IN THE UPPER TRIBUNAL Case No  CE/609/2011

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Manchester on 1 November 2010 under reference 946/10/01421 involved the making of an error of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 19 of the Reasons.

REASONS FOR DECISION

History

1.  The claimant had had an operation for bowel cancer.  He did not have a stoma.  He had had to undergo chemotherapy.  In a submission to the tribunal written by his pro bono legal adviser, descriptors 1 (walking)  2 (standing and sitting), 3(bending and kneeling), 5 (picking up and moving) 6 (manual dexterity) and 10a (continence) were put in issue.  The decision appealed against in this case was taken on 15 December 2009, so it is with the original form of the descriptors that we are concerned.

2. The tribunal rejected the appeal, awarding 0 points.  The claimant appealed further, arguing (among other points)  that the tribunal had failed to make sufficient findings with regard to continence and that it had erred in its treatment of medical evidence.

3.  The Secretary of State supports the appeal, although as will be seen I consider the basis of that support in part to be unsound.

Continence

4. The tribunal found that “he was not using a stoma and his chemotherapy had ceased.  His bowels were clearly controllable with his medication and he only experienced difficulties as a result of trying to reduce the dose.”  As to what those difficulties were, the tribunal did not make findings as such.  The evidence of the claimant (which the tribunal considered unreliable) was recited at length.  That evidence as recited was that :

“Although about 6 to 8 inches of his large bowel had been removed he did not need to wear a colostomy bag and did not suffer from any discharge.  He did have a problem with the formation of stools. He had medication for this and, at the time of the decision he was adjusting his medication in order to get the right balance.  The medication makes his stools firm.  If he takes too much then he will become constipated.  If he takes too little then he will suffer diarrhoea and may even temporary incontinence.  He said that the medication was helping a lot but he would push the limits to get the balance right. He said that at the date of the decision he had well formed stools or constipation. He would only suffer from diarrhoea if he did too much exercise, in which case he could have accidents up to once or twice a month.  He would then have to change and wash his trousers.”

5. This description does not entirely match the tribunal’s record of proceedings, which records:

“I’d have accidents 1 or 2 x p/m, I’d have to change and wash trousers.”

Whilst the record of proceedings is not intended to be a full record of evidence, it provides no support for the potentially important words “up to”, nor for the distinction between “could” and “would” in the tribunal’s summary of the evidence.

6. The Secretary of State supports the appeal with regard to continence, arguing that such control as there was appeared to be effected by means of the medication and not by the claimant’s own conscious will, which was what the expression “voluntary control” in activity 10a was directed towards.  The authority for this was said to be the decision of Mr Deputy Commissioner Jacobs (as he then was) in CIB/14210/96, where he in turn relied on  the decision of Mr Commissioner Walker QC in CSIB/38/1996, where the latter held that voluntary control was control that involved the operation of the will and that chemical control by means of medication did not amount to “voluntary control.”

7. The point was not necessary for the decision in CIB/14210/96, which turned on the view, subsequently disapproved by a Tribunal of Commissioners in R(IB)4/04, that a claimant who did not have a bladder could not fulfil the bladder-related continence criteria for incapacity benefit.  CSIB/38/1996, on which it relies, has been both the subject of academic criticism (see Wikeley (1997) 4 JSSL D133-134) and has been judicially not followed.  In R 2/00 (IB) Mrs Commissioner Brown said, in a Northern Ireland case:

“As regards Commissioner Walker's decision in CSIB/38/96, if he meant that all medication must be disregarded in determining whether or not a claimant has voluntary control, I do not share his views.  Medication can enable a person to exercise control by will where previously he could not have done so.  If a person acquires or regains control by will over the emptying of bladder or bowel, however the ability to exercise that control was brought about, he cannot, in my view be said to have "no voluntary control".  Even, therefore, adopting Ms Slevin's contention of "voluntary" as meaning "having the action controlled by will" the use of medication   need not be excluded.  I do not therefore consider that the Tribunal erred in taking account of medication in this case.”

8. Mrs Commissioner Brown’s view was followed by Mr Commissioner Rowland (as he then was) in CIB/3519/2002.  I respectfully agree with both those Commissioners and thus am unable to accept the Secretary of State’s concession, which made no reference to either of these authorities, on the point.

9. Nonetheless, questions still arise about the applicability of descriptor 10a.  While it is not arguable that the claimant has “no voluntary control” for the purposes of descriptor (i), questions still arise concerning the possible applicability of descriptors (iii), (v) and (vii).  The descriptors are set out below:

10. Common to all those descriptors is the need for a determination that there were either instances of a loss of control or that there was a risk of a loss of control.  Each is expressed by reference to “the full evacuation of the bowel.”  Clearly people troubled by such conditions may experience them with varying degrees of severity: see for instance the medical evidence at para 10 of CIB/14332/96.  The claimant’s representative’s submission to the First-tier Tribunal, acknowledging that the matter was likely soon to come before the Upper Tribunal,  argued that if the claimant “could not control say 10% of the evacuation process, then he could not control the full (i.e. 100%) evacuation.”  Without authority I would incline to the view that what is required to qualify is a loss or risk of loss of control resulting in a full evacuation.  If small losses of control were intended to qualify, the logical formulation would have been “…so that the claimant cannot fully control the evacuation of the bowel.”  I am fortified in this view by authority which has more recently become available.  In NH v SSWP(ESA) [2011] UKUT 82 (AAC) Judge Lane, discussing whether cases on the incontinence descriptor for incapacity benefit had any relevance to the provisions for bladder incontinence under ESA (which are materially identical for present purposes to those for bowel incontinence), held (at para 8):

“In the Secretary of State’s view, these PCA cases on incontinence did not encompass the requirement that any loss of control had to lead to a full voiding of the bladder.  That is true, and the current activity of continence marks a significant change from the PCA in that respect.  But descriptor 10(a) (vii) specifically incorporates the principle that a claimant can satisfy the descriptor if his urgency is such that, unless he is able to reach a toilet quickly, he will void his bladder, albeit that now the risk must be that he will of fully voiding his bladder.” 

