UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CIB_3785_2007 (29 January 2008)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(b) of the Social Security Act 1998:

I SET ASIDE the decision of the Basildon appeal tribunal, held on 13 June 2007 under reference 134/07/00193, because it is erroneous in point of law.

I REMIT the case to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration.

In particular, the tribunal must investigate and determine the claimant's capacity for work on and from 14 February 2007 in according with my analysis of the proper approach to a mental disabilities section in this decision.

In doing so, the tribunal The appeal tribunal must not take account of circumstances that were not obtaining at that time: see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

I encourage the claimant to attend the rehearing of her appeal. The tribunal will benefit from her evidence, although I cannot say whether that will be to her advantage. If she feels that she cannot attend, she can ask for a hearing in her home. She will need medical evidence to support that request, which will have to show that she is unable to attend the hearing.

REASONS

History and background

2. The claimant is a young lady who worked as an insurance advisor. She ceased work because of work-related stress. In 2006, her GP reported that she had panic and anxiety with an element of obsessive compulsive rituals and misinterpretation of body sensations with the belief that she may become seriously ill. In her self-assessment questionnaire, she did not identify any physical disabilities, but wrote that she worried about her health and had scary, frequent panic attacks that led to her not going out at all. She was referred to a medical adviser, who identified no physical disabilities and only one mental disability descriptor – that mental stress was a factor in making the claimant stop work. As a result of the adviser's report, a decision-maker decided that the claimant was no longer incapable of work. The claimant exercised her right of appeal to an appeal tribunal, listing what she described as 'just a few of the problems I have': inability to socialise, getting panicky, inability to take in details, and getting upset and tearful for no reason.
3. The claimant opted for a paper hearing of her appeal and it came before an appeal tribunal on 13 June 2007. The tribunal dismissed the appeal. The key to the tribunal's reasoning is in paragraph 8 of the chairman's full statement of the tribunal's decision:

'Where there is a conflict between [the claimant's] evidence and that of the Examining Medical Practitioner we prefer the latter on the ground that it is likely to be the more objective, being based on clinical findings of a doctor who is disinterested in the outcome of the claim. The evidence from [the claimant's] own doctors does not in our opinion cast doubt on the accuracy of that report. [The claimant] did not wish to attend an oral hearing and the tribunal was not able to question her about the discrepancies and form an opinion based on her replies.'

4. I gave the claimant leave to appeal on this ground:

'The tribunal took a global approach to the evidence, simply accepting the report of the examining medical practitioner. The tribunal's reasons are inadequate to explain why it did so. They were that the report 'is likely to be more objective [than the claimant's evidence], being based on the clinical findings of a doctor who is disinterested in the outcome of the claim.' The doctor diagnosed anxiety and depression. They are mental conditions to which the mental disabilities section of the personal capability assessment applied. That section does not, for the most part, depend on clinical findings. The tribunal's reasons do not, therefore, relate to the relevant evidence. Moreover, if the reasons given by the chairman really were the reasons of the tribunal in deliberation, they show that the tribunal misunderstood the nature of that section of the assessment.'

5. The claimant's representative has agreed that I may set aside the tribunal's decision on that ground and direct a rehearing. The Secretary of State's representative has objected and invited me to dismiss the appeal. She has argued that the tribunal was entitled to accept the medical adviser's evidence. I accept that, but I think the representative has missed the point I was trying to make. Perhaps I did not make it clearly enough. My point was not that the tribunal was not entitled to make the decision that it did. It was that the tribunal approached the case in the wrong way. Its conclusion may or may not have been sound; I cannot say because the tribunal did not take the correct approach. Let me explain.

Analysis

6. I analysed the questions that have to be asked when applying the mental disabilities section of the personal capability assessment in CIB/5804/1997 at paragraph 14:

'14. There are four questions that may have to be answered by an examining doctor in the application of the mental disabilities section of the all work test.

14.1 Does the claimant have a specific mental illness or disablement? This involves a clinical opinion by the examining doctor. …

14.2 Does the claimant's evidence report manifestations that fall within any of the descriptors? This does not involve a clinical opinion.

14.3 Does the doctor accept the claimant's evidence? Again, this does not involve a clinical opinion.

14.4 If the doctor accepts the claimant's evidence, a question of causation arises: see the decision of the Commissioner in CIB/14202/1996, paragraph 6. The question is: are the manifestations reported by the claimant and accepted by the doctor a result of the claimant's mental illness or disablement? For example, does the claimant not care about her appearance and living conditions because she is depressed or because she is an untidy and slovenly person? This may involve a clinical opinion.'

7. As that analysis shows, the application of the mental disabilities section of the personal capability assessment essentially involves issues of credibility and consistency. Are the symptoms described by the claimant a reliable account of the effects of the claimant's mental disablement? As part of that question, the medical adviser and the tribunal have to take account of whether the symptoms described are consistent with the diagnosed mental conditions.
8. The chairman's account shows that the tribunal approached the case wrongly. Her account describes an appropriate analysis of a medical adviser's report in a physical disabilities case. The clinical findings are objective, provided they are carried out by a competent practitioner, and they provide an objective basis from which a claimant's function can be assessed. But that analysis has no application to the mental disabilities section of the personal capability assessment. A mental health assessment is not based on clinical findings. It is a very different process from a physical assessment. It is not an exercise in clinical examination. It is essentially an exercise in credibility against a background of diagnosis.
9. I have not overlooked the possibility that the tribunal undertook an exercise that was entirely appropriate and that the chairman, as it were on autopilot, gave an explanation appropriate to a different type of case. If that is what has happened, the tribunal's reasons are inadequate to describe the tribunal's reasoning. Either way, the tribunal went wrong in law.

Disposal

10. I allow the appeal, set aside the tribunal's decision and direct a rehearing.

Signed on original on 29 January 2008

Edward Jacobs Commissioner