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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 Stevenage appeal tribunal under reference U/42/137/2003/00381, held on 8 October 2003, 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 are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. In particular, I direct the appeal tribunal that:
It must investigate and determine the claimant’s capacity for work and entitlement to incapacity benefit on and from 15 July 2003.
It must not take account of circumstances that were not obtaining at that time: see section 12(8)(b) of the Social Security Act 1998, as interpreted in R(DLA) 2 and 3/01.
If there is variation in the claimant’s disabilities, it must apply the approach laid down by the Tribunal of Commissioners in R(IB) 2/99.
Finally, it must follow and apply my analysis of regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995.
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. The Secretary of State does not support the appeal.
The history of the case
3. The claimant was accepted as incapable of work on and from 20 December 2000. In 2003, his capacity for work was assessed under the personal capability assessment. He completed a self-assessment questionnaire before being interviewed and examined by a medical adviser for the Secretary of State. On the basis of the adviser’s opinions, the Secretary of State’s decision-maker decided that the claimant was no longer incapable of work on and from 15 July 2003. The claimant exercised his right of appeal against that decision, but the appeal tribunal confirmed the Secretary of State’s decision. On appeal to the Commissioner, the claimant’s representative has identified two possible ways in which the tribunal went wrong in law.
4. This activity is defined by paragraph 2 of the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 as follows:
‘Walking up and down stairs.’
All the descriptors are defined in terms of
‘a flight of 12 stairs’.
5. The claimant completed his self-assessment on this activity as follows. He amended one descriptor by crossing out some of the words:
‘I have no problem walking up and down stairs √’
He thereby indicated that he had a problem going up stairs but not down. He then wrote:
‘Walking down stairs is no problem. Climbing more than 15 stairs causes breathlessness and severe chest pain.’
The claimant’s argument
6. The claimant put a written submission to the tribunal. It was written with the help of his CAB representative, who was unable to attend the hearing. It expressly asked the tribunal to consider the activity of stairs. It referred to a Commissioner’s decision and asked the tribunal to consider the claimant’s capacity under this activity in the context of repetition and reasonable regularity of performance.
7. The tribunal did not refer to this activity. On the evidence alone, that would have been acceptable. The medical adviser found no problem with negotiating stairs. And the claimant’s own evidence in his questionnaire showed that he had no disability in terms of the descriptors. He had a problem, but only with flights of 15 stairs.
8. But the tribunal did not just have the evidence from the claimant and the medical adviser. It also had the claimant’s written submission. In view of the contents of that submission, it should have investigated further. The reference to 15 stairs was not decisive in the claimant’s favour, but it was sufficient together with the specific request to raise the issue of repetition and regularity.
9. The tribunal went wrong in law by not dealing with this issue.
10. In view of my decision on negotiating stairs, I do not have to decide whether the tribunal went wrong in law on the application of this regulation. However, in view of the comments made by the district chairman when granting leave, I need to deal with it in order to direct the appeal tribunal at the rehearing.
11. On the inception of incapacity benefit, regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 provided:
‘27. A person who does not satisfy the all work test [now the personal capability assessment] shall be treated as incapable of work if … -
(b) he suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work’.
12. Regulation 27 was revoked and a new version inserted with effect from 6 January 1997. However, the Court of Appeal has decided that the procedure for the revocation of regulation 27(b) did not comply with the statutory enabling authority. See Howker v Secretary of State for Work and Pensions, reported as R(IB) 3/03. The result is that the original version continues to apply.
13. The claimant’s argument, as put by his representative in the grounds of appeal, is this:
‘I do not have any solid diagnosis of my health problem, but I know that my ability to breathe and my heart’s ability to pump blood is affected. In those circumstances I submitted without knowledge of what could be dangerous to me and/or how to treat my condition it could be endangering me to go to work; if that is not the case I would like to know why it is not.’
The claimant had had extensive tests on his heart, but nothing abnormal had been found. He has anxiety and depression, which could perhaps have accounted for the symptoms, but there is no evidence that they have ever been linked to those diagnoses.
14. On granting leave, the district chairman wrote:
‘The appellant submits exceptional circumstances apply as his undiagnosed bodily disablement may produce symptoms when performing anything physical, that will be positively dangerous to him. As no diagnosis has been made can the appellant be found to be suffering from a specific bodily disablement?’
15. The expression ‘specific disease or bodily or mental disablement’ has been used in a number of places in the social security legislation. The relevance of diagnosis, identified by the district chairman, also arises on the similar wording used for disability living allowance and attendance allowance – ‘so severely disabled physically or mentally’.
