CIB/1064/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the Secretary of State against the decision of the Bournemouth incapacity benefit appeal tribunal given following a hearing on 31st October 2005.  By their decision the tribunal allowed the claimant’s appeal against the decision of the decision maker made on 26th July 2005 that he was capable of work from 27th December 2004.  That decision was based on the points scored by the claimant on the personal capability assessment, which were insufficient to establish that he was incapable of work, and on the finding that regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995, S.I. 1995 No. 311, did not apply.  The tribunal revised the Secretary of State’s decision and found that regulation 27 did apply.  The claimant opposes the Secretary of State’s appeal.  For the reasons given below, which differ from those advanced by the Secretary of State, I have come to the conclusion that the decision of the tribunal was erroneous in point of law.  Much depends upon the facts of the case and in those circumstances it is inappropriate for me to substitute my own decision.  The tribunal’s decision must be set aside and the matter remitted for hearing by a new tribunal constituted, differently from the previous tribunal, under the provisions of Part I of the Social Security Act 1998.   
 
2.	The relevant facts are as follows.  The claimant became incapable of work on 17th November 2003 and started to receive statutory sick pay.  When his entitlement to statutory sick pay ended, he claimed incapacity benefit from 7th July 2004.  The cause of his incapacity was dermatitis, as certified by his doctor.  In fact the claimant did not satisfy the contribution conditions for entitlement to incapacity benefit, but was entitled to incapacity credits.  That has remained the position thereafter, but nothing turns on that fact because the claimant’s entitlement to incapacity credits depends upon the same test of capacity for work as applies in relation to incapacity benefit.

3.	As the claimant had been incapable of work for a cumulative period of 196 days by the time he made his claim, the relevant test of his incapacity was the personal capability assessment:  see sections 171B and 171C of the Social Security Contributions and Benefits Act 1992.  Initially the claimant was treated as incapable of work under regulation 28 of the 1995 Regulations, pending the making of the personal capability assessment.  He was examined for the purposes of the assessment on 20th January 2005.  Both the claimant and the examining doctor assessed the claimant as not falling within any of the physical descriptors other than an inability to hear well enough to understand someone talking in a normal voice on a busy street.  That problem results from the fact that the claimant also suffers from hearing loss with tinnitus, in respect of which he has a 30% disablement war pension.  It has never been suggested that the mental health descriptors are relevant in this case.  The result was that the claimant scored 8 points on the personal capability assessment, and so failed to reach the threshold of 15 points on the physical descriptors which is specified by regulation 25.  His claim to incapacity benefit was therefore disallowed from 27th January 2005.

4.	On 13th April 2005, the claimant made a further claim for incapacity benefit, again based on his dermatitis.  Originally he made his claim from 27th December 2004, but as that covered a period which was already the subject of a decision he was invited to amend the date from which he claimed, and he then altered the date to 26th January 2005.  (As I understand it, that short-circuited a process by which the new claim would have been dismissed as a duplicate claim and the claimant would then have had to make another claim from a date outside the period covered by the previous decision.)  In fact, if the claimant wished to avoid the duplicate claim problem, he ought to have changed the date to 28th January 2005, the first day after the day on which the previous decision took effect.  That point, however, was overlooked when the claim was first considered.

5.	The claim in any event faced an additional hurdle, because it was brought within six months of a decision that the claimant was not incapable of work, it was based on the medical condition previously relied on and there was no evidence of significant deterioration.  In those circumstances, regulation 28 did not apply and the claimant was not treated as incapable of work pending a personal capability assessment.

6.	The claimant completed an incapacity for work questionnaire which was received on 11th May 2005.  He said that whenever he used his hands for a job they swelled and itched very badly.  The effect could last for days or weeks.  The only relief was to use a cream which could not be used continuously but only once or twice a month.  He did not claim to satisfy any of the physical descriptors with the exception of the hearing descriptor already mentioned, but said that his ability to use his hands and to lift and carry was affected by severe eczema causing swelling and severe irritation.  At the end of the form he said that he had been informed by the hospital that his dermatitis would not get better, that he was dyslexic and that from 29th April 2005 he was unemployed, having been dismissed for long-term sickness.  His doctor supported the claim with a form Med. 4 in which he gave as the main diagnosis dermatitis and as another diagnosis tinnitus. 

