Decision No: C3/03-04(IB)(T)

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 11 November 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of Mrs Commissioner Brown, against a decision of the Appeal Tribunal sitting at Newtownards on 11 November 2002 (“the Appeal Tribunal”).  For the reasons which we give, that decision is erroneous in point of law.  We therefore set it aside and refer the case to a differently constituted Tribunal (“the new Tribunal”) for a complete rehearing.  

2.	The appeal was the subject of an oral hearing which took place before us in Belfast on 7 October 2003.  The claimant was represented by Mr Barry McVeigh of Citizens Advice.  The Department for Social Development was represented by Mr Colin Fletcher of the Decision Making and Appeals Unit.  We are grateful to Mr McVeigh and Mr Fletcher for the clarity and courtesy with which they presented their arguments at the hearing.  We are also grateful to them for the carefully constructed prior written submissions and skeleton arguments. 

3.	After permission to appeal was granted it was considered that the appeal involved a question of law of special difficulty.  That being so, the Chief Commissioner directed, in exercise of the powers conferred upon him by Article 16(7) of the Social Security (Northern Ireland) Order 1998, that the appeal be heard by a Tribunal of Commissioners.  However, as sometimes happens in such cases, as the appeal progressed and the true facts emerged it became apparent that the point which had been considered one of difficulty, and which related to the supersession of awards of long term incapacity benefit, was less complex than had been thought and was one where the parties were largely in agreement and where we were in agreement with the parties.  We therefore comment relatively briefly on that matter. We decide the appeal on a different basis - that the Appeal Tribunal failed to deal with one of the main grounds of appeal.
4.	The facts of the matter are as follows.  The claimant is a 49 year old man.  He was born on 27 July 1954.  He was a civil servant until he retired on health grounds in April 2000.  In the incapacity for work questionnaire which he completed on 30 October 2001, he described his problems in the following terms: - 

“I suffered a nervous breakdown in September 1984 which resulted in me being treated in P... Hospital for two weeks.  I continued to work for the next 17 years until I was forced to retire from work on the 3/4/2000 due to chronic stress.  I was diagnosed as suffering from chronic stress due to overwork by N... Hospital Outpatients Dept in 1999”.  

As a result of investigations carried out by Mr Fletcher, we now know, contrary to what the Appeal Tribunal was told, that the claimant was paid statutory sick pay by his employers to 29 December 1999.  He claimed incapacity benefit from 30 December 1999.  His claim was made outside statutory time limits and was disqualified for late claim for the period from 30 December 1999 until 4 January 2000.  Incapacity benefit at the short-term higher rate, under section 30A(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 was awarded for the period from 5 January 2000 to 20 June 2000.  Long-term incapacity benefit was then awarded under section 30A(5) of the 1992 Act, from and including 21 June 2000.  Following a medical examination which took place in June 2000, it was decided that the claimant satisfied the personal capability assessment.

5.	Towards the end of 2001, consideration was given to the claimant’s condition.  On 18 October 2001, his general practitioner completed a questionnaire in which he said that the claimant suffered from stress symptoms and continued to take 20 milligrams of paroxetine, commonly known as seroxat, daily.  His condition had improved, although he became “uptight” when under pressure.  His general practitioner thought there would be a further improvement.  A Departmental Medical Officer having certified that the claimant was not in an exempt category, the claimant was asked to complete an incapacity for work questionnaire.  This he did on 30 October 2001.  Towards the end of the questionnaire he said that over the previous year there had been an improvement in his condition but he was still experiencing difficulties with fatigue, bouts of panic, anxiety and depression.  In May 2001, he had attempted to paint his house but he had to stop half way through as the effort had taken so much out of him that he felt ill again.  By October 2001 he still did not feel well enough to finish the work.  He concluded by saying that “I have always recovered from my depression if I use my common sense and don’t overdo things.  I don’t need any special treatment and I feel given time I will be able to make a full recovery from my depression.  I anticipate it will be years before I will be well enough to cope with any kind of serious work”.

