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1. I allow the claimant’s appeal. I set aside the decision of the Darlington appeal tribunal dated 18 December 2004 and I refer the case to a differently constituted appeal tribunal for determination.


2. I held an oral hearing of this appeal. The claimant was represented by Mr Philip Hanns, a senior welfare rights officer with Durham County Council, and the Secretary of State was represented by Mr Tim Buley of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions. I am grateful to both Mr Hanns and Mr Buley for their helpful submissions.

3. The claimant had been treated as incapable of work until, on 24 May 2004, it was decided that he was not incapable of work because he scored no points on a personal capability assessment. He appealed, but his appeal was dismissed by the tribunal. He now appeals against the tribunal’s decision with the leave of a tribunal chairman.

4. It was common ground before me that the tribunal’s decision is erroneous in point of law. I agree. The tribunal gave clear reasons for not accepting that the claimant was as disabled as he said he was. What the tribunal failed to do was to record any findings as to how disabled he actually was and it therefore failed to explain why it did not find the claimant to be sufficiently disabled to satisfy the personal capability assessment. As the claimant’s self-assessment would have resulted in a score of 51 points, the fact that he was less disabled than he claimed clearly did not exclude the possibility that he might score at least the15 points necessary for satisfaction of the personal capability assessment. On that ground alone, I must set aside the tribunal’s decision.

5. However, there is another point that was in issue between the parties and which I must determine in order to give guidance to the tribunal to whom I now refer the case. In Howker v. Secretary of State for Work and Pensions [2002] EWCA Civ 1623; [2003] I.C.R. 405 (also reported as R(IB) 3/03), the Court of Appeal had held that the Social Security Advisory Committee had been misled by the Secretary of State when the latter had invited the former to agree to draft regulations not being referred to them (see section 173(1)(b) of the Social Security Administration Act 1992) and that, therefore, an amendment made to regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995 by the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996 was not valid. The 1996 Regulations made a number of other amendments to the 1995 Regulations, including a number affecting the descriptors in the Schedule used in what is now known as a personal capability assessment. In the present case, Mr Hanns submitted to the tribunal that the consequence of Howker was that any decision as to whether a claimant satisfied the personal capability assessment was invalid if it relied upon any of those descriptors in the Schedule to the 1995 Regulations that had been amended by the 1996 Regulations and, as I understand it, he contended that, on appeal, a tribunal had no power to remedy any defect. He sensibly did not pursue that point before me but he did rely on R(IB) 3/04, in which Mr Commissioner Jacobs held that, in the light of Howker, the amendment made by the 1996 Regulations to paragraph 14 of the Schedule to the 1995 Regulations was invalid. Mr Hanns argued that the amendments made to paragraph 3 were also invalid.

6. Mr Commissioner Jacobs accepted a concession by the Secretary of State that, although the Court of Appeal in Howker was concerned only with an amendment to regulation 27 of the 1995 Regulations, its reasoning could apply equally to the other amendments made by the 1996 Regulations. That is plainly right and has not been in dispute in the present case. He then went on to note that a number of the amendments were described in the Department’s memorandum to the Social Security Advisory Committee as being “neutral” and accepted a further concession by the Secretary of State –

“… that the issue for me was whether that was an accurate description of the effect of the amendment. If it was not and its effect was potentially adverse to claimants, it was covered by the reasoning in Howker.”

Having considered the terms of the amendment to paragraph 14 of the Schedule, he said –

“11. I suspect that the terms of the proposed amendment was [sic] not intended to be adverse in terms of the policy underlying the provision as originally enacted. In other words, the proposed wording reflected what the activity was always intended to cover. But that is not the test. The test is whether the change in the terms of the legislation was adverse. Whatever the activity may originally have been intended by the policy-makers to cover, it was not so drafted by the department’s lawyers.

“12. …

“13. The other amendments made to the 1995 Regulations by the 1996 Regulations are not in issue in this case. Tribunals dealing with cases involving those amendments will have to decide whether they are covered by the reasoning in Howker, which I have applied in this decision. Mr Lewis told me that all those amendments were described to the Social Security Advisory Committee as ‘neutral’ in their potential effect on claimants. The issue for tribunals will be whether that was an accurate description.”

7. In the present case, only the descriptors in paragraphs 1, 2, 3, 4, 5, 6 and 8 of the Schedule to the 1995 Regulations are in issue and, of those, only paragraphs 3, 6 and 8 were amended by the 1996 Regulations. Mr Hanns accepted that the amendments to paragraphs 6 and 8 were neutral but argued that the amendments to paragraph 3 were not neutral, submitting that the decision of Mr Commissioner Henty in CIB/1239/2004 was to be preferred to the decision of Mrs Commissioner Jupp in CIB/3397/2004.

