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DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
The decision of the Manchester appeal tribunal under reference U/40/072/2002/02260, held on 17th September 2002, is erroneous in point of law.
I set it aside and remit the case to a differently constituted appeal tribunal.
I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision.
In particular, the tribunal must determine the claimant’s capacity for work from and including 20th March 2002 in accordance with my analysis of descriptors 15(a), 16(e) and 18(a).
The appeal tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was made on 20th March 2002: see section 12(8)(b) of the Social Security Act 1998, as interpreted in R(DLA) 2 and 3/01.
The appeal to the Commissioner
2. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with my leave. The Secretary of State does not support the appeal.
3. This case concerns the claimant’s capacity for work from and including 20th March 2002. Specifically, it raises issues of interpretation on three of the descriptors in the mental disabilities section of the personal capability assessment arising from the claimant’s anxiety. The tribunal scored the claimant at 12 points for physical disabilities and at 5 for mental disabilities. If any of the three descriptors applied, that would have been sufficient for the claimant to satisfy the assessment.
4. This descriptor is in activity 15, headed Completion of tasks. It reads:
‘Cannot answer the telephone and reliably take a message.’
5. In her self-assessment questionnaire, the claimant wrote:
‘Sometimes I unplug the phone because I just can’t deal with it – I just want to be left alone most of the time.’
The Secretary of State has referred me to the first part of that quotation, but not to the second. I am not sure how the two parts are intended to relate to each other.
6. The tribunal decided that the claimant did not satisfy this descriptor, because
‘The claimant confirmed that she would be able to take a message reliably if she answered the telephone.’ (My emphasis)
7. The claimant’s representative argues that the descriptor requires consideration of two questions: (a) Can the claimant answer the telephone? and (ii) Can the claimant reliably take a message? He argues that the tribunal considered only the second question. I accept the argument that the descriptor requires two questions to be considered. The descriptor is satisfied if the claimant (a) cannot answer the telephone or (b) can answer the telephone but cannot reliably take a message.
8. The Secretary of State supports the tribunal’s decision on this descriptor, arguing:
‘It is inherent that the tribunal’s decision is based on a broad view of the claimant’s ability to perform the descriptor most of the time.’
The claimant’s representative argues that that is not correct. I agree. That is an inventive reading of the tribunal’s decision. It may be what the tribunal intended, but there is no clue to that in the statement of its reasons.
9. The issue for a tribunal is whether as a matter of the proper use of language the claimant ‘cannot’ (a) answer the telephone and (b) reliably take a message. If the claimant can never do this, the descriptor is satisfied. But the word ‘cannot’ is not in everyday use limited to such extreme cases. If the claimant can do this sometimes but not always, the tribunal must decide whether on an overall view it is proper to say that the claimant ‘cannot’ perform the descriptor. In applying the test, it is relevant to consider how often the claimant can and cannot perform the descriptor. However, the test does not depend on a purely arithmetical approach so that the descriptor is only satisfied if (for example) the claimant cannot perform the descriptor more often than not. The issue turns the proper use of the word ‘cannot’.
10. The evidence before me does not show that the claimant satisfies this descriptor. It merely shows that she ‘sometimes’ has difficulties with this descriptor. In my opinion, that is not sufficient to show that the claimant ‘cannot’ perform the descriptor. So, although the tribunal misdirected itself on this descriptor, the evidence does not justify a rehearing. Does the evidence on the other descriptors justify a rehearing?
11. This descriptor is in activity 16, headed Daily living. It reads:
‘Sleeping problems interfere with daytime activities.’
12. The tribunal decided that the claimant did not satisfy this descriptor, because she
‘stated in evidence that although she did have problems sleeping she only occasionally slept during the day; most of the time although she felt somewhat slow as a result of her broken sleep it did not interfere with her activities.’
13. The claimant’s representative denies that the claimant said this to the tribunal. Certainly, I cannot find it in the chairman’s record of proceedings. However, the chairman’s writing is not easy to read and he is not required to record the evidence verbatim.
14. The claimant’s representative argues that interference is not limited to preventing the claimant undertaking daytime activities. I accept that argument. Daytime activities may be prevented completely, or only be possible at certain times of the day, or be possible but only very intermittently or very slowly. All of these are potentially ways of interfering with the activities. Any of them is sufficient to satisfy the descriptor. This is subject to two qualifications. First, they must result from sleeping problems. Second, as with the word ‘cannot’ in descriptor 15(a), the issue depends on the proper use of language. When is a change in the activities undertaken or the pattern that would otherwise be followed an interference? A minimal change may not be sufficient to amount to an interference. So, for example, the fact that the claimant cannot start her daytime activities until a little later than normal or needs a rest at some time during the day, is not necessarily sufficient to satisfy the descriptor. Nor would it be necessarily be an interference just because the claimant has to change the time or order in which she performs the activities. This is a question of fact and degree, turning on the proper use of language.
15. As there is some doubt about what the claimant said in oral evidence before the tribunal, a rehearing on this descriptor is justified.
Descriptor 18 (a)
16. This descriptor is in activity 18, headed Interaction with other people. It reads:
‘Cannot look after himself without help from others.’
17. The claimant told the tribunal that she could not go shopping on her own. Her representative argues that this brings her within this descriptor, because shopping is essential in order to obtain food.
18. Mr Commissioner May dealt with this descriptor argument in CIB/4196/1997. He wrote (paragraph 25):
‘The question as to whether or not a person cannot look after himself without help from others is essentially in my view a question as to whether without such help the claimant would self neglect. It is not in my view meant to encompass asserted assistance with family finance that goes beyond the scope of looking after oneself. It would subvert the whole scheme for incapacity benefit if the meaning of descriptors was to be ingeniously stretched far beyond the scope that the plain English of the descriptors intended.’
I respectfully agree with that passage.
19. The claimant’s representative relies on that passage as supporting his argument. I disagree. On my reading, the natural meaning of the language of this descriptor relates to the immediate aspects of self care, like eating and maintaining an appropriate level of personal hygiene. It does not apply to the more remote aspects, like shopping (this case) and handling finances and paying bills (Mr May’s case). The language and its context in the personal capability assessment combine to emphasis the claimant rather than the claimant’s household, its provisioning or its finances.
20. On the evidence, the appeal tribunal was correct in law to decide that the claimant did not satisfy this descriptor.
21. So, the position is this.
22. The tribunal misdirected itself on descriptor 15(a). It went wrong in law and its decision must be set aside. Can I give my own decision on this descriptor? The evidence does not show that the claimant satisfies that descriptor. If I direct a rehearing, the claimant will have a difficult task to explain why she now gives evidence that is significantly different from what she has said so far. So, it would be safe for me to decide that the claimant does not satisfy this descriptor.
23. There is nothing to show that the tribunal misdirected itself on descriptor 16(e). However, I cannot find the evidence on which it based its decision. I do not consider it safe to rely on the statement of what the claimant said in the tribunal’s reasoning, especially as it is contested. As I have to set aside the tribunal’s decision on another ground, this descriptor justifies further investigation. A rehearing is appropriate.
24. The tribunal did not misdirect itself on descriptor 18(a). The evidence shows that the claimant does not satisfy that descriptor.
25. Although I have set aside the tribunal’s decision on one ground only, all issues of fact and, subject to my directions, law within its jurisdiction are open before the tribunal at the rehearing. This applies to all activities, both physical and mental.
Signed on original Edward Jacobs
1st April 2003