16. The meaning of ‘specific … disablement’ was analysed by Mr Commissioner Edwards-Jones in CS 7/82. The Commissioner was there concerned with whether a claimant’s refusal to work was a symptom of a personality disorder, and so a disablement, or merely a matter of personal choice. In paragraph 21(1), the Commissioner wrote:
‘It is convenient to interpose at this point that whilst the statutory formula “some specific disease or bodily or mental disablement” clearly imports attributing “specific” so as to qualify “bodily or mental disablement” no less than “disease” the expression “specific mental disablement” to my mind draws from the word “specific” no more stringent qualification than that the mental disablement must be of a kind known to medical science and identified by appropriate terminology. In particular I do not consider it to import a requirement of aetiological attribution, and have in mind in that regard that in the parallel field of physical disease such precision is often impracticable in circumstances in which no one could doubt the condition to be one qualifying the sufferer as regards incapacity for work – e.g. “pyrexia of unknown origin”. See also as to this the recent decision CS 4/82 (not reported) holding “dyslexia” a specific disablement.’
17. It is important to distinguish between
• what has to be proved;
• the evidence to prove it; and
• the standard to which proof is needed.
18. What has to be proved? The approach taken by Mr Commissioner Edwards-Jones is in line with the approach taken by Commissioners since his decision: a recognised medical condition is required. It is sufficient to cite three recent decisions from different parts of the United Kingdom: R 2/99 (IB), paragraph 8 by Mrs Commissioner Brown in Northern Ireland; CSDLA/0552/2001, paragraph 27 by Mrs Commissioner Parker in Edinburgh; and CDLA/0944/2001, paragraphs 9 and 10 by Mr Commissioner Henty in London.
19. How can it be proved? A diagnosis is useful evidence, but it is neither necessary nor decisive. An appeal tribunal may in appropriate circumstances refuse to accept a diagnosis, although it has to explain why. And it may, again in appropriate circumstances, make a diagnosis without any medical evidence, although again it has to explain why.
20. I respectfully agree, subject to two qualifications, with what Mrs Commissioner Brown wrote in R 2/99 (IB), paragraph 11:
‘I do not think that it is necessarily an error of law for a Tribunal to find, without supportive medical evidence, that a claimant is suffering from a mental disease or disablement, but in view of the fact that the Tribunal does not have medical expertise and is not qualified to make a diagnosis, it must obviously be extremely hesitant so to do and should be extremely specific in any findings that it makes as to the nature of the said illness or disablement before moving on to make findings on the mental health descriptors.’
The two qualifications I would make to that passage are these. First, at the time of that decision adjudication on appeal was by a lay tribunal, advised by a medical assessor who was not a member of the tribunal. Now, if the personal capability assessment is also in issue, the tribunal will include a medically qualified panel member. If that is so, it will be easier for the tribunal to make a diagnosis on the evidence available. My second qualification is that the claimant is entitled to a fair hearing. It may, depending on the circumstances, be appropriate for the tribunal to warn the claimant of its intention and allow a chance to obtain further evidence. This applies whether the tribunal is considering making its own diagnosis or disagreeing with one that is in evidence.
21. Mrs Brown’s comments are further subject to the point made by the Tribunal of Commissioners in Northern Ireland in C38/03-04(DLA), paragraph 20(3), with which I respectfully agree:
‘It is for the medical authorities to decide whether a particular physical or mental condition exists, how it is to be classified and how it is to be recognised. If there is general consensus among such authorities as to the existence of a particular condition it is not for a tribunal, however sceptical and even if containing a medical member, to deny its existence. To do so will normally amount to an error of law.’
22. The cogency of a diagnosis will vary according to the following factors:
• The nature of the condition – some medical conditions are easier to diagnose then others.
• The grade of the doctor making the diagnosis – the more qualified the doctor in the relevant area of medicine, the sounder the diagnosis is likely to be.
• The information on which the diagnosis was based – the nature of the condition will determine the comparative importance of symptoms, signs, radiological evidence and laboratory analysis.
• The certainty with which the diagnosis was made – this is reflected in the qualifying adjectives that may be applied to a diagnosis, like provisional, presumptive, working, or firm.
For example, an initial diagnosis by a GP based on the claimant’s history and a brief examination at an initial consultation will not be as persuasive in evidence as a diagnosis made by a Consultant after extensive investigations.
23. The cogency of the medical evidence on diagnosis is linked to the standard of proof.
24. What is the standard of proof? The standard of proof is, of course, not the only factor that may affect the significance that a tribunal attaches to a diagnosis or a failure to make one. But it provides a potential explanation for a tribunal’s decision not to treat the medical evidence as decisive.
