CSIB/38/96
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL TO THE COMMISSIONER FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL UPON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
 
MR COMMISSIONER W M WALKER QC
Tribunal :
Tribunal Case No :
 
1. This appeal by the adjudication officer succeeds. I hold the decision of the appeal tribunal dated 16 November 1995 to be erroneous in point of law and accordingly set it aside. I remit the case to the tribunal for determination afresh in accordance with the directions and guidance which follow.

2. Leave to appeal in this case was granted by a Commissioner. It came before me at a hearing at which the adjudication officer was represented by Mr William Neilson, of the Office of the Solicitor in Scotland to the Department of Social Security and the claimant was represented by Mr Chris Orr, a Welfare Rights Officer now with the City of Glasgow Council. I am grateful to both for their assistance.

3. The tribunal allowed the claimant’s appeal from a decision of an adjudication officer holding that he did not satisfy the "all work" test. The test is designed to determine those who qualify for incapacity benefit and is prescribed by section 171 of the Social Security Contributions and Benefits Act 1992. The test is detailed by the Social Security (Incapacity for Work) (General) Regulations 1995 and in particular by Part III of, and the Schedule to, them. In brief and for the purposes of this case, where only physical disabilities were in question, the scheme provides in Part I of the schedule (pages 60 to 67 of the bundle) a set of activities and descriptors related to each. In respect of each descriptor satisfied points are acquired and if more than 15 points are achieved then the claimant has satisfied the test and is, other matters apart, entitled to the benefit.

4. There was no dispute in this case but that the claimant deserved at least 10 points. That was in part by satisfaction of activity 1 descriptor (e) and activity 2 descriptor (c). Only the latter of these counted in terms of regulation 26(2). He also satisfied activity 3 descriptor (c). The adjudication officer in light of the material before him, including a medical practitioner’s report and the claimant’s evidence furnished in his application, concluded that activity 13, descriptor (f) was also satisfied. Hence the total of 10 points.

5. The tribunal concluded that in respect of activity 13, descriptor (b) was satisfied and awarded 15 points on that count alone. Hence their decision in favour of the claimant. That descriptor reads:
"No voluntary control over bladder".
Whereas descriptor (f) reads:-
"Loses control of bladder at least once a month".
I pause to note that so far as any specific mention of bladder control is concerned there is no other provision in the Schedule than under activity 13, "Continence", nor is there any other descriptor thereunder than the two just cited which would result in a positive award of points. The adjudication officer’s ground of appeal was simply that the decision on these two descriptors was not supported by the evidence, was based on insufficient findings of fact and was not supported by adequate reasons. The contention at the heart of it was that the evidence could only have justified descriptor (f) and not descriptor (b) of activity 13.

6. The tribunal’s findings of fact were these:-
"Claimant’s case commenced 20 April 1989. Claimant has had 2 prostate operations and requires to pass water at least every half hour. The claimant is additional bladder incontinent".
Their reasons were these:-
"We accept that the claimant’s prostate difficulties required that he frequently attend at the toilet to pass water and that, in addition, much of this was involuntary, he being bladder incontinent as distinct from feeling the urge to pass water. In these circumstances we are satisfied that the appropriate classification was no control over his bladder in terms of 13b".

7. Mr Orr and Mr Neilson both in effect submitted that in the context of bladder control "voluntary" should be taken as referring to that part of control which requires effort of the will. Otherwise, they contended, normal bladder control would be involuntary. I accept that submission upon the basis that such use of "voluntary" or "involuntarily" is paralleled in other medical situations. Thus spastic movements are often referred to as "involuntarily" because they are not dictated by the will although, no doubt, they are the product of some part of the central nervous system. Upon that approach it is clear that this tribunal have not correctly approached the issue before them in respect of activity 13. As Mr Neilson pointed out they seem to have been rather misled by answers on the application form completed by the claimant ‘document 24’ where in response to questions mirroring the descriptors of activity 13 the claimant said that he lost control over his bladder at least once a month by ticking the appropriate box but then explained the position thus:-
"The Ditrapan tablets regulate my bladder functions. I am attending the Glasgow Royal Infirmary as an out-patient. I go to the toilet nearly every half hour".
I rather suspect, as Mr Neilson indicated, that the tribunal took from that that the claimant suffered from two toilet problems, namely occasional incontinence and a need to go to the toilet nearly every half hour. Hence the last sentence of their findings of fact. That part of the findings was not warranted by the evidence. As I understand it from the papers, but it will be for the new tribunal to consider in the light of all the evidence that may be put before them, this claimant’s one problem in this area is that he requires to go to the toilet to pass water during the day-time at virtually half hourly intervals.
8. That being so, before descriptor (b) of activity 13 can be properly considered, it will be necessary to discover what control by exercise of will the claimant is able to effect over his bladder. Perhaps, as Mr Orr indicated, the proper starting point is to determine whether the frequency of visits are simply anticipatory or as matter of precaution, or whether they proceed upon some indication of urgency. It is only if there is some degree of urgency which the exercise of will cannot postpone, otherwise perhaps than de minimus, that the new tribunal will be entitled to conclude that this claimant has no "voluntarily control" over his bladder. But facts elicited along the lines indicated above will have first to be determined before any such secondary finding can properly be made.

