UK Social Security and Child Support Commissioners' Decisions

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[2007] UKSSCSC CIB_143_2007 (02 July 2007)

CIB 143 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I take the decision that the tribunal should have taken. But this is not to the advantage of the appellant. My decision, in place of that of the tribunal, is:

Appeal dismissed. The appellant is not incapable of work as measured by the personal capability assessment on 30 01 2006. Nor is the appellant to be treated as incapable of work by reference to regulation 27 of the Social Security (Incapacity for Work) Regulations 1995. The decision to that effect of the Secretary of State of that date, superseding the previous decision of the Secretary of State, is confirmed.

The claimant and appellant (C) is appealing with my permission against the decision of the Newcastle upon Tyne appeal tribunal on 6 09 2006 under reference U 44 230 2006 00274

REASONS FOR THE DECISION

The decision under appeal was made on 30 01 2006. It was a decision, effective from the date of decision, superseding the decision made on 25 07 2005 that C was incapable of work. The decision was said to be about incapacity credits. I take it in reality to be a decision about entitlement to claim income support rather than jobseeker's allowance, as C was 31 at the time and had never worked.

The evidence

C filled in an IB50 form on 19 12 2005. He stated his problems as alcoholism, depression and an ulcer. He said he had no physical limitations save for dizzy spells through drink. He was seen by an approved doctor on 23 01 2006. The examination took place from 14.22 to 15.00.The doctor recorded diagnoses of alcohol abuse, dyspepsia and anxiety and depression. In Box 7 (Description of a typical day) in the electronic IB85 report, the doctor recorded, among other details:

"Drinks about 10 cans a day

Usually begins drinking on rising

Uses benzodiazepines every day

Uses cannabis every day

Had an accident 1 week(s) ago. They suffered a minor fire due to poor concentration."

The approved doctor confirmed that C had no physical limitations as measured by the personal capability assessment. The doctor also conducted a mental health examination. The descriptors that the doctor thought applied to C were DLb (need for alcohol before midday) and CPf (anxiety that going back to work would make the illness worse). At the end of the report, the doctor allowed the standard computer generated wording in box 58 (dealing with regulation 27 of the Social Security (Incapacity for Work)(General) Regulations 1995) to stand. In box 7(ctd) (medical examination findings), the doctor allowed the following standard wording to stand (notwithstanding that this directly contradicts both the information earlier in the same box and the approved doctor's own opinion about DLb):

"Addictions:

Signs of drug use: no signs of use

Smell of alcohol: not detected

Jaundice: not jaundiced

Unsteady: steady

Pupils: normal pupils

Needle marks: No needle marks present

Phlebitis: No phlebitis at injection site

Signs of intoxication: sober

Disinhibition: absent

Labile Mood: absent

Slurred speech: absent."

The failure by the doctor to cancel out the computer-generated inconsistency in this list of factors - let alone the inconsistencies with other statements and opinions recorded by the doctor elsewhere in the IB85 - gives rise to the question whether this is actually a report of the doctor or merely unchecked automatically generated wording from the underlying software programme. That is important in this appeal because C's grounds of appeal include the statement:

"Because I was drunk when you interviewd me and the decision you made on the questions you asked a did not say half of them a would like to be seen again."

If C is right, then the approved doctor's report is deficient in box 7(ctd) but may be correct elsewhere in box 7. This calls into questions the weight to be put on that evidence. And it leaves unresolved the question whether C was describing his situation accurately when he talked about cannabis and other drugs. There is little corroborative evidence of this. If C was drunk, what reliance can be placed on C's evidence as recorded in box 7?

The decision maker acting for the Secretary of State reported to C differently, perhaps unintentionally. On the standard letter IB 65, "About your personal capability assessment", the writer told C that it was accepted that he was too frightened to go out alone (OPf).

This did not alter the decision that C was not incapable of work.

