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[1999] UKSSCSC CIB_14534_1996 (15 June 1999)

R(IB) 2/99

Judge K. Machin QC CIB/14534/1996
Mr. R. A. Sanders
Mr. M. Rowland
15.6.99

All work test – variable and intermittent conditions – whether the all work test must literally be satisfied on each day of a period of incapacity

The claimant suffered from post-viral syndrome. A Benefits Agency Medical Service doctor assessed her ability to carry out the activities relevant to the all work test and in respect of the physical descriptors his assessment was such that the adjudication officer decided that the claimant scored no points, but the doctor stated in respect of many of the activities that the claimant got tired easily. The adjudication officer reviewed her award of incapacity benefit and decided that she was no longer entitled to it. The claimant appealed, saying that her condition fluctuated wildly. The tribunal considered whether the claimant could carry out the activities in the all work test regularly and repeatedly and said that they had not relied on a snapshot of her circumstances. They accepted the doctor's findings and dismissed the claimant's appeal. She appealed and her case was heard by a Tribunal of Commissioners.

Held, allowing the appeal, that:

although incapacity benefit was a daily benefit, it was not necessary for the all work test literally to be satisfied in respect of each day of a period of incapacity (paragraph 13);

in those cases where relevant descriptors were expressed in terms that the claimant "cannot", rather than "sometimes cannot", perform an activity, one should not stray too far from an arithmetical approach that considered what the claimant's abilities were most of the time during what was claimed to be a period of incapacity, but the frequency of "bad" days, the length of periods of "bad" days and intervening periods, the severity of the claimant's disablement on both "good" and "bad" days and the unpredictability of "bad" days were all relevant when considering whether a claimant could be treated as satisfying the all work test on those days when it was literally satisfied but also other intervening days (paragraph 15);

the tribunal had not erred in their approach to the variability of the claimant's condition (paragraph 20);

it was unclear whether the doctor's assessment took account of the claimant's fatigue or whether his comment that the claimant got tired easily was intended to qualify an assessment that did not take account of the fatigue and therefore the tribunal's decision was erroneous in point of law because, in accepting his findings, they either misdirected themselves as to the relevance of the claimant's tiredness or else they inadequately explained their decision (paragraph 21).

The Tribunal of Commissioners referred the case to a differently constituted tribunal.

DECISION OF THE TRIBUNAL OF COMMISSIONERS

This is an appeal, brought by the claimant with the leave of Mr. Sanders, against a decision of the Coventry social security appeal tribunal dated 29 January 1996, whereby they dismissed her appeal against a decision of an adjudication officer to the effect that she was not entitled to incapacity benefit from 25 July 1995. Before us, the claimant was represented by Mr. Simon Cox of counsel, instructed by the Child Poverty Action Group, and the adjudication officer was represented by Ms. Natalie Lieven of counsel, instructed by the Solicitor to the Departments of Social Security and Health.

The present case is one of three appeals we heard together, the others being on files CIB/13466/1996 and CIB/944/1997. In each case, the claimant suffers from a condition causing greater disability on some days than on others. The question that arises is whether the claimant is incapable of work under the "all work test" introduced under the Social Security (Incapacity for Work) Act 1994 on days on which, if the days were viewed in isolation, he or she might not in fact satisfy that test.

Counsel both submitted that the "all work test" should not be applied to each day in isolation. They further submitted that a person might be regarded as incapable of work throughout a period even though he or she might fail the test on a majority of the days within the period if those days were viewed in isolation. They suggested that material factors to be taken into account, when determining whether a claimant could be regarded as incapable of work throughout a period within which his or her condition varied, were the frequency of "bad" days, the length of periods of "bad" days and of intervening periods, the severity of the claimant's disablement on both "good" and "bad" days and the unpredictability of "bad" days.

Incapacity for work is assessed in accordance with Part XIIA of the Social Security Contributions and Benefits Act 1992, as amended by the 1994 Act, and the Social Security (Incapacity for Work) (General) Regulations 1995.

The "all work test" does not apply to all claimants who claim to be incapable of work. By regulations 10 to 15 of the 1995 Regulations, certain people are automatically treated as being incapable of work. By section 171B of the 1992 Act, those who have been employed fairly recently are subject to the "own occupation test" with which we are not concerned. But section 171C provides that incapacity for work in other cases is to be established by applying the "all work test" and that was the test applicable to the claimant in the present case.