7.	The claimant was again examined, this time on 18th July 2005.  The diagnosis history included the information that the condition started 18 months previously, that the claimant thought diesel fuel was the precipitant and that the use of creams and removal from the working environment had resulted in improvement but not the absence of problems.  The claimant was also found to have xiphisternum, a swelling of the lower end of the sternum, which could be painful on reaching up.  On examination it was found that the skin of the hands was a little thinned owing to use of steroid and other creams, that there were tattoos on the claimant’s arms and no evidence of reaction to the dyes used in making them, there was a small area of dermatitis on the forehead and there was minor scaling of the palms.  There was, on the day of the examination, no active dermatitis or eczema.  The doctor recorded the claimant as saying that he had no problems in the bathroom, no significant problems with dressing, always managed to use a kettle safely, drove a manual car for 20 minutes to the supermarket and had driven to the examination, which took about 30 minutes, could reach items when shopping, queue and count the change, but could never wash dishes.  The claimant’s movements were fluid and pain-free, he carried papers in either hand and had no difficulty getting them out and handling them, his handshake was firm and his hands were not greasy from treatment.  Having regard to those matters, the doctor decided that the claimant did not fall within the manual dexterity and lifting and carrying descriptors.  In all other respects he accepted the claimant’s assessment.  He said that none of the exceptional circumstances specified by regulation 27 appeared to apply.

8.	It was in the light of this report that the decision maker made the decision of 26th July 2005 mentioned above.  It is to be noted that the decision is said to relate back to 27th December 2005 because the claimant submitted a further claim from that date.  The change of date mentioned in paragraph 4 above seems not to have been noticed at that point.

9.	The claimant appealed against the decision by notice of appeal dated 9th August 2005.  He said that he was capable of the actions required in the assessment provided he only did them once, due to the fact that the main area of his dermatitis was on the palms of both hands.  If he had to repeat the activity continually as in normal work, his dermatitis would flare up.  He would then be unable to fulfil the descriptors for turning sink taps or control knobs on a cooker with either hand, raising either arm to put something in the top pocket of a coat or jacket and picking up and pouring from a full saucepan or kettle of 1.7 litre capacity with either hand.  He also said that he sometimes had additional problems with his tinnitus.  His doctor wrote on the notice of appeal that the claimant was dependent on Fucibet to control his dermatitis and friction led to flare ups.  

10.	The decision was reconsidered on 16th August 2005 but was not revised and the appeal proceeded.  At the hearing the claimant was represented by the Citizens Advice Bureau and gave oral evidence.  He said that his dermatitis had got worse since January 2005.  The heat could cause it to flare up.  It affected his hands, face, both legs, back and front of his stomach.  It was variable.  The weather had been cooler in January 2005, but with a warm spring in February and March the dermatitis had got a little worse and it was worse again in the hotter weather in May and June.  His hands were bad; the other parts of his body were better.  His tinnitus also was worse since January 2005.  The claimant also gave further evidence about his manual dexterity, reaching and lifting and carrying.  He repeated that his dermatitis flares up and then goes down.  The tribunal said they would consider the applicability of regulation 27, noting that the claimant had last worked as a chauffeur.  In the event, they increased the points awarded for the claimant’s hearing problems to 10, but did not award him points on any other descriptors.  They found that regulation 27 was satisfied because there would be a substantial risk that the claimant’s dermatitis would worsen if he were found capable of work within the general type of work which he was otherwise qualified or skilled to undertake.  They also found that his condition had significantly worsened since January 2005. 

11.	The Secretary of State applied for a statement of reasons, which was given on 22nd November 2005.  In that statement the tribunal included under the heading “Facts found” the matters relating to the claimant’s dermatitis set out as included in his oral evidence in the preceding paragraph and further said that his hands could be swollen and very painful.  They gave reasons for their conclusion as respects the physical descriptors.  In this connection it is relevant to note that the tribunal accepted that on occasions when the claimant’s dermatitis flared up very badly the carrying of a 2.5 kilogram bag of potatoes could be slightly painful, but did not award any points given that that was an activity of short duration.  In relation to regulation 27, they said:

