DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the tribunal is erroneous in point of law.  I set aside the decision of the tribunal and substitute my own decision, which is that the claimant was incapable of work from and including 7 May 1999.

2.	This appeal is concerned with the entitlement to incapacity benefit of a claimant who suffers from dysmenorrhoea.  Having granted leave to appeal on 13 September 2000, I held an oral hearing of the appeal on 21 March 2001, at which the claimant was represented by Mr O’Rawe, of the Free Representation Unit, and the Secretary of State was represented by Mr Parish, of the Department of Social Security Solicitor’s Department (as it then was).  There have since been supplementary written submissions, in accordance with directions which I gave at the hearing.  I am grateful to both representatives for their assistance.

3.	The claimant became incapable of work on 29 August 1997.  She became subject to the all work test of incapacity for work on 13 March 1998 and was examined by a BAMS medical examiner on 26 March 1998, but unfortunately no decision was made on the claimant’s incapacity for work at that time and the all work test procedure was therefore re-commenced in February 1999.

4.	On 3 February 1999 the claimant submitted a completed form IB50, in which she stated that she was incapacitated for approximately one week in every month due to dysmenorrhoea, and that at such times there was impairment of the activities of sitting, rising from sitting, bending and kneeling, standing, walking, walking up and down stairs, and lifting and carrying.  Because it appeared from the incapacity for work questionnaire that the claimant could undertake all physical tasks without difficulty for most of the month, she was awarded no points under the all work test, but that score was not confirmed on scrutiny and the claimant was referred for a second examination by a BAMS medical examiner.

5.	At that examination, which took place on 28 April 1999, the medical examiner recorded the claimant’s description of her functional ability as follows:

“Has had dysmenorrhoea for (about) 20 years.  Getting progressively worse.  Has had (illegible) gynaecological procedure to no avail.  Has pelvic pain for seven days in an average 28 day cycle.  At these times she is very incapacitated and stays in bed except to use the bathroom.  Cannot even cook...No incapacity, and fully fit on other days.”

The examining medical officer’s own evaluation of the claimant’s functional ability accorded with that of the claimant, and he assessed the claimant as scoring 3 points in respect of descriptors 3(c) and 5(c) (rising from sitting, and bending and kneeling) on the basis that the claimant sometimes could not carry out the specified activities.  The adjudication officer adopted that assessment, and on 7 May 1999 made a decision which is recorded in the form AT2 in the following terms:

“I have reviewed the decision of the adjudication officer awarding incapacity benefit from and including 29 August 1997.  This is because the decision awarded benefit for days after the date of claim and the requirements for entitlement are not satisfied as there has been a relevant change of  circumstances since the decision was given.  My revised decision only for the period from and including 07/05/99 is as follows.  (The claimant) is not entitled to incapacity benefit from and including 07/05/99.”

6.	The claimant appealed on 27 May 1999, making the point that had she been advised by the Benefits Agency to claim incapacity benefit since she was not eligible for jobseeker’s allowance because she could not make herself available for full-time employment.  Her appeal was heard on 17 January 2000 by a tribunal consisting of a male legally qualified chairman and a male medically qualified panel member.  The tribunal dismissed the appeal and in the Statement of Material Facts and Reasons the chairman gave the following reasons for that decision:

“In the absence of any medical evidence from the appellant we adopted the findings of the Benefits Agency Medical Services doctor’s report of 28 April 1999.  The appellant did not disagree with the doctor’s description of her functional abilities or the statements set out in connection with the descriptors.  The tribunal accepted that the appellant suffers from dysmenorrhoea…and could be seriously debilitated as a result.

Having regard to the lack of supporting medical evidence we were not satisfied  that the condition effectively disabled her from working as was suggested.

The appellant had suffered from the condition for 20 years but had worked until about 2 years previously.  There was no evidence before us that the appellant’s condition had worsened and there appeared to be no reason why she could not continue the agency  work she had previously done, or a similar employment.

The appellant refers in her further grounds of appeal to the Adjudication Officer’s right to require a further medical examination on the grounds that there is no evidence before him that that the appellant’s medical condition has improved.  However, for whatever reason the previous medical examination on 26 March 1998 was not processed and adjudicated upon.

Finally, there was no suggestion before the tribunal that the appellant was exempt from the All Work Test under the provisions of Regulations 27 

Finally there was no suggestion before the tribunal that the appellant was exempt from the All Work Test under the provisions of Regulations 27 and 28 of the Social Security (Incapacity for Work)(General) Regulations 1995.”

