PLH                                                                             Commissioner's File:  CIB 4667/02

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
Tribunal:	Colwyn Bay
Tribunal case ref:	U/03/190/2002/00431
Tribunal date:	23 July 2002
Reasons issued:	16 September 2002

1.	This appeal by the claimant is dismissed, as in my judgment there was no material error of law in the decision of the Colwyn Bay appeal tribunal sitting on 23 July 2002 that could warrant setting that decision aside.  
2.	The claimant is a lady now aged 59 who had to give up her former employment as a dental receptionist after suffering episodes of uveitis (or iritis) of the right eye, a recurrent inflammatory condition of the eye which causes impaired vision and pain during an attack.  According to the report of the departmental doctor who examined her on 24 January 2002, she had been having up to five or six of these attacks per year, each episode lasting several days; but the tribunal which heard her own detailed evidence on 23 July 2002 found as a fact that she had had no acute attack in the period of some 18 months since 7 March 2001 to the date of the hearing itself, that period of course including the date of the Secretary of State’s decision on 1 February 2002 which was the subject of the appeal.  They further found that in any case she could see well enough to read 16 point print at a distance greater than 20 centimetres, drive a car and knit; moreover that the condition of her right eye qualified at the most, during an acute episode only, for the 8-point descriptor (“Cannot see to recognise a friend across the street at a distance of at least 15 metres”), with no problem with vision the rest of the time.  On that basis, there being no evidence or suggestion of physical or mental disablement under any of the other descriptors, the tribunal confirmed the termination of the claimant’s incapacity benefit as she had been shown by the Secretary of State not to qualify as “incapable of work” under the personal capability assessment or in any other way, from and including 1 February 2002.
3.	The claimant’s appeal against the tribunal’s decision is based on three principal grounds put forward in the notice of appeal on her behalf by her representative at pages 104 to 110, and his supplemental observations dated 20 March 2003 at pages 121 to 123.  First, it is suggested that there was a breach of natural justice in the tribunal having proceeded with the case at all on 23 July 2002 when, as the representative very frankly and freely admits, he failed to attend the hearing to assist the claimant and her husband because he had made a mistake about the date; second that the tribunal had wrongly failed to accept evidence by the claimant’s GP that the condition in her case was caused by stress and very often related to work; and thirdly that they ought to have held for this reason that if she were found capable of work this would cause serious recurrent attacks of her eye condition.  
4.	I am not satisfied there was a breach of natural justice in this case.  Procedural decisions such as whether to go ahead and conduct a hearing of which due notice has been given to the parties and their representatives, or to adjourn when a representative for any reason fails to turn up, are generally matters for the good sense, judgment and discretion of the tribunal charged with the case, and in particular the chairman.  Appeals to a Commissioner against such exercises of procedural judgment can rarely be successful; as in order to give rise to an appeal on a point of law against the result what has to be shown is that the tribunal’s exercise of judgment was so unreasonable as to be perverse and to have deprived the claimant of a substantive opportunity for a fair hearing of the relevant issues in his or her case.  Tribunals in this jurisdiction are of course well accustomed to dealing with parties appearing in person and unfamiliar with the legal process, and to eliciting the relevant points in their favour even in the absence of a representative; so the mere fact of a representative failing to turn up does not in any way make it wrong in principle for a tribunal to proceed without the expense and delay of an adjournment, provided they satisfy themselves that the relevant factual and other issues in the case can nevertheless be dealt with properly and fairly.  
5.	In the present case, the chairman’s contemporaneous manuscript note of the proceedings at pages 62 to 66 records clearly that the claimant herself attended and presented her case with the assistance of her husband, and they indicated expressly at the outset of the hearing that they were happy to go ahead without any other representative when the one who had been assisting them failed to turn up for the hearing itself.  Although in the grounds of appeal submitted later (by this representative) it is asserted that at no time did the claimant say she was happy to proceed unrepresented, I decline to infer against an experienced tribunal chairman that this would have been recorded in the way it was unless that was indeed a reasonable understanding of what the claimant and her husband actually said at the time.  Moreover the five detailed pages of notes taken by the chairman of what they did say about her eye condition and the effect of it on her show beyond doubt that between them they had, and availed themselves without difficulty of, a full opportunity to put forward and articulate evidence and argument on all relevant issues on the “vision” descriptor; with careful account being taken of these by the tribunal, and no other descriptor being of potential relevance.  