“In this case the relevant provision in regulation 27 is that the appellant’s disease or disablement, ie his dermatitis and to a lesser extent his tinnitus, would mean that there is a substantial risk to his physical health if he was found capable of work (Howker).  We found this appellant to be an honest and truthful witness and believe that his medical conditions and in particular his dermatitis have significantly worsened since January 2005.  We cannot give an exact date as from when the dermatitis significantly worsened during the period up to the date of the decision which is the subject of this appeal, but believe that the condition certainly worsened from early May 2005 when the weather became warmer.  Although we considered carefully the comments of the EMP on pages 35 and 40 of the evidence and particularly noted that on the date of the personal capability assessment there was no active eczema or dermatitis, we believe the appellant when he informed us that the condition can suddenly flare up and be quite severe on the majority of occasions, especially when the weather is warm.  The condition especially affects the appellant’s hands.  Relying on the expertise of the medical member, we consider this to be a chronic case of industrial dermatitis which would result in a substantial risk to the appellant’s physical health if he were found capable of work.  In coming to that view for the reasons stated, we prefer the views of our medical  member, having taken evidence from the appellant, rather than the views of the EMP, who saw the appellant on only one day when the dermatitis was not severe, nor was there a flare-up that day.  The EMP did state that the skin on the appellant’s hands was a little thinned due to the use of steroids and other creams which seem to have indicated a chronic problem on other days.”

The tribunal noted that the leading case under regulation 27, R. v. Secretary of State for Social Security, ex parte Moule (unreported) (1996) concerned a claimant with widespread psoriasis.  They also applied the Commissioner’s decision CIB/26/2004, to the effect that the risk to be assessed under regulation 27 was in relation to the type of work for which the claimant would otherwise be required to be available.  Relying on the chairman’s legal expertise, the tribunal formed the view that the jobs likely to be referred to in a hypothetical jobseeker’s agreement would cause a difficulty for the claimant, especially in relation to his chronic and widespread dermatitis to his hands and, to a lesser extent, in relation to his increasing tinnitus, which was especially bad in traffic.  Although the claimant drove to some extent, they felt that a job in that general area and over a long period would be detrimental.  There was a link between the claimant being found capable of work and an ensuing substantial risk to his physical health if he were found capable of such work, as required by the Commissioner’s decision CSIB/33/2004.

12.	The Secretary of State applied for leave to appeal on 21st December 2005.  The grounds of appeal are encapsulated in the following passage:

“I submit that [regulation 27] would operate for example for an angina sufferer who could carry out all the functions of the test but still be incapable of work or for those claimants who have recently received treatment for a mental health condition but the condition remains uncontrolled to the extent that a return to work might represent a considerable risk to their own health.  Additionally consideration must be given to any harm, which may be caused to others from the behaviour of the claimant as a result of their mental health condition …

I submit that there is no evidence that there would be a substantial risk to the claimant’s health if he were found capable of work and herein lies an error of law.  I submit that the decision of the tribunal seems particularly unreasonable as they determined that his dermatitis only flared up on occasions and then only to the extent that it would cause slight pain when carrying a 2.5 kg bag of potatoes.”

13.	The claimant was given an opportunity to comment on the Secretary of State’s application and he made certain comments on 23rd January 2006.  They were primarily concerned with a continuing deterioration in his dermatitis and problems with the xiphisternum, neither of which matters could be taken into account because they were circumstances not obtaining at the date of the decision maker’s decision:  see section 12(8)(b) of the Social Security Act 1998.  He also said that he was disappointed that no representative of the Secretary of State was present at the appeal hearing, when they could have questioned the decision while he was present.  

14.	Leave to appeal was granted by the district chairman, who commented that there was perhaps an issue as to the weight to be attributed to a clear view of the medically qualified panel member based on that person’s particular expertise.  The Secretary of State then made a submission on the appeal, dated 14th March 2006, which largely repeated the grounds of the application for leave.  Whereas, however, the application had asked for the matter to be remitted for a further hearing, the Secretary of State now invites me, if I accept the submission that the tribunal erred in law, to substitute a decision of my own to the effect that the claimant does not satisfy the personal capability assessment and does not fall within regulation 27.  In response to that submission, the claimant has made observations to the effect that the tribunal’s decision was the correct one.

15.	I begin with the question whether the tribunal did err in law in the manner suggested by the Secretary of State.  I accept, of course, that if the tribunal’s decision was indeed supported by no evidence, there would have been an error of law:  see R(IS) 11/99.  The question is, therefore, whether there was evidence to support a decision that the claimant:

“suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work”.