7.	The claimant appealed on a number of  grounds and in granting leave to appeal, I observed that, in addition to the points raised by the claimant’s representative, it could be argued that it was not relevant for the tribunal to consider whether the claimant was disabled from working.  However, the Secretary of State’s representative opposed the appeal in a submission dated 17 October 2000, and that opposition was maintained both at the oral hearing and in a further written submission, dated 6 July 2001.
 
8.	Since the claimant accepted the second examining medical officer’s report, I consider that the question of whether there was medical evidence that the claimant was not fit for work at the times when she was not affected by her condition was not relevant. However, I have also come to the conclusion that the tribunal were, in fact, in error in taking into account the claimant’s fitness for work in applying the all work test.  The Secretary of State’s representative accepted in his submission of 17 October 2000 that it was erroneous for the tribunal to have regard to the working situation when applying the all work test, but submitted that the tribunal had merely added comments about the claimant’s working ability in support of their reasoning that the claimant did not satisfy the test.  However, the fact that the tribunal referred to the claimant’s ability to work in two passages in the Statement of Facts and Reasons and referred to the lack of supporting medical evidence specifically in that context. leads me to conclude that the tribunal did wrongly have regard to the claimant’s ability to work in deciding whether she satisfied the all work test..

9.	I am therefore satisfied that the tribunal’s decision must be set aside, but in order to decide how to dispose of this appeal, it is necessary to consider how the all work test and the provisions empowering review (now supersession) should be applied in a case such as this, where the claimant suffers from a predictable, disabling condition for a number of days each month.  The Secretary of State’s representative, relying on Tribunal of Commissioners’ decision R(IB)2/99 has submitted that a ‘broad’ approach should be taken of considering what activities the claimant is reasonably capable of performing most of the time, taking into account the effects of pain, fatigue and repetition.  The claimant’s representative, in a supplementary submission dated 17 July 2001, agrees that the ‘broad’ approach should be taken in relation to issues of reasonableness and regularity, but submits that a more precise arithmetical approach should be taken when considering the ‘linking’ provisions in section 30C of the Social Security Contributions and Benefits Act 1992.

10.	In R(IB)2/99 the Tribunal of Commissioners decided that the ‘broad’ approach, as applied to attendance allowance cases in R(A)2/74, was also applicable to decisions on prospective entitlement to incapacity benefit, notwithstanding that incapacity benefit is awarded on a daily basis.  However, the Tribunal recognised that there would still be some cases where, if  proper regard is had to the words of the legislation, incapacity has to be judged on a day by day basis:

“…a person who has long periods of illness separated by periods of remission lasting some weeks during which he or she has no suffers no significant disablement, might well be considered to be incapable of work during the periods of illness but not to be incapable of work during the periods of remission, even if the periods of illness are longer than the periods of remission. Each case must be judged on its merits and…there are some cases where a claimant can properly be regarded as incapable of work both on days when the ‘all work’ test  is clearly satisfied and on other days in between those days and that there are other cases where the claimant  can be regarded as incapable of work only on ‘bad days’…”

11.	In my judgment, this case clearly falls within that latter category.  As the Tribunal of Commissioners held in R(IB)2/99, factors such as the frequency of ‘bad’ days, the lengths of periods of ‘bad’ days and of intervening periods, the severity of the claimant’s disablement on both ‘good’ and ‘bad’ days and the unpredictability of ‘bad’ days are relevant when applying the broad approach.  In this case, the claimant is seriously disabled for about a week in every month, but the periods of disability are regular and predictable and the claimant is largely unaffected for the rest of the time. There is therefore no basis for regarding the claimant as being unable to carry out the activities specified in the all work test during the periods when she is not disabled (except for the ‘sometimes’ descriptors), but there is equally no basis for regarding the claimant as able to carry out those activities during the week or so of every month when she cannot, in fact, perform them.  In those circumstances, I do not consider that there is room for the application of the ‘broad’ approach, and  I reject the Secretary of State’s submission that the claimant is not entitled to be regarded as incapable of work during the periods when she is disabled by dysmeonorrhoea on the basis that, taking a broad view of the matter, she is reasonably capable of carrying out the activities specified in the all work test most of the time.   In my view, this is one of the minority of cases where each period of claimed incapacity for work has to be considered separately, although the claimant will be entitled to have any part day of incapacity treated as a whole day under regulation 15 of the Social Security (Incapacity for Work)(General) Regulations 1995, and will also be entitled under section 30C(1) of the Social Security Contributions and Benefits Act 1992 to have any two periods of incapacity for work of  four or more consecutive days which are not separated by more than eight weeks treated as a single period of incapacity.

