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[2008] UKSSCSC CIB_2619_2007 (03 April 2008)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The claimant's appeal to the Commissioner is allowed. The decision of the Norwich appeal tribunal dated 21 November 2006 is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraphs 27 and 28 below (Social Security Act 1998, section 14(8)(b)).

There was an oral hearing of the appeal to the Commissioner, at the request of the claimant's representative, Mr Jon Burke of the Julian Housing Support Trust Ltd. Mr Burke attended and the Secretary of State was represented by Ms Sarah Wise of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to both representatives for helpful and focused submissions.

The main issue

The main issue of law is the interpretation of regulation 10(2)(e)(viii) of the Social Security (Incapacity for Work) (General) Regulations 1995 ("the 1995 Regulations"), as substituted with effect from 6 January 1997, under which a person subject to the personal capability assessment (PCA) is to be treated as incapable of work on any day in respect of which circumstances including the following apply:

"(e) that he is suffering from any of the following conditions, and there exists medical evidence that he is suffering from any of them--

...

(viii) a severe mental illness, involving the presence of mental disease, which severely and adversely affects a person's mood or behaviour, and which severely restricts his social functioning, or his awareness of his immediate environment."

The background

The claimant claimed incapacity benefit on the basis of mental disorder on 19 October 1994. Because she did not satisfy the contribution conditions, benefit was not awarded, but she was accepted as qualifying for incapacity credits. I do not know whether at some point she was treated as passing the all work test or the PCA or had either of those tests actually applied to her, but from 5 February 2004 she was accepted as within one of the "exempt categories" treated as incapable of work under the PCA. Her GP had signed a questionnaire on 10 December 2003 giving the diagnosis of bipolar disorder type II and the date of onset of 1996. She was stated to be stable on medication (lithium carbonate and carbamazepine). The claimant was required to complete an IB50 questionnaire. After considering both documents a medical adviser gave the opinion that the claimant fell into the exempt category of severe mental illness, but suggested that her functional incapacity would be expected to improve significantly in 18 months.

On 25 October 2005 the claimant signed a further IB50 questionnaire. In relation to physical activities, she ticked a number of problems with activities in which she easily got tired. She briefly described the effect of her mental health problems, more briefly than in December 2003. She said that she needed to take life at her own pace, that her communication was affected, that she could not always make sense of her world and her place in it and that she had difficulty with her emotions and recognising the responses of others.

The claimant was examined by an examining medical practitioner (EMP) on 23 January 2006. He or she recorded the diagnosis of bipolar disorder and the medication taken (including lithium carbonate and tegretol retard). The EMP's opinion was that the claimant had no problem with any physical activity and that only three point-scoring mental health descriptors applied (mental stress a factor in stopping work (2), gets irritated by things that would not previously have bothered her (1) and prefers to be alone for six or more hours a day (1)). The EMP considered that her condition was well stabilised with minimal remaining disability. That opinion seems to have been based on the claimant's description of a typical day, her responses to questions (including her plans to take an Open University course on alternative medicine) and the absence of hospital checks on her lithium levels. On the question whether the claimant's mental condition prevented her from undertaking leisure activities previously enjoyed, the EMP answered no and noted that she gardened, read and walked along the beach. On the question about whether she was scared or anxious that work would bring back or worsen her illness, the EMP answered no and noted her plans for the Open University course. The EMP also ticked that there would no substantial risk to the mental or physical health of any person if the claimant were found capable of work (and no to the other questions arising under regulation 27 of the 1995 Regulations), merely noting "no evidence for NFD [non-functional descriptors]".

On that evidence, a decision-maker on 2 February 2006 superseded the decision of 25 November 1994 on the ground that the Secretary of State had received medical evidence following an examination by an approved doctor (Social Security and Child Support (Decisions and Appeals) Regulations 1999, regulation 6(2)(g)), and gave the decision that the claimant was not entitled to incapacity credits from and including 2 February 2006, because she did not score enough points to satisfy the PCA and was not incapable of work.