C appealed. The matter came before a tribunal on 20 06 2006. The chairman adjourned the hearing, noting that C smelt of alcohol (the hearing was at 15.30), because C was not represented and the tribunal considered it was in his interests to get a representative and also medical evidence. He instructed Gateshead Law Centre to act. The Centre put in a skeleton argument supported by medical evidence. This adopted the finding of the doctor that DBb and CPf were met, and also argued that DLe (sleep problems during the day), OPd (irritable behaviour) CTg (forgetfulness resulting in mishaps) were present. It also argued that the conditions of regulation 27(b) of the Social Security (Incapacity for Work)(General) Regulations 1995 were met. It contended that if C were found capable of work there would be a substantial risk to his health and possibly to that of others.

The medical evidence was from C's general practitioner. The general practitioner confirmed that C had suffered from alcohol dependency syndrome for 7 years. The doctor estimated that C consumed about 200 units of alcohol a week. The general practitioner had been told of C's drug taking by C but had no objective evidence of this from drug screens. However, the records suggested C had been reporting taking drugs for ten years.

The general practitioner advised that he would not diagnose an anxiety or depressive disorder and saw no objective evidence of a stomach ulcer, as against dyspepsia. On the regulation 27 issues, the general practitioner commented:

"In your letter you enquire whether your client is suffering from physical/mental disability which could put his health or that of another at substantial risk, should he be made to go back to work. [C] does indeed suffer from alcohol dependence syndrome, which can be considered a mental illness and does have physical effects. However, I am unable to say whether he would put his health or that of another person at substantial risk. To the contrary, should [C] engage with available drug and alcohol services (which have been offered to him) and undergo a detoxification from alcohol, being in paid employment would be one of the strongest factors like to reduce his chances of relapsing back to drinking alcohol."

The tribunal decision

The tribunal held a full oral hearing with C and his representative present. The record of proceedings shows that the tribunal took care examining the mental health descriptors. It concluded that C met four of the tests: DLb, CTg, CPf, and OPd. It picked up all the specific points raised for C. The total of these descriptors was 7 points, so the decision that C was not incapable of work was not changed.

The representative also argued the case under regulation 27. On this issue the tribunal recorded:

"Commissioner Jacobs considered the meaning of the phrase "there would be a substantial risk to the mental or physical health of any person if he were found capable of work" and said that it was not limited to the rare case in which a decision in favour of capacity for work would itself cause the risk to the claimant's health.

Instead one looks to the consequences of such a decision namely that the claimant will become a jobseeker and will be available for work, the type determined taking account of the claimant's health, qualifications, skill and experience. "The risk must be assessed in relation to the type of work for which the claimant would otherwise be required to be available. That retains the emphasis on the effect of the claimant being found capable of work. It confines within a sensible scope the range of work that must be taken into account when assessing the risk to the claimant's health. And it makes a sensible relationship between the conditions governing entitlement to benefit for those incapable of work and for those seeking work. It prevents claimants relying on regulation 27(b) when there is work that they could do without risk to their health. But it allows claimants to rely on the provision when the work they would otherwise be required to seek would put their health or someone else's at substantial risk.. it involves a consideration of the risk to health involved in the general type of work that the claimant is otherwise qualified, experienced or skilled to undertake.

The appellant is 32 years of age. He has never worked. There is no evidence that there would be a substantial risk to the mental or physical health of any person if he were found capable of work as defined. His general practitioner does not support such a contention. Regulation 27 of the Social Security (Incapacity for Work)(General) Regulations 1995 does not apply."

Grounds of appeal

The grounds of appeal for C related only to the decision on regulation 27. I confirm my view when granting permission to appeal that there is no error law by the tribunal with regard to the personal capability assessment. On that, I accept the tribunal's findings as established. C was not incapable of work as measured by the personal capability assessment. This appeal is therefore confined only to the issues raised with regard to regulation 27.

I granted permission to appeal specifically limited to the issue whether the tribunal had considered regulation 27(b) adequately. In my reasons for doing so, I commented that the tribunal's reasons paraphrased without attribution the comments on page 719 of Social Security Legislation 2006, Volume 1, (Commentary by Bonner, Hooker and White), Thomson, Sweet& Maxwell, ("the Commentary") about Commissioner Jacobs' decision in CIB 26 2004, including quotations from paragraphs 35 and 36 of that decision.