6.	On 14 May 2002, the claimant underwent an examination by an Examining Medical Practitioner (EMP) in connection with a personal capability assessment.  This is a convenient point to stress that only the mental health descriptors were in issue.  The claimant has no problems with the physical descriptors.  The EMP considered that the only applicable descriptor was descriptor 17(a), that is - Mental Stress was a factor in making him stop work (2 points).  She recorded that he “left due to stress”.  She accordingly scored the claimant 2 points.  Such a score falls far short of that needed to satisfy the personal capability assessment.

7.	On 19 July 2002, a decision maker considered the evidence.  Not surprisingly, in view of the medical evidence, he decided that the claimant did not satisfy the personal capability assessment and was not entitled to incapacity benefit from and including 19 July 2002.  In the course of his decision he said: -

	“I have superseded the decision of the Department dated 03/05/00 awarding Incapacity Benefit from and including 05/01/00.  

	This is because the Department has made a determination that [the claimant] is no longer incapable of work from medical evidence received following an examination in accordance with regulation 8 of the Incapacity for Work Regulations.”

That is a reference to the ground for supersession provided for by regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999.  

8.	The claimant was dissatisfied with that decision and he appealed.  He put forward a number of grounds of appeal including the following: -

	“…I believe the Doctor that assessed me at Royston House was not properly qualified to give an assessment on my mental health because she is not a qualified psychiatrist…”

At the hearing before the Appeal Tribunal the claimant repeated this ground.  He is recorded as saying: “You need a qualified psychiatrist to assess my mental state. – Took exception to submission statement that Doctors are trained.  They are trained to complete the form which is deeply flawed”.  At the hearing the claimant also asserted that the EMP’s report was flawed in other specific ways alleging she had fabricated some of the answers and she had “only listened to what she wanted to hear”.  This was more than mere generalised assertion.  The claimant gave specific examples as recorded by the Tribunal in its “Record of Proceedings”.

9.	The Appeal Tribunal, which consisted of a legally qualified chairman sitting with a medically qualified member awarded the claimant 3 points. It did so on the basis that he satisfied descriptor 17(a), “Mental Stress was a factor in making him stop work” (2 points), and descriptor 17(f) “Is scared or anxious that work would bring back or worsen his illness” (1 point).  The claimant’s appeal was, accordingly, dismissed.   The Appeal Tribunal’s reasons for its decision are relatively short and we quote them in full: -

	“The claimant had not suggested that he suffered from any physical limitation and none was found.  He described having retired from work on medical grounds – chronic stress due to overwork – some 3 years ago.  His evidence at hearing, which the Tribunal accepted, suggested that management of his time and lifestyle with the help of medication enabled him to get along satisfactorily for lengthy periods.  He described periods of depression occurring from time to time, perhaps once in 3 months when he might have a set back but also described these periods passing if he stuck to his routine.  The length of these periods of depression did not, on his evidence, seems to be lengthy being a matter of days or a week rather than of great length.  Outside these periods he described being able to live a reasonably normal life.

	The Tribunal accepted that, during the periods of depression, the claimant might well have difficulties with many of the activities mentioned in the various descriptors.  However the Tribunal did not consider that such difficulties, occasional as they were on the evidence, could be reported as affecting the claimant on a continuing day-to-day basis as would be required to satisfy the descriptors. The Tribunal did accept that the claimant’s departure from work was stress induced and that to return to work might well, as the claimant believed, have the same effect on him again.  The Tribunal awarded points accordingly.  However there was no other descriptor where the award of points could be justified for the reasons set out.

	The claimant’s main contention was that he was not fit for work.  However, the issue for the Tribunal is not whether the claimant could go back to his former work.  Indeed the Tribunal, as has been stated, accepts that he could not.  The issue is whether the claimant satisfied enough of the descriptors in the Personal Capability Assessment to attract enough points to justify an award of Incapacity Benefit.  In the Tribunal’s view he does not.”

10.	Permission to appeal to a Commissioner was refused by a Legally Qualified Panel Member but was granted by Mrs Commissioner Brown on the grounds that there was an arguable issue as to whether the Appeal Tribunal had dealt adequately with the claimant’s criticisms of the EMP’s report.  