The "all work test" is described in regulation 24 of the 1995 Regulations:-

"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 sets out a number of activities and in respect of each activity a number of descriptors describing various levels of incapacity to perform the activity, each of which enables a number of points to be scored by the claimant. The descriptors are in various forms.

Most of the descriptors in Part I of the Schedule, "physical descriptors", are in terms that the claimant "cannot" do something. Thus descriptor 5(b) is:

"Cannot rise from sitting to standing without holding on to something."

That scores 7 points. By contrast, descriptor 5(c) is:

"Sometimes cannot rise from sitting to standing without holding on to something."

That scores 3 points. Paragraphs 13 and 14 are not concerned with the same sorts of activities as paragraphs 1 to 12 but take account of episodes of incontinence or loss of consciousness. Descriptor 14(c) is:

"Has an involuntary episode of lost or altered consciousness at least once a month."

That scores 15 points.

Many of the descriptors in Part II of the Schedule, "mental descriptors", are in terms of the way the claimant functions. Those in respect of the "completion of tasks" are:

"15. (a) Cannot answer the telephone and reliably take a message.

(b) Often sits for hours doing nothing.

(c) Cannot concentrate to read a magazine article or follow a radio or television programme.

(d) Cannot use a telephone book or other directory to find number.

(e) Mental condition prevents him from undertaking leisure activities previously enjoyed.

(f) Overlooks or forgets the risk posed by domestic appliances or other common hazards due to poor concentration.

(g) Agitation, confusion or forgetfulness has resulted in potentially dangerous accidents 3 months before the day in respect of which it falls to be determined whether he is incapable of work for the purposes of entitlement to any benefit, allowance or advantage.

(h) Concentration can only be sustained by prompting."

Regulations 25 and 26 explain how an overall assessment is reached, based on the claimant's scores. Regulation 27 requires certain people to be treated as incapable of work even if they fail the "all work test". Regulation 8 provides for medical examinations and regulation 28 provides for a person to be treated as incapable of work pending an examination, provided he or she is submitting medical certificates (or certain other evidence) and either has not been found within the previous six months to be capable of work or else is suffering from a new disease or disablement or the previous disease or disablement has significantly worsened. An award of benefit is usually made for an indefinite period. An adjudication officer considering a claim must consider the whole period up to the date of his or her decision. However, a consequence of regulation 28 is that an adjudication officer applying the "all work test" is rarely concerned with entitlement to benefit during any substantial period in the past; a decision is made in respect of the present and it will have effect for an indefinite period in the future.

This is a practical consideration on which Ms. Lieven placed much reliance in her submissions that a broad approach must be taken when considering whether a person satisfies the "all work test". In one context, a broad approach has indeed been consistently taken by Commissioners. C1/95(IB), a tribunal in Northern Ireland had considered whether the claimant could perform relevant activities "with reasonable regularity" and had said:

"We have taken the view that some degree of repetition of the descriptors is necessary bearing in mind that some relate to the working situation. We have therefore awarded points where we consider reasonably frequent repetition could not be carried out."

The adjudication officer appealed on the ground, among others, that the tribunal had misdirected themselves in introducing a test of "reasonable regularity". The Chief Commissioner in Northern Ireland rejected that submission, saying:

"I agree that, apart from those few descriptors in which the word 'sometimes' appears, there is no specific requirement that a claimant must be able to perform the activity in question 'with reasonable regularity'. Nevertheless, a Tribunal must in my opinion have regard to some such concept in reaching their decision. The real issue is whether, taking an overall view of the claimant's capacity to perform the activity in question, he should reasonably be considered to be incapable of performing it. The fact that he might occasionally manage to accomplish it, would be of no consequence if, for most of the time, and in most circumstances, he could not do so. I consider, moreover, that this approach is broadly supported by the inclusion in a small number of the descriptors of the word 'sometimes'. The effect of the inclusion of this word is that, whereas in most cases a claimant who could perform the activity 'most of the time', but who sometimes was unable to do so, would normally not score any points, where these few descriptors are concerned he qualifies for a modest score. Accordingly, as I see it, there must be an overall requirement of 'reasonableness' in the approach of the Tribunal to the question of what a person is or is not capable of doing, and this may include consideration of his ability to perform the various specified activities most of the time. To that extent 'reasonable regularity' may properly be considered. On the further subject of a 'working situation', I agree that a Tribunal should not have regard to this factor; but should confine their considerations to the claimant's ability to perform the everyday activities specified in the descriptors."

