[2007] UKSSCSC CIB_3671_2006 (01 February 2007)

CIB/3671/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow this appeal, which is brought with the leave of a tribunal chairman.  I set aside the decision of the Wigan Appeal Tribunal given on 23 June 2006 and I remit the case to a new tribunal to determine in accordance with the directions given below.  The hearing should be an oral hearing which the claimant should attend and give evidence.  She may also wish to consider whether there is any medical evidence she can usefully produce to support her claim.  She should bear in mind that the tribunal rehearing this appeal will be concerned with her ability to perform the various tasks set out in the personal capability assessment down to the date of the decision by the decision maker, that is, apparently, around 17 May 2006.  I say “apparently” because there is no copy of the decision on the file, although it is cited at length at p.1C of the file.

2.	The claimant suffers from depression, anxiety and migraines.  She did not attend the tribunal hearing and the tribunal decided the appeal on the papers.  The tribunal found that the claimant became incapable of work on account of migraine and depression.  The tribunal states that it accepted the claimant’s assessment of her ability to perform the physical descriptors, and awarded her no points.  This may be strictly correct if her account of her migraines is ignored.  It seems clear that in her comments on the physical descriptors she did not take the migraines into account.  Her evidence is that she had 3-4 migraines a week (file, p.64).  The examining medical practitioner states at p.28 that, despite complaining of anxiety, depression and migraine, for the majority of time she had no significant restriction climbing stairs.  This seems to allow for the possibility that there may be difficulties with stairs, as one would expect, when the claimant was having a migraine.  That would seem also to apply to the “sometimes” descriptor for bending and kneeling and for rising from sitting.  Depending upon the duration, frequency and severity of the migraines, it may also be that taking an overall view of the claimant’s ability to perform other physical descriptors with reasonable frequency and without an unacceptable level of pain or discomfort, the claimant may score points on those descriptors.

3.	The tribunal does not seem to have made any findings as to the frequency, degree of severity or length of the migraines, or as to their effect on the ability of the claimant to perform any physical descriptors.  In failing to do so, it was in error of law and its decision must be set aside.

4.	In CIB/5757/1997, Deputy Commissioner White said –

“25. It is now accepted in the context of the application of the all work test that a person cannot do things which are accompanied by an unacceptable level of pain or discomfort, which is to be determined by the tribunal in the light of all the circumstances of each case. On this issue, the Commissioner gave the following guidance in joined cases CIB/13161/1996 and CIB/13508/96 (29/97),
… the possibility of pain and fatigue and the increasing difficulty of performing a given activity on a repeated basis must ... be taken into account by considering how far the claimant’s normal capabilities are impaired by comparison with those of a healthy person in normal working order. …. The choice of descriptor should take into account whatever effects pain and fatigue may have on the claimant’s ability to perform the task so far as they are beyond the normal by reason of his specific disability (para. 41).

26. So the new tribunal must consider the application of each of physical descriptors when the claimant is experiencing a migraine and decide which of them the claimant cannot do. This will inform them as to the capacity of the claimant to meet the functional tests in the physical descriptors during the times at which he experiences migraine attacks. If the score at such times is (when added to any score of less than 15 under descriptor 14) still less than 15, then the claimant would be regarded as capable of work. But if the score at such times is 15 or more, then a further enquiry must take place. If the new tribunal concludes, as the original tribunal had done, that the claimant suffered attacks on four days each week, then the tribunal will need to consider whether the claimant is to be regarded as achieving a score of 15 on a day to day basis.” 

5.	In CIB/3589/2004, Commissioner Jacobs stated –

“10. The personal capability assessment is concerned with a claimant’s capacity for work. It operates by reference to disabilities. In other words, it is concerned with the effects of disabilities on a person’s ability to perform work-related functions. The physical disabilities section of the personal capability assessment is concerned with disabilities from ‘a specific bodily disease or disablement’ - see regulation 25(3)(a) of the Social Security (Incapacity for Work) (General) Regulations 1995.
 
11. In order to apply the legislation correctly, a tribunal has to follow a series of links from the disease (or disablement) to the symptoms to the disabilities to their effects on the work-related activities of the personal capability assessment. All those links are factual. 