11.	It is common ground between the parties, and we accept, that the Appeal Tribunal should have gone further than it did and should have dealt with the claimant’s strongly expressed and specific criticisms of the report and should have explained why it did not accept them.  Such an explanation need not have been extensive.  The failure to deal with his criticisms leaves the claimant with a strong sense of grievance and a feeling that he was not being listened to.  Our attention has been drawn to what we said in paragraph 20 of decision R3/01(IB)(T): -  

	“20.	Whether or not a Tribunal accepts a claimant’s representations on an Examining Doctor’s report, whether it considers that any further information is necessary or whether an Examining Doctor should be asked for comment are all matters within a Tribunal’s province and a Tribunal has considerable discretion in this matter.  However, here it appears that issues raised expressly by the claimant were ignored.  It may be that in this case the Tribunal did not place any reliance whatsoever on the Examining Doctor’s report.  It may be that it rejected the claimant’s contentions.  We have no means of knowing.  We consider that in this case, when such very specific issues in relation to the report have been raised, the Tribunal should have commented on them in some manner.  We set the decision aside for the reason that it did not deal with this issue and the decision was not therefore understandable.”

We consider that this is another case where specific issues raised by an appellant should have been commented upon. 

12.	In the course of the appeal to us, the claimant wrote a letter dated 26 May 2003, in which he made the following points: -

	“…Firstly, if I attended hospital with a broken bone I would expect to see a osteopath doctor.  If I had a problem with my sinuses I would expect to see an ear, nose and throat doctor, and if I was mentally ill I would expect to see a psychiatric doctor.  After informing the MSS doctor that my disability was purely mental and not physical she began to question me.  The doctor appeared to be inattentive to some of my explanations and attentive to other of my explanations.  It was only when I appealed the MSS doctor’s decision and received the doctor’s report that it became apparent why the MSS doctor was attentive to some of my explanations and unattentive to others.  I was enraged to see that the MSS doctor had inaccurately recorded my answers to her questions and on other occasions had only recorded part of my answers which unfairly portrayed an inaccurate and misleading picture of my mental health.  I believe if I was examined by a psychiatrist I would have been awarded the number of points I needed to receive incapacity benefit…”

In the light of those comments a few words from us may be helpful to the claimant.  

13.	The claimant is entirely correct that, in a large, well equipped modern hospital we all expect to be referred by our general practitioners or the hospital’s own accident and emergency department to doctors who make a speciality of the type of problem we have.  It is, however, important to remember a number of points.  First, the purpose of referral to a specialist is treatment and, preferably, treatment which uses the most up to date knowledge and techniques.  Secondly, all doctors have received the same general training and are exposed on a daily basis to a very wide range of medical problems which lie outside their own speciality but which they must at least take account of and sometimes treat without the assistance of others.  It is, therefore, wrong to think of specialist doctors as operating in strict watertight compartments.  General practitioners, as the name suggests, are required to deal with everything.  The EMP who carries out an examination in connection with personal capability assessment is not carrying out a course of treatment and does not require the specialist knowledge that would be necessary if that was what he or she was doing.  Regulation 8 of the Social Security (Incapacity for Work) (General) Regulations 1995 provides that where it falls to be determined whether a person is capable of work, he may be called by or on behalf of a doctor approved by the Department to attend for a medical examination.  The Regulations go on to provide that that examination, in the case of someone like the claimant, is directed towards the personal capability assessment.  

14.	All that is required is that the examining doctor has been approved by the Department.  So long as he or she has been so approved then that is enough.  He or she does not have to be versed in a speciality which deals with the problems a particular person suffers from.  It must be remembered that the EMP’s function is not that of treating the claimant.  It is merely to examine in connection with a relatively simple test, something which EMPs have been trained to do.  We have already quoted the claimant as saying that the test is fundamentally flawed.  The test has had its critics but a Tribunal is not concerned with such criticisms.  This is because Parliament has prescribed the test as a basis for determining capacity for work and all concerned are required to apply it whatever its defects.  We add that it would, in practice, be impossible to ensure that those who are examined in connection with the test are examined by appropriately qualified specialists.   There simply is not the specialised medical manpower available.  Furthermore, it would, in an extremely high proportion of cases, mean that the examination would have to be conducted by two or more specialists.  Many people who undergo assessment have multiple problems.  For example, in many cases both the physical and the mental descriptors need to be addressed.  Further, as we have sought to demonstrate, all doctors have had a general training and are constantly exposed to widely differing medical problems and conditions.  Finally, the claimant asserts that he would have achieved a higher score if he had been examined by a psychiatrist.  We do not think that this necessarily follows and therefore do not share his certainty.  

