Upper Tribunal (Administrative Appeals Chamber)

PC v Secretary of State for Work and Pensions [2009] UKUT 101 (AAC) (04 June 2009)
Incapacity benefits
other

 


IN THE UPPER TRIBUNAL Appeal No. CIB/2907/2008

ADMINISTRATIVE APPEALS CHAMBER

Before Deputy Judge Nicholas Paines QC

Decision: The tribunal reached the correct decision. They made an error of law as regards regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995 and I must set their decision aside. I substitute my own decision, which is that the claimant was not incapable of work in accordance with the personal capability assessment and was not to be treated as incapable of work pursuant to regulation 27 on 25 January 2007 and was not entitled to national insurance credits.

REASONS FOR DECISION
1. The claimant is a man born in 1976. On 15 May 2006 the claimant's GP certified him as unfit for work for four weeks on account of a fractured right wrist and in June 2006 a social security decision maker determined that the claimant was incapable of work and entitled to national insurance credits. In September 2006 the claimant completed an incapacity benefit questionnaire in which he referred to his broken wrist, a collapsed right kneecap requiring him to wear a knee brace, torn ligaments in his left ankle requiring him to use a crutch, a severe drink problem and anxiety and depression. He assessed himself as meeting several of the descriptors in the personal capability assessment (PCA).
2. In October 2006 the claimant's GP completed form IB113, in which he diagnosed the claimant as suffering from anxiety, alcohol dependence with associated abnormal liver function and low back pain. In December 2006 the claimant was examined by a medical adviser, who assessed him as having no problem with any of the physical descriptors in the PCA. The medical adviser found the claimant's back and leg function to be normal; he assessed the claimant as dependent on alcohol but not depressed or anxious at the time of examination.
3. On 25 January 2007 a decision maker decided that the claimant scored two points under the mental descriptors in the personal capability assessment; he was not incapable of work in accordance with the personal capability assessment nor to be treated as incapable of work pursuant to regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995 from that date.
4. The claimant appealed, with the assistance of a representative, on the grounds that the claimant ought to have been found incapable of work under regulation 27 since his knee tended to give way and required reconstruction surgery; he was prone to fall as a result and had injured himself falling; this meant that he could not work (as he had done before) in the construction industry without serious risk to health. His health was also at risk from his alcohol dependency and had been admitted to hospital on 5 January 2007 to undergo a five day detoxification programme. He should also have scored points in relation to physical descriptors and more points under the mental health descriptors.
5. In March 2007 the decision was reconsidered but not changed. In May 2007 the claimant's GP wrote saying that the claimant suffered ongoing problems with anxiety, depression and alcohol dependence. Although at his last review in February 2007 the claimant remained abstinent from alcohol, he continued to have problems with sleeping and was requiring night sedation. The GP added that the claimant had had a problem with his right knee with recurrent dislocation of the patella and was still awaiting surgery for this.
6. The appeal first came before a tribunal in July 2007. The claimant and his representative did not attend and the tribunal dealt with the appeal in his absence. They awarded the claimant a number of further points under the physical and mental descriptors on the basis of the GP's evidence; these were not sufficient to cause the claimant to be regarded as incapable of work. The tribunal found that regulation 27 did not apply.
7. The claimant appealed to the commissioner and in April 2008 Mr Deputy Commissioner White remitted the case to a fresh tribunal, finding the tribunal's reasoning inadequate as to their reasons for accepting the evidence of the medical adviser on some aspects of the claimant's condition but not others. The case was remitted to a new tribunal, which dismissed the claimant's appeal on 12 June 2008.
