UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CIB_4445_2004 (28 July 2005)

PLH Commissioner's File: CIB 4445/04

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for: Incapacity Benefit

Appeal Tribunal: Newcastle

Tribunal Case Ref:

Tribunal date: 23 March 2004

Reasons issued: 31 March 2004

1. The decision of the Newcastle appeal tribunal sitting on 23 March 2004 is conceded to have been erroneous in law for the reasons identified in the written submission of Mr D Kiersey on behalf of the Secretary of State dated 23 May 2005 at pages 105-6. I accept that concession as rightly made, set aside the tribunal decision and in accordance with section 14(8)(b) Social Security Act 1998 remit the case for rehearing and redetermination by a differently constituted tribunal, the claimant not objecting to that course.
2. I confirm that in my judgment the tribunal's decision in this case erred in that the medical evidence on which it was based (an incompletely translated overseas medical report in general terms) was not sufficient to base a fair assessment of the claimant's capacities in terms of the very specific activity descriptors required for the purposes of the personal capability assessment under the UK incapacity benefit rules; and further in not addressing the specific evidence in the most recent report at pages 84-5 of a severe arthritic condition in the claimant's knees. I agree with Mr Kiersey that a medical examination and report exactly following the form used by approved doctors in the UK for the personal capability assessment is not essential, but the questions that have to be answered remain the same, so whatever medical evidence is used must be sufficiently detailed, specific and comprehensive to yield clear answers on each of the activities and descriptors in issue. Unfortunately the evidence relied on here fell well short of that. This being a "supersession" case, it is for the department to provide the new tribunal with evidence supporting adequately specific answers in terms of the incapacity descriptors to justify the claimant's benefit being taken away.

(Signed)

P L Howell

Commissioner

28 July 2005