12.	The claimant’s representative has submitted that the tribunal erred in law by failing to consider whether the claimant was incapable of work on any particular days and also by failing to consider the ‘linking’ provisions in section 30C, in accordance with the guidance given in CIS/911/1997.  However, I agree with the Secretary of State’s representative that the need to consider those matters was removed by the changes to the adjudication system effected by the Social Security Act 1998.  This appeal was made after 21 May 1998, and was therefore subject to the provisions, now in section 12(8)(b) of the Social Security Act 1998, restricting the tribunal to considering only the circumstances existing at the date of the decision under appeal.  That decision was the review decision made on 7 May 1999, which  removed benefit prospectively on the basis that the claimant did not satisfy the all work test on that date.  However, the decision did not affect the claimant’s entitlement to benefit prior to the date of the review decision and the tribunal was prohibited from considering circumstances after that date, so that the only relevant date for the purpose of considering whether the claimant satisfied the all work test was the date of the review decision itself.  No issue therefore arose before the tribunal with regard to the claimant’s incapacity for work on any other dates, or with regard to the operation of the ‘linking’ provisions.

13.	The decision maker in this case was faced with the difficulty that there was no information about the claimant’s condition on the day when the review decision was made.  However, by regulation 17(1) of the Social Security (Claims and Payments) Regulations 1987, the original claim for benefit and the resulting award were to be treated as having been made for an indefinite period.  Regulations 17(3) and (4) provided:

“(3)  If it would be inappropriate to treat a claim as made and to make an award for an indefinite period (for example where a relevant change of circumstances is reasonably to be expected in the near future) the claim shall be treated as made and the award shall be for a definite period which is appropriate in the circumstances.

(4)  In any case where benefit is awarded for days subsequent to the date of claim the award shall be subject to the condition that the claimant satisfied the requirements for entitlement; and where those requirements are not satisfied the award shall be reviewed.”

14.	Although the claimant may actually have been incapable of work on the day the review decision was made, I do not consider that that would have prevented the decision maker from reviewing and terminating the claimant’s existing award of benefit.  In CSIS/1371/1994 a Tribunal of Commissioners held that the “requirements for entitlement” in regulation 17(4) meant the totality of the requirements attaching to the individual claimant’s entitlement under the award as it was currently in force, so that if that totality ceased to exist, then the basis on which the claimant had been given an indefinite right to payment of benefit at the rate awarded had materially changed.  The basis of the indefinite award of benefit in this case was that the claimant was continuously incapable of work, and if that was not the case the adjudication officer was therefore entitled to terminate the award prospectively if one of the grounds for reviewing the awarding decision could be established.  Such a decision would not, of course, affect the outcome of any new claim for benefit in respect of future periods during which the all work test was satisfied.

15.	I have therefore considered whether I should substitute for the decision of the tribunal my own decision to the same effect, but I have come to the conclusion that no grounds for a review of the awarding decision have been satisfactorily established.  It is clear that the original awarding decision was, for whatever reason, an award for an indefinite period.  Regulation 17(4) of the Claims and Payments Regulations therefore made review mandatory under whichever of  the normal review powers was appropriate if it became apparent that the requirements for entitlement were no longer satisfied (paragraph 18 of CSIS/1371/1994).  The ground for review relied on by the adjudication officer  was a relevant change of circumstances, but neither the carrying out of the all work test nor the obtaining of a fresh medical opinion, in themselves, constituted such a change.  Although a new medical opinion can provide evidence of a change of circumstances, the uncontested evidence in this case was that the claimant had suffered from the relevant condition for over 20 years, and indeed the examining medical officer recorded that she was getting progressively worse.  I can therefore see no basis for finding a relevant change of circumstances, and I do not consider that there is any material which enables me to find an entitlement to review on any of the other permitted grounds.  The tribunal’s failure to deal with the review issue constituted a further error of law and, for those reasons, I do not consider that I am justified in reviewing the awarding decision myself.  In the absence of  any valid review, the decision awarding the claimant benefit must be reinstated, although that of course will not prevent a supersession of the awarding decision in the future.

16.	At the oral hearing before me the claimant’s representative submitted that the lack of a female member of the tribunal, or the tribunal’s failure to consider whether it should include a female member, was unfair and in breach of Article 6 of the European Convention on Human Rights; and I gave the claimant leave to develop that argument in supplementary written submissions.  Section 41(6) of the Social Security Administration Act 1992 formerly provided that an appeal tribunal consisting of more than one member should, if practicable, include at least one member of the same sex as the claimant, but that provision was repealed by the Social Security Act 1998.  Regulation 36 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, which provides for the constitution of tribunals under the 1998 Act, has no provision corresponding to section 41(6) of the 1992 Administration Act.