The claimant appealed, saying that she had not improved and that the EMP had not properly explored her condition and that any additional stress in her life would aggravate her condition. She put in further information, including a detailed statement of her views on the mental health descriptors. Mr Burke put in a written submission on her behalf suggesting that the claimant qualified for many mental health descriptors and also that she should be treated as incapable of work under regulation 27 of the 1995 Regulations because there would be a substantial risk to her health if she were found capable of work as the stability of her serious mental illness was jeopardised by stress. But his first submission was that she fell within the exempt category in regulation 10(2)(e)(viii) of the 1995 Regulations. Mr Burke referred to the Department for Work and Pensions' guidance in the Incapacity Benefit Handbook for Approved Doctors ("the Handbook") as including within the category of severe mental illness cases where claimants were on long-term medication with anti-psychotic preparations, including depot neuroleptic or mood modifying drugs or equivalent modern oral medication. What paragraph 2.2.3.1 of the 2000 Handbook, as copied at page 118 of the papers and as still presented on the DWP's website, actually says is set out in paragraph 13 below.

The appeal tribunal's decision

The claimant attended the hearing on 21 November 2006 with Mr Burke and gave detailed evidence. This included that she did 1½ hours cleaning a fortnight for Julian Housing Trust, and felt that she could do three hours a week, but could not cope with a 9 to 5 working day. She would ideally like to have some form of part-time self-employment. She also talked about the problems of stress and changes in routine.

The appeal tribunal disallowed the appeal. In relation to regulation 10(2)(e)(viii) it said this:

"We explained that we didn't consider on the basis of the evidence before us that [the claimant] was automatically exempted simply on the basis of her diagnosis and medication. When considering whether she is exempt we have to consider whether she fulfils the definition after stabilisation on medication.

The strong evidence is that she has, following a psychotic breakdown and a lengthy period of rehabilitation in her case attained a good stability on her Lithium Carbonate. Her levels no longer need to be monitored and she does not have a CPN and is successfully maintained by her GP. We do not consider from all the evidence that we have in front of us that her mood and behaviour are now severely and adversely affected or that her social function is severely restricted. We do not therefore consider she falls into an exempt category on this basis."

Having gone through all the evidence on the additional mental health descriptors put forward, the appeal tribunal found that the claimant qualified for one only (unable to cope with changes in daily routine), not enough to reach the threshold of 10 points for mental health descriptors alone. On leisure activities (CPe) it said this:

"[I]t is suggested that [the claimant] used to enjoy dancing and drama but now lacks the energy to carry out these activities. We note that [the claimant] is able to pursue other interests now such as gardening and poetry. We consider her interests may well have changed over the years but she is still able to maintain leisure activities as she did prior to her breakdown."

It also concluded that she should be able to take up work without significant jeopardy to her health.

The appeal to the Commissioner

The claimant now appeals against the appeal tribunal's decision with my leave. Mr Burke had submitted that the appeal tribunal had misinterpreted descriptor CTe, in that it had accepted that the claimant could no longer undertake the more rigorous (and I would add, socially interactive) activities previously enjoyed, yet did not award the point. On descriptor CPf (scared or anxious that work would bring back or worsen the claimant's illness), Mr Burke had submitted that work should mean work of at least 16 hours a week and that the appeal tribunal had failed to enquire how much work the claimant could manage. But the main ground was that on regulation 10(2)(e)(viii) the appeal tribunal had failed to have regard to the decision of Mr Deputy Commissioner White in CIB/3328/1998, in which he held that he could refer to the Handbook for guidance, especially as the drafting of head (viii) left a lot to be desired. It was submitted that assessing a claimant when medicated was to misunderstand the purpose of the exemption in regulation 10 and that the Handbook indicated that the receipt of long-term anti-psychotic medication showed the existence of severe mental illness. I granted leave because of the nature of the points raised, although noting that decision CIB/3328/1998 had not specifically been relied on before the appeal tribunal.

