CIB/3519/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Darlington appeal tribunal dated 25 March 2002 and I refer the case to a differently constituted appeal tribunal for determination.  Directions to the Secretary of State are to be found in paragraph 6 below.

REASONS

2.	The claimant has a prostate problem, which had led to him being regarded as incapable of work since 18 August 1994.  He did not satisfy the contribution conditions for entitlement to sickness benefit or incapacity benefit but was awarded credits and, I suspect, income support.  Following the coming into force of the legislative amendments made by the Social Security (Incapacity for Work) Act 1994, the claimant was referred for all work test assessments, now known a personal capability assessments and he routinely scored 15 points under paragraph 13(b) of the Schedule to the Social Security (Incapacity for Work) Regulations 1995 – “no voluntary control over bladder” – although it appears that, in 1997, he had to appeal against an adverse decision of an adjudication officer.  On 5 December 2001, he was referred for another personal capability assessment. This time, the Secretary of State decided that the claimant scored only 10 points – 7 under paragraph 3(c) on the ground that he could not sit comfortably for more than 30 minutes and 3 under paragraph 13(f) on the ground that he “loses control of [his] bladder at least once a month”.  He appealed unsuccessfully, the tribunal taking the view that the claimant was entitled only to the 3 points under paragraph 13(f).  He now appeals with my leave and the support of the Secretary of State.

3.	The Secretary of State’s support is based on CSIB/38/96 in which the Mr Commissioner Walker QC said, with reference to paragraph 13(b), that he “would not regard any control assisted by medication as fairly voluntary”.  The Secretary of State submits that the tribunal erred in not making it clear that they had ignored the effects of medication.  I am grateful to the claimant’s representative, Mr Mike Robinson of Darlington citizens’ advice bureau, for drawing my attention to R2/00(IB), in which Mrs Commissioner Brown in Northern Ireland said:

“As regards Commissioner Walker’s decision in CSIB/38/96, if he meant that all medication must be disregarded in determining whether or not a claimant has voluntary control, I do not share his views.  Medication can enable a person to exercise control by will where previously he could not have done so.  If a person acquires or regains control by will over the emptying of the bladder or bowel, however the ability to exercise that control was brought about, he cannot, in my view be said to have ‘no voluntary control’.”

I agree with Mrs Commissioner Brown.

4.	However, Mr Robinson argues that the medication used in the present case does not lead there to being voluntary control but instead produces a degree of involuntary control.  This leads to his principal ground of appeal, which is that the tribunal erred in their approach to paragraph 13 because they appear to have considered that the terms of that paragraph were not satisfied merely because the claimant had some control over his bladder.  Plainly, the length of time for which the claimant could avoid urinating and the fact that there were few incidents of actual incontinence were matters to which the tribunal were entitled to have regard in considering whether the claimant was able to exercise voluntary control over his bladder but, at least to my medically unqualified mind, they do not necessarily show a degree of voluntary control as opposed to involuntary control.  The claimant’s case had been that he took precautions so as to avoid incontinence due to his lack of voluntary control.  He did not go too far from a toilet and visited the toilet before he felt the need to do so.  The tribunal noted that the claimant had remained dry when medically examined but, as had been observed by doctors carrying out earlier examinations, it is common for people with bladder problems to abstain from liquids before venturing out.  His case was clearly that such control as he had was not voluntary.  Nowhere in the statement of reasons for the tribunal’s decision does the tribunal draw the distinction between voluntary and involuntary control.  On that ground I am satisfied that they erred in law.

5.	Mr Robinson also argues that the tribunal erred in not considering whether supersession under regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (relevant change of circumstances) might have been more appropriate than supersession under reg. 6(2)(g).  I do not agree.  If there had been no change of circumstances, as the claimant submitted, the Secretary of State was perfectly entitled to rely on regulation 6(2)(g) and would not have been entitled to rely on regulation 6(2)(a)(i).  If there had been a change of change of circumstances, the supersession might have been effective from an earlier date, to the possible disadvantage of the claimant.  The tribunal were not obliged to go behind any implied concession by the Secretary of State in relying on regulation 6(2)(g).  Mr Robinson is on stronger ground in submitting that the fact that there had been earlier assessments in the claimant’s favour should have been reflected in the tribunal’s reasoning.  The difficulty was that the details of the previous assessments were not before the tribunal.  However, the Secretary of State concedes that they should have been and has now supplied them.

6.	I am told that, since the tribunal’s decision the claimant has been found to be incapable of work.  However, I am not told whether that is because he has passed a personal capability assessment, in which case I would have been inclined to make a decision in his favour for the closed period, or whether he has been treated as incapable of work before such an assessment has been made, in which case the award of benefit is of no evidential value.  Accordingly, I refer the case to another tribunal.  The Secretary of State should, within a month of the date this decision is sent to his representative, provide the tribunal with details of the recent finding of incapacity for work, including any medical evidence upon which it may have been based, and should indicate whether he is prepared for the tribunal to allow the claimant’s appeal in the light of that further evidence and my decision.  If the appeal is not conceded, the tribunal will, of course, base their decision on their findings as to the claimant’s condition on 8 January 2002, disregarding any subsequent change of circumstances.

7.	Mr Robinson submits that a tribunal considering this case should determine whether the claimant satisfied the condition of regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 that “by reason of … disablement, there would be a substantial risk to the mental or physical health of [the claimant] if he were found to be capable of work”.  The Secretary of State submits that the claimant’s condition was not sufficiently serious.  There may be force in that contention but that is essentially a question of fact for the new tribunal.  I do not accept Mr Robinson’s suggestion that the word “substantial” refers only to the likelihood of the risk occurring.  In my view, a risk may be “substantial” if the harm would be serious, even though it was unlikely to occur and, conversely, may not be “substantial” if the harm would be insignificant, even though the likelihood of some such harm is great.  Paragraph (b) must be viewed in the light of the other paragraphs of regulation 27 and the general scheme of the Regulations.  In the absence of any findings, I do not think it likely to be helpful for me to say anything else on this issue.

	(Signed)	MARK ROWLAND
		Commissioner
		16 June 2003