CIB/4232/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	This is an appeal by the claimant against the decision of the Appeal Tribunal given on 28th August 2007 by which the tribunal dismissed the claimant’s appeal against the decision of the decision maker made on 7th June 2007.  The latter decision was a decision that the claimant was not entitled to incapacity credits because on the basis of a personal capability assessment conducted following a medical examination which took place on 30th May 2007, the claimant was found not to be incapable of work.

2.	The present appeal is not supported by the Secretary of State.  Nevertheless, for the reasons given below I have concluded that the decision of the tribunal was erroneous in point of law and must be set aside.  It is, however, a case in which it is appropriate for me to substitute my own decision to the same effect as that of the tribunal, in the exercise of the power given by section 14(8)(a) of the Social Security Act 1998.

3.	The relevant facts are as follows.  The claimant apparently became incapable of work on 16th January 2005.  His G.P. provided a medical report on form IB113 (SS) dated 29th July 2005.  In it he said that he had last seen or examined the claimant for the condition causing incapacity, which he identified as depression, in 2002.  He said that the claimant was not on medication and could travel by public transport.  In the light of the fairly sparse information given, the claimant was asked to complete a form IB50.  The claimant dated the form 2nd September 2005 and returned it, but it gave no information at all about difficulties with the physical activities specified for the purposes of incapacity benefit and virtually no details of any other kind.

4.	On 24th November 2005 the claimant was examined by a doctor who completed an electronic form IB85.  Three medical problems were identified:  a bunion on the claimant’s right foot which gave him pain every day; poor vision in the claimant’s right eye; and depression, which caused the claimant to have difficulty getting to sleep, low mood, anxiety, panic attacks, irritability and poor concentration.  The symptoms were usually quite severe and were made worse by stress, but the claimant managed the condition on his own and was not receiving mental health treatment.  He was recorded as having never worked.

5.	The doctor measured the claimant’s visual acuity as 6/12 and assessed him as being unable to see well enough to recognise a friend across the road at a distance of at least 15 metres.  He also made a number of findings relevant to the claimant’s mental state, describing him as unkempt, wearing worn-out clothes, with downcast gaze, exaggerated facial expressions and poor rapport, fiddling, speaking very little, suffering from moderate depression and anxiety, with a hostile demeanour, ruminating and with poor insight.  On the basis of those findings and having regard to the claimant’s description of a typical day, the doctor assessed the claimant as satisfying a number of the mental descriptors relevant to the personal capability assessment.  Overall he concluded that the claimant had a moderately severe mental health condition which would be expected to improve significantly within 12 months.

6.	When the decision maker came to compile the score sheet, the effect was that the claimant scored 8 points for his problem with vision and 20 points in respect of mental descriptors.  He thus easily satisfied the personal capability assessment and was awarded incapacity credits from 16th January 2005 by a decision apparently made on 30th November 2005.  (The decision itself is not with the papers.)  	

7.	The claimant’s G.P. was asked for a further medical report on form IB113(SS) the following year and completed a report dated 30th November 2006 which was received on 6th December 2006.  That report is another brief document in terms identical to those of the first report.

8.	The claimant was then asked to fill in another form IB50, which he did, returning the form to the Department of Work and Pensions on 10th January 2007.  Curiously, although he had the same G.P., the claimant now said, contrary to the form IB113, that he was taking fluoxetine for depression and diclofenac for back pain.  He said that the fluoxetine helped him.  He gave an account of a number of physical activities with which he had difficulties, including, but by no means limited to, seeing.  He also said that he had a fit or something similar at least once a day, but the information given about this is unclear and there is no other evidence of any such problem.

9.	The claimant was again medically examined, this time on 30th May 2007, and another electronic form IB113 was completed.  It appears that two months before that date the claimant had been diagnosed as suffering from diabetes and that two years earlier he had been found to have hypertension and he was receiving medication for both conditions.  He was also taking medication to reduce his cholesterol level.  His anxiety and depression and foot problems continued but he was not currently receiving mental health treatment.  The symptoms of the claimant’s mental problems were similar but there was no record of panic attacks and the symptoms were described as usually bearable.  He was waiting for an operation on his foot and in the meantime was seeing the G.P. for the condition.  His diabetes and hypertension were both well controlled.  On this occasion it was recorded that the claimant stopped work ten years ago, the main reason for leaving work being that his contract had ended.