12. In the case of a migraine, the chain works like this. A migraine is a bodily disease. It involves symptoms – pain and disruption of vision. Those symptoms restrict the claimant’s ability to function in various way (disabilities). The personal capability assessment allows those symptoms and their effects to be taken into account in respect of any activity which they affect. For example, flashing lights or blindness during a migraine may affect the activity of negotiating stairs without holding on and the activity of vision. 

13. Migraines are not continuous. Their effects are intermittent. That does not mean that they are irrelevant to the personal capability assessment. They may be relevant in one of two ways. First, they may be relevant to the ‘sometimes’ descriptors in the activities of rising from sitting and bending and kneeling. Second, they may be relevant to the frequency and regularity with which a claimant can undertake activities.

14. The tribunal limited the potential relevance of the symptoms of migraine to activity 14. There is no justification in the legislation for doing so. Nor is there any justification in the nature of migraine or the effects of its symptoms. The tribunal limited the relevance of the claimant’s evidence of migraines to one activity without justification.” 

6.	The new tribunal should follow this approach and should bear in mind that, except in the case of the two “sometimes” descriptors, for bending and kneeling and rising, the test to be applied is whether the claimant can perform the various descriptors with reasonable regularity.

7.	It further appears to me that the tribunal was in error of law in its assessment of the mental health descriptors in that it simply accepted the examining medical practitioner’s assessment.  This is in some respects plainly inadequate.  Thus, in relation to the question whether the claimant’s mental condition prevents her from undertaking leisure activities previously enjoyed (p.33), the examining medical practitioner simply recites what the claimant then did, and appears to have made no enquiry as to leisure activities previously undertaken, or, if they were different, why they were given up, or to have thought properly about the question.   The tribunal has also failed to deal with all the issues of fact raised by the claimant in her notes on a copy of the examining medical practitioner’s report.

8.	A further question, which is raised by the chairman who granted leave, is whether the tribunal was correct to exclude migraine from mental health problems in paragraph 11 of the Statement of Reasons.  Although the causes of migraine are unclear, such medical evidence as there is, which is summarised in the extract from the NHS Direct website at pp.76-82 of the file, is that the causes are essentially physical.  Where the causes are not shown to have a mental element, the tribunal would plainly be right to disregard them.  

9.	However, one of the triggers listed by NHS Direct is stress or anxiety.  The claimant has given evidence that at least some of her migraines were caused by anxiety which has been accepted by the examining medical practitioner as a mental disability (see p.34).  The tribunal needed to make findings as to this, but did not do so.  If it found that some, or all, of the claimant’s migraines were caused by anxiety, the question would then arise whether those migraines ought to be taken into account in considering the mental descriptors.
 
10.	The question under regulations 24 and 25 of the Social Security (Incapacity for Work)(General) Regulations 1995 read together with Part II of the Schedule to those Regulations is the extent to which the claimant is incapable by reason of her mental disabilities from performing the activities described in Part II of the Schedule.  Regulation 25(3)(b) provides that it is a condition that the person’s incapacity in respect of a disability listed in Part II “arises… from some specific mental illness or disablement”.

11.	In my judgment, if a person’s mental disablement causes a migraine which prevents a person from performing such an activity, then the disability does arise from the mental disablement.  I have considered whether this view is affected by decisions on causation in relation to disability living allowance, and in particular R(DLA) 4/06.  However, the wording of the provisions with which those decisions was concerned was different from the wording of the provisions to which I have referred.  Further, while physical causes may heal, leaving the mental trauma subsisting, the mental disablement which triggers the migraine does not disappear during the course of the migraine.  It is also impossible to disregard the fact that mental disabilities such as depression and anxiety are the product of physical changes in a person, which is why drugs are used to counteract those changes and reduce or eliminate the problem.    

12.	The new tribunal must therefore consider the evidence and determine as best it can the extent to which the claimant’s migraine attacks are triggered by her mental disabilities.  To that extent, it must go on to consider how those migraines affect her ability to perform the mental descriptors.  For example, regular migraine attacks might well be said to impair the claimant’s ability to communicate with other people, and she might fear that pressures if she returned to work might trigger further migraine attacks brought on by anxiety.

13.	The appeal is allowed and I make the order set out in paragraph 1 above.  I draw the attention of the claimant to the need for her to attend the next hearing, and to the possibility of obtaining medical evidence that might assist her case.

	(signed on the original)	Michael Mark
		Deputy Commissioner
		1 February 2007