R(ib) 2/98

Mr. M. J. Goodman	CIB/14202/1996
7.4.97 
All work test - mental disabilities - whether medical evidence of mental illness required
The adjudication officer awarded the claimant nine points under the all work test for “occasional” loss of control of his bowels.  The claimant appealed and the tribunal awarded a further seven points for mental disabilities so that the claimant satisfied the all work test.  The adjudication officer appealed to the Commissioner on the ground that the tribunal had erred in considering mental disabilities without medical evidence.
Held, allowing the appeal, that:
1.	the jurisdiction of a social security appeal tribunal is inquisitorial but tribunals should be hesitant in going to the question of possible mental disabilities unless they have been raised before and in addition there is some medical or similar evidence on the point (para. 5);
2.	in view of the general nature of some of the mental descriptors, tribunals ought to be sure that they have some corroborative evidence, preferably medical evidence, on these points and should be careful not to elevate to “mental disabilities” mere disinclination to do things (para. 6);
3.	mental disabilities can qualify for points only if they result from “mental disablement”, so that they must not be mere matters of mood but must relate to a mental disablement in the nature of an illness not shared by healthy members of the population (para. 7).
The Commissioner referred the case to a differently constituted tribunal for determination.

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	I allow the appeal of the adjudication officer against the decision of the social  security appeal tribunal dated 17 January 1996 as that decision is erroneous in law and I set it aside. I remit the case for rehearing and redetermination, in accordance with the directions in this decision, to an entirely differently constituted social security appeal tribunal: Social Security Administration Act 1992, section 23.
2.	This is an appeal by the adjudication officer against the unanimous decision of a social security appeal tribunal, dated 17 January 1996, which allowed the appeal of the claimant (a man born on 1 September 1950) against the decision of an adjudication officer issued on 13 July 1995 as follows:
“This decision is given in respect of [the claimant’s] claim for incapacity benefit. The test of incapacity for work in respect of [the claimant] from and including 13 April 1995 is the all work test. The own occupation test is not applicable from that date. This is because he has been incapable of work for 196 days in the spell of incapacity preceding 13 April 1995. He cannot be treated as incapable of work from and including 12 July 1995 because none of the exempt conditions apply. He does not satisfy the oral work test from and including 12 July 1995 because he has not reached 15 points from physical descriptors. The total points were nine which were calculated as follows:
Continence
... points nine. Loses control of bowels occasionally. 
Therefore he is not incapable of work and cannot be treated as incapable of work because in the opinion of the doctor approved by the Secretary of State there are no exceptional circumstances. As a result I have reviewed the decision of the adjudication officer awarding invalidity/incapacity benefit from and including 8 April 1994. The decision awarded benefit for days after the date of claim and the requirements for entitlement are not satisfied. This is because [the claimant] does not satisfy the all work test and therefore is not incapable of work. My revised decision only for the period from and including 12 July 1995 is as follows:
“[The claimant] is not entitled to incapacity benefit from and including 12 July 1995”.”
3.	The tribunal in allowing the claimant’s appeal did not disturb the allocation of only nine points to the claimant for loss of control of bowels i.e. they adopted the adjudication officer’s decision that that occurred only “occasionally”. In other words they did not allocate points for incontinence to sub‑paragraphs (a), (c) and (d) of paragraph 13 of the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995, SI 1995 No. 311 (“the 1995 Regulations”), all of which carry a “score” of 15 points (it’s 13(a), (c) and (d) not (b)]. The new tribunal had, however, better look into this matter again particularly in view of what I say about the allocation of points for mental disabilities below. The tribunal should have before it a copy of a starred decision I recently gave on file CIB/14332/1996, where I have dealt in detail with the meaning of “loses control of bowels” and have indicated that that can in some cases (depending on the facts) include a case where, although a claimant has not actually ever “messed himself”, he nevertheless would do so unless he were able to get very quickly to a nearby lavatory. That is a question of fact for the new tribunal. 
4.	There is also the question of whether, if the claimant does lose control of his bowels in this sense, he does so more than “occasionally” i.e. that he does it “at least once a week” (para. 13(c)) or “at least once a month” (para. 13(d)). That again is entirely a matter for the new tribunal. I am bound to say, looking at the entirety of the evidence medical and otherwise in this case, that it would seem to me that very possibly the assessment of nine points for “loses control of bowels occasionally” is the maximum that ought to be made in this case, bearing in mind the medical evidence about the severity or otherwise of irritable bowel syndrome which was adduced to me in the starred decision on CIB/14332/1996 and to which I have referred in that decision. But I stress that ultimately this is a matter for the new tribunal. They may wish to take account of the fact that the claimant (who should attend the rehearing that I have directed) gave evidence to the original tribunal as follows:
“I have had a bowel problem since 1993. It is claimed as irritable bowel syndrome. I am frightened to move too far away from my toilet. About once per fortnight I lose control and have a wet discharge.”
5.	The reason the adjudication officer in this case has appealed against the tribunal’s decision, however, is not really in connection with their finding about continence. The appeal is against the tribunal’s having apparently of its own accord at the hearing and without any preceding evidence medical or otherwise, taken “on board” the question of whether the claimant was suffering from any of the mental disabilities listed under that heading in the schedule to the 1995 Regulations. Of course the jurisdiction of a social security appeal tribunal is inquisitorial i.e. it is up to them to investigate all relevant matters. However, in this type of case, the tribunal should, in my view, be hesitant in going into the question of possible mental disabilities unless they have been raised beforehand and in addition there is some medical or similar evidence on the point. In this case, as far as I can see, there was none. The tribunal relied on what the claimant said at the hearing, though whether in answer to questions by the tribunal or not I do not know. 
6.	When looking in isolation at the list of “mental disabilities” in the Schedule to the 1995 Regulations I consider that it would be easy, without I hope being cynical to say of almost anyone that they could acquire some points under the various descriptors. For example the descriptor “Avoids carrying out routine activities because he is convinced they will prove too tiring or stressful” could, I would think, describe anyone at a given point of time. The same is true of the descriptor “is scared or anxious that work would bring back or worsen his illness”. In view of the general nature of some of these descriptors, I consider that tribunals ought to be sure that they do have some corroborative evidence preferably medical evidence, on these points. They should be careful not to elevate to “mental disabilities”, for example a mere disinclination to do certain tasks or to go to work on a certain day or a disinclination for the society of one’s fellow human beings on certain occasions.
7.	In construing and applying the descriptors in the Schedule to the 1995 Regulations, it must always be borne in mind that regulation 24 of those regulations provides that “the all work test is a test of a person’s incapacity, by reason of some specific disease or bodily or mental disablement, to perform the activities presented in the Schedule” (my emphasis). In this context, therefore, the matters specified in Part II of the Schedule under the heading “Mental Disabilities”, can qualify for “points” only if they result from “mental disablement” (reg. 24). In other words, they must not be mere matters of mood but must relate to a recognisable mental disablement, in the nature of an illness and not shared by healthy members of the population. The generality of such a phrase as “often sits for hours doing nothing” (para. 15(b)), for example, must be restricted to such a state resulting from a definite mental disability.
8.	In the present case, the tribunal made the following findings of fact:
“1. [The claimant] has irritable bowel syndrome. He loses control of bowels occasionally.
2.	He often sits for hours doing nothing.
3.	He is frequently subject to mood swings.
4.	Stress was suffered at work [as a painter and decorator] shortly before he became incapable.
5.	He is scared that a return to work will worsen his condition.
6.	He enjoys solitude.”
On those findings of fact as to which there is no real indication on what evidence it was based (and on the absence of which the adjudication officer, in my view rightly, bases his appeal) the tribunal awarded points as follows:

