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This decision has been reproduced in plain text only. If you wish to submit a copy of a decision as part of an appeal, please download a Word copy from the link below.

http://www.osscsc.gov.uk/aspx/view.aspx?id=1518

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No: CIB/2597/1999

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER




MR COMMISSIONER H LEVENSON



















1. This appeal by the claimant does not succeed. I confirm the decision given by the social security appeal tribunal on 24 November 1998 to the effect that the claimant is not incapable of work from and including 9 September 1998.

2. In this case the claimant’s capacity for work depends on the score achieved on the All Work Test as defined in regulation 24 of the Social Security (Incapacity for Work) (General) Regulations 1995. The rules for satisfying the test are set out in regulations 25 and 26. The test itself is set out in the schedule to those regulations. The schedule lists a number of descriptors and points to be allocated in respect of them. A claimant who scores at least 10 points on mental health descriptors alone is incapable of work. If a claimant scores fewer than 6 points from mental health descriptors, these are disregarded. If a claimant scores 6 or 7 or 8 or 9 points, the score is treated as 9 points when combined with any score from physical descriptors. If a claimant obtains at least 15 points in relation to physical descriptors, or in relation to combined physical and mental descriptors (based on the special counting rule that I have indicated) then he is incapable of work. In some cases a claimant might be exempt from the test under regulation 10, or might be treated as incapable of work under regulation 27 even if he does not score the threshold number of points. However, there is no evidence in the present case that would justify the application of the rules in regulations 10 or 27.

3. The claimant in this case was born on 15 January 1966 and appears to have become incapable of work on 27 February 1995 because of epilepsy. It is agreed that he suffered epileptic fits in February 1995 and in April 1995 but since then the condition has been controlled by medication and there have been no further fits. It is also agreed that (apart from those relating to lost or altered consciousness) no other physical descriptor which carries points has applied in this case.

4. The claimant had been working as a press operator and received statutory sick pay from 27 February 1995 until 7 April 1995, on which date it appears that he left his employment. He claimed sickness benefit and the adjudication officer awarded sickness benefit from 8 April 1995. Sickness benefit was replaced by incapacity benefit from 13 April 1995, from which date the claimant was entitled to incapacity benefit.

5. Form IB50 is an incapacity benefit questionnaire. It appears that the claimant completed such forms on 6 October 1995, 7 February 1996 and 6 May 1997. Following the completion of each of those forms he was examined by a doctor acting on behalf of the Benefits Agency Medical Services. However, it does not appear that on any of those occasions the adjudication officer considered or reviewed the claimant’s entitlement to incapacity benefit or his capacity to work. Had the adjudication officer done so, then in my view that would not have made any difference to my decision, as I indicate below. In October 1995 it would have been the case that the claimant had had an involuntary episode of lost or altered consciousness at least once (and possibly twice) in the 6 months prior to any consideration of whether he was incapable of work, and had the adjudication officer made a decision at that stage then descriptor 14(e) carrying 8 physical points (or descriptor 14(b) carrying 12 physical points) would have applied. By the time the claimant completed the forms of 7 February 1996 and 6 May 1997 it would have been the case that he had had an involuntary episode of lost or altered consciousness once in the previous 3 years, and descriptor 14(f) would have applied. This does not carry any points. On each of those dates it is clear that neither descriptor 14(e) or 14(b) would have applied. However, the claimant continued to receive incapacity benefit and it appears that no action was taken to review his entitlement. Certainly, no action was taken to stop his entitlement.

6. On 22 April 1998 the claimant signed a further form IB50, which was returned to the Benefits Agency or Department of Social Security on 30 April 1998. On this form he refers to taking medication for his epilepsy, which makes him feel sleepy, and also to other medication which he takes for anxiety depression. He confirmed that he had no difficulty in relation to any of the areas of physical activity referred to in the schedule to the regulations, and that he had not had any fits since April 1995. On 7 September 1998 he was examined by Dr Mairs on behalf of the Benefits Agency Medical Services, who agreed that there were no difficulties with the areas of physical activity and again recorded the claimant’s statement that there had been no fits since April 1995. Dr Mairs was of the opinion that such mental health descriptors applied as carried 4 points. The matter was then considered by the adjudication officer. On 9 September 1998 the adjudication officer explicitly reviewed the decision awarding sickness benefit/invalidity benefit/incapacity benefit from and including 8 April 1995 and decided that from and including the date of review the claimant was no longer incapable of work and no longer entitled to incapacity benefit. The issue before me is, in effect, whether the adjudication officer was entitled to carry out that review, although the issue also presents itself in the guise of questioning whether the tribunal (or indeed the Commissioner) would have the power to carry out such a review in this case.

