Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CIB/1219/2010

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:   The appeal is allowed.  I set aside the decision of the tribunal and also the decision of the decision maker issued on 23 December  and I substitute my own decision that the claimant scores 10 points in relation to mental descriptors and therefore continues to be incapable of work and entitled to benefit pursuant to the award dated 1 December 1993.

REASONS FOR DECISION

1.     This is an appeal by the claimant from a decision of the First-tier Tribunal disallowing his appeal from a decision of a decision maker issued on 23 December 2008 superseding a decision of a decision maker dated 1 December 1993 awarding invalidity/incapacity benefit because the Secretary of State had received medical evidence following an examination by an approved doctor since that decision was given.

2.     The claimant, who is now 64, was described by the tribunal as being “said to suffer from anxiety and depression, alcohol dependency, social phobia and asthma”.  He had been subjected to a personal capability assessment in March 2007 which had led to his claim being superseded, although he had successfully appealed that decision when the tribunal hearing his appeal had found, on 11 July 2007, that he scored 13 points in respect of the mental descriptors.  The claimant was again subjected to a personal capability assessment in December 2008, when he was again examined a doctor who was an approved disability analyst.  She found that he scored only 5 points in respect of the mental descriptors, and confirmed that in her opinion, amongst other matters, that because of the claimant’s mental problems there would not be a substantial risk to anybody’s physical or mental health if he was found capable of work.  That led to the decision under appeal.

3.     The claimant was represented and gave evidence at the hearing of the appeal, following which the tribunal found that he scored 8 points in respect of the mental descriptors.  The reasons were set out in the subsequent Statement of Reasons which dealt with each of the mental descriptors but not with the question whether “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”.

4.     This was a claimant who was clearly reclusive, who had not worked for at least 16 years, who was in his 60’s, and who was found by the tribunal and by the examining doctor to be scared or anxious that that work would bring back or worsen his illness.  The examining doctor described him as feeling very negative about being able to cope with work.  His own GP had twice reported that it was inconceivable that he would ever be able to earn his living and that his problems were lifelong and were not going to improve, and, in 2007, that he had been having difficulty getting up and just about looking after himself, and that he was not and would not be able to work in the future.  The second report was in 2009 following the decision under appeal. 

5.     The claimant was described as being tearful during the assessment by the examining doctor, and was also tearful during the tribunal hearing (p.53).  He told the tribunal he was tearful most days and that he avoided stressful, situations (p.56).  A year after the death of his dog in February 2008, he had required counselling, and he remained very upset (p.56).  He felt he was struggling on a day to day basis (p.53) and that he staggered from one crisis to another (p.55).  Although it was in relation to the removal of incapacity benefit in 2007, his GP also recorded that the claimant was distraught and tearful and it took 20 minutes just to calm him down and have a plan.

6.     Although the tribunal set out, as I have described, what the claimant was said to suffer from, it made no clear findings as to what he did suffer from, although the award of 8 points clearly indicated a finding that he had some mental disablement.  Moreover, although it referred in the Statement of Reasons to the medical records in 2007, it did not refer to the contemporary report of the GP at pp.44-45 of the file.

7.     In all the circumstances, it appears to me that the tribunal was in error of law in concluding that the claimant was capable of work without addressing the question whether regulation 27(b) applied to him.  The proper approach to that test was laid down by the Court of Appeal in Charlton v Secretary of State, [2009] EWCA Civ 42, where Moses LJ, with whom the other members of the court agreed said:

33. Regulation 27(b) applies only when a claimant's functional abilities in the performance of everyday tasks have been established, it becomes clear that the risk to be assessed must arise as a consequence of work the claimant would be found capable of undertaking, but for Regulation 27. Were it not so, there would be no statutory purpose in requiring a claimant to have undergone an assessment before consideration of the effects of any disease or disablement on his or others' safety.

34. Regulation 27(b) may be satisfied where the very finding of capability might create a substantial risk to a claimant's health or to that of others, for example when a claimant suffering from anxiety or depression might suffer a significant deterioration on being told that the benefit claimed was being refused. Apart from that, probably rare, situation, the determination must be made in the context of the journey to or from work or in the workplace itself.