The appeal was supported on behalf of the Secretary of State in the submission dated 20 September 2007. It was submitted that the appeal tribunal had adopted a wrong approach by deeming that stabilisation on medication was relevant and that the Commissioner should substitute a decision that the claimant was suffering from a severe mental illness under regulation 10(2)(e)(viii) and continued to be treated as incapable of work from 2 February 2006. Mr Burke naturally agreed. However, I found the assertion in the submission about the relevance of stabilisation on medication no more convincing than the appeal tribunal's assertion to the contrary and granted Mr Burke's request for an oral hearing in the event that I did not feel able to substitute a decision in the claimant's favour. I also said this:

"In addition, I am not sure that Commissioner's decision CIB/3328/1998 takes the claimant's case much further forward. Mr Deputy Commissioner White there criticised the drafting of regulation 10(2)(e)(viii) and indicated that the commentary in [the Handbook] was helpful in some respects. But, by referring to what the Handbook says about what could be regarded as continuing psychiatric care, that a person who satisfies the criteria of regulation 10(2)(e)(viii) was said to be very likely to require, he fell a long way short, it seems to me, of endorsing an approach that long-term medication with anti-psychotic preparations was enough in itself to show satisfaction of those criteria. Indeed, it seems to me that the Handbook in paragraph 2.2.3.1 points to a need to consider the detailed manifestations of a mental disease and the resulting care needs when dealing with individual cases. Factors mentioned in paragraph 2.2.3.1.1 would be relevant. I note the reference there to the possibility of exemption for finite periods in cases of bipolar affective disorder in young adults, many of whom were said to return to work in remission. If such remission would be likely to include a situation of stabilisation on medication, does the commentary throw any light on the proper meaning of regulation 10(2)(e)(viii)?"

Paragraph 2.2.3.1 of the Handbook, as attached to the submission of 20 September 2007, contains the following after setting out regulation 10(2)(e)(viii):

"For the purpose of advising whether the claimant's condition meets these criteria it will be necessary to consider the detailed manifestations of the disease and the care needs which arise. As a general rule, claimants living outside of hospital who meet the legislative criteria are very likely to require ongoing psychiatric care.

This care may include:

( Sheltered residential facilities where the person receives regular medical or nursing care.

( Day care at least once a week in a centre where qualified nursing care is available.

( Care at home with intervention, at least one day a week, by a qualified mental health care worker, or

( Long term medication with anti-psychotic medications including depot neuroleptic or mood modifying drugs or equivalent modern oral medication."

Paragraph 2.2.3.1.1, under the heading "Social functioning and Risk to others", contains the following:

"Whilst this guidance describes a general approach it is important for all Medical Advisers to remember that each case must be considered on the individual circumstances.

In general chronic schizophrenia and long established bipolar affective disorder should cause little difficulty when it comes to an Exemption. Exemption for finite periods may be advised in acute short term psychoses, including those related to drug abuse, as well as bipolar affective disorder in young adults, many of whom return to work in remission."

Additional mental health descriptors

At the oral hearing Ms Wise for the Secretary of State resiled from the written submission of 20 September 2007, but accepted that the two additional mental health descriptors argued for by Mr Burke should have been awarded. In particular, she accepted that the question of whether the claimant was scared or anxious that work would bring back or worsen an illness was essentially subjective and that the appeal tribunal had failed to say what it made of the claimant's evidence of the effect of stress on her and the very limited amount of work she felt able to contemplate. However, as Mr Burke accepted, the additional two points would have still left the claimant only on seven points, insufficient to pass the PCA. Thus, if the appeal tribunal's only error of law had been in relation to those two additional descriptors, that would not have justified setting its decision aside. Some other error of law has to be shown.