9. There is a further complication. It appears from the evidence, at least as it stands at present, that the claimant has medication which helps to control his bladder. That will require to be discounted in order to determine the extent, if any, of his voluntarily control. I would not regard any control assisted by medication as fairly voluntary. Not only would will power be then involved but also an extraneous chemical power. It is clear that the new tribunal will require assistance from their medical assessor and it may indeed be that further medical evidence will be required as to the claimant’s position were he to be without the medication.

10. If, and it is only if, the tribunal are persuaded that the claimant has some voluntarily control that they will require to consider the extent, if any, to which he actually loses control over his bladder - in other words the frequency or otherwise of his actually being incontinent to some extent. It is only then that descriptor (f) will come into play.

11. Mr Neilson opened his argument by referring to the sitting activity, number 3. The claimant in his form had indicated that he was unable to sit for as long as half an hour because he would require to go to the toilet. As I understand his contention, and it was renewed before the tribunal, be became uncomfortable because of his bladder condition before the end of the half hour and so he could not "sit comfortably" for that period and so satisfied descriptor (c) of that activity. The tribunal have not pronounced upon the matter, even as an alternative, but there is no doubt that if the claimant could legitimately satisfy that descriptor then, again, he would have scored more than 15 points on the "all work" test.

12. Mr Neilson’s submission was that the test, no doubt having regard to the specified chair, was simply whether or not the individual:
"Cannot sit comfortably for more than 30 minutes without having to move from the chair".
Mr Orr contended, as rather appeared to me at least at first blush to be the obvious answer, that if within 30 minutes of sitting somebody was required to move about in order to go to the toilet the test was satisfied. As Mr Orr put it, if by then the person was squirming in the chair and asked why and said that he had to go to the toilet such a person could be properly described as not "sitting comfortably". Upon that short point he urged me to decide the case for myself although, as I understood it, he later accepted that in respect of the "voluntarily control" question the case would have to go back anyway. Mr Neilson sought to make the distinction between that which is caused by the sitting, which seems to be the purpose of the activity 3 and its descriptors, and that which would happen anyway. Initially I was not much impressed by the argument but when he referred to the separate continence provision at activity 13 and the more that the effects of other conditions, such as arthritis or heart trouble were considered and reflected upon, the more it appeared to me that the designation of the activity has some importance. The other conditions discussed could affect more directly other activities than sitting. I have come to the view that it is only if the sitting itself causes the lack of comfort which requires the individual to move about that activity 3, sitting, comes into play. Thus, in the present case, if sitting in some way aggravated the claimant’s bladder problems - say for example by requiring him to go to the toilet every 15 minutes instead of every 30 minutes then to that extent, but only to that extent, would any of the sitting descriptors be satisfied. That seems to me to follow such logic as there is in the schedule. Thus if a heart condition means that somebody can only walk a very limited amount then it is only the extent to which walking produces that result that activity 1 and its descriptors can be satisfied. Accordingly the new tribunal will only consider the sitting activity if there is some material before them to persuade them that there is some measurable lack of comfort caused by the mere sitting itself - as by way of aggravating the claimant’s difficulties with bladder control.

13. The case requires to be more carefully investigated and assessed and it is remitted to the tribunal accordingly.
 
W.M. WALKER QC
Commissioner 
17 March 1997