APPEAL FROM DECISION OF AN APPEAL TRIBUNAL ON A QUESTION OF LAW

Commissioner’s Case No:  CIB/3764/2001

1.	This appeal, brought with leave of a district chairman, succeeds.  The decision of the Appeal Tribunal on 20 7 98 was erroneous in point of law, as explained below, and I set it aside and remit the appeal to another tribunal for rehearing.

2.	The appeal turns on the tribunal’s handling of the mental health descriptors in the All Work Test (as it then still was) which the appellant underwent on 11 12 97 and which resulted in her being found no longer incapable of work from and including 17 12 97.  The long delay in my dealing with the appeal seems to have been attributable partly to delays in the Tribunal Service, partly to difficulties in contacting the appellant and partly to documents going astray in the post.  I accepted that there were special reasons for admitting it.

3.	The appellant suffers from an anxiety state, and particularly from agoraphobia.  She was previously accepted as exempt from the All Work Test as suffering from a severe mental illness.  She has an old dislocation of the hip from which she has recovered, except that she walks with a stick and goes upstairs one step at a time.  The decision maker awarded 3 points for the stairs descriptor and 6 for mental health descriptors: the appellant was accepted as feeling scared and panicky for no obvious reason (17(b)), unable to cope with changes in daily routine (17(d)), worried about going back to work because this would involve going outdoors (17(f)), getting irritated with things that would not have bothered her before her illness (18(d)) and being afraid to go out alone (18(f)).  The score of 6 was properly carried forward as 9, but this, added to the 3 physical points, still did not add up to the necessary 15 under the Incapacity for Work (General) Regulations.  

4.	The appeal urged that other mental health descriptors were fulfilled.  A list was drawn up (see page 48-9), and was confirmed by the appellant’s GP and occupational therapist.  The claimed descriptors appeared to be that she could not undertake leisure activities she previously enjoyed (15(e)), that she was frequently distressed at some time of the day due to fluctuation of mood (16(c) - burst into tears and shouted at her mother), that her agoraphobia made her give up the voluntary work she had attempted (17(a)), that she could not look after herself without help from others (18(a) - could not go alone to the Post Office), that she became upset by ordinary events, which resulted in disruptive behavioural problems (18(b) - she argued with her father over small things, lost her temper and shouted), and that her mental problems impaired her ability to communicate with other people (18(c) - she lost her temper in shops).  The other items on the list were descriptors for which she had already been awarded points.

5.	The tribunal confirmed the points already awarded and accepted  impaired leisure activities, which resulted in 1 further point.  But it rejected 16(c) as it found her mood was now stable, 17(a) because she had been made redundant from her last paid employment, 18(a) because she was able to go shopping and to church with her mother and to anxiety classes, 18(b) because what was described was because of the difficulties of family life and 19(c) because getting annoyed with shop assistants was not necessarily evidence of a mental problem.  It also in its full statement rejected the descriptor relating to changes in daily routine, but it had accepted this in its short form decision, as it was one of the points awarded by the decision maker.

6.	The appeal argued that insufficient attention had been paid to the appellant’s inability to go out alone; but this is not so, the relevant point for this (18(e)) had been awarded by the decision maker.  Further evidence was offered suggesting that the appellant had in fact left her previous paid employment through mental stress, rather than having been made redundant, but she told the examining doctor that she had been made redundant, and there is no indication that evidence to the contrary was before the tribunal.  The evidence about giving up her voluntary work through stress was noted by the tribunal.

7.	The Secretary of State’s officer did not support the appeal.  In response it has been argued that the tribunal ignored the GP’s evidence about agoraphobia, referring only to the 1996 Med 3 diagnosis of “nervous debility”, which appears at page 1H.  But there was no doubt before the tribunal that the appellant could not go out alone.  I observe that if the GP at page 41A was saying agoraphobia meant she could not be left alone indoors, as opposed to outdoors, this is not a recognised definition, and everyone (including the appellant) has been in agreement that she is all right indoors.  Nor is there any indication, as the representative suggests in response, that the tribunal “preferred the evidence of the BAMS doctor” to that of the appellant’s GP and occupational therapist: the tribunal went through the additional descriptors mentioned in the list confirmed by those people and made its own findings.    

8.	However, I consider that the tribunal’s explanation for rejecting descriptor 17(a) was wrong, and although this would not of itself give the appellant enough points to satisfy the All Work Test, there is another reason why I think it safer to remit the appeal rather than do what the representative asks me and decide it myself, whether for or against the appellant.  I cannot overlook that both the original decision and the appeal against it were made before 21 3 98, and therefore the appeal has to be decided “down to the date of the hearing” – or at least down to the date on which another claim was made, if one has been.  I have no evidence beyond the date of the last hearing, well over three years ago.  It will be more desirable for the appellant to have a chance to submit further evidence, including any evidence there may be of more recent claims.

Directions

9.	In reaching its decision, I direct that the rehearing tribunal is entitled to take into account the history of the appellant’s attempt to do voluntary work, and is not limited to consideration of her last paid employment (though it may of course also consider the further evidence now provided about how she came to leave the BBC).  There is no general definition of “work” for the purposes of the Contributions and Benefits Act 1992, nor in regulation 2(1) of the Incapacity for Work (General) Regulations.  The word does have a definition in regulation 16(2) for the purposes of “therapeutic” work as “any work which a person does…whether or not he undertakes it in expectation of payment”. Regulation 16(1) exempts certain types of work, including (by regulation 17(1)(b)) “work done as a volunteer”.  “Volunteer” is defined in regulation 2(1) as “a person who is engaged in voluntary work otherwise than for a close relative, where the only payment received by [her] or due to be paid to [her] by virtue of being so engaged is in respect of any expenses reasonably incurred by [her] in connection with that work”.  If voluntary work would, in the absence of the specific exemption, be work which would deprive a person doing it of entitlement to incapacity benefit, I do not see why voluntary work should not in principle also be embraced by descriptor 17(a).  However, the evidence in this case is that it was not the work itself which caused the appellant to give it up, but the stress involved in getting to and from the place of work.  It will be for the tribunal to decide whether this mental stress was “a factor in making [her] stop work”.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          
10.	I am not myself persuaded that an inability to go shopping or to the Post Office unaccompanied (for which the appellant secured the point for descriptor 18(f) as being too frightened to go out alone) is what is contemplated by 18(a) “cannot look after [her]self without help from others”.  This would involve double counting, and although that is not ruled out (save for walking and stairs) if the descriptors necessarily lead to it, as with visual impairment and stairs in CSIB/13/96, *31/97, I am not here satisfied that they do.  The appellant was able to look after herself in every other respect.  However, I do not express this view as a point of law ruling, and the rehearing tribunal will be free to use its own judgment in reaching a conclusion.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   11.	The appellant will be free to produce more evidence if she wishes, and may of course put forward arguments on exemption or exceptional circumstances, as well as the All Work Test, if appropriate. 				                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               12.	The tribunal will investigate the appeal afresh and reach (and explain) such conclusions as it thinks correct.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

        						(signed)	Christine Fellner
								Commissioner

								15 February 2002