25. Proof is on the civil standard of the balance of probabilities. This may differ from the standard that has been applied in the medical evidence. An initial diagnosis may have been made on very limited evidence that does not satisfy the burden of proof. And a failure to make a firm diagnosis may indicate no more than that the doctors who have care of the claimant are applying a higher standard than the civil standard used by the tribunal.
26. Cumulatively, these points come to this. Regulation 27(b) only applies if the tribunal finds that the claimant has a medically recognised condition. That decision is made on the balance of probabilities. It is not necessary to have medical evidence of a diagnosis of a particular condition. Nor is medical evidence of a particular diagnosis necessarily decisive. It must be assessed in the context of the evidence of the whole. That assessment will make use of the knowledge and experience of the medically qualified panel member, if one is sitting.
27. A tribunal will even be entitled, if the evidence allows it, to find that the claimant has a medically recognised condition, albeit that the precise condition has not been identified. Take this example. The claimant is experiencing episodes of altered consciousness. One possible cause may be epilepsy. Other possibilities to be investigated are low blood pressure, diabetes and perhaps spondylosis. The claimant is still being investigated and no definitive diagnosis has been made. Provided that the tribunal believes that the claimant is experiencing altered consciousness, it would be entitled to find that there must be a medically recognised condition that is the cause.
28. The claimant has told me that, following further tests, he has been diagnosed as having coronary spasms. He describes this as meaning that his heart is sound and the arteries clear, but that the arteries ‘go into spasm with exertion or stress’. That evidence was not before the tribunal, because the tests which showed this were not undertaken until after the tribunal hearing. Nonetheless, it is admissible in evidence at the rehearing, provided that it relates to the time of the decision under appeal. That should not be difficult to show given the history of symptoms and the course of the investigations.
29. The tribunal must assess the probative value of this evidence of diagnosis in the context of the evidence as a whole. It will not be obliged to accept it. If it does accept it, it must then investigate the effects of the condition on the claimant and on his capacity to work. It must then determine whether the claimant satisfies the conditions for regulation 27(b) to apply.
The trigger factors
30. The application of regulation 27(b) is triggered by two factors. The first trigger is that there ‘would be a substantial risk’ to the health of any person. The second trigger is that the risk must arise from the claimant being ‘found capable of work’. Both of these triggers appear to give rise to difficulties of interpretation.
31. The person whose health is at risk need not be the claimant. It might be another person working with the claimant or even a customer or member of the public. But in the context of this case, it is likely that only the claimant would be affected.
32. For the first trigger, the claimant has to show that there ‘would’ be a substantial risk. That raises the issue: in the context of what work might the risk arise? It cannot be that the risk must arise regardless of what work the claimant did. That would render it redundant, because there is almost always going to be some work that a claimant could do without risk. Nor can it be sufficient that the risk would arise only in particular types of work that the claimant would never otherwise do. That would makes its scope too wide, because there will often be types of work that a particular claimant cannot do without risk.
33. For the second trigger, the risk must arise from the claimant being ‘found capable of work’. The provision does not say that the risk must arise from the claimant working. But it surely makes little or no sense to limit it to the rare cases where the decision on capacity for work would itself cause the risk to the claimant’s health.
34. It is possible to make sense of the apparent difficulties with these triggers by reading them together. The emphasis in the second trigger on the claimant being found capable of work puts the emphasis on the consequence of that decision. The capacity for work decision will in practice usually require the claimant to make a claim for a jobseeker's allowance. In order to qualify for that benefit, the claimant must be subject to a jobseeker's agreement. That agreement will set out the work that the claimant must seek in order to retain entitlement to the allowance. That work is defined taking into account the claimant’s health, qualifications, skills and experience.
35. Set in that context, the trigger factors must be interpreted as follows. The risk must be assessed in relation to the type of work for which the claimant would otherwise be required to be available. That retains the emphasis on the effect of the claimant being found capable of work. It confines within a sensible scope the range of work that must be taken into account when assessing the risk to the claimant’s health. And it makes a sensible relationship between the conditions governing entitlement to benefit for those incapable for work and for those seeking work. It prevents claimants relying on regulation 27(b) when there is work that they could do without risk to their health. But it allows claimants to rely on the provision when the work they would otherwise be required to seek would put their health, or someone else’s, at substantial risk.
36. This does not mean a return to the previous law on invalidity benefit, under which capacity for work was determined by reference to specific job descriptions suggested by the adjudication officer. It involves a wider consideration than that. It involves a consideration of the risk to health involved in the general type of work that the claimant is otherwise qualified, experienced or skilled to undertake.
Signed on original Edward Jacobs
11 March 2004