Decision No:  C33/00-01(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 21 April 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by a Commissioner, by the claimant against a Tribunal decision dated 21st April 2000.  The Tribunal had decided that the claimant’s appeal against a decision of a decision maker in relation to Incapacity Benefit should be disallowed on the basis that he had not satisfied the personal capability assessment test from and including 25th January 2000.  The decision maker’s decision was dated 25th January 2000 and was a supersession decision.  This was clearly set out to the Tribunal.  The appears to be no issue raised and it appears to have been accepted that the claimant had to score the prescribed number of points on the personal capacity assessment before he could be entitled to Incapacity Benefit.

2.	The claimant set out his grounds of appeal on an OSSC1 (NI) form dated 29th August 2000.  The grounds of appeal were stated as follows: -

“I do not believe that a special diet would control my incontinence.  As the Coeliac disease that which i [sic] had was not affecting me with incontinence before i had my operation for the Tumour.  I am always tired and i take a lot of tablet for pain that make me feel as that i do want to do anything.  And since this decision has been made it has affected me so much that i have felt a lot worse.”

3.	The grounds of appeal obviously refer to the reasons for the Tribunal decision where the Tribunal records: -

“Appellant presented as honest and credible but the condition from which he is stated to suffer is not likely to produce the effects he claims in relation to sitting, rising from sitting, bending/kneeling, standing, walking or negotiating stairs sufficiently regularly, or constantly to satisfy these descriptors so that no points are awarded in relation to these.

So far as incontinence is concerned, the only one of the conditions listed is coeliac disease, which can cause loss of control of bowels, but it can be adequately controlled by diet and appellant insists he is not on any diet.  He eats bread which is not advised in persons suffering from his condition.  It is difficult to understand why he has not been advised to diet.  However, if he did so, the reason for any diarrhoea would be arrested.

In these circumstances we feel he cannot be allowed points for loss of bowel control.”

4.	It can be seen from the reasons for the decision that the Tribunal took the view that loss of control of bowels due to coeliac disease could be adequately controlled by diet but the appellant stated that he was not on any diet and indeed is recorded as eating bread which the Tribunal stated was not advised in persons suffering from coeliac disease.

5.	Observations on the appeal were made by letter dated 23rd February 2001 from Mr Toner of the Decision Making and Appeals Unit of the Department.  Mr Toner supported the appeal on the grounds that the Tribunal’s reasoning was not clear.  He stated:-

“In the present case, while the Tribunal did make a specific finding with regard to the activity if incontinence, it is not clear from the reasons for decision whether this finding was made, as in the Great Britain case referred to above, by the Tribunal coming to the conclusion that if a diet is not adhered to the points scoring descriptors in respect of the activity of continence could not be satisfied or whether it merely did not accept [the claimant’s] evidence.”

6.	The Great Britain case referred to is decision CSIB/889/99, a decision of Mr Commissioner May QC.  Commissioner May stated in that decision:-

“To me it is obvious that it would be absurd that if satisfaction of points scoring descriptors could on a reasonable and practical basis be avoided by the claimant controlling his diet then if the claimant fails or neglects to take these steps he could obtain the benefit of scoring points.  The scheme of the legislation is to measure by points whether a claimant is capable or incapable of work.  To hold other than what I have would seem contrary to that scheme.  I do however accept the Secretary of State’s position that the matter is not absolute and I do accept the concept of reasonableness.  Whether the steps are practical and in the circumstances reasonable is a matter for the tribunal.”

7.	I agree with Mr Toner that the Tribunal’s reasoning in this case is unclear as regards the incontinence descriptor.  I say nothing in relation to the other descriptors for which the claimant contended.  The Tribunal in this present case concluded that because any loss of bowel control coming from coeliac disease could be controlled by diet, the claimant could not score any points under the continence descriptor.

8.	I also agree with Mr Toner that it is unclear from the Tribunal’s reasoning whether it accepted that the claimant genuinely had the problems which he stated in relation to the activity of incontinence.

9.	I set the Tribunal’s decision aside for having erred in law by way of inadequate reasoning.  The Tribunal’s reasoning is unclear and does not adequately explain its decision.  It may also reveal an error in the approach taken to the matter of following a diet.

10.	I am in agreement with Mr Commissioner May that the Tribunal can take into account fact that any problems can be controlled by way of diet.  If following the proper diet would give a claimant control and if it would be reasonable and practicable for him to be expected to follow this diet then the functional ability, with the diet being followed, is what should be assessed.  If the claimant has the means of acquiring a better measure of control over bowel and or bladder and does not adopt this measure it is doubtful if it could be said that he has an actual loss of control coming from a specific disablement.  It appears much more to be a matter of choice and that is not what the descriptors are intended to embrace.

11.	I further agree with Commissioner May however when he states that the question of reasonableness and practicability must be considered.  The Tribunal is not entitled to leap from the finding that a diet to control the coeliac problem is available to a conclusion that the claimant should be following it without some conclusion being reached as to the reasonableness and practicability of the claimant’s so doing.  If the claimant can give evidence in relation to this matter it will obviously be helpful to the Tribunal if he does so.  If he does not give such evidence the Tribunal must make up its mind on the material before it and it is entitled to bring into account its own common sense and judgment in so doing.  In general terms if a diet would lessen symptoms of a particular condition a Tribunal may conclude that the person suffering from that condition can reasonably be expected to follow that diet unless there is some good reason to the contrary.

12.	The Tribunal did not appear to address the matter of reasonableness and practicability and it is for that reason that I think its approach may reveal an error of law.

13.	I do not consider that this is a case where I can give the decision which the Tribunal should have given.  It appears that the claimant is no longer at the address which is held by the Commissioners Office and it is uncertain whether he will attend any future hearing.  However the expertise of the medical member is likely to be of assistance.   I therefore remit this matter to a differently constituted Tribunal which should address the question of whether it is reasonable to expect the claimant to follow a diet appropriate to reducing any tendencies which he has to lose bowel control.  This situation of course will have to be considered as at the date of the decision under appeal to the Tribunal.  The Tribunal should also consider and make its own assessment on the accuracy of the evidence given by the claimant.  There are essentially 3 questions to be asked and which are to be answered as at the time of the decision under appeal: -

(1)	Does the claimant suffer from the incontinence as stated or at all?  This will involve an assessment of evidence.
(2)	If he does would diet lessen or remove these problems?
(3)	If so, is it reasonable to expect him to follow this diet?  This last will involve consideration of practicability and possibly other matters.

14.	It also appears to me that it would be of assistance if the Tribunal knew whether the claimant actually suffered from coeliac disease and if this had been medically diagnosed.  If the Department has any papers in this respect it should furnish them to the Tribunal.  It would also be helpful if the Tribunal had information as to the tumour from which the claimant states that he suffers.  It would be helpful if he would supply any information which he has and if the Department would furnish any information which it has in its possession in relation to this matter.  If there is no further information available the Tribunal will, of course, be entitled to make up it mind on the information before it.

Signed):  M F Brown

COMMISSIONER

2 July 2001