7. On 14 September 1998 the claimant appealed to the social security appeal tribunal against the adjudication officer. The tribunal considered the matter on 24 November 1998. It found that such mental health descriptors applied as carried 6 points, but that no physical points could be allocated. The tribunal made no reference to any previous All Work Test or to any grounds for reviewing the previous decision (or decisions) and on 15 February 1999 the claimant applied for leave to appeal to the Social Security Commissioner against the decision of the tribunal. On 26 February 1999 the chairman of the tribunal granted leave to appeal. The adjudication officer now concerned with the matter supports the appeal to the extent of arguing that the tribunal’s decision was made in error of law because the previous All Work Test had not been considered. However, the adjudication officer submitted “that there is evidential basis to support the conclusion that the previous assessment no longer reflects an accurate determination of the All Work Test in this case, and therefore there are grounds to review the previous decision”. In essence I agree with that approach. However, the adjudication officer went on to invite me to set aside the decision of the tribunal as having been made in error of law but to substitute my own decision to precisely the same effect. In the present case that would be a totally pointless exercise and would obscure the reality of my decision.

8. The claimant argues that the passage of time in itself should not constitute a relevant change in the claimant’s condition. Descriptor 14(f) (which applies where there has been an involuntary episode of lost or altered consciousness once in the previous 3 years) carries nil points. Descriptor 14(g) (which applies where the claimant has no problems with consciousness) also carries nil points. Therefore the passage of time from when 14(f) applies, so that more than 3 years have passed since the episode, is irrelevant.

9. It is now well established that where a claimant has been found to be or has been treated as incapable of work, the adjudication officer may only change that decision by carrying out a review. In order to carry out a review, there must be satisfied one of the conditions set out in section 25 of the Social Security Administration Act 1992. In this case, the relevant condition is to be found in section 25(1)(b): that there has been any relevant change of circumstances since the decision was given.

10. On the face of it, the decision under review was that awarding benefit from 8 April 1995 and in my view there can be no doubt that since that date there had been a change of circumstances. The first change was that the law changed with effect from 13 April 1995 and the basis of entitlement to benefit was changed. The second change was that the passage of time meant that the application of the descriptors in activity area 14 changed. In my opinion, where a descriptor refers to a period of time, then the passage of time by itself can amount to a change of circumstances. I am not to be taken as indicating that there are no other cases in which the passage of time can amount to a change of circumstances. Indeed, in several decisions I have ruled that it can so amount.

11. If there was an adjudication officer’s decision based on the first administration of the All Work Test, then probably descriptor 14(e) applied and the passage of time amounts to a change of circumstances justify review of that decision. If the timing was such that no descriptor in activity area 14 applied which carries points, then on the facts of the present case that would have been a mistaken decision because there is no basis or evidence for saying that the all work test would have been satisfied in any other respect. The same is true of the two subsequent occasions on which the All Work Test was administered. It might then have been logically and technically correct to have reviewed those decisions for ignorance or mistake as to a material fact, or for error of law. However, the outcome of any such review would have been a retrospective decision that the claimant was not at those dates incapable of work and not entitled to incapacity benefit. It could hardly be in the claimant’s interest for the tribunal (or the Commissioner) to carry out this exercise.

12. For the sake of completeness I should also add that I do regard descriptors 14(f) and 14(g) as referring to different relevant circumstances even if neither descriptor carries any points. Accordingly, the transition from one to the other, which occurs when it has been at least 3 years since there has been any involuntary episode of lost or altered consciousness to which the descriptor applies, is itself a relevant change of circumstances.

13. To accept the argument advanced on behalf of the claimant would mean accepting that once any claimant scored points in relation to activity area 14, it could never be the case that a finding of incapacity for work or an award of incapacity benefit could be reviewed no matter how long has passed since the last relevant episode. I cannot accept that that is either the intended or a desirable result.

14. For the above reasons this appeal by the claimant does not succeed.





(Signed) H Levenson
Commissioner

(Date) 9 December 1999