Upper Tribunal (Administrative Appeals Chamber)

[2009] UKUT 36 (AAC) (10 February 2009)
Main Category: Incapacity benefits

IN THE UPPER TRIBUNAL Appeal No. CIB/3598/2008

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S. M. Lane

Decision: My decision is given under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007:

Although there was an error of law in the decision, I DO NOT SET ASIDE the decision of the tribunal. I RE-MAKE the decision under section 12(2)(b)(ii):

The appellant is not incapable for work from and including 26/02/08 and cannot be treated as incapable of work under regulation 10 of the Social Security (Incapacity for Work)(General) Regulations 1995 from and including the same date.

REASONS FOR DECISION

1. This appeal has been transferred to the Upper Tribunal (Administrative Appeals Chamber) pursuant to the Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833).
2. The claimant, who is the appellant, brings this appeal with my permission. She is appealing against the Newcastle tribunal's decision to disallow her appeal from the Secretary of State's decision of 26/02/08 that she was not incapable of work from and including that date. She appealed on the grounds that the tribunal's decision that she was capable of work was inconsistent with her GP's confirmation that she had severe agoraphobia, that she had previously been held exempt from the Personal Capability Assessment under regulation 10(2)(e)(viii) of the Social Security (Incapacity for Work)(General) Regulations 1995 and there had been no change in her circumstances, she has been awarded the lower rate of the mobility component, does not make outings alone and has not done so for many years. It was also submitted that, in refusing permission to appeal, the district tribunal judge misunderstood the diagnosis of agoraphobia in relation to DWP guidelines. The Secretary of State does not support this appeal.
3. I granted permission to appeal because the tribunal had arguably erred in law in coming to its conclusion that the appellant did not fall within regulation 10(2)(e)(viii). Regulation 10(2)(e)(viii), which is the only paragraph in regulation 10 that might apply to the appellant, exempts a claimant from the Personal Capability Assessment where 'there is medical evidence that he is suffering from 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.'
4. I consider that the tribunal did err in law on this point by failing to give sufficient reasons for its decision that the appellant did not have a severe mental illness for the purposes of the regulation. However, the tribunal made sufficient facts upon which to confirm the decision as a matter of law.
5. The tribunal found that 'there was no evidence of the appellant suffering from a severe mental illness involving the presence of mental disease'. This was not correct because there was evidence from the appellant's GP, who had provided a very brief report confirming that the appellant suffered from 'severe and disabling agoraphobia'. The papers also contained the report of a previous approved doctor upon the basis of which the appellant was apparently exempted from the Personal Capability Assessment, probably under regulation 10(2)(e)(viii). The tribunal, therefore, came to its conclusion without regard to the evidence before it. This was a material error of law.
6. Regulation 10(2)(e)(viii) operates where there is severe mental illness with severe effects on mood or behaviour which severely restricts social functioning…' In deciding whether a claimant falls within this exemption, CIB/2619/2007 confirms that a tribunal may properly refer to the Incapacity Benefit Handbook for Medical Services Doctors for guidance on the application of the exemption. Paragraph 2.2.3.1 of the Handbook gives the following advice on 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, which is headed "Social functioning and Risk to others" states:

"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."

7. While the Handbook is not determinative, and each case requires detailed consideration, it does serve a useful purpose in identifying the level of mental illness and types of treatment that would be expected before the mental illness and its effects should be classed as severe under regulation 10(2)(e)(viii).
8. Bearing this guidance in mind, it is necessary then to look at the tribunal's findings. The tribunal plainly preferred the report of the approved doctor, who found that the appellant suffered from moderate anxiety but was not otherwise depressed, had a smiling reactive mood, normal behaviour, speech, perception, thought and insight, with no addictions. She reported herself able to look after the house, watch television, keep in touch with a friend, shop and go to the hairdresser and GP with her husband, use the telephone, and wash, dress and eat throughout the day. Her panic attacks prevented her from using public transport. She was able to walk her dog alone. Though I am now told that this is only along the back lanes near her house, it nevertheless indicates that there are some situations in which she can and does leave the house alone on a regular basis. Despite the long-term anxiety, panic and agoraphobia, she was not on medication for her conditions. She had psychiatric input in the past, but did not find it helpful.
9. The GP report and Disability Living Allowance award also need to be weighed. The GP report states that the appellant's agoraphobia is severe and disabling. His report for the purposes of her request for a domiciliary visit states that he does not make home visits to the appellant, that she comes to the surgery by car with her husband and that she says she is only able to travel with him to familiar places. I am prepared to accept for the purposes of this decision that the GP's opinion that the appellant's agoraphobia is severe. The GP does not, however, indicate that there is involvement of mental disease, as opposed to the mental illness of agoraphobia, or that her agoraphobia has a severe affect on her mood or behaviour apart from her limitations in going out of doors alone, or that her social functioning is restricted.
10. Finally, there is the evidence that the appellant has been awarded Disability Living Allowance at the lowest rate of the mobility component by a tribunal on 15/10/08. I can accept that she needs someone with her out of doors in unfamiliar places, and that the award reflects back on the appellant's difficulties going out of doors unaccompanied at the relevant time of the PCA decision in February 2008. The DLA tribunal were, however, mistaken in their statement in paragraph 5 that Dr Elphick (the approved doctor) considered that she had a severe mental illness in September 2008. Dr Elphick's opinion was given on 11/09/02.
11. The question under regulation 10(2)(e)(viii) is not simply whether the appellant's agoraphobia is severe, but whether she has a severe mental illness involving mental disease which severely and adversely affects a person's mood or behaviour and which severely restricts her social functioning or his awareness of her immediate environment.' I find that the evidence does not support this, by reference to her daily activities, lack of indication of mental disease (as opposed to mental illness), lack of treatment by mental health professionals, lack of appropriate medication, lack of evidence that her mood or behaviour is severely affected other than going out of doors, or that her social functioning is severely affected.
12. I do not consider that a tribunal could have come to any other conclusion than that regulation 10(2)(e)(viii) was not satisfied.
13. The remaining grounds of appeal are not accepted. The Secretary of State was entitled to supersede the previous award of Incapacity Benefit following receipt of a PCA assessment under regulation 6(2)(g) of the Social Security (Decisions and Appeals) Regulations 1999 regardless of whether there had been a change of circumstance. The previous exemption was relevant evidence for the tribunal to consider in coming to its conclusions on whether the requirements of regulation 10, and then the PCA were satisfied. They were entitled to take the view, as I have done, that whatever the position in 2002, the appellant did not fall within regulation 10, and was therefore not exempt from the PCA.
14. The appellant is not correct in her belief that she must be incapable of work if she is not able to leave the house on her own. The tribunal dealt with this point correctly in the Statement of Reasons. The further evidence submitted on the nature of agoraphobia does not assist the appellant.
15. In summary, although the tribunal made an error of law in the way they analysed the evidence and in their reasoning, they nevertheless came to the only conclusion they could have come to.

[Signed]

S M Lane

25/02/2009