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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 Exeter appeal tribunal under reference U/03/194/2001/00541, held on 13 August and 3 October 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 appeal tribunal must determine the claimant’s capacity for work on and from 23 February 2001. According to the Secretary of State’s submission to the appeal tribunal, the claimant was previously receiving incapacity benefit. At the oral hearing, his representative was unsure whether his capacity for work was being assessed for incapacity benefit or for credits only.
The claimant has now made a new claim. I do not know from what date he was again accepted as incapable of work, pending assessment under the personal capability assessment. That date will set the end of the tribunal’s jurisdiction.
The tribunal must follow the analysis of the supersession procedure laid down by the Court of Appeal in Wood v Secretary of State for Work and Pensions.
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 23 February 2001: see section 12(8)(b) of the Social Security Act 1998, as interpreted in R(DLA) 2 and 3/01. As I understand the position, the claimant’s condition has not changed, so this limitation is unlikely to be of practical significance. In so far as it is, the previous tribunals investigated in detail and the tribunal will find in the chairmen’s’ records of proceedings for those hearings a more contemporaneous account of the claimant’s difficulties and their variation.
The claimant’s disablement varies from time to time. The tribunal must investigate the nature and extent of that variation. It must then apply the approach laid down by the Tribunal of Commissioners in R(IB) 2/99.
The claimant has complained about the conduct of the interview and examination by the medical adviser. The claimant was told that the adviser had been suspended for other reasons and had not replied to the request to comment on the complaint. At the oral hearing, I was told that the medical adviser has now been reinstated in his duties but was unable to remember this case. The result is that the claimant’s complaint has not been investigated and resolved. The tribunal must take his criticisms into account in so far as they affect the reliability of the medical adviser’s report.
In dealing with the claimant’s diagnosis of chronic pain syndrome, the tribunal must proceed in accordance with my analysis in paragraphs 17 to 19.
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 the leave of a district chairman of tribunals.
3. An oral hearing of the appeal was directed by Mr Commissioner Mesher. It was held before me in Cardiff on 2 June 2003. The claimant did not attend, but was represented by Mr M Brown of his local CAB. The Secretary of State was represented by Mr V Lewis of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to them both for their clear and succinct observations.
4. At the oral hearing, the representatives were agreed on the outcome of the appeal and the interpretation of regulation 25(3) of the Social Security (Incapacity for Work) (General) Regulations 1995, on which it depends. Their views coincided with the view I had provisionally taken on previewing the case. In those circumstances, I have set out the analysis of the legislation and my conclusions without referring to the arguments.
5. The issue in this case is how, if at all, the disabling effects of chronic pain syndrome are accommodated within the personal capability assessment. This is part of a wider issue: does the personal capability assessment take account of pain, the nature, degree or distribution of which cannot be accounted for by the claimant’s physical medical condition?
The history of the case
6. The claimant was accepted as incapable of work on and from 13 January 1997 and, according to the Secretary of State’s submission to the tribunal, as entitled to incapacity benefit on and from 16 January 1997.
7. He was assessed by self-assessment questionnaire followed by a medical examination and report. This led a decision-maker to decide that the claimant was not entitled to incapacity benefit on and from 23 February 2001. Neither the claimant’s questionnaire nor the medical adviser’s report is satisfactory as evidence.
8. The self-assessment questionnaire is not satisfactory, because it was clearly completed to show the claimant’s disablement on what he called his ‘worse days’. The medical adviser’s report is not satisfactory, because the claimant has complained about the conduct of the examination. That complaint has not been resolved to the claimant’s satisfaction.
9. The case came before an appeal tribunal in 2001 and the appeal was dismissed. At that stage, the emphasis was on the nature and extent of the variation in the claimant’s disablement. That decision was set aside by Mr Commissioner Mesher in CIB/0520/2002. The case was reheard by a different tribunal in 2002. The first hearing was adjourned for medical evidence from the claimant’s GP. The evidence showed that the claimant had been diagnosed as having ‘chronic pain syndrome’. The hearing was resumed before the same tribunal. At this stage, there was a different emphasis. This tribunal dismissed the appeal, because the claimant did not have a ‘specific bodily disease or disablement’.
10. The tribunal’s decision refers to regulation 25(3) of the Social Security (Incapacity for Work) (General) Regulations 1995. That provision controls the application of the personal capability assessment. The assessment is split into two section. The physical disabilities section is in Part I of the Schedule to the Regulations. It deals with the physical functioning of the body, such as the limbs and spine. The mental disabilities section is in Part II of the Schedule. It deals with the functioning of the mind in completing tasks, daily living, coping with pressure and interacting with other people.
11. Regulation 25(3) provides:
‘In determining the extent of a person’s incapacity to perform any activity listed in Part I or Part II, it shall be a condition that the person’s incapacity arises-
(a) in respect of a disability listed in Part I, from a specific bodily disease or disablement; or
(b) in respect of a disability listed in Part II, from some specific mental illness of disablement.’
