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1. The claimant's appeal to the Commissioner is allowed. The decision of the Hull appeal tribunal dated 2 October 2002 is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraph 17 below (Social Security Act 1998, section 14(8)(b)).

2. The claimant was accepted as incapable of work for the purposes of contribution credits from 14 January 2002. He was sent an IB50 questionnaire which he signed on 24 April 2002 and returned. On the questionnaire he said that he had three to four asthma attacks a day and ticked problems with getting up from a chair (sometimes), bending or kneeling (sometimes), walking, walking up and down stairs, reaching, and lifting and carrying. The problems either existed when he had an asthma attack or were brought on by the exertion required for activities. He also sent in a Med 4 statement dated 17 April 2002 which referred to severe shortness of breath, especially on exertion and frequent exacerbations of asthma. The claimant attended for medical examination on 24 June 2002. His statements included that he had been admitted to hospital with asthma for three days in May 2002, that his asthma was worst in the morning and late afternoon (the examination started at 13.48) and that got short of breath after walking 200 metres. The examining medical practitioner (EMP) found that the clinical evidence of asthma on examination did not support the claimant's choice of descriptors and assessed him as having no problems on any physical or mental health descriptors except for walking (where he put the limit at 800 metres). The claimant's chest sounds were clear, with no wheezes, and peak flow was measured at 380 litres per minutes (600 predicted).

3. On 9 July 2002 it was decided to supersede the existing decision on incapacity for work and replace it with a decision that the claimant was not incapable of work for credits purposes from and including 9 July 2002 as he did not satisfy the personal capability assessment. He appealed. His representative, from the Disability Rights Advisory Service (DRAS), submitted a letter on which the claimant's GP on 18 July 2002 endorsed the following as an accurate description of the problems the claimant experienced with his asthma:

"[The claimant] tells me that he suffers from severe asthma and as a result of this he is incapable of work. He explained to me that he has 3-4 asthma attacks per day which take a long period of time to recover from. He also informs me that when he carries out the lightest of duties, it results in him getting very breathless, wheezing and bringing on dizzy spells. [The claimant] also tells me that he has very restless nights because of his asthma which leaves him very tired the following day."

4. The claimant attended the appeal tribunal hearing with his wife and Mr Mackenzie of DRAS. Mr Mackenzie limited the descriptors in issue to rising from a chair, bending or kneeling, walking/stairs and lifting and carrying. The claimant gave quite detailed evidence, including that in a week he would typically have six bad days and one good day. Mr Mackenzie submitted that the claimant had three to four asthma attacks per day, varying in length from 10 minutes to half an hour or an hour, with the worst attacks being in the morning. He also submitted that if the claimant was bad enough in the morning to justify a descriptor, he should get the appropriate points. I take the rather brief note at the end of page 7 of the chairman's record of proceedings as confirming that a submission along those lines was made.

5. The appeal tribunal disallowed the claimant's appeal. Having set out what the claimant had said on his IB50 questionnaire, what the EMP had reported and what the claimant had said at the hearing, the statement of reasons continued:

"The claim made by and on behalf of [the claimant] is outweighed by the findings of the Examining Medical Practitioner. The report is preferred because it is expert and objective and contains clinical findings to support its conclusions. It is a detailed report which is based on discussion with, observation and clinical examination of [the claimant] and which focuses on the criteria for Incapacity Benefit. It is also consistent with the Tribunal's own (albeit limited) observations of [the claimant] during the hearing referred to above [that he did not cough during the hearing], and does not accord with [the claimant's] self-assessment in his IB50 of 74 points."

The statement went on to accept that the claimant had some difficulties and awarded three points each for sometimes not being able to rise from sitting and sometimes not being able to bend or kneel. It also accepted, on the basis of what the claimant had said about walking to the tribunal venue from the station that he could not walk more than 400 metres without stopping or severe discomfort (three points). It accepted that he had problems with stairs, but because of the aggregation rule nothing was added to the three points for walking. It concluded that the exertion of lifting and carrying would not cause excessive stress, so that no points were justified. The total of nine points was below the necessary 15.

6. When applying for leave to appeal, at least when the case reached the Commissioner, Mr Mackenzie submitted, apart from a general challenge to the adequacy of the appeal tribunal's reasoning and to the acceptance of a snapshot assessment by the EMP, that the appeal tribunal's decision was inconsistent with regulation 15 of the Social Security (Incapacity for Work) (General) Regulations 1995:

"15. A person who at the commencement of any day is, or thereafter becomes, incapable of work by reason of some specific disease or bodily or mental disablement shall be treated as incapable of work throughout that day."

