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DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(a)(ii) of the Social Security Act 1998. It is:
I SET ASIDE the decision of the Wakefield appeal tribunal, held on 5 November 2003 under reference U/01/008/2003/02336, because it is erroneous in point of law.
I make findings of fact and give the decision appropriate in the light of them.
I FIND as fact that the claimant has Type 1 (insulin dependent) diabetes. That condition is potentially controllable. In the claimant’s case, it is not under perfect control, but it is sufficiently controlled for the purposes of regulation 27(2)(a) of the Social Security (Incapacity for Work) (General) Regulations 1995.
My DECISION is that the claimant was not incapable of work and not to be treated as incapable of work on and from 14 May 2003.
The appeal to the Commissioner
2. This is an appeal by a claimant, brought with the leave of Mr Commissioner Lloyd-Davies. The Secretary of State does not support the appeal.
History and background
3. The claimant has Type 1 (insulin dependent) diabetes and problems with his joints and spine.
4. He was accepted as incapable of work on and from 24 December 2000.
5. In 2001, his capacity for work was assessed under the personal capability assessment. The Secretary of State’s decision-maker decided that he did not satisfy the assessment and could not be treated as incapable of work. An appeal to an appeal tribunal was successful on the ground that the claimant was to be treated as incapable of work under regulation 27(2)(a) of the Social Security (Incapacity for Work) (General) Regulations 1995.
6. In 2003, the claimant’s capacity for work was again assessed under the personal capability assessment. The Secretary of State’s decision-maker decided that he did not satisfy the assessment and could not be treated as incapable of work. The claimant appealed against this decision. His letter of appeal refers to a number of matters, including in substance regulation 27(2)(a). The tribunal dismissed the appeal. The chairman’s statement of the reasons for the tribunal's decision does not refer to regulation 27(2)(a).
How the tribunal went wrong in law?
7. The tribunal went wrong in law, because the tribunal did not deal with the application of regulation 27(2)(a), which was an issue that was expressly raised by the claimant on his appeal. He did not refer to the precise provision, but his letter of appeal clearly put the substance of that provision in issue. The tribunal’s decision must be set aside.
Is a rehearing necessary?
8. A rehearing is not necessary. I am able to substitute a decision for that of the tribunal on the evidence before me.
Did the claimant satisfy the personal capability assessment?
9. I have to deal with this issue first. Regulation 27 only applies if the claimant does not satisfy the personal capability assessment.
10. The claimant has completed two self-assessment questionnaires, one in 2001 and the other in 2003. On both forms, he identified disabilities that in number and nature were sufficient for him to satisfy the personal capability assessment. Neither medical adviser who examined him supported his self-assessment. Both gave the opinion that he only scored 3 points. In 2001, those points were for walking. In 2003, those points were for sitting. The previous tribunal dealt with the case under regulation 27, which presupposes that it decided that the claimant did not satisfy the personal capability assessment.
11. The claimant has criticised the tribunal’s findings on the personal capability assessment. However, his criticisms are not particularised or supported by argument. I find that the claimant’s disabilities fall well short of the 15 points necessary to satisfy the personal capability assessment. His account of those disabilities is not supported by the objective evidence of the clinical findings of the medical advisers. Nor is it supported by their expert opinions. Those opinions are consistent with the claimant’s admitted activities and his lack of medication for pain.
12. My conclusion is that the claimant did not satisfy the personal capability assessment. Even if I took the points awarded by both medical advisers, he would only score 6 points.
Did regulation 27(2)(a) apply to the claimant?
13. Regulation 27 provides:
‘(1) A person who is not incapable of work in accordance with the personal capability assessment shall be treated as incapable of work if any of the circumstances set out in paragraph (2) apply to him.
‘(2) The circumstances are that-
(a) he is suffering from a severe life threatening disease in relation to which-
(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure, and
(ii) in the case of a disease which is uncontrolled, there is a reasonable cause for it not being controlled by a recognised therapeutic procedure’.
14. I accept the letters from the claimant’s Consultant Physician of 27 December 2001 and 9 September 2003.
15. The former letter was written in connection with an earlier appeal. It explains that it is not the practice to admit patients into hospital just to stabilise control of the condition. This practice was abandoned over 20 years ago.
16. The latter letter deals with the claimant’s condition. It reports that the claimant’s diabetic control is ‘less than satisfactory’ and ‘has remained poorly controlled’, despite the fact that he has never missed an appointment in 12½ years and receives advice and support from the diabetic team. The claimant’s control may have been hampered by the difficulties in balancing the pressures and commitments of work against the need to control his condition. His control improved when he was not working. The letter goes on to explain that without insulin the claimant’s life expectancy would be a matter of days and that the condition can lead to chronic complications, which carry their own risks.
17. There is no doubt that diabetes is controllable. As the Consultant writes: ‘in most cases a reasonable level of control of blood sugar is attainable.’ The issue for me is: what is the test for whether the condition is ‘controlled’ for the purposes of regulation 27(2)(a)?
18. The claimant’s argument in effect is that his condition is not perfectly controlled and that he therefore satisfies regulation 27(2)(a).
19. The Secretary of State’s representative argues that perfect control is not necessary. The claimant’s control is sufficient to take him outside the scope of regulation 27(2)(a), because there is no evidence that the claimant’s poor control has led to other health problems or to any hospital admissions.
20. On the basis of the Consultant’s evidence, I reject the lack of hospitalisation as irrelevant. I accept that the presence of other related health problems may be relevant as evidence of the extent to which a claimant’s diabetes is controlled. However, I do not consider that this is alone sufficient as a test of the level of control necessary to satisfy regulation 27(2)(a).
21. Regulation 27 deals with cases in which the claimant does not satisfy the personal capability assessment. By definition it only applies to cases in which the claimant is capable of work by that standard. It is, therefore, not appropriate to apply a test of whether the level of control is sufficient to allow the claimant to work; that test would always be satisfied.
22. The regulation applies in cases where a claimant is capable of work but has a condition that makes it appropriate that the claimant should not be expected to work. In the case of regulation 27(2)(a) what makes that appropriate is the fact that the condition is a threat to the claimant’s life. That suggests that the threshold for control should be whether the control is sufficient to remove the threat to the claimant’s life.
23. Applying that test, the Consultant’s evidence does not suggest that the claimant’s diabetic control is so poor that there is an immediate threat to his life. There remain, of course, the longer term complications that the Consultant referred. However, the evidence does not show that the claimant has any of those complications at present, let alone that they are currently threatening his life.
24. Accordingly, the evidence shows that the claimant’s diabetes is poorly controlled, but it is nonetheless sufficiently controlled that regulation 27(2)(a) does not apply to him. As a result, he cannot be treated as incapable of work.
25. The tribunal went wrong in law by failing to deal with an issue that was expressly raised by the claimant on his appeal. I must set the tribunal’s decision aside. However, the evidence allows me to substitute a decision without the need for a rehearing before an appeal tribunal. My decision is to the same effect as that of the tribunal.
Signed on original
on 18 May 2004 Edward Jacobs