Chronic pain syndrome
12. The claimant has been diagnosed as having chronic pain syndrome. This is one of a number of different labels that is given to someone whose pain is not within the range of normal responses to an injury or disease. In CIB/4841/2002, I directed medical advice on the nature of ‘illness behaviour’. The advice I received from the Secretary of State is identical to the advice on chronic pain syndrome. Taking the advice in that case and in this together comes to this. Chronic pain syndrome and illness behaviour are two of a number of terms used to describe symptoms that are caused by the influence of psychological makeup and social environment on the perception of the disabling effects of a medical condition. The recognition of this phenomenon is reflected in more modern approaches to treatment, which address the psychosocial as well as the medical factors. The symptoms are subjective in the sense that they depend on an experience of pain or fatigue. This does not, though, mean that they are not genuinely experienced, nor that they do not prevent or restrict function.
13. Chronic pain syndrome and related conditions are now accepted as genuine medical conditions. They are not accepted by the whole of the medical profession. But they are accepted by a number of respected experts whose views are supported by research. In other words, a reputable body of professional opinion accepts that there is a repeating pattern of perceptions, sensations and experiences that have sufficient unity to be classified as a medical condition for purposes of further research, diagnosis and treatment. That implies that these conditions involve a causative mechanism that operates independently of particular functions and prevents or restricts the person’s ability to perform those functions.
How does regulation 25(3) apply to this type of condition?
14. Mr Commissioner Rice decided, in the context of different legislation, that ‘specific’ in this phrase governed both ‘disease’ and ‘disablement’: see C.S. 1/81, paragraph 7. Mr Mesher, writing in  Journal of Social Welfare Law at page 48, commented: ‘I do not know what a “specific mental disablement” could mean.’ I do not need to decide that issue. I deal with this case on the basis of Mr Rice’s decision. On that basis, chronic pain syndrome is ‘specific’ for this purpose. There has been a significant amount of research into these related conditions which demonstrates a uniformity of symptoms sufficient for medical experts to give them labels and to use those labels for diagnosis. That is sufficient to make them ‘specific’ for this purpose.
15. I doubt whether this syndrome would be classified as a disease. However, that does not matter, if it is a disablement. What is a disablement for the purpose of regulation 25(3)? A disablement prevents a person from performing, or restricts the person’s ability to perform, a function. But that alone is not sufficient. The claimant cannot say: ‘I cannot perform a particular descriptor, so I am entitled to the points.’ The inability or restriction must arise from a disablement. So, that disablement must be something separate from the inability or restriction. That is clear from the wording of regulation 25(3): ‘the person’s incapacity arises … in respect of a disability listed in Part I, from a specific bodily disease or disablement’. The state of medical research and knowledge has now reached the point where chronic pain syndrome and its related conditions can be accepted as having an independent causative effect sufficient for these purposes.
16. That leaves the question: is chronic pain syndrome a ‘bodily’ disablement? That word is capable of referring to the cause or to the nature of the disablement. It must be interpreted in its context. The general context of this question is legislation that determines whether or not a claimant is capable of work. The specific context of this question is regulation 25(3), which operates as a gateway into the two sections of the personal capability assessment. The physical disabilities only qualify if they arise from a specific bodily disease or disablement. Those contexts suggest that the emphasis should be on effect rather than on origin or cause. Take the example of a claimant with what used to be called hysteria. It affects the claimant’s lower limbs and prevents any mobility. Hysteria by whatever name it is now know is a recognised condition that causes a person to experience restriction of function. The origin of the condition is mental. Nevertheless its effects are physical and are outside the person’s conscious control. Is that (a) a bodily disease or disablement or (b) a mental illness or disablement? Its proper classification determines the section of the personal capability assessment that applies. Although the condition is mental in origin, the terms of the mental disabilities section are inappropriate for this condition and its effects. Despite the genuinely disabling effects of the condition, is the claimant to be assessed under an inappropriate section of the personal capability assessment just because of the origin of the condition? The answer is obviously: no. My interpretation of ‘bodily’ in the context of disablement is that it refers to the function that is affected rather than to the source of the condition. On that basis, chronic pain syndrome and related conditions bring the claimant within the scope of the physical disabilities section of the personal capability assessment.
How should the tribunal proceed at the rehearing?
17. It is not for me to tell the tribunal how to organise its enquiries most effectively. That is a matter for the tribunal and, in the event of disagreement, for the chairman. It will depend on the panel members’ views of the evidence and issues formed on previewing the papers. However, these are the issues that it will have to consider.
18. The tribunal must decide whether the claimant genuinely experiences the particular disabilities that he asserts or merely claims to do so. That involves investigating and determining whether the symptoms as reported are within the claimant’s conscious control. The tribunal must test the claimant’s asserted disabilities against other evidence. That other evidence may show inconsistencies between the claimant’s asserted disabilities and:
• his account of his daily activities
• unobtrusive observation of function at the time of the medical examination or at the hearing
• resistance on examination
• exaggeration of responses on examination, provided that this can be identified as deliberate
• findings on examination that suggest a greater level of activity than that claimed, such as muscle power and tone.
19. If the claimant has no control over his symptoms, the tribunal must consider whether he has a specific bodily disease or disablement. The claimant has a diagnosis of chronic pain syndrome. The tribunal must consider whether to accept that as correct. If it does, I direct it that the claimant has a specific bodily disablement and that the physical disabilities section of the personal capability assessment applies.
Signed on original Edward Jacobs
5 June 2003