8. Mr Buley, however, relied on the recent decision in CSIB/148/2005, where Mr Commissioner May QC not only found the amendments to paragraph 3 to be valid but did so on the ground that the approach taken in R(IB) 3/04 was wrong. He said, at paragraph 23 –

“The question before me is not whether I consider the effect of the amendment to be neutral. It is whether the Secretary of State was in breach of his duty under section 170(4) [of the Social Security Administration Act 1992] by providing incorrect information with the result that the Secretary of State and Parliament did not contain the Committee’s advice.”

9. Mr Buley submitted, in effect, that Mr Commissioner Jacobs had oversimplified the issue. The question was whether the Committee had been misled and, while a number of amendments were described as being “neutral”, that term had, he submitted, to be considered in the light of an extract from the minutes of the relevant meeting of the Social Security Advisory Committee to which Mr Commissioner May referred. The minutes recorded –

“Members queried whether the Department’s description of some of the amendments as neutral in effect was correct. The Secretary reminded the Committee that this categorisation had been agreed as applying where the proposed amendment confirmed current practice and was intended to prevent any other interpretation being placed on the regulation.”

That appears to have been a reference to an agreed definition of “neutral” in the following terms (see paragraph [13] of Howker) –

“The amendment has an effect in changing the wording but only to clarify its meaning to what it was always believed to have meant. This may arise because lawyers have realised it could mean something different. However, no one will lose or gain; the amendment imply secures what has always been the interpretation of the present wording.”

By contrast, the term “adverse“ is explained thus –

“This is used when existing claimants will lose money in future. It may only involve a few people and the loss may be of money they clearly should not have had – but there is a loss.”

If “neutral” was understood in that sense, Mr Buley submitted, Mr Commissioner Jacobs’ acceptance of the Secretary of State’s concessions and his comment in paragraph 13 of his decision could stand but what he said in paragraph 11 was wrong. The correct test is, he submitted, precisely the test that Mr Commissioner Jacobs rejected, subject only to the caveat that an amendment could not be regarded as neutral if the original wording could not, on any possible reading, have achieved the original policy intention.

10. Mr Hanns did not have any very effective response to those submissions, although he did point out that R(IB) 3/04 is a reported decision and CSIB/148/05 is not. That is not a good point because, although reported decisions are generally to be accorded more weight than unreported decisions (see R(I) 12/75), that does not apply where a later decision has considered a reported decision in detail and disagreed with it (R1/00(FC)), particularly if the latter decision is too recent to have been considered for reporting.

11. I broadly accept the approach taken in CSIB/148/05 and in Mr Buley’s submissions but I am nonetheless not convinced that Mr Commissioner May was right to say that R(IB) 3/04 was wrongly decided. I accept Mr Commissioner May’s point that, in considering the validity of any amendments made by the 1996 Regulations – or indeed any other Regulations challenged on the same grounds as here – the test is whether the Social Security Advisory Committee was misled and that a description of a proposed amendment as “neutral” was not inaccurate merely because the amendment did appear to change the effect of the legislation if the explanation given to the Committee was that the amendment only ensured that the regulation had the effect that it was previously thought by the Secretary of State to have had. I also accept Mr Buley’s qualification that the Secretary of State cannot rely on an unreasonable interpretation of a statutory provision. If the Secretary of State has operated the legislation on the assumption that it has given effect to a policy objective when, due to a drafting defect, it plainly has failed to achieve the intended result, an amendment designed to achieve the originally intended result cannot properly be regarded as “neutral” if it is less advantageous to claimants than any tenable construction of the previous legislation. The amendment would be “adverse” within the terms of the definitions mentioned above, even though “the loss may be of money [the claimants] clearly should not have had”. I would also suggest that an amendment to reverse a Commissioner’s decision would be “adverse” even if the Secretary of State’s reading rejected by the Commissioner would not previously have been regarded as unreasonable, but it is unnecessary for me to decide the point. What I do accept is that the fact that, after a memorandum is sent to the Committee, the Secretary of State’s reading of a regulation is held by a Commissioner to have been wrong does not mean that it was not a reasonable reading at the time the memorandum was sent and that a memorandum is not to be regarded as having been misleading merely because a Commissioner has subsequently taken a different view of the original legislation.