The relevance of that is that the main ground of appeal for C was that the tribunal had set out the correct test in law but had failed to apply it. Alternatively, it had failed to make relevant findings of fact.

On the narrow issue of adequacy, I agree with the grounds of appeal. While I note that it was submitted for the Secretary of State that the tribunal did not err in law in its decision, I do not agree. I have set out in full the relevant part of the tribunal's decision. It is preceded by three formal paragraphs and then two paragraphs dealing with C's oral evidence and then its findings about the mental health descriptors. There are no findings of fact in the tribunal decision about regulation 27. Its statement that there is "no evidence" of substantial risk fails to identify the evidence of risk or to weigh it. As the point was specifically in issue, the decision is clearly inadequate.

The grounds of appeal raised a wider issue, namely whether the tribunal was right in law to adopt the language it selected from the Commentary as the correct test in applying regulation 27. The law is not as clear as the tribunal impliedly suggests, and the Commentary exposes the differences. As the Commentary emphasises, the views expressed in CIB 26 2004 are not held unanimously by Commissioners. In particular, the Commentary notes in detail that in CSIB 223 2005 Commissioner May QC took a narrower view of regulation 27(b). The tribunal implicitly rejected that Commissioner's approach in stating the test it applied. However, I agree with C's representative that it is not clear whether it applied the wider test it set out as it has failed to state how it reached the conclusion it did on the evidence and submissions before it.

I therefore invited the parties to make submissions on the proper interpretation of regulation 27. I also added to the papers the other decisions mentioned specifically on this point in the Commentary. These are CIB 3519 2002, CIB 26 2004, CIB 1695 2005, CSIB 33 2004, CSIB 146 2004, CSIB 223 2005. I also added an extract from the Incapacity Benefit Handbook for Approved Doctors, med-S2/IBHB, Version 3 Final ("the Handbook").

Both Miss Terry, as the secretary of state's representative and Ms Angela Joynes, solicitor to Gateshead Law Centre, C's representative, made detailed submissions in reply to my directions commenting on the caselaw. I am grateful to both. Neither asked for an oral hearing. As they have put their cases fully in writing, I decided the matter on the papers.

Is a personal capability assessment necessary before deciding about regulation 27?

Miss Terry contended first that in CSIB 146 2004 Commissioner May QC decided that regulation 27 should be applied only to claimants who had been found to be incapable of work under the standard tests. The Commentary points out, though she did not, that in so deciding Commissioner May QC was disagreeing expressly with Commissioner Levenson in CIB 248 1997 and CIB 601 1997. In the earlier of those cases Commissioner Levenson considered that on an appeal a tribunal might need to deal with the personal capability assessment only in a cursory manner. I think the disagreement explored in the Commentary on this point is more apparent than real as it depends on the level of decision making being considered. The opening words of regulation 27 have changed between the wording in issue in CIB 248 1997 and the current wording. The current wording is in my view unambiguous.

An official must decide that the assessment is not satisfied before moving on to consider regulation 27.

CSIB 146 2004 was an unusual case because the tribunal rejected the official evidence about the claimant's personal capability assessment before deciding that regulation 27 applied to the claimant. As Commissioner May commented at paragraph 11, that removed the evidential basis for the official decision that the claimant failed the personal capability assessment. On the facts the tribunal therefore left the assessment undecided. But I disagree with his generalisation from those unusual facts to the proposition that all tribunals must look at the personal capability assessment before examining regulation 27. An official must do that. A tribunal need not. It has the benefit of section 12(8)(a) of the Social Security Act 1998. It need not consider any issue that is not raised in the appeal. If there is no dispute about the application of the assessment in a particular appeal, then it need not be in issue.

For example, it was not put in issue by Miss Joynes in C's appeal to the Commissioner in this case.