8. The claimant and his representative did not attend the hearing. The tribunal reviewed the written evidence; they preferred the evidence of the medical adviser to the claims made by the claimant and noted that none of the GP's evidence gave any indication of the effect of the conditions noted by him upon the claimant's functional ability. They found that the claimant scored two points under the mental descriptors in the personal capability assessment but none under the physical descriptors. They did not consider that regulation 27 applied: the evidence about an impending knee operation was vague but appeared to involve an operation as a day patient, which would not usually amount to a major surgical operation within the meaning of regulation 27. They rejected the idea that the claimant's alcohol dependence would pose a threat to the claimant if he were found capable of work; as regards the claimant's representative's contention that the claimant's ordinary occupation in the construction industry would pose a threat to his heath the tribunal said "the test relates to all work and not the Appellant's previous occupation".
9. The claimant appeals with the leave of a district chairman. The grounds of appeal are that the tribunal erred in law (a) in holding that the test in regulation 27 (substantial risk to the mental or physical health of any person if he were found capable of work) applied to all work, rather than adopting the approach laid down in various commissioners' decisions; (b) in failing to consider the claimant's physical disablement in connection with regulation 27 and (c) in failing to weigh the evidence of the DWP medical adviser against that of the claimant and his GP in the context of the personal capability assessment.
10. I do not consider that the tribunal made any error of law in its consideration of the medical evidence with respect to the personal capability assessment. In circumstances where the claimant did not attend the tribunal, the tribunal had to decide which of the written evidence regarding his condition they accepted. As already mentioned, they preferred the evidence of the medical adviser to that of the claimant on the ground that it was independent and objective and did not find the GP's evidence to be of assistance as it gave no indication of the effect of the conditions referred to by the GP upon the claimant's ability to function – in other words, on whether (contrary to the findings of the medical adviser) the claimant was disabled by any of those conditions. This was a perfectly rational conclusion by the tribunal and their reasons for making it were adequately explained. The law did not require them to do any more by way of weighing the claimant's or the GP's evidence against that of the medical adviser.
11. As far as regulation 27 is concerned, the evidence about a problem with the claimant's knee was first the GP's letter of May 2007 when he said that the claimant "has had a problem with his right knee with recurrent dislocation of his patella. As far as I am aware he is still awaiting surgery for this", adding that he had not observed the claimant other than in a surgery consultation setting "so I do not feel I can comment on his ability to work".
12. Secondly the claimant's representative had written in February 2007 that the claimant had suffered a serious injury to his knee about five years previously; he had dislocated his knee four times since the original accident and the knee tended to collapse. The letter said the claimant had been told he needed reconstruction surgery and gave an account of unsuccessful attempts to have the surgery carried out as a day patient in 2004 and 2005. The representative argued that the risk to the claimant's health would be too great if his knee were to collapse during his work in the construction industry. Thirdly, the claimant had mentioned a knee problem in the claim form and had complained to the DWP medical adviser about it.
13. The tribunal needed to consider whether the claimant was to be treated as incapable of work under regulation 27 on the grounds either