11. That there was such a distinction between partial and full evacuation of the bowels, with only the latter sufficing, was also accepted by Judge Mesher in KP v SSWP [2011] UKUT 216 (AAC).

12. The necessary questioning in order to determine whether the extent of any accident which a claimant has suffered or is at risk of suffering is “full” is liable to be intrusive. Helpful guidance is provided in the NH case.

13. The tribunal failed to make sufficient findings about these matters, in particular the extent of loss of control experienced  by the claimant and the extent (if any) to which he was at risk of a full evacuation of his bowel unless he could each a toilet quickly.  There does not appear to be any suggestion that the claimant was in any way being unreasonable in either taking exercise, or adjusting his medication, the two activities liable to affect the onset of diarrhoea, but if there was, findings bearing on the reasonableness of the steps taken would also be required.

Neuropathy

14. There were further errors of law.  The claimant had claimed the problems set out in [1] above.  He said he experienced pain, numbness and cramps affecting his legs, causing problems with balance, and numbness in his hands.  The numbness had developed towards the end of his chemotherapy. treatment.  When examined, he told the examining doctor, Dr Rozani, about the numbness.  Dr Rozani then recorded “Client says his oncologist says the numbness is not a usual chemotherapy side effect”.  This was relied upon by Dr Rozani at at least two places in his opinion.  However, the appeal documents also contained a letter (which had not been before Dr Rozani) from Dr Conroy, a specialist registrar in oncology, to the claimant’s GP, recording that he had reviewed the claimant in clinic and that “we have had a long discussion today and I have explained that, unfortunately, the symptoms he describes in his hands and feet are vey common side effects following treatment with Oxaliplatin chemotherapy.”

15. The tribunal found that “The numbness in his hands and feet was not caused by any joint pain but was as a result of altered sensation.  It was inherently improbable that this would affect his balance, walking, standing or bending and kneeling to any significant degree.”  Dr Conroy had clearly stated that the symptoms the claimant had described to him were very common side effects of his treatment.  In those circumstances, if the tribunal was going to make a finding that the extent of the symptoms experienced was inherently improbable, its duty to give reasons required it, in my view, to state why it was reaching that conclusion despite what Dr Conroy had written.

16. The tribunal also indicated that it purported to accept the evidence of Dr Conroy, which it regarded as not inconsistent with the opinion of Dr Rozani.  In my view, the tribunal’s duty to give sufficient reasons meant that it  needed to explain how it regarded the two as not inconsistent when Dr Conroy’s letter  was stating the direct opposite of what the claimant had  said was his oncologist’s view as recorded (and relied upon) by Dr Rozani.

Other errors of law

17. I need not consider whether there were any other errors of law in the tribunal’s decision.  Any that there were will be subsumed in the rehearing I propose to order.

Disposal

18. I have considered whether or not I am prepared, having found there to be errors of law, to make the necessary further findings myself.  I am not, even on the basis of the record of proceedings rather than the evidence as recorded in the decision, because there is no evidence about the extent of bowel evacuation and I am unwilling to infer it from the need to wash trousers, which could be occasioned by something less than a “full” bowel evacuation.  Further, it may be necessary to consider continence descriptor (vii) concerning risk if the claimant does not get any higher score under the continence descriptors. That only carries 6 points and the other descriptors potentially yielding points to make up the shortfall to the 15 point threshold require proper findings, with the benefit of medical expertise, on the evidence regarding neuropathy in relation to the extent of disability the claimant  alleges.

19. I regret therefore that there will have to be a further hearing. I direct therefore that:

(a)  the question of whether the claimant satisfies the work capability assessment is to be looked at by way of a complete re-hearing in accordance with the legislation and this decision.

(b) unless otherwise directed, the claimant or his representative must ensure that any further written evidence is filed with the First-tier Tribunal no less than 21 days before the hearing date.

(c) the tribunal will need to make full findings of fact on all points that are put at issue by the appeal in relation to the descriptors claimed and any others which the tribunal considers it proper to investigate.

(d) if the tribunal rejects evidence given by the claimant or in support of his case, it must provide a sufficient explanation why it has done so and must give adequate reasons for its conclusions.

(e) the tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was taken on 15 December 2009- see section 12(8)(b) of the Social Security Act 1998 - but may have regard to subsequent evidence or subsequent events for the purpose of drawing inferences as to the circumstances obtaining at that time: R (DLA) 2/01 and 3/01.

(f) these directions are subject to any further directions which may be given by a District Tribunal Judge.

20. While it is not a matter for me to direct, it is suggested that the claimant should attend the re-hearing.

21. The decision on the re-hearing is a matter for the First-tier Tribunal and no inference as to the outcome should be drawn from the fact that this appeal has been allowed on a point of law.

CG Ward

Judge of the Upper Tribunal

22 December 2011