35. The Commissioner was correct to construe Regulation 27(b) as requiring a causative link. But I do question his apparent search for evidence of a greater risk at work than from his existing lifestyle generally (§ 48 penultimate sentence). The question Regulation 27(b) poses is not whether there is a greater risk than that arising during the course of the performance of everyday tasks as tested by the Personal Capability Assessment. The descriptors specified in the Schedule test a claimant's functional limitations, both physical and mental, not the risks to which they might give rise. It is Regulation 27(b) which raises the question of whether a substantial risk arises from disease or disablement. But despite what I perceive to be an error in making a comparison which is not justified by the regulation, in the end the Commissioner does (in § 49) ask and answer the correct question posed by the regulation, namely whether a substantial risk should be foreseen in the light of the work the claimant might be expected to perform in the workplace in which he might be expected to be. This gives rise to the second issue in the appeal: how the decision-maker is to identify the nature of claimant's work and workplace.

Assessment of the type of work for the purposes of Regulation 27(b)

36. Regulation 27(b) requires the decision-maker to assess risk in the context of the work or workplaces in which the claimant might find himself. The controversy between the claimant and the Secretary of State relates to the extent to which the decision-maker must identify the type of work which the claimant would perform on the hypothesis that he had been found capable of work.

37. The claimant contends that a decision-maker must identify what he describes as "actual positions of employment" and must concentrate upon the job that the claimant will undertake, the nature of its duties and its location. Without such analysis a decision-maker will, so he contends, be unable properly to assess risk to safety both to himself and to others. The Commissioner's identification of the type of work the claimant might be expected to undertake is too vague and too broad.

38. The answer to this submission lies in the purpose of Regulation 27(b), that is to assess risk at work. In order to determine whether there is any health risk at work or in the workplace it is necessary to make some assessment of the type of work for which the claimant is suitable. The doctor, the decision-maker and, if there is an appeal, the Tribunal, should be able to elicit sufficient information for that purpose. The extent to which it is necessary for a decision-maker to particularise the nature of the work a claimant might undertake is likely to depend upon the claimant's background, experience and the type of disease or disablement in question. It is not possible and certainly not sensible to be more prescriptive. The most important consideration is to remember that the purpose of the enquiry is to assess risk to the claimant and to others arising from the work of which he is capable. No greater identification of the type of work is necessary other than that which is dictated by the need to assess risk arising from work or the workplace.

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."

8.     I am not satisfied that the evidence before the tribunal showed that there had been a significant deterioration in the claimant’s health on being told that benefit had been refused.  He was unquestionably very upset and showed this at the time, at least in 2007, in a manner that went beyond what might have been expected of a person in good mental health.  But that would not amount by itself to a significant deterioration in his mental health and there was no indication that there had been such a deterioration.

9.     There was, however, no investigation by the tribunal about the claimant’s background to form a view on the range or types of work for which he was both suited as a matter of training or aptitude and which his disabilities did not render him incapable of performing.  As a result there was no decision as to whether, within that range there was work he could do without the degree of risk to health envisaged by regulation 27(b).  In making that assessment the tribunal would have to take into account both the risk to the claimant as a result of his mental health problems and also the limits on the work he could do because of them, including any alcohol dependency he was found to have.

10. Further, the test is not limited to whether there would be a substantial risk to the claimant from any work he may undertake.  The test is as to the risk as a result of being found capable of work.  If he was found capable of work, he would lose his incapacity benefit, and would very possibly need to seek work and apply for jobseeker’s allowance.  That would involve his attending interviews, and going through all the other steps that would be needed to obtain and keep jobseeker’s allowance.  In the present economic climate, a claimant who is 62 years old with mental health problems, and who has not worked since the early 1990’s, is unlikely to find work quickly and would very possibly never find it.  His GP’s assessment that it is inconceivable that he would ever be able to earn his living may be right.  The tribunal would then have to determine how this change from his being in receipt of incapacity benefit would affect the claimant’s mental health, looking not at some work he may do, but at the effect on his mental health of fruitless and repeated interviews and the possibly hopeless pursuit of jobs until he reached retirement age.  These factors were not considered by the tribunal, and indeed they did not elicit the information necessary to enable them to be considered, such as whether he had in fact applied for jobseeker’s allowance and if not, how he was coping or would cope.

11. It does not appear to me that the ability of this claimant to cope, possibly with considerable difficulty, with his present lifestyle, leads to the conclusion that he would cope with all the additional difficulties and changes required as a result of being found capable of work.

12. I therefore conclude that the tribunal was in error of law, and its decision must be set aside.

13. I therefore turn to consider whether I can conclude on the evidence before me, having set aside the decision of the tribunal, that the claimant scored 10 points on the mental health descriptors.  If I do so conclude, the question of the applicability of regulation 27(b) will not arise.

