[2006] UKSSCSC CIB_1374_2006 (05 July 2006)
CIB 1374 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. At the invitation of both parties, I replace that decision with the decision that the tribunal should have made. This is:

Appeal allowed.  The decision of the Secretary of State of 19 05 2005 superseding the decision of the Secretary of State of 10 11 2000 is set aside. The appellant is to be treated as incapable of work on and from 19 05 2005 and has the same benefit entitlements as if the decision of the Secretary of State of 19 05 2005 were not made. 

For the avoidance of doubt, the decision under appeal to the tribunal was in reality a decision entitlement to incapacity benefit or income support. This decision sets aside that decision and therefore renews the entitlement to benefit.         

2	The claimant and appellant is appealing with my permission against the decision of the Leeds appeal tribunal on 25 01 2006 under reference U 01 013 2005 01454.
 
3	The parties have agreed that I should set aside the decision of the tribunal, and invited me to take my own decision in place of that of the tribunal. Both parties accept that the tribunal made a series of errors of law.

Background 

4	The claimant became incapable of work on 24 10 2000. The decision by the decision maker acting for the Secretary of State that he was no longer incapable of work was made on 19 05 2005. There had been a personal capability assessment of the claimant on 21 01 2004 in which the claimant had been assessed as scoring 15 points on the mental health assessment. The core reasons were anxiety and depression. The physical descriptors were not assessed.  The claimant was sent the usual questionnaire in 2005. This indicated no physical problems save those linked to mental problems. An approved doctor was asked to conduct an examination. The electronic IB85 report recorded an alcohol problem in addition to the continuing previous problems. But it found only three mental health descriptors relevant. These are: DLb (alcohol before midday) (2 points), CPf (scared of returning to work) (1 point) and OPe (prefers to be alone) (1 point). The decision maker acting for the Secretary of State superseded the award of benefit for this reason.

5	  The claimant appealed specifically because: (1) he has sleeping problems; (2) he can no longer carry out previous leisure activities; (3) he gets worked up about ordinary events; (4) the doctor did not ask him about a number of things for which he was not awarded points but from which he suffers. Shortly before the hearing, solicitors acting for the claimant put the following descriptors specifically in issue, in each case explaining why: CTb (often sits for hours doing nothing), CTe (previous leisure activities), DLc (frequently distressed), DLe (sleep and daytime activities), CPc (avoids routine activities), CPe (too much to do), OPb (upset from ordinary events leading to disruptive behaviour), OPd (gets irritated by ordinary things).

6	A tribunal confirmed the decision of the Secretary of State after a paper hearing. That decision was, if I may so comment, rightly set aside by a district chairman under section 13(2) of the Social Security Act 1998. It was relisted for oral hearing and the secretary of state's representative asked to make a further submission.

7	 The second tribunal took a full record of proceedings and made a properly detailed decision dealing, as Commissioners have repeatedly stated it was required to do. This dealt with each point expressly raised for the claimant. The tribunal found mental health descriptors CTb and CTe, both raised in the submission, present in addition to those found by the approved doctor. These scored 7 points. It concluded that the claimant did not satisfy the test.

8	The grounds of appeal cite errors of law on three descriptors: DLe (sleep), CPc (avoids routine activities) and OPb (disruptive behaviour). The secretary of state's representative agreed with each point. The points follow. Each is to be viewed in the same context, namely that of a claimant who has “some specific mental illness or disablement” by reason of which he or she “is incapable … of performing those activities”:  Social Security (incapacity for Work (General) Regulations 1995, regulations 24 and 25.

Sleep problems

9	DLe is “sleep problems interfere with his daytime activities”. This was put in issue in the original appeal as well as by the solicitors. It was regarded as satisfied in 2001 and in 2004. The approved doctor in 2005 recorded for the typical day: “rarely sleeps well. Wakes frequently throughout the night. Tends to get up early 7.30 to 8 am… Tends to lounge around the house during the day.” This was not transferred to the relevant descriptor box. There it stated: “sleeps poorly, but still gets up and manages normal activities”.  The solicitors contended that these were inconsistent, and that other evidence showed that the claimant is very lethargic during the day. The claimant confirmed in evidence that he fell asleep during the day. The tribunal found “there was a clear absence of any information whatsoever that it interfered with any daytime activities, the tribunal having found that the appellant sits around for hours doing nothing … Sleeping during the day was part of his normal activities and did not interfere with daytime activities. “ 

10	 In CIB 4451 1999 the Commissioner distinguished another decision, CIB 14202 1996. In the earlier decision the Commissioner cautioned against awarding points about sleep patterns where there was no corroborative evidence of mental disorder. In CIB 4451 1999 there was such evidence. The Commissioner accepted the submission for the Secretary of State that the evidence showed that the mental disability led to the daytime sleepiness and herself awarded the relevant 1 point to the appellant. The approved doctor has not considered that in this case. Nor has the tribunal. The secretary of state's representative has taken the same approach as in CIB 4451 1999. I agree that the evidence clearly points to the interconnection between the mental health problem and the sleepiness and award 1 point. 

