UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CIB_1381_2008 (18 June 2008)

 


CIB 1381 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I refer the appeal to a new tribunal to consider in accordance with the directions in this decision.
2. The claimant and appellant ("V") is appealing with my permission against the decision of the Scarborough tribunal on 31 01 2008 under reference 950 07 00275.
3. DIRECTIONS FOR REHEARING

A The rehearing will be at an oral hearing.

B The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.

C The claimant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

D If the claimant has any further written evidence to put before the tribunal, in particular medical evidence about the requirement for a second operation as discussed in this decision, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a district chairman.

REASONS FOR THE DECISION

4. When granting permission to appeal, I gave provisional reasons for considering that the appeal should be granted. The appellant's representative agreed with those reasons. The secretary of state's representative gave full reasons for objecting to my proposed decision. I have fully reconsidered the appeal in the light of that that submission. I confirm my view that the tribunal did not deal adequately with regulation 27(2)(c) of the Social Security (Incapacity for Work)(General) Regulations 1995 in this appeal. That is enough to decide the appeal. I need not deal with the other issues I previously raised.

The evidence

5. V was awarded incapacity benefit under the label of "incapacity in youth" when he was 20 because of a complicated injury to his left wrist. He was told (not advised) by his medical advisers not to work. As is usual, he was asked a year later to answer the standard questions on the form IB50. He did this, indicating no problems other than with his left wrist. He claimed that he could not turn on a sink tap or control knobs on a cooker with one hand and that he could not pick up and carry an 0.5 litre carton of milk with that hand. That of itself does not make him incapable of work as determined in the personal capability assessment. On the standard basis, it "scored" 12 points. He also sent in a Med 3 report from his general practitioner. This recommended that he refrain from work "until a good recovery" because of "longstanding complicated problems" with the left wrist. There had been an operation on 15 03 2007 and a second specialist opinion had been taken.
6. An approved doctor ("Dr T") examined V on 12 09 2007. Dr T reported no problems with any physical descriptor. Following this, V wrote in to state that he had asked his consultant about work and "he told me that I am not aloud until after the operation". This repeated the point made as V's ground of appeal to the tribunal made on 11 10 2007. In that form V confirmed that he was due to see the consultant the following month ahead of another operation.
7. V's written evidence to the tribunal (there was no oral hearing) is that his medical advisers told him he was not to work ahead of a further operation on his wrist. He was also told that that operation would involve inserting a plate in his wrist and that this would immobilise it. There is no other evidence about the precise nature, extent, or date for that operation. The specialist responsible for V's case is identified but there is no evidence from the specialist.
8. The Secretary of State offered no evidence about the planned operation. The only comments in Dr T's IB85 are that "he had an operation to rectify the problem on the 15^th of March this year" and that there is some loss of grip and power. If Dr T was aware of the ongoing medical review of the wrist and the evidence in the papers that the previous operation did not "rectify the problem" as Dr T's report implies, there is no mention of it in the report.

The tribunal decision

9. The tribunal's statement of reasons makes no mention about the advice given to V about his wrist or about the past and planned operations save for the comment: "[V's] general practitioner stated his incapacity was a wrist injury". Its decision rejected any limitation on V's use of his arm and wrist. It gave no consideration to the application of any exceptional circumstances. It is on that ground, and on the ground of inadequacy, that V's representative (appointed since the tribunal hearing) now appeals to the Commissioner.

Regulation 27(2)(c)

10. Regulation 27(1) of the Social Security (Incapacity for Work)(General) Regulations 1995 provides that a person who is not otherwise incapable of work shall be treated as incapable of work if any of the circumstances in regulation 27(2) apply. Regulation 27(2)(c) provides:

"(c) there exists medical evidence that he requires a major surgical operation or other major therapeutic procedure and it is likely that that operation or procedure will be carried out within three months of the date of a medical examination carried out for the purposes of a personal capability assessment."

11. There is no mention of this in the tribunal's statement or record of proceedings. The only mention in the official submission to the tribunal is a brief summary of regulation 27. In appendix 3 to the submission it identifies the exceptional circumstance as:

"he will, within three months of the date on which the approved doctor examines him, have a major surgical operation or other major therapeutic procedure".

That is not what regulation 27(2)(c) says. That is what it used to say before 1997.

12. That error is reflected in the standard wording of the advice given by Dr T in the electronic IB85. Box 58 contains the following:

"My advice … is that this person:

will, within three months, have a major surgical operation or other major

therapeutical procedure NO"

As noted above, there is nothing in the report to indicate that Dr T was aware of, or enquired about, recovery from the previous operation or the forthcoming specialist review.

13. The secretary of state's representative submitted to the Commissioner that:

"As the claimant was examined on 12 09 2007 the 3 months would expire on 12 12 2007. The tribunal hearing the case sat on 31 01 2008 some seven (sic) months after the period of three months expired. Additionally it seems from the claimant's evidence that he was not seen by his specialist until the 4^th December and put on a waiting list … by the time of the hearing in January 08 the operation had definitely not taken place.

In relation to regulation 27(c) I submit that the matter was not directly put to the tribunal and as they are entitled to use hindsight it cannot assist the claimant. I draw support from paragraph 10 of Commissioner's decision CIB 5778 1997."