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

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

14. As regards (a) above, the tribunal were in my judgment right to conclude on the evidence that any operation on the claimant's knee would not be "a major surgical operation" within the meaning of regulation 27. The claimant's representative had submitted that the operation was major because the claimant would not work until it was done. In my judgment the concept of a major operation in regulation 27 has its ordinary meaning and relates to matters such as the scale, complexity or invasiveness of the procedure rather than whether it is necessary in order for a claimant to work. I can find no error of law on the tribunal's handling of that aspect of regulation 27.
15. As regards (b), the law has now been clarified by the decision of the Court of Appeal in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 (to be reported as R(IB)2/09). This indicates the a tribunal must first consider whether a claimant has a 'specific disease or bodily or mental disablement'. They then need to assess risk in the context of workplaces in which a claimant might find himself if he were held capable of work; for that purpose they need to form a view as to the range or types of work for which the claimant is suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing and to consider whether within that range there is work that he could do without the degree of risk to health envisaged by regulation 27.
16. In this connection the tribunal accepted that the claimant suffered from alcohol dependence but concluded that there was no evidence that that posed a threat to the claimant if found fit for work. They did not specifically advert to the claimant's alleged knee condition but dealt with the argument that it posed a serious threat to his health if he resumed work in the construction industry by saying "the test relates to all work and not the Appellant's previous occupation".
17. With the benefit of hindsight it can be said that the tribunal ought to have approached this aspect of regulation 27 more in the manner prescribed in Charlton, in particular by identifying the range or types of work that the claimant might do if found capable of work. I agree with the claimant's representative that the tribunal's statement that regulation 27 relates to all work and is not confined to consideration of a claimant's previous occupation was not an adequate way of dealing with the possible risks deriving from the claimant's knee condition. The tribunal therefore erred in law.
18. The new law governing tribunals (section 12 of the Tribunals, Courts and Enforcement Act 2007) gives me a discretion as to whether I set the decision aside and, if so, whether I make a new decision myself. I consider that I ought to set this decision as the tribunal did not deal adequately with issue (b) under regulation 27 and the issue should be looked at afresh. I incline to the view that the Upper Tribunal ought to set aside a decision of the First Tier Tribunal (or of an appeal tribunal) if the tribunal made an error of law that affected the tribunal's approach to an issue or affected its decision on a point that was in issue in the appeal to it, even if the Upper Tribunal judge considers that the end result that the tribunal reached was right. Doing so has the beneficial consequence of submitting the Upper Tribunal judge to the discipline of reaching a reasoned fresh decision him or herself.
19. I consider that, where a tribunal's decision was not affected by any error of law – which is the case here as regards the personal capability assessment and issue (a) under the regulation - I can properly re-make the decision in the basis of accepting the tribunal's conclusions, which I find rational and persuasive.
20. As regards issue (b) under regulation 27, I consider that I am in as good a position to re-decide the issue as the First Tier Tribunal would be. All the evidence is written and the claimant has twice declined to attend before the appeal tribunal. My decision on issue (b) under regulation 27 is that the claimant is not to be treated as incapable of work.
21. I find that as at the date of the Department's decision (25 January 2007) the claimant did have a disease or disablement, namely alcohol dependence. But I do not find that that disease or disablement would give rise to a substantial risk to the health of the claimant or any other person if he were found capable of work. I find that either the claimant did not have any disablement in his knee at that time, or alternatively that any degree of disablement that he had was not sufficient to give rise to a serious risk to his or any other person's health if he were found capable of work.
22. As regards the claimant's alcohol dependence, I find that he had undergone a detoxification programme commencing on 5 January 2007 (see page 52 of the papers ) and was still abstaining from alcohol in February 2007 (see page 57). I therefore find that he was able to control his alcohol dependence sufficiently to avoid causing a serious risk of injury to himself or any other person as a result of intoxication or after-effects of alcohol consumption, in any workplace in which he might find himself.
23. As regards the claimant's knee, I note that the claimant did complain of a recurring knee dislocation problem to the DWP medical adviser in December 2006 (see page 27) but there is no evidence of recent falls due to a knee problem. Despite noting the claimant's complaints about his knee, the medical adviser found both of the claimant's legs and knees to be normal (pages 30 and 32). The GP referred to the claimant's knee problem as something he had had in the past and refrained from commenting on the claimant's ability to work (page 57). Though the claimant was said to be awaiting an operation, neither he nor the NHS appeared to be regarding it as a priority.
24. In the light of that and the medical adviser's findings I consider that the claimant was exaggerating his knee condition when he said in the claim form that he had to wear a brace and I am not persuaded that the claimant's earlier knee condition was still present in January 2008. If I am wrong on that, I do not consider that the knee condition was such as to give rise to a substantial risk to health if he were found capable of work.
25. For that purpose, I find that the range or types of work for which the claimant is suited is manual work such as building work. There is evidence that he has done that type of work in the past and no evidence to suggest that he is equipped, for example, for clerical or office work. I therefore need to consider the possibility of risk to health in the context of the claimant performing manual work that might involve lifting and carrying. The possible risk to health is of the claimant injuring himself or a work colleague if he fell while carrying, for example, building materials.
26. If I am wrong about the claimant's knee condition having ceased to cause him to fall, then I can see that there could be some risk of injury if he fell on a building site or while doing other manual work, particularly if he was carrying anything heavy at the time. But in the absence of evidence of recent falls, I consider that the likelihood of this combination of events occurring with serious consequences was not great enough to give rise to a substantial risk to anyone's health.

Nicholas Paines QC

4 June 2009