Regulation 10(2)(e)(viii) of the 1995 Regulations

In relation to the exemption under regulation 10 of the 1995 Regulations, Mr Burke developed a subtler argument at the oral hearing. First, he was inclined not to press the submission that the effect of medication was not relevant. I think that that must be right. As a matter of general approach, one would expect a claimant's capacity to work to be judged according to the practical reality as it is from time to time. That can include the beneficial effects of medicines and other treatments that it is reasonable for a person to accept, subject of course to the any adverse effects of the treatment. That was the approach of Mr Commissioner Rowland in decision CIB/16182/1996 to the taking of painkillers before doing the tests carried out by an EMP. It was also the approach of Mrs Commissioner Brown in the reported Northern Ireland decision R 2/00 (IB) to the question of whether a person has no voluntary control of bladder or bowels if medication enables the person to exercise control by will. She disagreed with an earlier decision that the effect of medication was to be disregarded. I have not found any decisions particularly directed to regulation 10, but in my judgment in so far as the definition of any of the exempted categories depends on the effects of the medical condition on the claimant, that effect must be judged after taking into account the effects, both beneficial and adverse, of medication or other medical treatment that it is reasonable for the claimant to accept.

Mr Burke made two important practical points about bipolar affective disorder in particular: that what doctors describe as stabilisation on medication may well not mean that symptoms have disappeared, but only that they have lessened in severity and/or occur at longer intervals, and that lithium treatment that is successful in stabilisation may still leave a person flat and with residual loss of social and other functioning. He also stressed that, especially for bipolar disorder among mental conditions, what a claimant says apparently quite plausibly about his or her abilities or plans may in fact be totally unrealistic. I entirely accept the validity of those points when it comes to the eliciting and evaluation of evidence. But the appeal tribunal of 21 November 2006 cannot be said in its general evaluation of the evidence to have ignored those factors in a way that undermines the reasonableness of its judgment. It was entitled to consider the degree of stabilisation attained on medication and did not take that into account in any improper way.

Mr Burke's main argument then focused on the way in which the current form of regulation 10(2)(e)(viii) had got into the 1995 Regulations by amendment with effect from 6 January 1997, an amendment found to have been valid by Mr Commissioner May QC in decision CSIB/169/2005.

As described in that helpful decision, before 6 January 1997 head (viii) was simply in terms of "severe mental illness" and the existence of a condition within sub-paragraph (e) had to be certified by a doctor approved by the Secretary of State. A similar condition in regulation 27 was struck down as ultra vires by the High Court in R v Secretary of State for Social Security, ex parte Moule, 12 September 1996. It was therefore considered that the amending regulations which became, in relation to regulation 27 the subject of Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623, R(IB) 3/03, should also amend regulation 10(2)(e) to remove the need for certification by an approved doctor. The DWP's proposal submitted to the Social Security Advisory Committee described that as a slight amendment and labelled it neutral. The proposal included the following, primarily about regulation 27:

"The provisions have been re-drafted, along with the similar provision in regulation 10(2)(e), to restore the policy intention in the light of the Court's decision [in Moule]. The new provision is more precisely defined to reflect the fact that it must be interpreted and applied by lay adjudicating authorities. Although they will still be required to consider the opinion of the Benefits Agency doctor they will also be able to take into account other medical evidence which the claimant may produce."

The minutes of the SSAC meeting at which it was agreed that the proposed amendments did not need to be referred to it contained the following:

"3.2 Members noted that the IB amending regulations included a definition of `severe mental illness' in the list of severe conditions conferring automatic exemption from the all work test (AWT). Dr Sawney explained that this definition, which had been developed following wide consultation with interested groups such as the Royal College of Psychiatrists, was currently contained in guidance. The need to prescribe the definition in regulations arose from a recent High Court decision that regulations could not make the opinion of the BAMS doctor binding on the Adjudication Officer (AO), and reflected the fact that the provision would now need to be interpreted and applied by lay adjudicating authorities."