17.	The short answer to the Article 6 point is that this case was heard by the tribunal before the coming into force of the relevant provisions of  the Human Rights Act, so that the tribunal was not subject to those provisions at the time when it heard the appeal-see CIS/1077/1999 and CIS/6608/1999.  However, the claimant’s representative also submits that the tribunal should be taken to be biased, or at least not impartial, under domestic law, in accordance with the test laid down in R v Gough [1993] AC 646 and Re Medicaments and Related Classes of Goods No 2) Court of Appeal, 21 December 2000.

18.	In the Re Medicaments and Related Classes of Goods case, the Court of Appeal accepted the test of bias laid down in R v Gough in its essentials, subject however to adjustment to make the test conform with the European Court of Human Rights jurisprudence, and to correspond with the test applied in Scotland and the majority of the Commonwealth.  The Court of Appeal laid down the following approach:

“The Court must first ascertain all the circumstances which have a bearing on the suggestion that that the Judge was biased.  It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.

The material circumstances will include any explanation given by the Judge under review as to his knowledge or appreciation of those circumstances.  Where that explanation is accepted by the applicant for review it can be treated as accurate.  Where it is not accepted, it becomes one further matter to be considered from the view point of the fair-minded observer.  The Court does not have to rule whether the explanation should be accepted or rejected.  Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced.”

19.	I consider that the issue raised by the claimant is not strictly speaking one of bias, in the sense in which that term is generally understood, and in which it was used in R v Gough and Re Medicaments and Related Classes of Goods.  The claimant has submitted that the failure by the tribunal to make adequate findings of fact in a case concerned with a female medical  condition, or even refer specifically to the relevant descriptors, is an indication of bias, but in my view those matters merely reflect the tribunal’s failure to identify correctly the relevant issues in what was undoubtedly a difficult case.  I unhesitatingly reject the submission that it should be presumed that a tribunal consisting entirely of members of one sex will act unfairly towards a claimant of the other sex, or that male tribunal members will necessarily be hostile to a claim related to a specifically female condition.  The employment case cited by the claimant’s representative of S Moberley v Commonwealth Hall University of London [1977] IRLR 176 is concerned with the onus of proof in discrimination cases, and does not support the proposition that a tribunal should always include a member of the same sex as the claimant.

20.	In my view, the main reason for the former section 41(6) of the 1992 Administration Act was to ensure that claimants of either sex would, as far as possible, feel at ease when appearing before a tribunal, and, again as far as possible, would not feel embarrassed or otherwise inhibited when dealing with medical or other sensitive personal issues.  Although the repeal of section 46(1) of the 1992 Act removed the specific requirement for a tribunal to include, if practicable, a member of the same sex as the claimant, I consider that there may nevertheless still be exceptional cases where the absence of  a tribunal member of the same sex as the claimant may inhibit the presentation or understanding of the claimant’s case to such an extent that there will be a breach of the requirements of natural justice and of Article 6 of the European Convention on Human Rights if the tribunal is not reconstituted.  It is obviously  sensible to have a female member of the tribunal, if possible, in a case such as this one; raising as it does sensitive issues relating to a female medical condition.  If a claimant specifically raises as an issue the absence from the tribunal of a member of the same sex, it will also be necessary for the tribunal to consider whether there is a real possibility of an injustice if the tribunal is not re-constituted.  The repeal of section 46(1) means that there is no longer a need for the tribunal to consider in every case whether it is practicable for the tribunal to include a member of the same sex as the claimant,  but a tribunal will nevertheless be under a duty to raise the matter of its own motion if there is genuine reason to believe that in the circumstances of the particular case the absence of such a member may lead to injustice.

21.	The claimant in this case did not raise the issue of the composition of the tribunal until the hearing of the appeal to the Commissioner.  Although the case was concerned with a  female medical condition, the examining medical officer’s report was not disputed and the tribunal was not, in fact, required to investigate in any further detail the effect on the claimant of her condition.  Applying the approach laid down in relation to bias by the Court of Appeal in Re Medicaments and Related Classes of Goods to the question of whether the tribunal hearing was unfair because there was no female member of the tribunal, or because the tribunal did not raise that issue, I can find no basis for holding that a fair-minded and informed observer would conclude that there was a real possibility in this particular case that the tribunal hearing was unfair for those reasons.  I therefore reject this ground of appeal. However, since I have concluded that this appeal must be allowed for the reasons set out above,  I give the decision set out in paragraph 1.

(Signed)		E A L Bano
				Commissioner
 
								2 July 2002