Regulation 27(b)

I do not need to repeat the curious history of the operative wording of regulation 27(b) here. It is set out in the Commentary at page 717, although not in the legislation itself. For current purposes, the relevant parts of regulation are to be read as follows:

"(1) A person who is not incapable of work in accordance with the personal capability assessment shall be treated as incapable of work if any of the circumstances set out in paragraph (2) apply to him.

(2) The circumstances are that –

… he suffers from some specific disease or bodily or mental disablement and, by reason of such disease of disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work …".

As Miss Terry notes, this involves two tests: (a) that the claimant has a specific disease or disablement and (b) there a substantial risk to someone if, because of that disease or disablement, the claimant is expected to work while diseased or disabled in that way.

"some specific disease or bodily or mental disablement"

Regulation 27 requires identification of the specific disease or disablement that gives rise to its potential application, although Commissioners have made clear that this does not require a detailed aetiology. In some cases, however, a detailed aetiology – or formal statement of the cause or reasons for a diagnosis – may assist assessment of the consequences of the diagnosis The first of those tests is met here by the evidence of the general practitioner that C suffers not merely from alcohol abuse (the description of the approved doctor) but alcohol dependence syndrome, and an express rejection of other diagnoses.

The general practitioner's use of a precise clinical term and clear associated evidence identify the disease or disablement relevant to regulation 27 precisely. It is the disease identified in the World Health Organisation International Classification of Diseases as F10.2, alcohol dependence syndrome. The clinical description in the WHO classification, as applied to this disease, is:

" a cluster of physiological, behavioural, and cognitive phenomena in which the use of alcohol takes on a much higher priority for a given individual than other behaviours that once had greater value. A central descriptive characteristic of the dependence syndrome is the desire (often strong, sometimes overpowering) to take alcohol. There may be evidence that return to alcohol use after a period of abstinence leads to a more rapid reappearance of other features of the syndrome than occurs with nondependent individuals."

The diagnostic guidelines are:

"A definite diagnosis of dependence should usually be made only if three or more of the following have been present together at some time during the previous year:

• A strong desire or sense of compulsion to take alcohol

• Difficulties in controlling alcohol-taking behaviour in terms of its onset, termination, or levels of use

• A physiological withdrawal state when alcohol use has ceased or been reduced, as evidence by; the characteristic withdrawal syndrome for alcohol; or use of alcohol with the intention of relieving or avoiding the withdrawal symptoms

• Evidence of tolerance, such that increased doses of alcohol are required in order to achieve effects originally produced by lower does (clear examples of this are found in alcohol-dependent individuals who may take daily doses sufficient to incapacitate or kill nontolerant users)

• Progressive neglect of alternative pleasures or interests because of alcohol use, increased amount of time necessary to obtain or take alcohol or to recover from its effects

• Persisting with alcohol use despite clear evidence of overtly harmful consequences, such as harm to the liver through excessive drinking; efforts should be made to determine that the user was actually, or could be expected to be, aware of the nature and extent of the harm".

This can be found on the website of the World Health Organisation at

http://www.who.int/substance_abuse/terminology/definition1/en/index.html. It is cited in part in the Incapacity Benefit Handbook for Approved Doctors at section 3.7.

The question in this case is therefore whether C, because he has the disease set out above, presents the risk defined in regulation 27(b) to himself or some other person if he is found capable of work.

"a substantial risk to the … health of any person if he were found capable of work"

The issue that arises from this wording is the context of the assessment of risk. Should the tribunal have in mind only the evidence of the failed personal capability assessment, or should it assess the risk against the probable results of that failure? The views of Commissioner Jacobs about the interpretation of this test are set out in the Commentary as quoted by the tribunal. Those views were expressly supported by Commissioner Parker in CSIB 33 2004, as also cited at length in the Commentary. As the tribunal recognised, this required some consideration of the consequences of the claimant working. In CSIB 223 2005 Commissioner May QC took another view. He put his disagreement with the contextual approach bluntly in paragraph 7 of his decision (also quoted at length in the Commentary):

"I am at a loss to see how tribunals can properly apply the legislation in the context set out by Mr Commissioner Jacobs…"

The submissions of the parties

Miss Terry made the following submission:

"In … CSIB 223 2005 … the Commissioner considered CIB 26 2004 and CSIB 33 2004 and disagreed with both in respect of the requirement to identify the type of work that the appellant may be required to be available for, if found capable of work. The Commissioner directed, in paragraph 14, that the tribunal to which he remitted the case

"apply the regulation strictly in the terms in which it is written"

The secretary of state's representative submits that she agrees with this approach and further submits that the personal capability assessment is not a test of whether a claimant is incapable of specific work, hence why should regulation 27 be so limited."