Mr Commissioner May held that the SSAC had not been misled in relation to the amendment to regulation 10(2)(e)(viii) as it had been in relation to regulation 27, as found in Howker. It had all the information required to make up its own mind on the effect of the proposed amendment, so that there was no breach of duty by the Secretary of State and the amendment was not ultra vires.

Mr Burke submitted that, as the validity of the January 1997 amendment to regulation 10(2)(e)(viii) depended on its being neutral in effect, the apparently restrictive conditions in the new form about severe and adverse effects on mood or behaviour and severe restrictions on social functioning or awareness of the immediate environment should not be interpreted so as to give the provision any narrower scope than the provision in terms simply of severe mental illness, or at least that provision subject to the guidance given at the time. The new form of words could not be given a completely literal interpretation. For instance, as Mr Deputy Commissioner White had shown in CIB/3328/1998, the reference to the presence of a mental disease appeared to add nothing to the definition. The apparently restrictive conditions could also be given a purposive interpretation. Thus, he said, as bipolar affective disorder would in both the ordinary and specialised medical use of language be recognised as a severe mental illness merely by its diagnosis, the claimant here should have been accepted as falling within regulation 10(2)(e)(viii). Alternatively, since no doubt the pre-January 1997 guidance would have referred to the same indicators of the existence of severe mental illness, the claimant's long-term medication with lithium, an anti-psychotic and mood-modifying drug, was sufficient to show that she was suffering from a severe mental illness.

That submission does not work, for two fundamental reasons. The first is that a Tribunal of Commissioners in decision R(IB) 2/07 has now confirmed that the true test of invalidity laid down by the Court of Appeal in Howker was not merely whether the label `neutral' applied to a proposed amendment by the DWP was accurate, but whether the overall effect of all the material placed before the SSAC was misleading and whether there was a real possibility that if the SSAC had been aware of the amendment's true effect it would have required a reference to be made. That is in substance the test applied by Mr Commissioner May in CSIB/169/2005. I agree with him that the SSAC was not misled about the effect of the proposed amendment to regulation 10(2)(e)(viii). Its decision not to require a reference was based on its own evaluation of the effect of the proposed amendment and not on the neutral label. It does not matter if that label was not entirely accurate. Accordingly, there is no basis for Mr Burke's proposition that the current form of regulation 10(2)(e)(viii) should be interpreted so as not to be more restrictive than the previous form.

The second reason why the submission does not work is that, even if there were some requirement to interpret the current form of regulation 10(2)(e)(viii) in accordance with the guidance given before January 1997, that would not help the claimant. I do not have evidence of the precise form of that guidance, but I am prepared to assume that it was in terms of severity being judged by to adverse effects on mood or behaviour and on social functioning or awareness of the immediate environment and included something like paragraph 2.2.3.1 of the current Handbook, set out in paragraph 13 above. I cannot read that guidance as suggesting that a claimant falls within regulation 10(2)(e)(viii) merely because of either the diagnosis of bipolar affective disorder or long-term lithium medication. I can refer back to the reasoning sketched in when I granted the oral hearing (paragraph 12 above). In addition, all that the guidance does is to suggest that, subject to consideration in each particular case of the detailed manifestations of the illness, if a claimant is going to satisfy the criteria in regulation 10(2)(e)(viii) there is likely to be one or other of the forms of ongoing psychiatric care mentioned. It does not say that everyone receiving one or other of those forms of ongoing psychiatric care is likely to satisfy the criteria or to be suffering from a severe mental illness. That is a logically different proposition.