12. The reason that I prefer not to express a view as to whether R(IB) 3/04 was wrongly decided is that, although Mr Commissioner Jacobs did not consider in detail the meaning of the term “neutral” in the context in which it arose, it seems to me that paragraph 11 of his decision may implicitly include a finding that it was simply not possible to read the original wording of paragraph 14 of the Schedule to the 1995 Regulations as giving effect to the policy intention that the Commissioner believed lay behind it. Such a finding may have been open to the Commissioner and, if it was made, it would have followed that the description of the amendment as being “neutral” would have been potentially misleading to the Committee and the amendment might have been invalid. However, the position is then complicated by the fact there was some discussion about that proposed amendment at the meeting of the Committee (see paragraph 3.6 of the minutes, set out in paragraph 25 of CIB/4563/1998 (the decision of Mr Commissioner Howell QC in Mr Howker’s case)), which suggests that the Committee may not have been totally unaware of the extent of the contemplated change to the legislation. Paragraph 14 of the Schedule to the 1995 Regulations is not in issue in this case. The question of the validity of the amendment to it may have to be revisited in a case where it arises.

13. I need consider only the validity of the amendments to paragraph 3 of the Schedule. In introducing them, it was said –

“These proposals aim to remove areas of ambiguity, and, importantly, help to ensure uniform application of the test in line with the original intention.”

More specifically, the amendments to paragraph 3, which were described as being “neutral”, were explained thus –

“This activity is intended to measure the extent to which a person can sit comfortably before having to move from a chair, by which it is intended that the level of the discomfort makes it impossible to continue sitting. The proposed amendment will clarify the position”.

The actual amendments added the words “because the degree of discomfort makes it impossible to continue sitting” to the end of each of subparagraphs (b) to (e) so that, for instance, subparagraph (b) now reads –

“Cannot sit comfortably for more than 10 minutes without having to move from the chair because the degree of discomfort makes it impossible to continue sitting.”

14. Mr Buley submitted that, even if the additional words did change the meaning of the paragraph, the Secretary of State could reasonably have believed that they merely clarified it so that the amendments had been accurately described to the Committee and, in particular, it had not been inaccurate to describe them as “neutral” given the common understanding of the way that term was being used. Accordingly, he submitted that, whereas the explanation of the amendment to regulation 27 was clearly inaccurate for the reasons accepted in Howker, that could not be said of the explanation of the amendments to paragraph 3 of the Schedule and those amendments were therefore validly made because the Committee was not misled as regards them, even if they did in fact make a material difference to the paragraph.

15. Mr Hanns simply submitted that the amendments changed the meaning of the paragraph. Relying on Mr Commissioner Henty’s decision in CIB/1239/2004, he submitted that they introduced the concept of a “degree” of discomfort, whereas the paragraph had previously been in absolute terms. In my judgment, “comfortably” is itself an elastic term and the paragraph always had to be read in terms of whether the claimant could reasonably be expected to continue sitting in the light of the degree of discomfort being suffered and it was always implicit that the length of time had to be assessed having regard to when the claimant was required to move due to the degree of discomfort. Mr Commissioner Walker QC held as much in CSIB/12/1996 and it appears that Mr Commissioner Henty was not referred to that decision. I therefore prefer Mrs Comissioner Jupp’s approach in CIB/3397/2004 to the approach of Mr Commissioner Henty.

16. However, even if I accepted Mr Commissioner Henty’s view that there was a practical distinction between the paragraph as it originally stood and as it stands after the amendments, I would accept Mr Buley’s submission that the Secretary of State’s view to the contrary was not unreasonable and that the Social Security Advisory Committee was therefore not misled as to the import of the amendments. It would be a bold Commissioner who held a construction of a regulation adopted by two other Commissioners to be unreasonable, even if he disagreed with it.

17. Accordingly, I accept that the amendments made by the 1996 Regulations to paragraph 3 of the Schedule to the 1995 Regulations were validly made. The tribunal to whom I now refer this case must apply the legislation in its amended form.

18. In the light of R(IB) 7/05, Mr Hanns did not pursue an argument that the tribunal had not been entitled to rely on the electronic IB85 that was before them. The tribunal to whom this case is referred will have to consider afresh what weight to put on that document and may wish to note the comments of Mr Commissioner Howell QC in CIB/511/2005 about the risk of accidental discrepancies or mistakes being created by a system where statements or phrases can be “produced mechanically without necessarily representing actual wording chosen or typed in by the examining doctor”. However, the claimant should point out those parts of the report with which he disagrees so that the tribunal can consider whether those particular parts are unreliable and, if asked for a statement of reasons, the chairman can record reasons in the detail contemplated by Mr Commissioner Howell. Detailed reasons for finding a document to be reliable are less likely to be required in the absence of any specific challenge to it, although it may be necessary for a tribunal to explore the extent to which a document is challenged where a claimant’s submissions imply at least some disagreement with it.

(signed on the original) MARK ROWLAND
3 January 2006

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