I comment in passing that regulation 27 has undergone a convoluted history.  In its original form, the question whether the words quoted were satisfied was to be determined by a doctor approved by the Secretary of State.  In ex parte Moule it was decided by the Divisional Court that to that extent the regulation was ultra vires.  The decision should be made in the light of all the evidence, including the opinion of the approved doctor.  That version of regulation 27 was replaced by a new version which did not include the words quoted.  In Howker v. Secretary of State for Work and Pensions [2003] EWCA Civ 1623, R(IB) 3/03, however, the Court of Appeal held that the amendments were invalid and the relevant part of the regulation, as modified by ex parte Moule, continued in force.  There is no issue about that history in this case.

16.	In the present case there is no doubt that the claimant suffers from dermatitis and tinnitus; there is ample evidence that both conditions are present.  The question is whether there is evidence that, if he is found capable of work, there will be a substantial risk to his health as a result.  In approaching that question, it is helpful to have in mind the guidance which is available about the interpretation of the regulation.

17.	In ex parte Moule, the claimant had been found not to fall within regulation 27 on the basis of the doctor’s opinion.  The issue the Divisional Court had to determine was whether or not the regulation validly made the doctor’s opinion binding and it held that it did not.  Anything said about the merits of the claimant’s case was therefore not part of the ratio of the decision.  It appears, however, that Collins J. had some doubts about the effect of the evidence of the claimant’s dermatologist that if he could not carry out his existing treatment regime, which would be very difficult, his psoriasis would become much worse.  He regarded it as unclear why the dermatologist took the view that there would be a substantial risk to the claimant’s health. 

18.	In the Commissioner’s decision CIB/3519/2002, the claimant suffered from a prostate condition which affected his control of his bladder.  The Commissioner decided that the case should be remitted for a further hearing and the claimant’s representative argued that the tribunal should consider whether regulation 27 applied.  The Secretary of State contended that the claimant’s condition was not sufficiently serious.  The Commissioner obviously had some sympathy for that contention, but said it was essentially a matter of fact for the new tribunal.  He went on to say:

“I do not accept [the representative’s] contention that “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.”

This approach was described as “probably right” in the Commissioner’s decision CIB/2767/2004, although with the caveat that the other paragraphs of regulation 27, which refer to life-threatening or potentially life-threatening conditions and to impending major therapeutic procedures, suggest that the interpretation of the regulation should be rather narrow.

19.	Other authorities are concerned with the link between the physical or mental condition and the substantial risk which will result from a finding that the claimant is capable of work.  In this category are the decisions referred to by the tribunal, namely, CIB/26/2004 and CSIB/33/2004.  These require consideration of the type of work the claimant might be asked to do and whether or not to do work of that kind would involve a substantial risk of the kind discussed.

20.	From those authorities, I conclude that I must consider whether there is evidence that  a job of the kind which it is likely the claimant would be required to be available for would result in consequences for his health which, although not necessarily life-threatening, would be substantial having regard to both likelihood of occurrence and degree of harm.

21.	In my view, there is evidence which is capable of supporting the tribunal’s decision.  In the questionnaire the claimant said that when he used his hands for any job they swelled up and itched very severely.  His appeal was on the ground that if he had to repeat activities of the kind specified in the personal capability assessment in the way he would have to do in normal work, his dermatitis would flare up.  His doctor said that friction leads to flare ups.  The examining doctor said that removal from the working environment had resulted in improvement.  The claimant gave evidence of deterioration in his condition even so, and said that his hands were especially bad and could be swollen and very painful.  The claimant’s previous employment had been as a chauffeur and he had lost it because of his dermatitis.  His tinnitus was increasing and was especially bad in traffic.  He said in his questionnaire that he was dyslexic.  In those circumstances, I take the view that it was open to the tribunal to make findings of fact broadly to the following effect:

(1)	the work for which the claimant would be required to be available would be manual;

(2)	any such work would be very likely to give rise to a flare up of the dermatitis affecting his hands, making them swollen and very painful;

(3)	any such work involving driving in traffic might worsen further his tinnitus.

Such findings of fact would be capable of supporting a decision that the degree of harm involved in the risks identified was such that, taking into account the likelihood of their occurrence, they were substantial and the requirements of regulation 27 were satisfied.  I should add that in my view the Secretary of State has taken somewhat out of context the tribunal’s finding about the claimant’s ability to carry a 2.5 kg bag of potatoes, which was not made against the background of the claimant’s having gone back to work and (potentially) precipitated a flare-up of his dermatitis making his hands swollen and very painful.  In any event, that particular finding must be seen in the light of all the other findings about the claimant’s condition.