7. When granting leave to appeal I suggested that it was arguable that the appeal tribunal should have dealt expressly with the argument put to it based on regulation 15. The representative of the Secretary of State, in the submission dated 3 April 2003, did not support the appeal, on the basis that adequate reasons had been given. After I had referred to three Commissioners' decisions on the effect of regulation 15, the submission dated 12 June 2003 expressed the view on behalf of the Secretary of State that the regulation did not apply to the circumstances of the present case as found by the appeal tribunal. Mr Mackenzie disagreed and in particular submitted that decision CIB/243/1998 should be applied.

8. I find the scope of the application of regulation 15 difficult to define, and the Commissioners' decisions mentioned somewhat difficult to interpret. It is perhaps not surprising some subsequent decisions have merely referred appeal tribunals to the three Commissioners' decisions without attempting to say if they are irreconcilable and, if so, which is right (rather echoing the approach in the commentary on regulation 15 in volume 1 (Non Means Tested Benefits) of Social Security Legislation 2002). But that is not a satisfactory position in which to leave appeal tribunals or those who make decisions on behalf of the Secretary of State.

9. The two main decisions concerned are CIB/6244/1997, a decision of Mr Commissioner Jacobs signed on 14 October 1998, and CIB/243/1998, a decision of Mr Deputy Commissioner Mark signed on 29 October 1998. It is apparent that neither author knew of the other's case or had the opportunity to consider the other's reasoning. And both decisions were given well before that of the Tribunal of Commissioners in R(IB) 2/99, which also has to be taken into account.

10. In CIB/6244/1997 the claimant suffered from chronic fatigue syndrome, the effect of which on her fluctuated. Mr Commissioner Jacobs gave general guidance on the approach to what he called variable and intermittent conditions, in terms which have to some extent (it may be more a matter of expression than the underlying principle) been overtaken by R(IB) 2/99. Having set aside the decision under appeal he gave directions about regulation 15 to the new appeal tribunal which would rehear the case. The first point, which I think is undisputed, is that regulation 15 has the effect that fractions of a day are ignored in determining incapacity for work. Either a person is incapable of work for a day or is not incapable for a day. He went on to say this in paragraphs 22 and 23:

"22. Although the claimant's capacity for work is determined at a particular time on a particular day, in determining whether the claimant is or is not incapable of work at any particular time on any particular day, it is not possible to confine consideration solely to that time on that day. The reason lies in the proper use of language. In determining whether a person `cannot' perform a particular activity, it is appropriate to take into account how long the inability is likely to continue, whether it is likely to recur and, if so, at what intervals.

For example: if a claimant at 2 o'clock in the afternoon on 1st April suffers an acute prolapsed intervertebral disc and becomes bedridden as a result, it could be said as a proper use of language that at the time the claimant `cannot' perform a whole range of activities in the physical disabilities section of the all work test, the scores from which would be sufficient to satisfy that test, making the claimant incapable of work. The reason is that the claimant's incapacity is an ongoing one.

However, if a claimant is unable to perform an activity at one moment, but may be able to do so in the next moment, it is not necessarily a proper use of language to say in the context of the all work test that the activity `cannot' be performed.

For example: in order to apply the all work test to a claimant who is disabled by low back pain that varies from time to time and from day to day, it is necessary to take a broader picture of the claimant than the disability on that day at that time.

That this is correct is underlined by the existence of some descriptors that apply where a disability is experienced `sometimes': see descriptors 5(c) and 6(c), which relate to rising from sitting and bending and kneeling. If the test could be applied at a particular moment and no consideration need be given to the claimant's capabilities at any time other than that moment, the claimant would always satisfy the `cannot' descriptors and these `sometimes' descriptors would never apply.

23. So far as tribunals are concerned, regulation 15 will apply where there is a sudden onset of or recovery from an incapacitating condition, including an intermittent incapacitating condition or the incapacitating intermittent features of a condition. It does not operate to ensure that a claimant with a variable condition that incapacitates him for a part of each day must be considered as incapacitated throughout the whole of every day."

11. The Commissioner mentioned that the conclusion of Mrs Deputy Commissioner Ramsey in decision CIB/15482/1996 was in line with the above approach, although the terms used differed. In view of that, I take into account the more extensive reasoning in CIB/6244/1997.

12. In CIB/243/1998 the claimant suffered from asthma. His evidence included that he had severe and unpredictable attacks, especially first thing in the morning or in the winter. Mr Deputy Commissioner Mark found that the appeal tribunal had given adequate reasons for concluding that the claimant could normally perform any physical descriptor as and when called on to do so, but it had failed to consider the application of descriptors 5(c) and 6(c), the "sometimes" descriptors. It had also failed to consider whether there were any particular days or periods during the period in issue on which the claimant was incapable of work. The Deputy Commissioner said the following about regulation 15 in paragraph 13:

"This means that if the claimant suffers an asthma attack which does not last the whole day, he is still to be treated as incapable of work during that day, provided, of course, that the effect of the attack is that he would score 15 or more points using the descriptors for more than a minimal period."

