[2006] UKSSCSC CSIB_719_2006 (14 December 2006)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSIB/719/2006

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  L T PARKER

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1.	The decision of the tribunal sitting in Glasgow on 10 August 2006 (the tribunal) is in error of law.  Accordingly, I set aside the tribunal’s decision and return the appeal for a fresh hearing.  Leave to appeal was given by the District Chairman but the appeal is not supported by the Secretary of State.  However, in one respect, I disagree with that lack of support.

Background

2.	The appellant attended the tribunal hearing accompanied by a member of the local welfare rights service (the representative).  At issue was whether or not the appellant satisfied the personal capability assessment (PCA) or should be treated as incapable of work.  

3.	A written submission lodged by the representative for the tribunal hearing on behalf of the appellant contained the following:

“[The claimant] suffers from severe eczema in her hands which never clears.  She is constantly in pain due to the blistering that develops in her hands.  When this blistering subsides her hands are then tight and raw for about three weeks (this is the drying out period).  When this starts to clear up, the blistering will appear again.  This becomes worse when [the claimant] is under any type of stress.  [The claimant’s] hands are constantly affected by either blistering or the drying out of them.

[The claimant] has been in employment but was made redundant.  After a few months she again gained employment.  She had to leave this job after three months due to the stress of getting there, which caused her feet and hands to be severely affected by her eczema.  She also developed alopecia during this time.

…

The Tribunal is respectfully requested to consider that ‘she suffers from a severe uncontrolled or uncontrollable disease’ (Social Security (Incapacity for Work) (General) Regulations 1995, Regulation 27).”

4.	The tribunal did not accept that the eczema was uncontrollable or that she satisfied any of the physical descriptors.  It said as follows:

“Accordingly the Tribunal were not satisfied that her disease in her case was uncontrolled or uncontrollable in as much as at times she appeared to be relatively free of symptoms … Providing she took reasonable precautions by using cotton gloves or as appropriate cotton gloves in tandem with latex gloves the Tribunal concluded she with reasonable regularity could repeat all operations described in the Physical Descriptors.”

Appeal to the Commissioner

5.	It is submitted that the tribunal’s conclusion was wrong with respect to regulation 27(2)(a) of the Social Security (Incapacity for Work) (General) Regulations 1995 and, further, there was evidence that, if the appellant was found fit for work, this would constitute a substantial risk to her health, (relying, under Howker, on the unamended head that a claimant qualifies if:

“he suffers from specific disease or bodily or mental disablement and, by reason of such a 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.”)

The representative relies on findings by the medical adviser (MA) of “some inflamed sores and scarring in both axillae”.

6.	The Secretary of State responds, firstly, that the tribunal’s findings support its adverse conclusion under regulation 27(2)(a) and that, secondly, so far as the unamended version of regulation 27 remains in place under Howker, its possible application in the present case was not put to the tribunal and the tribunal cannot be held to be in error of law for not considering an issue which was not raised before it.  

My conclusion and reasons

Regulation 27(2)(a)

7.	What all the submissions (and indeed the decision of the tribunal) overlook, is the fundamental point that the claimant does not simply have to suffer from a “severe” disease but rather “a severe life threatening disease” (my emphasis); there is no evidence whatsoever of that in the present case.  I note that the rubric to the medical adviser refers only to “a severe uncontrolled or uncontrollable disease”, although the omission of “life threatening” is a crucial one, as this aspect is a condition precedent before issues, of whether the disease is uncontrolled or uncontrollable, even arise.

The old head 27(b)

8.	I agree with the Secretary of State that a tribunal is not required to deal with an issue not raised on the evidence before it.  In particular, it is not required to ferret around in order to make the claimant’s case for him or her.  It must, however, pick up a point which is expressly or impliedly suggested to it and pursue any relevant enquiries.  

9.	I am unable to discern, without more, how “inflamed sores and scarring in both axillae” (armpits) raises a substantial risk to an appellant’s health and, in any event, this point was not drawn to the tribunal’s attention by the representative and hardly seems self-evident.

10.	However, as noted in my paragraph 3 above, the representative’s written submission referred to the problems previously encountered by the appellant in getting to and from a job.  The tribunal accepted “… that the claimant’s skin condition was aggravated by stress…”.

11.	Having regard to the totality of evidence before it, I judge that a reasonable tribunal would have considered it appropriate to look at the possible application of the old head of regulation 27(b) and assessed whether or not a likely result of being found capable of work would lead to “… a substantial risk to [her] mental or physical health …”.  As I said at paragraph 40 of CSIB/33/2004:

“40.	Finally, I judge that [the representative] is right to emphasise that the risk must arise from the broad results of a claimant being found capable of work and is not confined to the risks arising directly from the tasks within a claimant’s job description.  Thus, for example, if a claimant sustains the relevant risk because she has to get up quickly in the morning to go to work, rather than pace herself as would be the situation if no such necessity arose, this is a pertinent factor for consideration.  Likewise, [the Secretary of State’s representative] accepted that any apprehension sustained by a claimant with mental disablement at the prospect of having to look for work, is pertinent.  But there must be a causal link between being ‘found capable of work’ and an ensuing ‘substantial risk to the mental or physical health of any person if [the claimant] were found capable of work’.  If the situation of risk is exactly the same whether or not the claimant is exposed to the rigours of work, regulation 27(b) has no application.”

12.	Although this a borderline case, on balance, I judge that the tribunal erred in law in not pursuing the alternative point under regulation 27.  The tribunal spoke merely of “regulation 27” and it therefore seems irrational for it to conclude that “… the only potential basis upon which she would satisfy regulation 27 was if she suffered from a severe uncontrolled or uncontrollable disease”.  

Summary

13.	The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them.  Although the claimant has been successful in her appeal limited to issues of law, the decision on the facts in her case remains open.

(signed)
L T PARKER
Commissioner
Date:  14 December 2006