15.	We wish to make it clear that the views of the EMP are merely evidence.  They do not bind either the decision maker or the Tribunal.  The decision maker is required to have regard to all the evidence.  Of course, in many cases, the EMP’s report is the only really substantial piece of medical evidence that will be presented but this is not necessarily so.  There may be other, extremely cogent, medical evidence which the decision maker must take into account.  Further, an adverse decision resulting from an adverse medical report can be appealed to the Tribunal.  It is at the Tribunal level that the main contest would usually take place.  

16.	It is important to understand two matters relating to this present case.  First, it is for the appellant to make good before the Tribunal his criticisms of the examining medical practitioner’s report and to demonstrate the flaws which he says exist in it.  The onus is on him and not on the Tribunal.  He can set about this in a number of ways.  He can, for example, lodge medical reports which support what he says and which counter the EMP’s evidence.  These usually consists of letters from the appellant’s general practitioner or the hospital doctors who are treating him (this may include psychiatric reports).  The more detailed such reports are and the more focused that they are on the issues which the Tribunal has to determine, the more weight they are likely to carry.  Reports which are vague or merely report a diagnosis which is not in issue are not usually helpful.  The appellant can produce written evidence from other non-medical or quasi-medical witnesses.  He can also attend the hearing and give evidence on his own behalf and answer such questions as the Tribunal puts to him.  His own evidence is important, particularly about the problems which he encounters in the course of his daily life. Quite frequently there will be no dispute about an appellant’s diagnosed condition. The area of conflict will be about the effect which that condition has on his daily life and ability to work.

17.	Secondly, the Tribunal must consider carefully the whole of the evidence and in the event of a conflict of evidence, decide which it prefers, and explain why, whether that evidence be from the EMP, the claimant, other doctors or any other source.  The hearing before the Tribunal is an appellant’s chance to make good his case.  The Tribunal is required to make its own findings having regard to the accepted evidence.  As already explained, in this particular case, it must deal with serious criticisms of the EMP’s report and it is a matter for the Tribunal whether it accepts or rejects the criticisms and what reliance it places on that report.  

18.	We should, perhaps, say that the claimant’s letter contained criticisms of both the legal and the medical members of the Appeal Tribunal.  We find nothing in the papers to substantiate those criticisms and consequently do not accept them.  Mr McVeigh withdrew them and we consider that he was right to do so.  

19.	In the Department’s original submissions on the appeal, Mrs Jean Gunning made the following submissions in a very helpful letter of 19 May 2003: -

	“I would also point out that close examination of the tribunal’s reasons suggests that the tribunal may have applied an incorrect test.  The tribunal accepted [the claimant’s] evidence regarding his condition and concluded that during periods of depression he might well have difficulties with many of the activities mentioned in the various descriptors.  The reasons further state: -

	“However the Tribunal did not consider that such difficulties, occasional as they were on the evidence, could be reported as affecting the claimant on a continuing day to day basis as would be required to satisfy the descriptors.”

	The tribunal accepted [the claimant’s] evidence regarding the duration of his periods of depression (a matter of days or a week).  While the tribunal concluded that such periods were not lengthy it does seem that it accepted the periods could be of sufficient duration to form a period of incapacity for work (PIW).  Section 30C(b) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 states: -

	“a period of incapacity for work means a period of 4 or more consecutive days, each of which is a day of incapacity for work”

	[The claimant] told the tribunal that in the Summer of 2002 he was on Seroxat, which suggests that at the time of the decision appealed against (19 July 2002) he was suffering from a relapse.  That statement contrasts with the situation when he was examined by the MSS doctor on 14 May 2002 – at that time he had been off Seroxat for 3-4 months.  In the light of this evidence it would seem that the tribunal should have made a finding as to whether [the claimant] was in a period of relapse at the date of the decision under appeal, whether the period was of sufficient duration to constitute a PIW and the points score appropriate to satisfy the entitlement conditions – see paragraph 15 of R(IB)2/99 (Tribunal of Commissioners) and paragraphs 25-26 of R1/02(IB(T).”

