[2005] UKSSCSC CIB_2916_2004 (04 July 2005)

CIB/2916/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Liverpool appeal tribunal dated 18 May 2004 and I refer the case to a differently constituted appeal tribunal for determination.  I direct the Secretary of State to give the tribunal details of any further decisions that have been made as to the claimant’s capacity for work since the decision under appeal.

REASONS

2.	The claimant suffers from chronic obstructive airways disease.  He was awarded income support on the ground of incapacity for work from 7 January 2002, having been accepted as incapable of work for the purposes of National Insurance credits.  However, on 10 October 2003, the Secretary of State superseded the decision that he was incapable of work because he had scored only 3 points on a personal capability assessment.  The claimant’s appeal resulted in him being awarded 7 points, in respect of walking or walking up and down stairs, rather than 3, but his appeal was dismissed because he still did not score the 15 points necessary to meet the threshold.  He now appeals against the tribunal’s decision with the leave of a full-time chairman and the partial support of the Secretary of State.

3.	The first issue involves the activity of “lifting and carrying”.  In the IB50 questionnaire he completed in April 2003, the claimant did not tick the box beside any of the descriptors relating to that activity but said –

“I cannot carry anything heavy because I have to fight for my breath, use my inhaler and rest.”

4.	The examining medical practitioner, examining the claimant in September 2003, decided that the claimant had no problem with lifting and carrying, but did record that he did not observe the claimant carrying anything heavy.  He further recorded that the claimant had no significant chest problems and was on moderate doses of inhalers but also that the “clinical impression supports client statement to a certain extent”, although the history taken did not specifically deal with the claimant’s capacity for of lifting and carrying.  It is noteworthy that the decision-maker considered that the claimant had claimed points only in respect of walking and walking up and down stairs, without recording his equivocal answer in respect of lifting and carrying.  In a letter dated 10 February 2004, Dr P D O Davies, a consultant respiratory physician, recorded that the claimant was “very breathless on even the mildest of exertions” and that he had been admitted to hospital for investigation and inpatient therapy and that his FEV1 on discharge was just over half the normal.  On his appeal, the claimant claimed 8 points under descriptor 8(d) on the ground that he was a person who “cannot pick up and carry a 2.5 kilogramme bag of potatoes with either hand”.  He also said that his condition had deteriorated between April 2003, when he had completed his IB50 questionnaire, and October 2003, when the Secretary of State made his decision.

5.	In the decision notice, the tribunal recorded that it had “accepted the claimant’s version of his limitations but points can only be awarded for functional descriptors”.  In the statement of reasons, it was said –

“6.	…  He agreed that he had no problem sitting, and that he could in the ordinary way bend and kneel.  He could bend and kneel and repeat the exercise again in a reasonable time and, following CIB/14587/1996, the Tribunal felt that no Physical Descriptor points could be awarded under Bending and Kneeling.

“7.	With regard to Lifting and Carrying, there appeared to be no upper body problem and nor was there any Manual Dexterity problem.  He sat without apparent discomfort throughout the hearing, rose unaided and stood without discomfort problems on his own admission.

“8.	The FEV test mentioned in Dr Davies’ letter was noted but it did not help to score other Physical Descriptor points.  The Lifting and Carrying test was explained to him and that it was only an upper limb test.”

6.	The claimant’s ground of appeal is that the tribunal erred in ignoring breathlessness.  It is common ground before me that the descriptors for the activity of lifting and carrying are intended to be a test of upper limb function and that the legislation specifically requires there to be ignored other activities specified in Part I of the Schedule.  That much is plain from R(IB) 5/03.  However, both parties also agree that the tribunal erred in apparently excluding the effects of breathlessness.  In my judgment, they are correct.  The claimant’s representative tells me that the guidance given to examining medical officer is that “a client who experiences significant dyspnoea on carrying out an activity should be scored as if the activity cannot be undertaken”.  That approach appears to me to be right.  The personal capability assessment is intended to be a practical test and I can see no reason why the impact that loss of pulmonary function has on a claimant’s ability to make use of his upper limbs should be ignored.  In this case, the tribunal did not even consider whether the claimant’s condition would prevent him from picking up a 2.5 kilogramme bag of potatoes, far less whether he could carry it.  The word “carry” must add something to “pick up”, because otherwise the word would not be included in the Schedule.  The point made in R(IB) 5/03 is that the fact that a person cannot walk must be ignored in considering whether or not he can carry.  A person may, after all, carry something while in a wheelchair.  It seems to me that the word “carry” must require that the person concerned is able to continue holding the bag of potatoes after it has been picked up for long enough to be able to perform a function recognisable as carrying even if, as implied by R(IB) 5/03, no very substantial distance would be involved.  The exertion or strain involved in continuing to hold on to something that has been picked up may be too much for a severely disabled person even if he is in fact standing still and not further exerting or straining himself by walking.  I am satisfied that the tribunal’s approach was erroneous in point of law.

7.	When I first considered this case, I suggested that the tribunal might also erred in its approach to the activity of bending and kneeling, in respect of which the claimant claimed, at the tribunal hearing, 3 points under descriptor 6(c).  The tribunal’s reasoning in paragraph 6 of its decision is sufficient to show that it properly approached the question whether the claimant was a person who “cannot either, bend or kneel, or bend and kneel as if to pick up a piece of paper from the floor and straighten up again” for the purposes of descriptor 6(b), but it seems to me that it does not adequately address the question whether the claimant was a person who “sometimes” cannot perform that function for the purposes of descriptor 6(c) (see the Northern Ireland decision C1/95(IB) to which reference is made in both CIB/14587/1996 and R(IB) 2/99).  However, as the Secretary of State observes, the claimant’s case on that issue was not strong and it seems unlikely that the 3 points in issue could be determinative of the claimant’s case in any event.  Descriptor 8(e), which is worth 6 points if a claimant cannot pick up and carry a 0.5 litre carton of milk with one hand but can with the other, is not in issue and so the claimant’s case really turns entirely on descriptor 8(d), which is worth 8 points.

8.	The claimant has an arguable case under descriptor 8(d) that I cannot resolve on the papers.  I therefore refer the case to another tribunal.

	(signed on the original)	MARK ROWLAND
		Commissioner
		4 July 2005