22.	With some reluctance, I have come to the conclusion that the tribunal did not make sufficient findings of fact about the type of job which the claimant might be expected to be available for and the harm which they thought would result from the claimant’s doing such a job, and did not give adequate reasons for the conclusion that the risk would be substantial.  It is not clear to me whether the tribunal were proceeding on the basis that the claimant could only be expected to be available for jobs in the general area of driving vehicles (and if so, why), whether they took into account the degree and length of pain suffered by the claimant when his dermatitis flares up (and if so, what they thought the degree and length of time was), or whether they understood “substantial risk” in the sense explained above.  The tribunal also failed to explain what significance they attached to the fact that the claimant in ex parte Moule was suffering from psoriasis; as I have indicated above, the decision of the Divisional Court was certainly not a decision that evidence that a claimant’s psoriasis was likely to worsen if he was found capable of work enabled him to satisfy the requirements of regulation 27.  The issue whether the claimant was within the regulation remained undetermined.  For those reasons, I take the view that the tribunal erred in law.

23.	As I said at the outset of this decision, much depends on the facts of the case and it would be inappropriate for me to substitute my own decision on the basis of the material before me, which does not fully address the facts which I have concluded are relevant.  That being so, I do not need to consider whether the claimant could nevertheless succeed on the basis of satisfying the personal capability assessment.  My decision does not preclude his trying to persuade the new tribunal that he does score the necessary points, although he must bear in mind that the tribunal will be looking at his condition in July 2005 and cannot take into account circumstances which did not then exist.

24.	I also point out that the approach to regulation 27 suggested by the Secretary of State as respects physical health gives very little indication how it is submitted the regulation should be construed.  There is no explanation of what is considered to be the substantial risk faced by an angina sufferer and the use of a single example means that very little light is shed.  It would no doubt be of assistance to the new tribunal to have a clearer idea of the way in which it  is contended the regulation should be approached, although the tribunal will of course have regard to the decisions cited above.

25.	As the matter is being remitted to a new tribunal, it is not necessary for me to consider in detail the reliance placed by the tribunal on the expertise of their medical member, or, indeed of their legally qualified chairman.  I am not persuaded, however, that the medical member strayed beyond the proper function of using his or her expertise as part of the process of assessing all the evidence.  It is recognised in CIB/26/2004, specifically in relation to regulation 27, that the tribunal will determine whether or not the claimant has a medically recognised condition in the context of the evidence as a whole, making use of the knowledge and experience of the medically qualified panel member.  There is nothing to suggest that, in breach of the rules of natural justice, the medical member here strayed over into giving evidence which the Secretary of State did not have an opportunity to challenge or rebut.  The case is therefore different from one such as R(S) 1/94, where such an error did occur in respect of a panel member who was experienced in the employment of people with disabilities.  

26.	The legally qualified chairman in the present case appears largely to have done what was envisaged in CSIB/33/2004, where it was said that the chairman possesses the necessary expertise in the conditions of entitlement to jobseeker’s allowance to determine the likely content of a hypothetical jobseeker’s agreement.  While not dissenting from that proposition, I do point out that there is a potential risk of a breach of the rules of natural justice if, as in the present case, regulation 27 emerges as a live issue when the Secretary of State did not expect it to do so and the chairman then formulates the terms of a hypothetical jobseeker’s agreement on which the Secretary of State has not had the opportunity to comment.  Each case will depend upon its own facts, but a tribunal should exercise some caution before proceeding immediately to a decision in such circumstances.  In the present case, no doubt both the Secretary of State and the claimant, with the assistance of a representative if he so chooses, will wish to consider what the terms of any agreement might be.

27.	Finally, I note that the tribunal proceeded on the basis that they could only consider the claimant’s claim if he could show that he fell within regulation 28.  That was principally why they spent some time considering the evidence of deterioration in his condition.  In that respect, it seems to me that the tribunal was mistaken, although not materially.  The purpose of regulation 28(2) is to preclude a person who makes a new claim within six months of a previous claim from being treated as incapable of work pending a personal capability assessment, unless he brings himself within one of the exceptions.  The regulation does not preclude the bringing of the claim itself.

28.	As foreshadowed earlier, I set aside the decision of the tribunal and remit the matter to be heard by a new tribunal.  That tribunal will have in mind the points made above.

	(signed on the original)	E. Ovey
		Deputy Commissioner
 14th July 2005