That approach has been followed in numerous decisions in Great Britain but it does not wholly answer the question that arises when a person's condition varies from day to day (although it may be noted that C1/95(IB) was such a case).

It would be possible to construe Part I of the Schedule to the 1995 Regulations so that each day had to be considered in isolation. Even though the word "cannot" in this context has to be qualified so as to mean "cannot with reasonable regularity", that could sensibly be read as "cannot with reasonable regularity during the course of the day in respect of which benefit is claimed". Ms. Lieven placed much emphasis on those descriptors containing the word "sometimes", but even there the meaning could be "sometimes during the course of the day in respect of which benefit is claimed". Descriptor 14(c) can also be read as referring to a single day during a period when the claimant loses consciousness at least once a month. On the other hand, it is also possible to construe Part I of the Schedule more broadly. If "cannot" is read as "cannot with reasonable regularity", that can be considered over a period of a number of days, just as those descriptors containing the word "sometimes" can. When one considers Part II of the Schedule, that approach seems very much more reasonable than considering each day in isolation (except, perhaps, in relation to descriptor 15(g)). For instance, when looking at descriptor 15(f), it can hardly be expected that a claimant should show that he overlooks or forgets a relevant risk every day. What particularly convinces us that the "all work test" cannot be applied to each day in isolation is Ms. Lieven's argument, in which, we believe, Mr. Cox acquiesced, that it is the only approach that can sensibly be applied by an adjudication officer making what is in effect a prospective determination for an extended period.

Can that broader approach be reconciled with the provisions of section 30A and 30C of the 1992 Act? Under those provisions, incapacity benefit is paid in respect of days of incapacity for work (excluding Sundays) falling within periods of incapacity for work - a period of incapacity for work consisting of four or more consecutive days of incapacity for work. In our view, it can. In R(A) 2/74, the Chief National Insurance Commissioner, Sir Robert Micklethwait QC, was concerned with a claimant's entitlement to attendance allowance and had to consider whether there was a period throughout which the claimant could be regarded as being so severely disabled that at night she required prolonged or repeated attention in connection with her bodily functions. She in fact required attention regularly when undergoing dialysis on only three nights out of seven. It was common ground before the Chief Commissioner that a "normative approach" had to be adopted. That approach had been taken in a number of earlier decisions and he accepted that the fact that the claimant did not require attention every night did not prevent her from qualifying for benefit. Furthermore, he also accepted a concession made on behalf of the Secretary of State to the effect that a "normative approach" did not require the claimant to show that she "normally", "ordinarily" or "usually" required attention in the sense of requiring it on the majority of nights. A delegated medical practitioner was entitled to apply such an arithmetical test but was not bound to do so. The Chief Commissioner allowed the claimant's appeal because the delegated medical practitioner had said that, as the claimant required attention on only three nights out of seven, he was therefore unable to accept that the night attention condition was satisfied.

Section 30A(1) of the 1992 Act provides that a person who satisfies stipulated conditions is entitled to incapacity benefit "in respect of any day of incapacity for work ....". Section 30C(1)(a) defines "a day of incapacity for work" as "a day on which a person is incapable of work". It was these provisions which led the Commissioner to hold in CIB/13161/1996 and CIB/13508/1996 that the "all work test" must be shown "to be satisfied on a day by day basis for each individual day of claim". However, we do not think it follows from the simple fact that, unlike attendance allowance, incapacity benefit is a daily benefit, that the "all work test" must literally be satisfied in respect of each day. In our view, there is no real distinction to be made between the stipulation in relation to attendance allowance that to qualify a claimant should satisfy the statutory conditions throughout a period (see now section 65(1)(a) of the 1992 Act) and the stipulation in relation to incapacity benefit that entitlement arises in respect of any day of incapacity. We consider that the approach taken in R(A) 2/74 applies equally to incapacity benefit.

Ms. Lieven drew our attention to what the Parliamentary Under-Secretary of State for Social Security said in the House of Commons when the Bill introducing the "all work test" was being debated (HC Vol. 239, col. 198):

"A number of questions about the snapshot element were raised. Is this medical test a snapshot? No, it is not. .....

"The departmental doctor who examines a claimant will take account of the variability of the condition over given periods. Thus, the assessment will create an overall picture of the effect of the medical condition on the person's ability to carry out a range of work-related activities, and hence his capacity for work."

Similar points were made, both in the House of Commons and in the House of Lords, when the 1995 Regulations were debated. While we do not use those ministerial statements to support our construction of the provisions in question, we note that they are entirely consistent with it.

