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DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14 of the Social Security Act 1998. It is:
The decision of the Nottingham appeal tribunal under reference U/42/045/2005/01931, held on 26 September 2005, is not erroneous in point of law.
History and background
2. This case concerns the claimant’s capacity for work.
3. The claimant was certified as incapable of work from September 2004 on the basis of chronic lumbago. He also has anxiety and depression. In 2005, a personal capability assessment of his capacity for work was undertaken. He completed a self-assessment questionnaire, in which he identified problems with sitting, standing and lifting and carrying. He also gave details of his mental state. He was then interviewed and examined by a medical adviser for the Secretary of State, who identified no disabilities relevant to the personal capability assessment. On the basis of the doctor’s advice, the Secretary of State’s decision-maker decided that the claimant was no longer incapable of work on and from 7 June 2005. The claimant exercised his right of appeal to an appeal tribunal.
4. A number of letters were put in evidence. The claimant’s mother wrote a detailed letter concerning the family’s finances and health. Her letter is an eloquent account of the impact of the decision on a family in poor health and living on low income. Unfortunately, none of the matters she mentioned were relevant to the sole issue over which the tribunal had jurisdiction: was the claimant capable of work? A more targeted letter was provided by the Action for young carers, but again it did not identify any new factors that could have affected the decision. An undated letter from The Children’s Society was put in evidence, but this largely related to the claimant’s mother, as did the letters from the Society and a GP that were both dated 1999. The claimant’s GP provided an up-to-date letter setting out the claimant’s diagnoses, which are not in dispute. The doctor also wrote that the claimant was not fit to go to work, but did not set that opinion in the context of the criteria relevant to incapacity benefit. Finally, a Tenancy Support Service wrote a letter dealing with the claimant’s health problems, but without specifying any particular cause of incapacity for work.
5. The claimant opted for a paper hearing of his appeal and this was carried out on 26 September 2005. The chairman provided a full statement of the tribunal's decision. It runs to three pages. The essence is that the tribunal relied on the report of the medical adviser.
6. The claimant applied for leave to appeal with the help of a representative. Leave was granted and the case was referred to me for case management directions. I gave these on 24 April 2006. The Secretary of State made observations on 18 May 2006, inviting me to dismiss the appeal. In the meanwhile, the claimant had written to say that his mother would now represent him. The Secretary of State’s observations were sent to her on 22 May 2006 with an invitation to comment within one month, but she did not respond. Instead, observations were made on her behalf by a firm of solicitors.
7. I need mention one further matter before coming to the merits of the appeal. The Secretary of State’s representative has provided a statement of claims and decisions relevant to the claimant since 7 June 2005. I have noted those, but they do not affect anything that I have decided in this appeal.
The merits of the appeal
8. I must first mention the evidence that the claimant or his mother sent to the tribunal after the tribunal had decided the appeal. In my provisional comments in my case management directions, I said I could not take this evidence into account. I had to decide if the tribunal’s decision was wrong in law and I could not use evidence that the tribunal did not have to show that its decision was wrong in law. I had to decide if the tribunal’s decision was correct in law on the evidence before it. The claimant’s solicitor has asked for time to discuss with the appeal tribunal the documents that were or were not before the tribunal. I have not allowed that time, because the tribunal’s file is (as standard procedure) sent to the Commissioners’ office when an application for leave is made. The tribunal will, therefore, not be able to assist. I have looked at the file. So far as I can tell, the evidence that was before the tribunal is the evidence I have summarised in paragraph 4 above. I have also read all the other documents that are in the file. They are all in the Commissioner’s bundle that has been sent to the claimant. Those other documents fall into two categories. One category consists of documents that by their dates show that they were written after the date of the hearing by the tribunal. The other category consists of documents that cannot conceivably have affected the outcome of the decision because the information contained in them is too general to be of use in applying the particular descriptors of the personal capability assessment.
9. I now come to the grounds of appeal written by the claimant’s original representative and supplemented by the solicitor in response to the Secretary of State’s observations.
The mental disabilities
10. The first ground of appeal relates to the mental disabilities section of the personal capability assessment. The representative refers to the comment in the full statement of the tribunal's decision that there was no evidence of any significant functionally incapacitating mental illness. The representative takes issue with it. It is important to be clear first of all on who made that statement. It is a quotation from the medical adviser’s report. No doubt it is standard wording. It has to be read in the context of the task the medical adviser was performing, which was to advise on the application of the personal capability assessment. What the doctor was saying was that the claimant’s anxiety and depression did not produce any disabilities relevant to the personal capability assessment. The claimant’s representative refers to evidence that the claimant had mental health problems and the solicitor repeats that point. I accept that there is evidence to that effect, but the evidence the representative identifies does not show any particular disabilities consequent upon those problems - that is to say, no disabilities that are specified in the personal capability assessment.