This is consistent with the view taken by the Secretary of State before Commissioner May. As I quote below, he expressly adopted the submissions of the Secretary of State in reaching his decision. It is inconsistent with her support elsewhere in the submission for the Secretary of State that the tribunal did not err in law. If it did not err in law, then it applied the contextual test proposed by Commissioner Jacobs correctly. But I have rejected that other submission so put this inconsistency on one side.

Miss Terry identified the need to find that a claimant suffers from a specific disease or bodily or mental disablement. I agree with that point, and have set out the clear evidence that this test is met by C. She cites CSIB 33 2004 and CIB 3519 2002 to note that whether a risk is "substantial" is a question of fact. That is common ground also. She then cites the observation in CSIB 1695 2005 that it would need to be established that the range of work for which a claimant is otherwise qualified and that he could do is so small that there was a substantial risk to health if he were found capable of work. Miss Terry then draws my attention also to CSIB 179 2006 and CSIB 656 2006 as cases affirming the narrower approach to interpreting regulation 27. I am grateful to her for drawing my attention to those other decisions, both decisions of Commissioner May endorsing his previous views.

For C, Ms Joynes argued that the tribunal had stated the test correctly, but had not then applied it or, if it had, it had failed adequately to explain how it had applied to C's claim. In a full response to the submission for the Secretary of State, she contended that Miss Terry's submission conflates two separate tests: the personal capability test and the regulation 27 test. A decision about one does not define the scope of the other. The submission continues:

"A natural consequence of being found capable of work is that the claimant becomes a jobseeker and the assumption is that as a result of being available for work and actively seeking work he would eventually secure employment. Therefore, it is submitted that there should be some assessment by the tribunal of the kind of work the claimant would have a reasonable prospect of securing when looking at whether there would be a substantial risk to him or any person if he were found capable of work.

It is submitted that the approach in CSIB 223 2005 is too narrow an interpretation of the Regulation. The fact that the Regulation refers not only to the risk to the claimant but also to any person suggests that Parliament intended the element of "substantial risk" to be assessed within the working environment and not just be confined to the "broad results" of a capability finding on a claimant.

It is noted that in CSIB 33 2004 Commissioner Parker expressly approves the broader interpretation of the Regulation given by Commissioner Jacobs in CIB 26 2004. Commissioner Parker also provides some useful guidance to tribunals when considering the kind of work that a claimant would need to be available for and actively seeking. It is also made clear in this decision that risk is not to be confined to risks arising from the tasks associated with the claimant's job description and must arise from "the broad results of a claimant being found capable of work."

It is further noted that CSIB 223 2005 has not been approved by another Commissioner and the decision referred to at paragraph 16 of the Secretary of State's submission (CSIB 179 2006) is another case decided by Commissioner May in which he reiterates his preferred approach."

Informal enquiries and an electronic search of recent Commissioners' decisions suggest that the most recent decision issued from London that deals expressly with the point is that of deputy Commissioner Paines QC in CIB 1695 2005, issued in late 2005. He states:

"11 As regards the approach to regulation 27(b), I agree with paragraphs 34 to 36 of CIB 26 2004, to which the secretary of state's representative has referred. When a claimant suffers from a specific disease or disablement (as the claimant plainly does), the issue of whether there should be a substantial risk to his or anyone's health if he were found capable of work is to be decided by reference to, among other things, the types of work that the claimant would be likely to be required to be available for."

12 The decision it to be taken on the balance of probabilities but, in order for regulation 27(b) to apply, the tribunal must be satisfied that the substantial risk to health referred to in the regulation would exist."

