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1. This appeal, brought with leave of the tribunal chairman, fails. The decision of the tribunal on 13 5 03 was not erroneous in law. The appellant’s writing activities during the relevant weeks between 7 6 99 and 8 12 01 did amount to “work” under regulation 16(2) of the Social Security (Incapacity for Work) (General) Regulations 1995, for the reasons the tribunal gave in paragraphs 2-8 of its decision. As this work was not “undertaken on the advice of a doctor” within regulation 17(1)(a) of those regulations, it was not “exempt work” and was therefore not to be disregarded in relation to the claimant’s incapacity benefit. I explain this further below.
2. The tribunal directed the claimant and the decision maker to try and agree a schedule of weeks in the relevant period during which no work was done, with liberty to apply to the tribunal if agreement could not be reached. Happily, agreement has now been reached (page 155) on which weeks were “relevant” as referred to in paragraph 1 above, and I need not concern myself further with this aspect. I see that a recoverable overpayment decision has now been made (page 156), but this was of course not before the tribunal, and it is not before me.
3. The chairman gave leave to appeal on three questions only. She wondered 1) how specific the advice about work had to be, 2) how close in point of time to the work being carried out, and 3) what should be the qualifications of the person giving advice? The claimant still wants these points decided.
4. Three pieces of evidence with medical connotations were relied on by the claimant. There was Dr Cuthbert’s report of 12 12 01. The consultant clinical psychologist Mr Pitkethly reported having worked with the claimant in 1993-4. She had mentioned that writing short stories was one of her social activities. Part of his treatment was to encourage her to engage in pleasurable or rewarding activities to help occupy her thoughts. Mr Pitkethly has since the tribunal’s hearing expanded on his original letter and asks me to conclude that the claimant had acted “as if” she had been advised to write short stories as therapeutic work. Finally, the claimant herself has referred to support from a physiotherapist.
5. It will clear the air if I say that the activities characterised by the tribunal as “work” very likely were beneficial to the claimant’s condition; certainly both Dr Cuthbert and Mr Pitkethly think so. Nor do I understand the tribunal to have decided otherwise.
6. However, whether they could qualify as “exempt work” that the claimant could do without legally prejudicing her incapacity award depends on regulation 17(1)(a) of the 1995 Regulations. At the relevant time, this defined exempt work as, among other things which do not apply here,
work undertaken on the advice of a doctor which –
(i) helps to improve, or to prevent or delay deterioration in, the disease or bodily or mental disablement which causes that person’s incapacity for work…
7. “Doctor” is defined in regulation 2(1) as “a registered medical practitioner”. “Registered medical practitioner” is in turn defined in Schedule 1 of the Interpretation Act 1978 as “a fully registered person within the meaning of the Medical Act 1983”. This is a person on the register maintained by the General Medical Council, having a bachelor’s qualification from a university or being a licenciate of the Royal Colleges of Physicians or Surgeons (or Scottish equivalents) or of the Society of Apothecaries of London (1983 Act, ss3 and 4). There are also qualifying examination and experience requirements (s2). The definition would thus exclude from being a “doctor” within the regulations not only the physiotherapist but also, most probably, Mr Pitkethly too. He does not use the title “Dr” (the tribunal was mistaken in calling him this), and this is a courtesy title which is commonly applied to all registered medical practitioners except consulting surgeons. For what it is worth, I have also checked a recent Medical Directory, in which all persons on the register are invited to appear, and he does not. This is not in any way to denigrate his expertise or experience, but is simply an additional reason to exclude his evidence from consideration.
8. This leaves Dr Cuthbert, who, as is common ground, did not advise the claimant to undertake the writing work until it had been going on for some considerable time. Regulation 17(1)(a), which came into effect on 13 4 95, marked a clear change from the previous nearest equivalent, regulation 3(3)(ii) of the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1983. This referred to work “which [the claimant] has good cause for doing”, a formulation not limited to medical factors but encompassing other reasons such as necessity, emergency or, in one case, helping to keep a spouse’s business going in the hope that it would provide a living. Under this formulation, it was accepted by legal decisions that medical endorsement might be shown retrospectively. Dr Cuthbert’s report, even though given two-and-a-half years after the work began, would probably have been sufficient on this basis.
9. But the altered wording requires, it seems to me, considerable specificity about the actual work to be undertaken and the favourable impact it might have, in any of the ways recited in (i), on the condition causing incapacity for work. This specificity is reflected in the form DL/S 603 which is issued to GPs and which asks what specific objectives the doctor expects the work to achieve for the patient’s future progress and whether it will help to improve, or prevent or delay the deterioration in the disease or disablement which causes the incapacity for work. This was the form (pages 41-45) completed by Dr Cuthbert in December 2001.
10. The wording of such forms is of course not legally binding, reflecting as it does only the government’s view of the policy it is pursuing, a view which may judicially be held not justified by the wording of the regulations. But it can be an indicator where, as here, disputes arise about both the specificity and the timing of advice given. The wording of the questions to the GP also indicates that a future state of affairs is contemplated: what specific objectives does the GP “expect” this work to achieve in relation to “future” progress, “will” the work help to improve, etc.
11. Mr Commissioner Walker in CIB/1749/97 decided the new wording required the doctor’s advice to have been given in advance of starting the work, and indeed that it should later be shown that the work had actually had the hoped-for effect (as reflected in the further question on form DL/S 603 about when the doctor planned to review the effect of the work). On the facts of the present case, I do not need to express a view on this additional requirement; but I see no reason to depart from the commissioner’s finding on when the advice has to be given.
12. The 1995 provisions (which were altered again in 2002) imposed a stringent system contemplating advice given in advance on specified work and its hoped-for benefits. Dr Cuthbert’s retrospective report did not satisfy these requirements. Nor, if I am wrong about Mr Pitkethly’s not being a registered medical practitioner, would his general advice given five or six years earlier that the claimant should pursue activities she found pleasurable or rewarding (which at that time included, among other things, writing short stories). I cannot treat the matter “as if” the claimant had received his advice to do what she did, when we know she did not receive it. Whatever arguments there might be in individual cases about days or weeks (which would be matters of fact for a tribunal), the lapse of time here would have been too long.
13. The appeal must therefore fail. The tribunal reached conclusions that were fully open to it on the evidence, and which were correct in law.
(signed on original) Christine Fellner
19 February 2004