“Activity	Schedule No.	Descriptor	Points	
COMPLETION OF TASKS	15(b)	Often sits for hours doing nothing.	2	
DAILY LIVING	16(c)	Is frequently distressed at some time of the day due to fluctuation of mood.	1	
COPING WITH PRESSURE	17(a)	Mental stress was a factor in making him stop work.	2	
	17(f)	Is scared or anxious that work would bring back or worsen his illness	1	
INTERACTION WITH OTHER PEOPLE	18(e)	Prefers to be left alone for 6 hours or more each day.	1	
		Total	7”	
It should be noted that because the tribunal was able to find that the claimant amassed seven points under these heads that that total was “rounded up” to nine points under the terms of regulation 26(1)(a) of the 1995 Regulations.
9.	The new tribunal will wish therefore to consider all these matters carefully. The decision is ultimately one for them but, without wishing to be unsympathetic to the claimant, I consider from what I have seen of the evidence in this case, that there does need to be some cogent evidence, particularly if there is continued reliance on mental factors, before the claimant can achieve the total of 15 points. I appreciate that the claimant (I have no doubt entirely genuinely) says that his only desire was to get back to work as soon as possible and that he was having specialist investigations for the irritable bowel syndrome. However, under the new scheme for incapacity benefit the sole question is not whether in the general sense a person can be regarded as incapable of work but whether or not he or she attains the requisite number of descriptors.

Date: 7 April 1997	(signed) Mr. M. J. Goodman
Commissioner