I find nothing in decision CIB/3328/1998 to the contrary. The primary issue there was that the appeal tribunal had taken the view that a mental disease meant something resulting from trauma, degenerative brain disease, epilepsy or something similar and did not cover a personality disorder. It was in that context that Mr Deputy Commissioner White had to consider whether the use of the phrase "mental disease" added such a restriction and what "mental illness" meant. He decided, rightly in my view, that those phrases bore their ordinary meaning, not the restricted meaning given by the appeal tribunal. He went no further than saying that the indicators suggested in the guidance were useful in properly categorising a claimant's mental health problems, which is very different from a proposition that any one indicator is conclusive. Then, in substituting a decision that the claimant there, who suffered from a recurrent depressive disorder complicated by obsessive symptoms, was not suffering from a severe mental illness, he had regard to her evidence of her daily life and to the medical intervention in her case. Thus, the Deputy Commissioner was plainly not operating on an approach that required simply the categorisation of whatever diagnosis it was that the claimant had, but on the approach that a claimant had to come within the prescribed conditions. The severity of the illness and of the effects on mood, behaviour, social functioning etc was to be calibrated according to the particular effects on the particular claimant at the particular time. Again, I agree.

Accordingly, in the present case I am satisfied that the appeal tribunal did not interpret regulation 10(2)(e)(viii) of the 1995 Regulations wrongly in deciding that the claimant did not fall within it. That was a conclusion that it was entitled to reach on its evaluation of the evidence within the area of reasonable judgment allowed to appeal tribunals. Ms Wise submitted that the appeal tribunal erred in law by not setting out its approach to the interpretation of regulation 10(2)(e)(viii). It was not necessary for the appeal tribunal to go further than saying that it rejected the contention for the claimant that she was automatically exempted on the basis of her diagnosis and medication and that it was considering the position after stabilisation on medication. At that stage the more detailed arguments I have been considering had not been made and decision CIB/3328/1998 had not specifically been relied on.

Regulation 27 of the 1995 Regulations

Ms Wise for the Secretary of State accepted at the oral hearing that the appeal tribunal's stated reasons on regulation 27 of the 1995 Regulations and the test of substantial risk to the mental or physical health of any person if the claimant were found capable of work were inadequate. I agree. In the light of the oral evidence from the claimant about the very limited amount of work she actually did and what she thought she would be capable of, plus the appeal tribunal's acceptance that she was unable to cope with changes in daily routine and her evidence of the effects of stress on her, something more than what was in essence a statement of a conclusion was needed. Apart from a reference to its findings on the mental health descriptors, all that the appeal tribunal mentioned was that the claimant was well stabilised on medication. That did not grapple with the crucial question, leaving aside that stabilisation is different from freedom from symptoms, of whether that stabilisation was likely to survive the stresses of work of the sort that the claimant might be required to look for under the jobseeker's allowance regime. And I have already accepted that the appeal tribunal went wrong on descriptor CPf (scared or anxious that work would bring back or worsen illness). There was an error of law on an issue that could have led to an overall decision in the claimant's favour.

The Commissioner's decision on the appeal and directions

For those reasons, the appeal tribunal's decision is set aside as erroneous in point of law. A decision on the claimant's appeal against the decision of 2 February 2006 should plainly be made by a body before which the claimant has had the opportunity to attend to give evidence and to answer questions in person and which has the expertise and experience of the members of an appeal in incapacity for work cases. That appeal is referred to a differently constituted appeal tribunal for determination in accordance with the following directions. There must be a complete rehearing on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunal of 21 November 2006.

The new appeal tribunal must apply the interpretation of regulation 10(2)(e)(viii) of the 1995 Regulations set out above. Within that constraint, it must give full consideration to the case that is and can be made for the claimant on that exemption, on all the mental health descriptors and on regulation 27 of the 1995 Regulations, bearing in mind that it cannot take account of circumstances obtaining after 2 February 2006. Since Commissioner's decision CIB/143/2007, raising issues about the point in the process at which an appeal tribunal should deal with regulation 27, is under appeal to the Court of Appeal (in the name of Charlton), it may be safer for the new appeal tribunal, if the Court of Appeal has not decided the appeal before the rehearing, to ensure that it deals fully with regulation 10(2)(e)(viii) and with whether the claimant scores enough points to satisfy the PCA before dealing with regulation 27. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new appeal tribunal. The decision on the facts in this case remains open.

(Signed) J Mesher

Commissioner

Date: 3 April 2008