14. I do not agree with the secretary of state's representative submission that the matter was "not directly put to the tribunal". The facts are put directly in the grounds of appeal. The tribunal is investigative. V was on "incapacity in youth". He was not then represented. He is not to be expected specifically to identify regulation 27(2)(c), not least when the official submission ignored the grounds of appeal and failed properly to set out the terms of regulation 27.
15. It is obvious that the secretary of state's representative's submission is wrong as to the time between the examination and the tribunal hearing. I disagree also about the use of hindsight. In considering the relevance of CIB 5978 1997 to this point it should be recalled that at that time tribunals and Commissioners decided cases down to the date of hearing. In that case the hearing was some years after the medical examination. The Commissioner in that case rightly, if I may say so with respect, cited and relied on the Bwllfa principle (from the opinion of Lord Macnaghten in Bwllfa and Merthyr Dare Steam Colliers v Pontypridd Waterworks Co [1983] AC 426 at 461) that hindsight can be used in appropriate cases when deciding facts. And in my view he was right to do so in that case.
16. CIB 5978 1997 is a useful reminder of some of the problems the Secretary of State has had with regulation 27 as originally drafted. That facts of that case occurred before, and the tribunal hearing took place appeal occurred just after, Collins J ruled that part of the regulation was ultra vires in R v Secretary of State for Social Security ex p Moule (12 09 1996, unreported). Until then regulation 27, as relevant to this appeal, read:

"A person who does not satisfy the all work test shall be treated as incapable of work if in the opinion of a doctor approved by the Secretary of State -

(c) he will, within three months of the date on which the doctor so approved examines him, have a major surgical operation or other major therapeutic procedure."

As a result of the decision in Moule, the decision stopped being a decision of the approved doctor and became a decision of the Secretary of State. Other changes were introduced in paragraph (c) at the same time in 1997 that the rule was amended to deal with the decision in Moule and the issue of proper decision making. The requirement was of "medical evidence" not simply the evidence of the approved doctor. The test to be applied about timing of the intended operation was changed from "he will … have a major surgical operation…" within the stated time limit to "it is likely that that operation will be carried out" within that time limit. CIB 5978 1997 was concerned with the "will" test and a tribunal could rightly use hindsight when looking at the facts as at the date of the hearing, not the date of the original decision. Use of hindsight is not appropriate on the current wording of the test when the requirement is also that of looking at the facts at the date of the original decision. CIB 5978 1997 is no longer authority on this point.

17. More generally, I record concern that the standard wording in the IB85, the official submission to the tribunal, and the secretary of state's representative's submission to me all appear not to have taken full account of the decision in Moule and the changes in the wording of the test in paragraph (c) in 1997 that followed that decision. This may be explained in part by the relevant text of the Incapacity Benefit Handbook for Approved Doctors (2004) at paragraph 3.8.5 where approved doctors are told:

" you must be reasonably satisfied that the operation … is required and it is to occur within three months of the date of your examination." (embolding in text in the Handbook)

That guidance appears still to be based on the wording of regulation 27 before the Moule decision and subsequent statutory amendments. It is wrong. The guidance in the DWP Decision Maker's Guide, volume 3, chapter 13, is equivocal:

"13646 The DM should satisfy themselves that there is evidence that the person needs such an operation or procedure and that it will be carried out in the period of three months immediately following the date of the medical examination.

13647 If the evidence is that it is likely that the operation or procedure will be carried out in that period it can be accepted."

13646 reads like pre-1997 guidance. The rider in 13647 does not make it clear that the test is satisfied (not "can" be satisfied) where the evidence is that an operation within the time limit is likely.

18. The current statutory formulation of the test contains three requirements as applied to surgical operations: (1) the operation is "major"; (2) there is medical evidence that the operation is required; (3) the operation is likely to take place within three months of the date of examination.
19. Whether an operation is "major" is a question of fact. In this case the tribunal must make that decision, as it has not been made.
20. Whether there is medical evidence that it is required is also a question of fact, in the sense that the medical evidence must exist. No attempt has yet been made to deal with this point in this appeal. The opinion of an appropriate medical practitioner that the operation is required is sufficient to meet the test. The approved doctor may disagree as to the requirement but, for the reasons given by Collins J in Moule, his or her opinion is not decisive. He or she does not have to be satisfied personally that the operation is required. Nor does a decision maker. It is enough that an identified medical practitioner is satisfied.
21. Whether the operation is likely to occur within three months is a matter to be decided on informed opinion at the relevant time. The wording of the Handbook and the submissions still reflect the pre-1997 law and not the current test. The issue is to be decided without the benefit of hindsight. A practical approach will take account of the nature of the injury and operation and of NHS waiting list practices in the area. Questions a tribunal may consider include: Has the claimant been referred to a specialist for surgery by the general practitioner? Has the specialist seen the claimant about the operation? What are the plans? Are there relevant NHS targets? The fact that an operation is cancelled or delayed or that a specific date is not yet fixed does not prevent the test as currently worded from being satisfied where the actual operation takes place more than three months after the examination.
22. The case must go to a new tribunal to consider if regulation 27 applies to this appeal. For it to apply, there must be a finding that the planned operation identified in the papers is major and medical evidence that the operation is reasonably required. There must be also evidence about the likelihood of the operation taking place within three months of the date of the medical examination by Dr T. Those are all issues for the new tribunal. V now has a specialist representative, and it will be for that representative to provide the tribunal with the relevant evidence. The tribunal will, of course, also need to look at the personal capability assessment if that is also still in issue.

David Williams

Commissioner

18 06 2008

[signed on the original on the date shown]