Avoids carrying out routine activities

11	CPc is “avoids carrying out routine activities because he is convinced they will prove too tiring or stressful”. This was also regarded as satisfied in 2001 and 2004 and expressly put in issue in this appeal.  The approved doctor in 2005 recorded under the typical day that (in addition to the comment about lounging around) “occasionally manages to do housework. Will clean up after himself. Cooks for himself when mother is out. Makes easy things such as egg and chips… Shopping is usually done by mother.”  These are not carried forward to the relevant descriptor, where the doctor has recorded: “Prefers to keep busy. Not anxious on examination. Carries out all activities of daily living.” The solicitors drew attention to the inconsistencies between these findings. The claimant gave evidence confirming some of the typical day statements and not dissenting from them. The tribunal found that “there was a distinct absence of evidence in support of this. The Appellant indicated that he is effectively spoon fed by his mother. In the event of her being absent then he would cook for himself. The tribunal found that his inactivity was of his own choosing, not because he gave up owing to fatigue, apathy or disinterest. “  The solicitors contended that the tribunal failed to explain why it did not accept the claimant’s evidence of lack of motivation. The secretary of state's representative agreed that the approved doctor’s report was clearly inconsistent. The tribunal failed to deal with this and the secretary of state's representative submitted that the point should be awarded. I agree. 

12	This descriptor clearly requires (a) a finding whether the claimant “avoids carrying out routine activities”, and (b) a finding whether “this is because he is convinced that they will prove too tiring or stressful”.  It does not require that the claimant cannot do these things. That would be in part a physical descriptor. It requires the claimant’s approach to be as stated. As with problems with sleep, the general requirement is that this arises because of the mental health problems. There is evidence of (a) in this case from the past medical assessments, the approved doctor’s IB85 (where there is also evidence of the opposite) and the claimant. As to (b), the tribunal found that the inactivity was of his own choosing. That misses the point. Why did he choose that? Was he convinced that they would prove too tiring or stressful? The secretary of state's representative submits that the evidence indicates that the claimant was so convinced. I accept that, and award 1 point. 
  
Getting irritated and getting upset

13	The solicitors put the two descriptors OPb (“gets upset by ordinary events and it results in disruptive behaviour”) and OPd (“gets irritated by things that would not have bothered him before he became ill”) in issue together. The approved doctors found both satisfied in 2001 and in 2004. There is nothing directly relevant – positively or negatively – in the approved doctor’s “typical day” summary in 2005 aside from comments about drinking. The doctor records, under the two specific descriptors, “No history of conflict with neighbours or authorities” and “has not noticed any situations which annoy unduly”. The claimant expressly disagreed with these findings when appealing. The record of proceedings of the hearing records: “Until first drink – bad nerves and moods. Can result in mood with parents. I get nasty … had argument over Xmas that came to blows – quite volatile – has been thrown out of pubs after aggression – never barred… no irritation came to mind.” The tribunal found that “there was no evidence … whatsoever” of problems with the parents. The dispute with the brother was outside the relevant period (Christmas 2005 not May 2005), and being thrown out of pubs was because of drink. They were therefore irrelevant. There was “no evidence whatsoever” that the appellant got upset by ordinary events with resulting behavioural problems. Moving on to the other descriptor, the tribunal noted the claimant’s oral evidence that “no irritations come to mind”, and accepted it as excluding the descriptor.

14	The solicitors pointed out that the reasons given by the tribunal for rejecting the application of OPb were directly relevant to OPd and evidenced irritation, but the tribunal had failed to consider this.  The secretary of state's representative drew attention to Commissioner’s decision CSIB 1521 2001. The Commissioner emphasised the overlap between these two heads and that disruptive behaviour was not limited to aggressive behaviour. The test was that “the claimant’s conduct has to be extreme enough to affect the fabric of life around him…”. That might include sobbing and emotional displays.  I followed and applied CSIB 1521 2001 in CIB 664 2005, where I commented about a failure of the approved doctor to transfer relevant information between the two descriptors. That appears to have happened here both as regards the approved doctor in 2005 and the tribunal. 

15	The two descriptors are in ordinary English that do not warrant further definitions. “Upset” and “irritated” are widely drawn and overlapping terms. The phrase used by the claimant in his appeal notice was “I get stressed”. That overlaps with both. The focus is on any upset or irritation arising from the mental health problems, in this case the claimant’s anxiety problems.. I agree with both parties that the two descriptors should be looked at together, with any relevant evidence assessed under both descriptors. On that basis, I am unable to accept the tribunal’s “no evidence approach”. Given the evidence before it, I fail to see how it reached the conclusion it did. My view might have been different had it taken a “balance of evidence” approach, but its decision as it stands is either wrong or inadequate. Again on the evidence, and applying the test from CSIB 1521 2001, I accept the secretary of state's representative’s submission that both descriptors are met. That scores 3 points. 

Conclusion

16	If those 5 points are added to the 7 points awarded by the tribunal, the claimant satisfies the personal capability assessment.  

David Williams
Commissioner

05/07/2006