THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE DEPUTY UPPER TRIBUNAL JUDGE

 

The appeal against the decision of the First-tier Tribunal given at Sutton on 16/07/2008 is refused. It is dismissed.

 

REASONS FOR DECISION

Decision

 

1.               I refuse the appeal, because I consider that the tribunal has reached a decision that they were entitled to reach on the evidence before them. This is an appeal by the Secretary of State.

 

Background

 

2.               This is an appeal against the decision maker’s decision that the claimant qualified for no points under the under the Personal Capability Assessment. The tribunal allowed the appeal holding that the claimant was entitled to the benefit of Regulation 27(b) of the Social Security (Incapacity for Work)(General) Regulations 1995, which provides:

 

 

“27. 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 -

 

(a) …; or

 

(b) he suffers from some specific disease or bodily or mental disablement and, by reasons 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; or ... .”

 

 

The claimant had an accepted latex and rubber allergy. On this basis the tribunal held:

 

“6. Looked at in a practical way the tribunal considered that regulation 27(b) applied. There would be a substantial risk to [the claimant’s] physical health if found capable of work. She would then have actively to seek work without being able to obtain assurances of the absence of rubber/latex at (or in reaching) prospective places of employment. Her anxiety already high (she had obtained assurances of safety at the medical centre and the tribunal suite) would increase to the serious detriment of her mental health.”

 

 

 

 

 

 

Submissions

 

3.               The Secretary of State appealed the decision on the following grounds:

 

“Firstly, the tribunal’s findings are contradictory in relation to the effect of the claimant’s condition on her mental health. The tribunal state that the claimant’s anxiety, which is already high, would increase to the serious detriment of her mental health if she were found capable. I suggest you cannot on the one hand say that there is no question of scoring under the mental health test and then ‘resurrect’ the issue as a way of finding that she can be assisted by regulation 27(b).

 

Secondly there is evidence of a normal daily life. She does not appear to be restricted and maintains normal routines e.g. travelling by bus, shopping and she has an active social life. The claimant makes no mention of any specific measures to avoid bringing her into contact with rubber and latex. For example, she doesn’t say anything about avoiding wearing rubber gloves when undertaking housework such as washing up or the hand washing of clothing. I note that she wears a mask when cleaning and this would no doubt help with her respiratory problems. However, the mask doesn’t help her when she has to touch objects and thus avoid aggravating her dermatological condition. Travelling by bus and going out socially must put the claimant at risk of inadvertently being exposed to latex, which is no different to being exposed in a work environment. In fact, the work environment could possibly provide her with protection from rubber products as it would not be unreasonable for a risk assessment to be conducted in order to minimise her exposure. The claimant has worked with this condition in the past and it appears that she manages her problem adequately.”

 

4.               The Secretary of State refers to the recent decision in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 where Moses LJ sets out the correct approach to a decision under Regulation 27(b):

“39. The correct approach has been identified by Deputy Commissioner Paines in CIB/360/2007:

17.            The degree of detail in which [the consequences of a finding that the claimant is capable of work] will need to be thought through will depend on the circumstances of the case… A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant’s background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b).

 

18.            Regulation 27(b) requires one to start by identifying a disease or disablement; the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial.”

5.               The claimant resists the appeal and sets out her grounds on page 199.

 

Reasons for decision

 

6.               Although Charlton was not decided until after the tribunal’s decision, I consider that they have in effect applied the correct test. While in the normal course a tribunal is required to identify “range or types of work” that a claim can undertake, in the present case the tribunal has accepted the claimant’s evidence that he Job Centre “could see no prospect of her getting work that would be reliably safe for her” and that in practice there was no suitable work. This is not a case of assessing whether a particular form of work might be a substantial risk, but is a case where it is environment at the place of work and getting to that place that is the risk factor. The tribunal has found “that rubber and latex products are prevalent and that potentially an allergic attack could have the most serious of consequence. This finding is adequately supported by the material produced by the claimant on latex allergies, which include extensive lists of latex products in all areas of live and work. The tribunal has effectively found that there are no places of work, including getting to that work that is safe for the claimant.

 

7.               The tribunal has then gone on to assess the health risks to the claimant and held that there was a substantial risk to the claimant’s physical health if found capable of work. I consider that is supported by the material on latex allergies, which refers to the risks of an anaphylactic reaction that can come on quickly, even in persons who have only had minor reactions in the past [see eg: page 158]. The tribunal has also found that the claimant “has to date no suffered seriously from her allergy … [because of] … the measures which, reasonably in our view, she takes for her safety”, which is a finding that accepts that in the work environment she may not be able to take those precautions. I therefore consider that the tribunal was entitled to apply Regulation 27(b).

 

8.               In so far as the Secretary of State refers to the tribunal’s findings being contradictory by referring to the claimant’s high anxiety and then that “there was no question of mental” health descriptors, I agree that there is a contradiction. However, this is not fatal to the decision, because the decision on physical health cannot be impugned for the reasons given above and that is enough to uphold the decision as the finding under Regulation 27(b) which is in the alternative – physical health or mental health. I note that the Decision Notice refers only to the tribunal “being satisfied that there would be a substantial risk to [the claimant’s] physical health” so the decision is not based on a mental health reason.

 

 

 

 

9.               However, from reading the Record of Proceedings the issue of mental health descriptors does not seem to have been raised and so “there was no question of mental ones” can be read to mean that no question was raised on this issue. I accept that the tribunal’s finding about “her anxiety state already high … would increase to the serious detriment of her mental health” might qualify the claimant for a descriptor CPf “is scared or anxious that work would bring back or worsen his illness” [01], but in the scheme of things that would not have aided her in the claim as it would not have been a sufficient number, which is perhaps why the tribunal did not consider it relevant to making a finding in relation to that descriptor, where the main emphasis was on an entitlement under Regulation 27(b).

 

 

 

 

 

 

 

(Signed)

SIR CRISPIN AGNEW OF LACHNAW BT QC

Deputy Judge of the Upper Tribunal

Date: 25 September 2009