[2005] UKSSCSC CIB_3682_2004 (19 January 2005

1.	This appeal, brought with leave of a district chairman, fails.  The decision of the tribunal on 25 2 04 was not erroneous in law.  The claimant is not entitled to national insurance credits from and including 1 9 03 because he did not reach the threshold of incapacity under the personal capability assessment. 

2.	The claimant, born on 8 2 74, has a diagnosis of chronic fatigue syndrome, (CFS) made by Dr Sarah Myhill.  He also says he has anxiety/depression, though Dr Myhill does not agree, and he is currently taking no medication for these conditions.  He has never had a job, though he was able successfully to follow a course in illustration.  The two grounds of appeal here concern the way the tribunal dealt with the evidence of Dr Sarah Myhill and their treatment of the representative’s evidence and submissions.

3.	Dr Myhill treats people with CFS from all over the country.  She says she has treated 3000 people, and certainly I have come across her name before in CFS cases.  It seems much of her treatment is done quarterly over the telephone, and certainly this is how the claimant interacts with her, though he has apparently also seen her.  Her letter about the claimant is one of relentless pessimism, which does not accord with what the examining doctor recorded nor even with what was recorded on the previous IB85.  She assesses him as 80% disabled on her CFS disability scale (her figure 20).  This figure involves, among other things, a person being confined to bed for most of the day, able to leave the house only rarely, unable to concentrate for more than an hour a day, and having moderate to severe symptoms at rest.  The claimant himself said he was not as bad as that all the time, and certainly his evidence to the tribunal did not bear this out – for example, he did not speak of being confined to bed, and said that he surfs the net and plays computer games for quite extended periods.     

4.	The tribunal cast doubt on the “reasonableness” of assessments based on occasional telephone calls.  It observed that Dr Myhill’s letter lacked individual detail about the claimant, it did not comment on the prescription of diazepam, and it denied depression.  It observed that her assessment of the claimant did not accord with the claimant’s own description of his activities to the examining doctor (nor with the latter’s findings).  The grounds of appeal urge that Dr Myhill’s letter did contain detail about the claimant, and gives three examples.  These, I would have to say, are stock phrases applied to people with CFS – needs a routine, severe and widespread muscle and joint pain and muscle weakness, poor concentration and short term memory and impaired brain function.  Apart from the date of his first consultation and his assessed level of disablement, the letter contains much general information about the condition of CFS into which the claimant’s name is inserted as called for.  There is nothing necessarily wrong with this, but it does mean that this ground of appeal cannot be entertained.

5.	The tribunal’s conclusion is that although the claimant has a diagnosis of CFS from Dr Myhill, his symptoms actually stem from not having enough to do.  Is this a conclusion the tribunal was entitled to reach?  I think, on the evidence, that it was.  So questions of bad days and good days (also raised in the grounds of appeal) are not relevant.    
	
6.	The final grounds of appeal are about the treatment of the representative.  She objects that she is nowhere mentioned and nor are the points she made in her submission.  She can certainly complain of gross lack of courtesy, but not, in the circumstances of this case, of a breach of natural justice, even though the Secretary of State’s officer thinks there was one.  The representative does not in terms say what her submissions were, but she apparently complained about the absence of the previous personal capability assessment (PCA) report and submitted that the claimant’s condition had not improved.  I do not know what the rights and wrongs of this were, but I note the previous PCA report is between pages 7 and 7H, and I can see by looking at it that the claimant has in fact improved, if only in self-presentation, lower anxiety during the interview and doing occasional housework.  I cannot see that any earlier test would be relevant.     
		
7.	Grounds 2 and 3 are elaborations of the same objection.  There are cases where ignoring a representative and her arguments would be a breach of natural justice.  But this case is not one.  
	
8.	I therefore dismiss this appeal.  I realise I am to some extent disagreeing with the district chairman who gave leave, as well as with the Secretary of State’s officer.  But there it is.	

							(signed on original)		Christine Fellner
												Commissioner

												19 January 2005