basis. Tribunal of Commissioners’ decision CIB/14430/96 and others, in their Common Appendix, emphasised that a tribunal has to consider matters down to the date of hearing. They did not consider the "day to day" issue. In decision CIB/15231/96 Mr Deputy Commissioner Newsome considered the matter and pointed out that whereas Mr Commissioner Howell had founded upon the state of the law prior to the introduction of the all work test, it had been accepted even then that fluctuating conditions could be taken into account even although there might:-
"... be significant period when an [individual] could do work that he could be reasonably expected to do. [CS/90/86]."
As Mr Deputy Commissioner Newsome pointed out a similar approach had been applied in respect of attendance allowance - R(A)2/74. Then in decision CIB/911/97 Mr Deputy Commissioner Jacobs endorsed the more general approach. In April 1998 Mr Commissioner May QC explained the burden that would fall upon tribunals if Mr Commissioner’s Howell’s approach was to be the preferred approach. He proceeded, in paragraph 11, to direct the new tribunal in that case to determine the matter on a broad and reasonable basis.
10. Mr Armstrong endorsed Mr Commissioner May’s approach and, for my part, I am persuaded that it is correct. The old "day to day" approach belongs, I rather suspect, to the time when social security benefits were awarded for fixed, and usually relatively short, periods. But it is the present system of open ended awards that, at least in part, has given rise to the "down to the date of hearing" decision by the Tribunal and the need for the more pragmatic approach endorsed by Mr Commissioner May and the Deputy Commissioners to whose decisions I have referred. A somewhat different problem, however arises in cases such as the present where a rate or period is a deciding factor. In this case it is the period of 6 months "before the date in respect to which it falls to be determined...".

11. I follow the decision of Mr Commissioner Mesher, CIB/16372/96, that that "day", at least initially, is the day upon which the adjudication officer made his decision. As Mr Armstrong repeated, in this case there had been two episodes in the 6 months prior to that date. He went on to point out that, depending upon what subsequent dates were taken, so a period of 6 months might, or might not. contain an episode - thus the 6 months prior to the date of the old tribunal decision. The "down to the date of decision" approach in my opinion, requires that a tribunal will normally have to consider only two dates. I have already dealt with the date of the adjudication officer’s decision. The second date is the date of the tribunal hearing. I have emphasised "normally" because there may be cases, of which this may yet be one for the reasons given in paragraph 12 below, where there will during the period between the two "normal" dates arise another on account, for example, that there has been ground for a review such as by relevant change of circumstances - in this case a change in the form of the regulations. These are the only dates which, in my judgment, can properly be described as days "in respect of which [anything] falls to be determined." No doubt there are many intervening days but looking at the operation of the appeal system I do not see how it can be suggested that, in the normal meaning of the language, any of them are days fitting the definition in the descriptor - unless, of course, one were to revert to the "day by day" approach. I direct the new tribunal accordingly. It will take into account not only the specified date of "turns" but will also consider the general evidence of the frequency of turns, even though dates cannot be assigned to them and, taking the more general approach, determine the matter. But that is subject to what immediately follows.

12. Here there is a further problem raised by the fact that activity 14 was amended with effect from the date, as it happens, of the first tribunal decision, namely 6 January 1997. For this particular case, therefore, that date will be a second date in respect to which it falls to be determined whether this claimant was incapable of work and so the terminus for the second 6 month period. I say that because, despite expressing contrary views at the hearing, I am now satisfied, in light of Mr Armstrong’s submissions and further consideration, that the amendment to activity 14 excludes the claimant’s case unless she is suffering from epileptic or similar seizures during waking moments, and that will depend upon medical evidence. However, if that or a similar condition is stabilised for the claimant a third date for looking to a previous period of 6 months will arise, being the date of the new tribunal hearing.

13. I should now explain why I have come to my conclusion about the effect of the amendment to the activity. It is because or as it now seems to me, that it falls to be read as a continuation of the wording in regulation 24 which specifies the all work test as:-
"a test of the extent of a person’s incapacity ... to perform the activities prescribed ... putting the two together what results is a test for this case in this regard as the extent of this claimant’s incapacity to remain conscious without having epileptic or similar seizures as from and after 6 January 1997."
So reading the whole wording together, it becomes clear that the only failures to remain conscious that can be taken into account are those consequent upon epileptic or similar seizures. As I had originally approached the matter, looking to the activity alone, it seemed to me that the test was that of remaining conscious without having epileptic or similar seizures, so that if the cause of becoming unconscious was epileptic or similar seizures they would not count. I am now satisfied that that was incorrect.
14. My final direction to the new tribunal is upon the basis that they do not find the claimant to satisfy activity 14, descriptor (d) as the date of the adjudication officer’s original decision, or if as at that date they find that the claimant does not merit additional points to make up a total of 15, then they will have to consider whether during the period to the date of their decision, subject to the prohibition indicated above that may affect activity 14 after 6 January 1997, there was a period or periods during which the claimant was in "a period of incapacity" as defined by section 30C(1) of the Contributions and Benefits Act, namely whether there were any period or periods when she was incapable of work for four or more consecutive days and if any such periods were linked to form a single period by reason of not being separated of more than 8 weeks. And of course regulation 15 of the Incapacity General Regulations provides that someone who is incapable of work for any part of a day is to be taken as incapable for the whole of that day.

15. For the foregoing reasons this appeal must be allowed and the case remitted accordingly.

(Signed)
W. M. Walker QC
Commissioner 
2 June 1998