11. The representative then makes a point about the effect of the claimant’s medication. He says that the calm nature noted by the medical adviser was a result of this. That may be so, but the claimant’s nature was nonetheless calm with the benefit of that medication and that fact had to be taken into account. The medical adviser knew and recorded the medication and dosage and must have understood the effects that it could produce. I am sure that the medical adviser did not overlook it. Equally I am sure that the medically qualified panel member on the tribunal was aware of that evidence and its significance.
12. Finally on his first ground, the representative takes issue with some of the descriptions used by the medical adviser of the claimant. The representative points to evidence that the claimant was seriously underweight. He argues that this undermines the doctor’s findings. I do not accept that. Even if I accept the representative’s point that the doctor was mistaken to describe the claimant as of average build and looking well, that does not undermine the doctor’s opinions on the personal capability assessment. The representative has put his argument in general terms and has not suggested any particular descriptors that may have been affected by this mistake, assuming it was one. The reason he has not done so is that the evidence he has referred to does not help in showing that the claimant satisfied any particular descriptor under the personal capability assessment.
13. I reject this first ground of appeal.
Lifting and carrying
14. The second ground of appeal relates to lifting and carrying. I accept that the tribunal went wrong as the representative suggests. The tribunal decided that this activity could only take account of the use of the upper limbs and that the claimant’s back could not be taken into account. That is wrong. The activity applies to the ‘use of the upper body and limbs’ (paragraph 8 of the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995).
15. The Secretary of State has drawn my attention to the decision of Mr Commissioner May in CIB/0045/1998. In the course of dismissing the appeal, the Commissioner (at paragraph 12) agreed with a submission that ‘because the loads specified in the descriptors are light, they are unlikely to have much impact on spinal problems, although in exceptional circumstances neck conditions can be aggravated by such lifting’. That submission was in turn based on the Incapacity Benefit Handbook for Medical Services Doctors. The relevance of back pain to lifting and carrying the weights specified for this activity is a matter of fact that depends on medical judgment. With respect to my colleague, I do not consider it appropriate to express an opinion on a matter of fact without hearing evidence. It is sufficient for me to say that the legal test permits a tribunal to take account of a claimant’s back pain and it misdirected itself by refusing to do so.
16. So the tribunal went wrong in law. But did that affect the outcome of the appeal? This is a relevant factor, because a mere misdirection that does not affect the outcome is not an error of law. In R (Iran) v Secretary of State for the Home Department  EWCA Civ 982, Lord Justice Brooke set out the most common ways in which a tribunal may go wrong in law:
‘9. When the court gave this guidance in Subesh, it was aware that it would not be of any relevance to an appellate regime in which appeals were restricted to points of law. It may be convenient to give a brief summary of the points of law that will most frequently be encountered in practice:
i) Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");
ii) Failing to give reasons or any adequate reasons for findings on material matters;
iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
iv) Giving weight to immaterial matters;
v) Making a material misdirection of law on any material matter;
vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.
‘10. Each of these grounds for detecting an error of law contain the word "material" (or "immaterial"). Errors of law of which it can be said that they would have made no difference to the outcome do not matter. …’
17. In this case, the claimant did not attend the tribunal. The only evidence of the difficulties he had with lifting and carrying were set out in the self-assessment questionnaire. He indicated that he could not lift and carry a 2.5 kilo bag of potatoes with either hand. That descriptor scores 8 points. That alone is not sufficient to satisfy the personal capability assessment. The tribunal scored the claimant at nil on the personal capability assessment and it did not go wrong in law in any respect other than lifting and carrying. Accordingly, its mistake did not affect the outcome of the appeal to the tribunal.
18. The problems that arose from the decision-maker’s decision that the claimant was no longer incapable of work had repercussions for the financial stability of his family, for the health of other members of his family and for the caring arrangements within the family. It would be ideal if there were a way in which the issues that concern the claimant in this case could all be considered in one forum so that all the agencies concerned could provide a co-ordinated response. But that is not how things are organised. Perhaps it would be practically impossible for them to be so arranged. The result is that different organisations have different remits. The incapacity benefit decision-maker, the appeal tribunal and the Commissioners only have jurisdiction to decide the relevant facts and, once found, to ensure that the law was correctly interpreted and properly applied to them. The only issue for me is whether the tribunal went wrong in law. It did not. Accordingly, I must dismiss the appeal.
Signed on original
on 05 July 2006 Edward Jacobs