6.	Consequently even if it had been arguable that the tribunal erred or acted unreasonably in deciding at the start of the hearing to go ahead with it, I am satisfied that the actual course of the hearing and the tribunal’s consideration of the issues in the case as demonstrated by the chairman’s record of proceedings and the full and careful statement of reasons sent to the parties on 16 September 2002 do show clearly that the claimant in this case did receive a fair hearing of all the relevant issues even in the absence of her representative; and although he obviously blames himself for not having been there to exercise his powers of persuasion, it would not in fact have made any difference to the actual outcome if he had.
7.	Moving on to the tribunal’s consideration of the only relevant descriptors in issue, those relating to the claimant’s vision, they did not in my judgment misdirect themselves in taking the view that the real question was whether the claimant could or could not see well enough to read 16 point print at a distance greater than 20 centimetres, since that was the only descriptor that could give her the 15 points necessary to qualify as incapable of work on the ground of vision alone.  Her own evidence and that of the examining doctor was that she could, and there was nothing in the letters submitted from her GP and consultant opthalmic surgeon to give any reason to think otherwise; so the tribunal’s express finding on page 70 that she could at the material time see well enough to read 16 point print at a distance greater than 20 centimetres is an unassailable one on the evidence.  Their further finding that the difficulties described during an acute period, even if those were taken as the measure of her disability for all or most of the time for the purposes of the descriptors, could not in any event score her more than the 8 points for difficulty in recognising a person across the road, appears to me equally beyond criticism and soundly based on the evidence.  It must in my judgment follow that based on those findings the tribunal reached the only conclusion possible in law, namely that the claimant’s difficulties with her vision did not and could not give rise to a sufficient point score to make her incapable of work under the personal capability assessment. 
8.	Nor in my judgment are their findings on the effects of stress on her condition open to criticism either.  I agree with the submission by Ms D Taylor on behalf of the Secretary of State dated 6 March 2003 at pages 118 to 120 that there was no evidence before the tribunal of the claimant suffering mental health problems such as to alert them to the possibility that descriptors for some specific mental illness or disablement ought to be considered in their own right; and that being so, the only question was whether the evidence of the claimant’s GP that her vision difficulties were stress-related could make any difference to the result on the physical vision descriptor.  In my judgment the tribunal were justified in preferring as they did the rather more cautious assessment of the consultant opthalmic surgeon (page 56) that 
“what causes or triggers off another attack of iritis is usually not known.  It is possible stress may be a factor. ” 
as the basis for their own finding (page 71) that 
“... there was not sufficient evidence to conclude that the attacks were solely stress related or at all … [they] therefore could not conclude that [the claimant] should not or could not work because stress would trigger an acute episode.” 
9.	On that basis, the tribunal cannot in my judgment be held to have misdirected themselves, erred in law or reached an unreasonable conclusion in not awarding the claimant the full 15 points for the “vision” descriptor; or (as now argued by her representative in the alternative) in not holding her relieved from the need for complying with the personal capability assessment altogether and automatically incapable of work under the “exceptional” category in regulation 27 Social Security (Incapacity for Work) (General) Regulations 1995 SI No. 311, even as it has to be read in the light of the Court of Appeal’s decision in Howker v Secretary of State [2002] EWCA  Civ  1623, 8 November 2002, on the ground that the possibility of recurrent attacks would be a substantial risk to her physical health if she were found capable of work.  I agree with the Secretary of State’s submission that even applying the exception in its unamended form in accordance with the Howker decision, the facts found by the tribunal do not bring the claimant within the exception, a long period having passed without any recurrence of her disease after she had in fact been found capable of work by the Secretary of State.
10.	There being no other arguable ground on which it might be said that this tribunal’s decision was erroneous in law, I now dismiss this appeal. 
(Signed)
P L Howell
Commissioner
29 May 2003