The Commissioner went on to apply that test to the evidence in the appeal and to reach his own decision in place of that of the tribunal.

The burden and standard of proof

The reminder about the burden of proof is salutary in this context, as is the context of its operation. The regulation 27 issue only arises when it has been shown (at least to the satisfaction of an official) that the claimant is otherwise not incapable of work as measured in the standard way. Once that is established, the usual consequence will be that the Secretary of State has shown that there are grounds to supersede any previous award, and that is what will happen. It is then for the claimant to show, on the balance of probabilities, that there would be a substantial risk to her or him – or to anyone else – if he works.

It is not clear on existing authority if the claimant will be assisted by the evidential assumption in regulation 15 of the Regulations. This provides that a person incapable of work for part of a day is incapable for the whole day. This is again an area where Commissioners have not reached an entirely consistent view. See the Commentary at page 711. I agree with the endorsement by Commissioner Mesher in CIB 399 2003 of the view that the assumption only applies when a claimant is found incapable of work, and not to individual descriptors. On that approach, my view is that consistency suggests it should also apply to regulation 27(b). If there is a substantial risk at some time during a day, then there is a substantial risk on that day.

The role of the Secretary of State in applying regulation 27

In practice, the Secretary of State will take the first steps in considering regulation 27 for the claimant. It is for that reason that I directed that extracts from the official guidance to approved doctors in the Handbook be put in the case papers. The Handbook (at paragraph 3.8.1) sets out the four criteria within regulation 27, including the one at issue in this case. It wrongly states in that paragraphs that "the law stipulates that before these criteria can be applied by Decision Makers medical advice must be sought from a doctor "approved" by the Secretary of State". That is accurate for regulations 10 and 11 and the other parts of regulation 27 but not for this test. However, the result is that an approved doctor is asked to consider this aspect of a claim together with the other provisions in regulation 27. And, as noted already, the standard computer programme operating behind the electronic IB85 provides answers for the doctor to the questions posed by regulation 27. If that is completed properly, the decision maker will have a medical opinion on the regulation in every case. Does that answer the question about the kind of work to be evaluated?

I can see nothing specific in the guidance to approved doctors that deals with the issue of the kind of work on which an approved doctor is expressing an opinion. The Handbook, at paragraphs 3.8.3 (substantial risk to the health of the person), gives appropriate guidance on "substantial risk" and also comments on the position in cases of mental health and heart disease. In paragraph 3.8.3.3 it deals with risk to another person, and advises: "… you should consider if there is a substantial risk of violence or psychological harm which could not be anticipated or adequately controlled." It makes no other comment on this aspect of the test. It is therefore left to the approved doctor to decide as he or she thinks best.

The work to be assessed

With those points in mind, I return to the question posed by this appeal. What work, if any, is relevant to regulation 27(b)? The core guidance given by Commissioner May in CSIB 223 2005 is as follows:

"14 In the event I favour the approach to regulation 27(b) set out by Miss Doherty [the secretary of state's representative] and accept it, I direct the tribunal to apply the regulation strictly in the terms in which it is written and in the manner set out in paragraph 7. It is clear from the approach set out in paragraph 7 that the tribunal will have a simple, crisp and direct issue to determine."

Paragraph 7 summarises the whole of the submission by Miss Doherty, much of which is not relevant to this point. The relevant part is:

"It was her submission that the statutory provision contained in regulation 27(b) was applied in the terms set out therein. She submitted that there is evidence contained in the general practitioner's report … which in terms supports satisfaction of the condition… She was content that this evidence be assessed with the other evidence including the contrary evidence of the examining medical practitioner and the tribunal reach a conclusion thereon as to whether regulation 27(b) is satisfied… Whilst she appreciated that the approach taken by Mr Commissioner Jacobs in CIB 26 2004, which I deal with later, would be advantageous to some claimants, she found it difficult to understand how a tribunal would be in a position to apply the regulations in the context of attempting to set out a range of work which the claimant could do."