20.	We are grateful to Mrs Gunning for the submission.  We make no comment on the conclusions which may be drawn from the taking of medication but agree with Mrs Gunning that the new Tribunal will have to deal with the issue of fluctuation in the claimant’s health.  This leads us on to the issue upon which the Tribunal of Commissioners was originally directed.  This related to when a period of capacity could be said to be terminated.  We were concerned about this issue as the Tribunal had reasoned that the claimant had: -

“periods of depression occurring from time to time, perhaps once in 3 months when he might have a set back but also described these periods passing if he stuck to his routine.  The length of these periods of depression did not, on his evidence, seem to be lengthy being a matter of days or a week rather than of great length.  Outside these periods he described being able to live a reasonably normal life.”

As it appears that such periods of incapacity would not be linked by the linking rules (being more than 8 weeks apart), we were concerned that the period of incapacity might have terminated earlier than 19 July 2002 (the date of the decision maker’s decision).  However, having had the benefit of submissions from Mr Fletcher and Mr McVeigh, we accept that the period of incapacity did not end until the decision maker carried out the personal capability assessment and decided that the claimant was no longer incapable of work.

21.	As Mr Fletcher stated, however, the Tribunal is entitled to consider evidence relating to a period prior to 19 July 2002 to determine whether at 19 July 2002 the claimant was incapable of work.  Both he and Mrs Gunning referred to decision R(IB)2/99, a decision of a Tribunal of Commissioners in Great Britain, which delineated the “broad brush” approach to be adopted in determining whether a person is or is not incapable of work in accordance with the PCA.  In general terms, we endorse that approach.  That broad brush approach will enable the Tribunal to give consideration to the past pattern of the claimant’s illness in determining whether, as at the date of the decision under appeal, he was or was not incapable of work.

22.	Adopting that broad brush approach, the Tribunal may find the claimant capable or incapable.  If it finds him incapable it may continue the previous award for an indefinite period leaving to the Department the date when same is to be reconsidered.  Alternatively the Tribunal may decide to continue the award for a limited period if on the circumstances obtaining at the date of the decision under appeal it had reason to believe there would be an improvement such as might render the claimant capable of work under the said personal capability assessment.

23.	The Tribunal will be dealing with the matter a considerable time after the date of the decision under appeal.  It will be constrained by Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998. However, as the authors of “Social Security Legislation 2003” Volume III succinctly put it, in relation to the corresponding legislation in Great Britain, this provision: -

“does not prevent a tribunal having regard to evidence that was not before the [Department] and came into existence after the decision was made or to evidence of events after the decision under appeal was made for the purpose of drawing inferences as to the circumstances obtaining when, or before, the decision was made (R(DLA)2/01, R(DLA)3/01).”

The pattern of fluctuation is a circumstance at the date of the decision. However should fresh circumstances (distinct from the pattern of fluctuation at the date of the decision) arise after that date these must be disregarded (see paragraph 61 of R(DLA)3/01).  This applies whether those circumstances operate to the claimant’s advantage or disadvantage.  More detailed guidance can be found in Great Britain decision R(DLA)3/01, particularly as to the distinction between fresh circumstances and circumstances forming part of inherent uncertainty applicable at the date of decision.

24.	We allow the appeal because the Tribunal did not deal with one of the main grounds of the claimant’s appeal, namely, his criticisms of the EMP’s report.  However, we do not consider that this is a case where we can give the decision which the Tribunal should have given.  Accordingly, we remit the matter to a differently constituted Tribunal for rehearing and direct that Tribunal to give consideration to the views set out above.

(signed):  John A H Martin QC

Chief Commissioner

(signed):  M F Brown

Commissioner

(signed):  J P P Powell

Deputy Commissioner

8 April 2004