PLH                                                                             Commissioner's File:  CIB 4546/01

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  		Incapacity Benefit
Appeal Tribunal: 	Boston
Tribunal Case Ref:  	U/42/044/2000/00711
Tribunal date:		19 July 2001
Reasons issued:		10 September 2001

1.	This appeal by the claimant is dismissed, as in my judgment there was no error of law in the decision of the appeal tribunal sitting at Boston on 19 July 2001, as explained in the statement of reasons later sent to the parties on 10 September 2001.
2.	This case raises a short but interesting point on the meaning of the phrase “uncontrollable, or uncontrolled, by a recognised therapeutic procedure” in the special provisions for people suffering from severe life-threatening diseases in regulation 27 Social Security (Incapacity for Work) (General) Regulations 1995 SI No. 331 as amended (exceptional circumstances where personal capability assessment criteria are not met).  The claimant in this case, a lady now aged 55, has the misfortune to suffer from a condition identified as “idiopathic anaphylaxis”.  This, according to the medical and other evidence which was accepted by the tribunal, first started in 1998 with a severe attack for which she had to be admitted to hospital for nine days, and involves allergy- type reactions which occur unpredictably from time to time, the cause being impossible to pinpoint.  
3.	According to the findings of the departmental doctor who examined her on 31 May 2000 these reactions are sometimes relatively mild, with symptoms of urticaria, lip swelling and wheezing which settle down within 30 minutes or so with the use of an inhaler, but on occasions (three within the last twelve months) the effects are much more severe and incapacitating.  Then she has to give herself an emergency shot of adrenaline for which she carries a special injector, following which an ambulance has to be called and hospital treatment is required.  The duration of these more severe episodes is typically some 24-48 hours before they come under control.  
4.	In between attacks however, the claimant is able to cope quite normally with everyday life, and such things as household tasks and driving.  Although she does also suffer from some degree of cervical spondylosis and osteoarthritis at the base of her thumb, and she was examined under the all work test (now personal capability assessment), it is common ground that she does not qualify for sufficient points under the normal descriptor scales to count as “incapable of work” in that way.  The only issues before the tribunal concerned whether she fell within the “exceptional” category counting as incapable of work under regulation 27 without the 15 points.  This she had previously been accepted as doing on the basis of an earlier medical report in January 1999, relatively soon after her initial and most severe attack.
5.	The material findings of fact recorded by the tribunal appear from the following passages from their statement of reasons:  
“[the claimant] gave a detailed appeal statement and this was accepted as essentially true insofar as it concerned the history of onset of the ideopathic anaphylaxia, diagnosis and treatment.  We found as a fact that [she] had been seen in hospital on 1 August 1998 suffering from symptoms of anaphylaxia.  She had been discharged the same day but on the next day she was admitted to hospital for a 9 day period and treated for what was subsequently diagnosed as idiopathic anaphylaxia.  We also found as a fact [she] last used her Epipen [the special adrenalin injector] to treat a severe attack in January 2001.  On this and other occasions [she] had been taken to hospital by ambulance and had been treated in the hospital resuscitation unit.  We found as a fact that there had been several minor attacks since August 1998 and this was consistent with the account given to the doctor carrying out the medical examination.
We found that there had been no subsequent attacks of the severity of the August 1998 event although it was obvious that the possibility of a severe attack was present in the mind of [the claimant].  She carries her Epipen with her at all times.  ...  We also found that [she] carried on with her life as normal despite the perceived risk that an attack might occur without any notice and that the attack might be severe.”
6.	  The tribunal then referred to the evidence on the severity of the claimant’s illness, and recorded a further finding of fact that in the light of the history of its onset, the severity of the attack in August 1998 and evidence from her own GP, her illness was indeed severe and life-threatening, so as to meet the first condition for “exceptional circumstances” under regulation 27(2)(a).  All therefore depended on the next part of the same sub-paragraph requiring that: 
“(i) There is medical evidence that the disease in uncontrollable, or uncontrolled, by a recognised therapeutic procedure”.  
On this the tribunal’s conclusion was as follows:  
“We accepted as a matter of fact that it was not possible for [the claimant] to forecast when an attack might occur nor what might trigger an attack.  In this respect idiopathic anaphylaxia differs from other forms of anaphylaxia which possess the characteristic of more readily identifiable (and therefore avoidable) triggers.  {She] was able to live an otherwise normal life engaging on normal everyday matters, albeit conscious of the potential for an attack.  She had coped with both serious and not so serious attacks by appropriate use of the medication available to her.  Accordingly, we found that even though this illness was severe and life-threatening, it was controllable by a recognised therapeutic procedure and therefore fell outside the terms of regulations 27(2).”
7.	The appeal on behalf of the claimant is bases on the contention that that last paragraph embodies a misdirection on the “therapeutic control” condition.  In the original letter setting out the grounds of appeal at pages 68-69 it was contended that the tribunal’s findings and conclusion were wrong because 
“…while accepting that her medication has to date worked on minor attacks and with hospital intervention managing severe attacks, [the claimant] would not be able to therapeutically control her condition without the physical assistance of another person when an attack occurs.  She is unable to take medication herself when attacks occur and therefore requires the need to use the “therapeutic” assistance of another trained person.  This on most occasions is her immediate family and on other occasions hospital staff.  This assistance should have been seen as part of the therapeutic treatment ... it is not the medication alone that controls the condition, it is the therapeutic intervention of another who guarantees that the medication will work and the intervention of another to ensure that hospitalisation is made possible.”
8.	In my judgment however, the Secretary of State’s written submission dated 23 January 2002 at pages 88-89 is right in pointing out that for the purposes of regulation 27 the “recognised therapeutic procedure” does not have to be one which the claimant administers or is capable of administering for himself or herself; and if as the tribunal found the condition was controllable, either by the claimant’s own administration of adrenaline or by that in conjunction with treatment given at a hospital, that was sufficient to take the case out of the exceptional circumstances regulation 27(2) as the tribunal held.   
9.	I agree with that, and it seems to me that the observations of the claimant’s representative in reply at pages 90-91, well and cogently argued as they are, really focus on the wrong question when they say 
“…what the Secretary of State has failed to understand is that without the intervention of a trained third person, [the claimant] would not be able to administer her medication or contact the hospital for the treatment required to therapeutically control her condition.”  
10.	In my judgment however, the question that has to be answered under regulation 27(2)(a)(i) is not like the kind of question that would have to be answered in relation to attention or supervision needs for the purposes of disability living allowance, where what the claimant could reasonably be expected to be able to do for herself would be relevant.  Under regulation 27 the question is only whether the nature of her condition is such that it is capable of being controlled by medical science, or not.  Consequently the tribunal were right in taking account not only of the inhalers and adrenaline injector she is able to use herself, but also the hospital treatment which unhappily she finds also has to be used on occasions as a means of bringing the condition under control.  On the tribunal’s findings the claimant’s condition is thus controllable in the relevant sense, and their reasons are clearly and adequately given.
11.	In my view therefore their decision was not erroneous in law, and I dismiss this appeal.
(Signed)
P L Howell
Commissioner
27 February 2002