THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSIB/889/99

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  D J MAY QC

ORAL HEARING

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the social security appeal tribunal given at Glasgow on 16 June 1999 is erroneous upon a point of law.  I set it aside.  I remit the case to a freshly constituted social security appeal tribunal for a rehearing.

2.	This case came before me for an oral hearing on 20 July 2000.  The claimant was represented by Mrs Leonard a Welfare Rights Officer of South Lanarkshire Council.  The Secretary of State was represented by Miss Miller, solicitor of the office of the solicitor to the Advocate General.

3.	The claimant has appealed against the decision of the tribunal recorded at page 130.  

4.	It was common ground between the parties that the tribunal decision erred in law.  This I accept and accordingly the tribunal decision must be set aside.

5.	There are a number of reasons why the tribunal decision erred in law.  The first is that whilst the tribunal were aware that there had to be a basis for review of the claimant’s award of incapacity benefit it is not at all clear upon what basis the tribunal found that the statutory provisions for review set out at section 25 of the Social Security Administration Act 1992 were satisfied.  This was material in respect that the tribunal were satisfied that the claimant satisfied points scoring descriptors amounting to 8 points.  It was pointed out to me by Mrs Leonard that when subjected to a previous all work test the claimant was found to satisfy points scoring descriptors in respect of the activity of continence whereas the tribunal took the view following the BAMS report which led to the adjudication officer’s decision on review considered that no points scoring descriptors in respect of that were satisfied.  The basis of the BAMS doctor’s view that no points scoring descriptors were upon the grounds that while the claimant suffered from coeliac disease at page 42 under summary of functional ability it was said:-

“Coeliac disease should not cause incontinence of the bowel.  He admits that he doesn’t always stick to a gluten free diet.  It is essential that sufferers do stick to a strict diet.”

However the previous all work test assessment which was carried out on 28 February 1996 the doctor then examining the claimant accepted that he had coeliac disease and that he satisfied a points scoring descriptor.  That report is set out at page 103.  Miss Miller also directed my attention to the tribunal’s failure to indicate why in the context of the written submission at page 125 which was placed before the tribunal and in paragraph 4 related to his osteo-arthritis being a degenerative condition the tribunal found that there was a basis for review in respect of rising from sitting when once again the BAMS doctor who carried out the all work test assessment in 1996 indicated that the claimant satisfied a points scoring descriptor.  

6.	It was also asserted that there was an error in law, apart from the basis for review in respect of the activity of continence, in relation to the tribunal’s treatment of the activity of continence.  The tribunal found:-

“6A.  The Appellant in his submission to the Tribunal seeks points for Walking, Rising and Bowel Incontinence coelic Disease does not of itself cause Bowel incontinence and if diet is adhered to bowel urgency is controlled.”

The tribunal did not make a finding as to whether in fact they accepted that the claimant was incontinent.  Further they appear to have taken the view that bowel urgency is controlled if a gluten free diet is adhered to then no points scoring descriptors apply.  The criticism was related both to a failure to make a specific finding on incontinence and also because of their absolute conclusion that if a gluten free diet was not adhered to and the bowel urgency controlled thereby then the points scoring descriptors in respect of the activity could not be satisfied.  

7.	The Secretary of State, through Miss Miller, did not accept the absolute position adopted by the tribunal.  In her submission the test was whether it was reasonable having regard to the practicability of a particular case.  This formulation was accepted by Mrs Leonard.

8.	I was referred to CIB/14499/1996.  That case was related to the wearing of glasses.  Perusal of the Commissioner’s decision however makes it clear that the views expressed are done so in the context of a schedule in the Social Security (Incapacity for Work) (General) Regulations 1995.  What was said by the Commissioner was:-

“8.	I have indicated above the appropriate approach that the new tribunal should take to the law.  There is a question of fact in relation to seeing.  The previous tribunal was of the view that if the claimant obtained prescription sunglasses, then she would not have difficulties in seeing.  This is a question of fact that the new tribunal should consider.  In the schedule to the 1995 regulations column 1 in relation to descriptor 12 specifies “vision in normal day light or bright electric light with glasses or other aid to vision if such aid is normally worn”.  A literal interpretation of this would mean that a person who would be able to see perfectly well if prescribed glasses but who refused to wear glasses might thereby bring themselves within an appropriate descriptor and score 15 points.  I cannot accept that this is right.  The phrase “if such aid is normally worn” must be understood to refer to whether the aid is normally worn by people in that situation acting reasonably in all the circumstances.  The parties might wish to produce evidence and argument on this point, and the tribunal will, of course, have the assistance of its medical assessor in relation to any questions of normal medical procedure.

Thus the assistance from this case is limited, though materially it does import a principle of reasonableness in the interpretation of the particular statutory provision.

9.	I was also directed to a divergence of view between Mr Commissioner Walker QC in CSIB/38/96 and the Northern Ireland Commissioner Mrs Brown in C72/99(IB) in relation to the taking of medication for the purposes of control in the context of the word “voluntary”.  However I do not find these cases of assistance in the present case, nor am I prepared to take a view as to which of them is correct because the issue in them is whether voluntary control assisted by medication is “fairly voluntary”.  In this case the issue is related to adherence to a diet rather than the intervention of medication.  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.  This tribunal however did not approach the matter in this way and that is why I have held their decision to be erroneous in law.

10.	The freshly constituted tribunal in relation to the review issue should have regard to CSIB/508/99 and associated cases in relation to the issue of review.  They should find specifically whether the claimant does by reason of a disability suffer from incontinence.  If they make such a finding they should follow the approach set out above in respect of whether any points scoring descriptors are satisfied.

11.	The appeal succeeds.

						(signed)
					D J MAY QC
					Commissioner
					Date:  26 July 2000