13. In my judgment, that statement is not correct. For the reasons given by Mr Commissioner Jacobs in CIB/6244/1997, which I find persuasive, it is not possible to conclude that points are scored for descriptors other than the "sometimes" descriptors merely because the condition in the descriptor is met for some time during a day. At least in cases where the particular effects of the claimant's physical disablement fluctuate, a longer period must be looked at before it can be said that a person cannot carry out some activity. Only then can the points be scored. Regulation 15 does not bite until it can be said that a person is incapable of work. It does not bite on the individual questions to be answered in reaching an overall conclusion on incapacity for work.

14. I would have reached that conclusion simply on my acceptance of Mr Commissioner Jacobs' reasoning. In addition it seems to me that the statement in paragraph 13 of CIB/243/1998 cannot stand with the decision of the Tribunal of Commissioners in R(IB) 2/99. The Tribunal was concerned to set out the principles to be followed where the effects of a disabling condition fluctuate. Although it did not find the distinction between variable and intermittent conditions helpful, it accepted that it was not necessary for the all work test literally to be satisfied for every day of entitlement. A broader approach could be taken to the "cannot" conditions, involving looking at all the circumstances over a period, without straying too far from the arithmetical approach that if the unaffected days outnumber the affected days the condition is not met. The Tribunal was mainly concerned with variability from day to day, rather than within a day. But it did, in paragraph 10, endorse the "reasonable regularity" test, which I think is inconsistent with a view that if a person on any day meets the terms of a "cannot" descriptor or descriptors scoring 15 points for some non-trivial period that is a day of incapacity. And part of the case for the claimant in R(IB) 2/99, who suffered from post-viral syndrome, was that her symptoms fluctuated from hour to hour, as well as from day to day. It was argued that on some days she might start work feeling capable of doing so, but be exhausted by the exertion, apparently later in the same day. The appeal tribunal's decision was set aside because it failed to deal properly with the significance of the EMP's comment that the claimant tired easily. It is noteworthy that nowhere in its decision did the Tribunal of Commissioners refer to regulation 15. If regulation 15 did have the effect given to it in CIB/243/1998, the Tribunal could not have avoided mentioning what would have been a very important practical qualification to the principles it set out. I therefore conclude that the assumption of the learned Commissioners was that regulation 15 did not have that effect.

15. Applying all that to the appeal tribunal's decision in the present case leads to this conclusion. I am satisfied that the appeal tribunal should have dealt specifically with Mr Mackenzie's contention based on regulation 15 and, if it rejected it, said why. However, since in law regulation 15 does not have the effect argued for by Mr Mackenzie, I would be reluctant to allow the claimant's appeal to the Commissioner solely on the ground of the appeal tribunal's failure to deal with the point. At best for the claimant on that basis, I would set aside the appeal tribunal's decision and substitute a decision to the same effect.

16. Two other failures convince me that I should set the decision aside and give the claimant another chance to put his case to a new appeal tribunal. The first is that the appeal tribunal did not say at all what it made of the supportive statement of 18 July 2002 from the claimant's GP. The second is that the appeal tribunal did not, in the light of the following circumstances, make sufficient findings of fact to enable it to apply properly the principles set out in R(IB) 2/99. It was not clear from the EMP's report whether his choice of descriptors was based on what the claimant could do when not having an asthma attack or was based on some assessment of the frequency and severity of attacks. The appeal tribunal, having first preferred the EMP's report to the claimant's case, then accepted from his evidence that he would have some problems from his asthma beyond those accepted by the EMP. It found the two "sometimes" descriptors met, apparently because of how an attack would affect the claimant, and accepted a limitation on walking and going up and down stairs which the EMP had rejected. The problem is that, although some of the claimant's evidence was set out, there were no findings of fact on how many asthma attacks the claimant had on a typical day, how bad they were, how long they lasted, what the pattern was through the day and what the variability was from day to day. In those circumstances, there were not enough clear findings of fact, in the light of R(IB) 2/99, on which to base the appeal tribunal's conclusion that none of the "cannot" descriptors, apart from walking and stairs to a limited extent, were satisfied.

17. For those reasons I set aside the appeal tribunal's decision of 2 October 2002 and refer the claimant's appeal against the decision dated 9 July 2002 to a differently constituted appeal tribunal for determination in accordance with the following directions. There must be a complete rehearing of the appeal on the submissions made and evidence produced to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunal of 2 October 2002. The new appeal tribunal must apply the interpretation of regulation 15 of the Social Security (Incapacity for Work) (General) Regulations 1995 set out above and must also apply the principles set out in Tribunal of Commissioners' decision R(IB) 2/99. I need give no further directions of law about the personal capability assessment as the test of incapacity for work. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new appeal tribunal. The decision on the facts in this case is still open.

(Signed) J Mesher

Date: 18 September 2003

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