Although we consider a broad approach to be justified, the words of the legislation cannot be ignored. In R(A) 2/74, the Chief Commissioner said, when remitting the case before him to another delegated medical practitioner:

"[I]n my judgment in answering the [statutory questions], 'regard must be paid to ... the claimant's requirements over a period of time'. I think that the delegate should take a broad view of the matter, asking himself some such question as whether in all the circumstances the words in the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts. These are matters for the good sense and judgment of the delegate."

It follows that, in those cases where relevant descriptors are expressed in terms that the claimant "cannot", rather than "sometimes cannot", perform the activity, one should not stray too far from an arithmetical approach that considers what the claimant's abilities are "most of the time" - the phrase used in C1/95(IB). Nevertheless, we agree that all the factors mentioned by counsel - the frequency of "bad" days, the length of periods of "bad" days and of intervening periods, the severity of the claimant's disablement on both "good" and "bad" days and the unpredictability of "bad" days - are relevant when applying the broad approach. Thus, a person whose condition varies from day to day and who would easily satisfy the "all work test" on three days a week and would nearly satisfy it on the other four days might well be considered incapable of work for the whole week. But a person who has long periods of illness separated by periods of remission lasting some weeks, during which he or she suffers no significant disablement, might well be considered to be incapable of work during the periods of illness but not to be incapable of work during the periods of remission, even if the periods of illness are longer than the periods of remission. Each case must be judged on its merits and we agree with the Commissioner who decided CIB/6244/1997 that there are some cases where a claimant can properly be regarded as incapable of work both on days when the "all work test" is clearly satisfied and on other days in between those days and that there are other cases where the claimant can be regarded as incapable of work only on "bad days", although we do not consider the distinction he drew between "variable" and "intermittent" conditions to be a helpful one.

The approach taken in the two examples we have just given may not be markedly different from that taken under the legislation in force before the 1994 Act took effect. However, as was pointed out in CIB/13161/1996 and CIB/13508/1996, that is not always so. Those claimants who suffer from conditions causing disablement on only four or five days a month can hardly be regarded as unable to carry out the activities in paragraphs 1 to 12 of the Schedule for the whole month, however severe the disablement on those few days or however unpredictable the attacks might be. Under the old law, they might have been regarded as being continuously incapable of work on the basis that there was no work they could reasonably be expected to do in view of their conditions. It appears to have been accepted by the adjudication officer in CIB/13161/1996 and CIB/13508/1996 that the new law has the effect that some people who are unemployable due to physical or mental illness are nonetheless found not to be incapable of work. If that is thought to be an undesirable consequence, the remedy lies in the hands of the Secretary of State who can expand the scope of regulation 27 of the 1995 Regulations or increase the number of "activities" in the Schedule in respect of which there are descriptors like descriptor 14(c).

Ms. Lieven conceded that, in those cases where a tribunal does have to look back over a prolonged period during which a claimant has had short episodes of disablement, the fact that the claimant cannot be regarded as incapable of work for the whole period does not mean that any individual days of incapacity cannot count as such. As was pointed out both in CIB/13161/1996 and CIB/13508/1996 and in CIB/6244/1997, in so far as those days of incapacity might give rise to entitlement to benefit, they must be identified. We do not think this is necessarily as burdensome as has sometimes been suggested. Where entitlement to incapacity benefit is in issue, it is unnecessary to consider isolated days because benefit is payable only in respect of periods of four consecutive days of incapacity for work. Where there is sufficient evidence to suggest that there are such periods of four days, the periods are likely to be more readily identifiable than single days. Furthermore, as we have already observed, adjudication officers seldom need to look back over any substantial period and the duty on tribunals to do so has been modified by the coming into force of paragraphs 2 and 3 of Schedule 6 to the Social Security Act 1998 which have the effect (for new cases but not the one before us) that a tribunal will usually be concerned with the claimant's capacity for work only at about the date of the adjudication officer's decision. (Claimants who have been found not to be incapable of work now need to realise that they should make a new claim if there is any worsening in their condition which may be the beginning of another period of incapacity for work, even if they are challenging the original finding.)