14. I see no reason to interfere with the 8 points awarded by the tribunal.  The question is whether, on the evidence before me, and bearing in mind that I have not had the advantage of hearing the claimant give evidence, any further points can be awarded.  The 2007 tribunal awarded the claimant points in respect of descriptors CPb, CPc, CPe, and OPc (17b, c and e and 18c).  The tribunal appears to have accepted the evidence given by the claimant.  I see no reason to do otherwise. 

15. In relation to CPb (frequently feels scared or panicky for no obvious reason) the tribunal found that on the claimant’s own evidence he did not have panic attacks and he made no reference to feeling scared for no obvious reason.  He does not appear to have been asked about the latter, although there is repeated evidence of anxiety.  He has stated in his form IB50 that he cannot use public transport due to anxiety (p.17) and that he is on the edge of his nerves all the time and gets very distressed every day.  He also says in it that he feels scared and panicky all the time, although the tribunal does not appear to have asked him about this.

16. In relation to CPc (avoids carrying out routine activities because he is convinced that they will prove too tiring or stressful), the claimant stated in form IB50 that he frequently gave up on tasks because of fatigue, apathy or disinterest.  The combination of his evidence to the tribunal as to his struggling on a day to day basis, staggering from one crisis to the next, and avoiding stressful situations, coupled with the fact that he took no care of his house and, as recorded in the record of proceedings lived on cheese and minimum preparation suggests that he may well have been avoiding routine activities because they would be too tiring or stressful.  The fact that, apparently since the death of his dog, he has managed to spend an hour a day gardening only indicates to me, in the absence of anything else, that he has compensated for the loss of the dog, and the time he spent with it, in this way.  So too, the fact that he cycles around daily, apparently without purpose, suggests that it may be a way of avoiding doing something more stressful and anxiety provoking.  Again some further enquiry was required beyond a finding that there were routine activities that he did carry out.  There was also room for enquiry as to why the claimant was so anxious to get out of his house each day (see p.53).  The question for the tribunal was whether there were routine activities that he did not carry out for the reasons in CPc.

17. Similar observations apply for similar reasons in respect of CPe (frequently finds that there are so many things to do that he gives up because of fatigue, apathy or disinterest).  There does appear to me to be evidence that could support a conclusion that there are areas where, in the words of the Commissioner in CIB/2008/1997, there is an overload of actual or perceived tasks.

18. With regard to OPc (mental problems impair his ability to communicate with other people), it was held in CIB/2008/1997 that what is required is an impairment of the ability to communicate, not merely a preference not to communicate.  The tribunal identified areas in which the claimant was able to communicate well.  He would talk to people outside if they spoke to him, he could shop on his own and communicate with shop assistants and cashiers and he communicated well during examination.  However, to identify areas where the claimant could communicate well does not mean of itself that there are not other areas where his ability to communicate has been impaired.  In the 2010/2011 edition of volume 1 of Social Security Legislation, Non Means Tested Benefits and Employment Support Allowance, at p.944, the editors comment as to CIB/2008/1997 that in this respect it “seems somewhat ill-focused since the word used is “impair” and one might have thought some comparison between the claimant’s present state and his pre-illness state relevant.  One might hazard that depression, as a recognised illness or disability, might well in some cases force a claimant in on himself: is that not impairing his ability to communicate?”

19. In C79/98(IB), a Commissioner in Northern Ireland commented that mere reluctance to communicate did not satisfy this descriptor and that it was the claimant’s ability to communicate which must be impaired, not his desire to do so.

20. I accept that a preference not to communicate or a reluctance to do so would not satisfy this descriptor.  But in the present case, the claimant’s depression has left him a virtual recluse.  He has had no friends since about 2000.  Apart from his sister, there had been nobody close to him with whom he had communicated in all that time.  It appears to me that on the evidence before the tribunal the claimant was not simply reluctant to communicate at that level.  His ability to do so had been impaired by his depression.

21. I would not be willing to come to any conclusion on the evidence presently before me in respect of the three CP descriptors, and had anything turned on them I would have referred the case to be reheard by a new tribunal, which would also have had to deal with the section 27(b) point.  I am satisfied, however, that the claimant’s ability to communicate has been impaired as a result of his depression and that he is entitled to an additional 2 points in respect of descriptor OPc.  That brings his total to 10 points, with the result that I am able to substitute my own decision that the claimant is incapable of work.

(signed) Michael Mark

Judge of the Upper Tribunal

5 November 2010