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1. The appeal is allowed. I set aside the decision of the Southampton Appeal Tribunal dated 20 April 2005 and I remit the case to a new tribunal to be determined in accordance with the directions given below. The new tribunal should have before it any medical evidence upon which the decision dated 15 December 2003 to award incapacity credits was taken. The claimant should seek an oral hearing rather than a paper hearing. If he cannot physically attend a hearing, and provides medical evidence to that effect, he should consider seeking a “domiciliary hearing” – that is one in his own home. He may also wish to consider whether to put in any further written evidence explaining what changes there had been in his condition between 2003 and the end of 2004, and whether to put in any further medical evidence from his GP explaining how far her evidence in her letter dated 21 December 2004 was based on her own expertise and how far on what she had been told by the claimant, and possibly elaborating on that evidence as it applies to the descriptors in issue.

2. This is an appeal by the claimant with the leave of a commissioner from a decision of the Southampton Appeal Tribunal disallowing his appeal from a decision of a decision maker issued on 14 December 2004. The decision referred to appears to be that dated 8 December 2004 at p.49 of the file, which superseded the decision of a decision maker dated 15 December 2003 that the claimant was incapable of work. It decided that he could not be treated as incapable of work from and including 8 December 2004 as he did not satisfy the personal capability assessment and none of the exceptional circumstances provided for by regulation 27 of the Social Security (Incapacity for Work)(General) Regulations 1995 applied. As a result it decided that he was not entitled to incapacity credits from and including 8 December 2004.

3. The decision maker found that the claimant scored only 6 points on the personal capability assessment, 3 points for standing and 3 points for walking/stairs. The total was increased to 12 points by the tribunal, additional points being awarded for bending and kneeling and for rising from sitting. The tribunal reached its decision at a paper hearing. The claimant, who was unrepresented, had written to request a paper hearing as he said that travelling was very uncomfortable for him. He had explained in the letter that on the day he saw the EMP he felt very uncomfortable and was in a lot of pain. He had taken more pain killers than usual that day because of the journey, standing and sitting. It was all too much for him.

4. In addition to the report of the examining medical practitioner (“EMP”) on which the decision maker had relied, the tribunal had before it a report dated 21 December 2004 from the claimant’s GP. This stated that the claimant had a severe incapacitating back problem for which he was under the chronic pain clinic and it significantly affected his lifestyle and ability to do anything. She identified five additional items that he had significant problems with as well as those identified by the EMP. These were that he could not sit for any length of time, that he had problems rising from sitting to standing, that he had problems bending or kneeling, that it took him an hour plus to get up every morning, that he could not reach without putting his back out and that he could not lift or carry any items of any weight at all. If he did any of these things, the GP advised, he would get severe back pain and spasm and sciatica and usually would be incapacitated/flat on his back for several days at a time.

5. The tribunal considered that some of the content of the GP’s letter was inevitably derived from the claimant’s own account. The examples it gave included how long it took for him to get up in the morning, the extent of his restriction in daily living and the consequences of attempting reaching and lifting. Nevertheless it accepted the GP’s evidence that the claimant had a severe incapacitating back problem. On the basis of the EMP’s report, it found with regard to reaching that although the claimant had reduced shoulder function on both sides and could not raise his arms sideways above shoulder height, nevertheless he had full elbow flexion and normal power and tone and could therefore raise his arms above his head. Taking into account that the descriptor is “as if to reach for something” and does not, therefore, involve putting pressure on the spine, it concluded that there was no problem in the context of the reaching descriptor.

6. There are two relevant descriptors here. One is “Cannot raise either arm to his head as if to put on a hat”. The second is “Cannot raise either arm above his head as if to reach for something”. In both cases, the words “as if” were inserted by amendment by SI 1996/3207. It is clear that with full elbow flexion a person can just raise his arm to his head as if to put on a hat without raising his upper arm above shoulder level. His arm does not need to be above his head for this purpose. At most his hand needs to be level with or slightly above the top of his head.

7. By contrast, raising an arm above a person’s head as if to reach for something means that more than a minimal amount of the arm must be above head level. Reaching involves a degree of stretching, and involves being able to raise the upper arm above shoulder level and to go at least some way towards straightening the arm in moving it towards a notional object.

8. I am left unclear from the reasoning of the tribunal why it is that because the claimant had full elbow flexion and normal power and tone, he could therefore, despite his problem raising his upper arms above shoulder level at least sideways, raise his arms above his head. It is possible that he might be able to raise both his arms forwards and upwards without going to the side, but that is not what the tribunal found.

9. I therefore consider that the tribunal erred in law in its reasoning in respect of the reaching descriptor and that its decision must be set aside. I do not consider that this is a case where I can substitute my own decision, and I therefore remit the case to a new tribunal.

10. In the circumstances I do not need to decide an alternative point, which has not bee raised previously on this appeal. This is an unrepresented claimant with a serious back problem, for which he was attending a chronic pain clinic, who wrote seeking a paper hearing on the basis that he was not well enough to travel to attend the tribunal hearing. Only a year before the supersession decision under appeal, he had been found to be incapable of work, yet the medical evidence on which that decision had been based was not before the tribunal.

11. The tribunal was being asked to uphold a supersession decision, not on the basis that there had been any change of circumstances, but on the basis of a new EMP’s report. While the claimant does not spell out in so many words that there has been no change in his condition over the previous year, there is no suggestion anywhere that there has been any change in his condition rather than a difference of medical opinion. In those circumstances, while I do not need to decide if there was an error of law on the part of the tribunal in failing to deal with the matter in this way, it appears to me that the earlier medical evidence should have been put before the tribunal and that the tribunal should have considered adjourning to obtain it and to give the claimant the opportunity to attend a new hearing or to produce medical evidence showing why he could not do so.

12. The medical and other evidence which led to the decision in December 2003 to award incapacity credits should be added to the file for the new tribunal. It will of course also be open to the claimant to submit further medical evidence as to how his disabilities affected his ability to perform any of the descriptors at the relevant time for the purposes of this appeal – around December 2004 – and to explain what changes, if any, there had been in his condition between 2003 and the end of 2004. The appeal is allowed and I make the order set out in paragraph 1 above.

(signed on the original) Michael Mark
Deputy Commissioner
22 May 2006

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