We now turn to the facts of the case before us. The claimant suffers from post-viral syndrome and on form Med 4 dated 21 April 1995, her doctor remarked that she suffered "tiredness after minimal physical activity". On form IB50, the incapacity for work questionnaire, the claimant wrote that her symptoms fluctuated "from day to day (and hour to hour)". She made the same point in various ways when answering questions in the rest of the questionnaire. She was examined by a Benefits Agency Medical Service doctor on 18 July 1995. The doctor completed a medical report form IB85. In respect of each of the physical activities the doctor's assessment was such that the adjudication officer decided that the claimant scored no points under the "all work test" but in respect of a number of those activities the doctor recorded, in the box headed "details of variability, fluctuation, pain, fatigue, stiffness, breathlessness, balance problems", "gets tired easily" or words to like effect. The doctor's assessment in respect of the mental descriptors led the adjudication officer to award 3 or 4 points under the "all work test" (it is not clear which) but that was not sufficient to enable the claimant to satisfy the test overall. Consequently, the adjudication officer reviewed her existing award of benefit and decided that the claimant was not entitled to benefit, because she was not incapable of work, from 25 July 1995.

The claimant appealed on the grounds "that our client's condition fluctuates widely and that although on certain days she may be capable of work, these days are interspersed with periods during which she lacks the strength for any work. Also, even though she may commence work feeling capable of carrying out the tasks, the exertion exhausts her, so that she is incapable of holding down a job." Lengthy written submissions were submitted, referring to guidance given to examining doctors that the assessment to be made should not be based upon a "snapshot" of the claimant's functional capacity at the time of examination. The tribunal found that the claimant scored only one point under the mental descriptors of the "all work test" but they found that she was unable to stand for more than 30 minutes before needing to sit down and awarded 7 points under the physical descriptors. Nonetheless, she did not accumulate a sufficient number of points and her appeal was dismissed. After recording their findings, the tribunal said:

"In reaching its conclusions, the tribunal took into account those matters contained in the medical adviser's guide to incapacity benefit referred to in the written submission of the appellant's representative. In particular, the tribunal considered, where applicable, whether the appellant could carry out functions regularly or repeatedly, and did not rely upon any 'snapshot' of the appellant's circumstances.

The tribunal accepted the evidence of the examining medical officer as there was no medical evidence to the contrary. The evidence from [the claimant's general practitioner] dealt generally with the symptoms of post viral syndrome, and did not contain evidence specifically about the appellant's circumstances. The tribunal rejected the evidence of the appellant where it was inconsistent with the evidence of the examining medical officer. However, the tribunal found that the appellant could not stand for more than 30 minutes before needing to sit down upon the evidence of the appellant which was corroborated by her mother.

The tribunal also found upon the evidence of the appellant that she gave up due to fatigue. This evidence was confirmed by that of the examining medical officer. Of the other mental descriptors referred to by the appellant in the activity sheet, she could concentrate sufficiently to read and do crosswords. There was no evidence that she suffered fluctuations of mood, nor that she frequently felt scared or panicky. Most of the time, she slept well at night. The belief that work would bring back or exacerbate the appellant's condition did not make her anxious."

Mr. Cox accepted that, in view of the tribunal's express statement that they had not relied on a "snapshot", the tribunal could not be said to have misdirected themselves in law as to the approach to be taken where a claimant's condition varies. There is no particular form of words which a tribunal must use when giving the reasons for their decision and, against the background of the submissions made to them, the tribunal in this case have given a sufficient indication that they took the right approach.

Nonetheless, both counsel submitted that the tribunal had given a bad reason for their findings. The Benefits Agency Medical Service doctor had not explained the significance of his comments that the claimant tired easily, which he had presumably written because he considered that the fatigue would have interfered with her capacity to carry out the relevant activities. It was submitted that it was unclear whether his assessment took account of the fatigue or whether the comments were intended as qualifications of an assessment that did not take account of the fatigue. If the former, it was argued that there was an inconsistency between the tribunal's apparent acceptance of most of the doctor's findings and their own finding that the appellant "gave up due to fatigue" (which appears to have been made with descriptor 17(e) in mind but which has wider implications). If the latter, it was argued that the tribunal should not have accepted the assessment of the doctor at all. We accept those submissions and are satisfied that either the tribunal misdirected themselves as to the relevance of the claimant's tiredness or else they have inadequately explained their decision. In either event, the decision is erroneous in point of law.

We therefore allow the claimant's appeal. We set aside the decision of the Coventry social security appeal tribunal dated 29 January 1996 and we refer this case to a differently constituted tribunal for determination.

Date: 15 June 1999 (signed) Judge K. Machin QC
Chief Commissioner

(signed) Mr. R. A. Sanders
Commissioner

(signed) Mr. M. Rowland
Commissioner