[2005] UKSSCSC CIB_2821_2004 (24 March 2005)

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the Chesterfield appeal tribunal of 24 June 2004 is erroneous in law.  I set it aside and remit the case for redetermination by a differently constituted appeal tribunal in accordance with my directions in this decision.

2.	The claimant was held to be incapable of work under the personal capability assessment and, in consequence, entitled to incapacity benefit from 22 April 2002, following a medical examination of 9 April 2002.  On 1 December 2003 he returned an IB50 form to the Department at their request.  His general practitioner submitted a MED4 form to them on 10 December 2003.  Thereafter, on 3 February 2004, the claimant was again medically examined for the purposes of the personal capability assessment.  On the receipt of the report of that examination, a decision maker, acting on behalf of the Secretary of State, awarded him a net score of only 3 points under that assessment and held that he was not entitled to incapacity benefit from 18 February 2004.  The claimant appealed against that decision.  The tribunal upheld it.  The claimant now appeals with leave of a district chairman.  His appeal is partially supported by the Secretary of State.  

3.	The decision under appeal to the tribunal was technically defective.  It was presented as merely a decision on entitlement.  It should have been cast as a supersession decision, based on regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, superseding the decision awarding the claimant incapacity benefit and dated 22 April 2002.  The tribunal failed to spot this and consequently failed to recast the decision under appeal when they upheld it.  If the new tribunal are satisfied on the merits of the case that the Secretary of State has discharged the onus resting on him of showing that the claimant was no longer incapable of work from 18 February 2004, they should then substitute for the decision of the decision maker the one which he should have made as described above.  They have ample powers to do so under the decision of the Tribunal of Commissioners in R(IB) 2/04.  The decision of the tribunal is erroneous in law inter alia because of their failure to use those powers.

4.	More substantively, the tribunal erred in law by ignoring altogether in their full statement of facts and reasons the claimant’s passing of the personal capability assessment as a result of the medical examination of 9 April 2002. (A copy of the report of that examination was before them).  I accept the submission made both on behalf of the claimant and on behalf of the Secretary of State to that effect.  It was the position of the claimant in his letter of appeal that his medical condition had indeed deteriorated since the medical examination just referred to.  Given that, it was incumbent on the tribunal in explaining their decision to uphold the decision maker’s decision to make clear why they rejected that contention and why in the light of all the evidence they chose to found on the medical report of 3 February 2004, discounting therefore the report of 9 April 2002.  I emphasise once again that the issue on the merits for the new tribunal is to decide whether the claimant was no longer incapable of work on 18 February 2004.  In deciding that question, they will have to consider what weight, as a matter of fact, they should give to the earlier favourable medical report as part of the totality of the evidence before them.  This will be an issue of considerable importance for them given the claimant’s stated position as described above and also the drastic reduction in his scoring under the personal capability assessment between the two medical reports just referred to from 22 points to 3 points.

5.	On the issue raised on the claimant’s behalf that there is doubt as to the validity and/or the credibility of the medical report of 3 February 2004 because it is unsigned, I reject the claimant’s submissions and prefer those made on behalf of the Secretary of State on document 39.  The new tribunal should treat the above report as being simply evidence to be considered and assessed on its merits, without any consideration in deciding that question being given to the fact that it is unsigned.

6.	However, I do direct the new tribunal to explore in some detail with the claimant the assertion made on his behalf in the third paragraph of document 28 i.e. that he was forced to change some of his responses made to the doctor who examined him on 3 February 2004 by that doctor because they did not fit into the computer menu which the doctor was using at the examination.  If the claimant persists in evidence to that effect at the rehearing of his case and if the new tribunal are satisfied that that evidence is convincing and credible, they should go on to consider what effect their acceptance of that evidence, if that be their position, should have on the overall weight to be attached to the report of 3 February 2004, always bearing in mind that the decision maker bears the legal onus of proof of establishing that the claimant no longer satisfied the personal capability assessment from the date of his decision.

7.	I direct the new tribunal in regard to the activities of walking up and down stairs, standing, and rising from sitting to assess the claimant by application of the legally appropriate test of ‘reasonable regularity.’  They should consider in the light of all of the evidence which they accept, which descriptor (if any) under each of these activities (if any) is appropriate for the claimant, taking into account his degree of ability to perform the activity in question repeatedly having regard to any pain or discomfort he may suffer in doing so.  It is not clear that the old tribunal followed that approach at least in respect of stairs and rising.  That was a further error of law.

8.	I have carefully considered the submission made on behalf of the claimant that the alteration made to the text of the activity of lifting and carrying from 6 January 1997 onwards was ultra vires in the light of the decision of the Court of Appeal in Howker v Secretary of State for Work and Pensions reported as R(IB) 3/03, as applied by Mr Commissioner Jacobs in CIB/884/03.  I have however, decided to reject that submission and prefer the contrary one made by the Secretary of State on documents 39-40.  I hold that the amendment made to the text of this activity was neutral.  I have reached that conclusion in the light particularly of the comments made in paragraph 8 of CIB/1409/1996 by Mrs Deputy Commissioner Ramsay that the amendment in question had only the effect of clarifying the terms defining the activity and did not represent an actual alteration in the law.  I am further strengthened in my conclusion on this matter by the decision of Mr Commissioner Goodman in CIB/16736/1996 where he held in paragraph 10 that even the pre 6 January 1997 text of activity 8 (lifting and carrying) did not include any element of locomotion but simply the ability to actually lift up and hold one of the items specified in the descriptors relevant to the activity, as is clearly the case in the post 6 January 1997 text of the activity.  I thus direct the new tribunal that if the activity of lifting and carrying is put at issue before them they should apply the amended text of that activity to the claimant.

9.	I do however accept, contrary to the position put forward by the Secretary of State in paragraph 13 on document 40, that the amendment made to descriptor 15(c) from 6 January 1997 was ultra vires in the light of R(IB) 3/03 and CIB/884/2003.  I take the view that the addition of ‘or television’ to the text of that descriptor made it more difficult for a claimant to satisfy it as less concentration is needed to follow a programme in the medium of television than in that of radio.  In my view, therefore, the amendment had an adverse effect and because of the reasoning in the authorities just referred to was thus made ultra vires by the Secretary of State.  I thus direct the new tribunal to apply the unamended text of descriptor 15(c) in their assessment of the claimant and their decision of his case.

10.	The claimant’s appeal thus succeeds.  The approach to be taken by the new tribunal is laid out in the directions which I have given them throughout this decision.  The claimant is advised that his appeal has been successful only on the various points of law which I have identified in this decision.  He should thus draw no necessary conclusion from his success in the present proceedings as to his eventual success on the merits of his appeal.  These will be determined by the new tribunal rehearing his case and applying my directions to it.

(Signed)
A J GAMBLE
Deputy Commissioner
Date:  24 March 2005