10.	The doctor was handicapped in performing his physical assessment because the claimant said that he was feeling tired and refused to agree to clinical examination.  The doctor was able to observe him getting out his medication and handling it and concluded that he had no problems with manual dexterity.  The doctor measured the claimant’s visual acuity as 6/9.  On the basis of such examination as it was possible to perform, observation of the claimant’s movements during the assessment and the claimant’s account of his typical day, the doctor concluded that he had no relevant problems with the activities falling within the physical descriptors.  The doctor attributed the claimed fits to the mental health problems.

11.	As respects the claimant’s mental state, the doctor found that he was well kempt, casually dressed, with normal eye contact, facial expression and rapport, there was no fiddling, he was talkative, he suffered from mild depression and mild anxiety, his demeanour was normal, he did not ruminate and his insight was good.  He found that some of the mental descriptors were satisfied.  His overall conclusion was that the claimant’s mental health condition causes mild functional impairment which again should be expected to improve significantly within 12 months.

12.	When the decision maker came to assess whether the claimant was capable for work in the light of the form IB50 and the form IB85, he or she accepted the doctor’s assessment of both physical and mental descriptors and as a result awarded the claimant no points on the physical assessment and 5 points on the mental assessment.  That fell far short of the 15 points required if incapacity was to be based on physical or physical and mental factors and far short of the 10 points required if incapacity was to be based on mental factors alone.  This led inevitably to the decision to disallow incapacity credits from 7th June 2007, the date of the decision.

13.	The claimant appealed against that decision by an appeal form received on 12th June 2007.  The substance of his grounds of appeal was that the doctor knew he had depression; he could not walk much because of the corn on his right foot; he was taking tablets for his blood pressure which was still high, as the doctor knew, and for diabetes and cholesterol; he did not see properly and the doctor did not ask him about his vision; he had told the doctor about noise in his head and whistling in his ears which prevented him from sleeping; and generally he was “suffering big time”.

14.	The appeal was dealt with on paper.  In its statement of reasons, the tribunal reminded itself that the burden of proof was on the decision maker to show that the claimant, having been entitled to incapacity credits on the basis that he satisfied the personal capability assessment, was no longer so entitled.  The tribunal stated that it had looked at all the physical and mental descriptors mentioned in forms IB50 and IB85, the initial evidence of the claimant’s own doctor and the claimant’s written submission in the appeal form.  The tribunal continued:

“7.	Unfortunately, the appellant offered no new evidence at all in support of his appeal.  All the symptoms of which he now complains were duly considered by the examining doctor on 30 May 2007 during the 48 minute examination which is longer than the average time taken.  The Tribunal accepted that the appellant had a ‘moderately severe mental health problem’ but found no grounds for increasing the 5 points already awarded for that condition.  This amounts to only half the required (mental) threshold.

8.	The law is correctly stated and accurately applied in the Decision Maker’s submissions which the Tribunal adopted as part of the reasons for disallowing this appeal.

9.	The Tribunal accepted the opinion of the examining doctor on the appellant’s ability.  The doctor is an expert in assessing disablement for the purposes of Incapacity Benefit and he clinically examined the appellant and addressed all matters of fact and opinion relevant to the issues.  The absence of any subsequent medical evidence does not support any new descriptors being added or additional points being awarded.”

15.	Having been provided with a copy of those reasons, the claimant wrote a letter received on 26th October 2007 saying that he still appealed against the decision.  He was not sure how it was wrong but perhaps it was the doctor from social security.  The chairman treated the letter as an application for leave to appeal to the Commissioners and granted leave.  By his decision dated 6th November 2007, he said:

“To the extent that the appellant’s grounds may be said to exist, they disclose no error of law.  However, it is arguable that the tribunal approached the matter on the basis that it was looking at whether the decision was one the Secretary of State could reasonably have reached rather than whether they (i.e., the tribunal) considered it to be correct.  See, in particular, the emphasis placed on the need for additional evidence and the implication that the appeal could not succeed without it.

In addition, the tribunal’s stated reasons for preferring the evidence of the examining doctor have the air of a ‘mantra’.  In particular, although the tribunal will have been aware that the examining doctor will have been trained in assessing disablement on behalf of one of the parties to the appeal, I can see no basis for the tribunal’s finding that he was an ‘expert’ in that activity.”

16.	The submission of the Secretary of State on the appeal, dated 19th March 2008, does not address the points raised by the chairman when giving leave.  It is simply submitted that the tribunal preferred the evidence of the approved doctor and gave adequate reasons for doing so.  Three decisions of the Commissioners are cited to illustrate what is meant by adequate reasons in this context.

17.	The claimant has made no observations in answer to that submission.  He has, however, written a further letter, received on 30th November 2007, stating that he does not know why his money has been cut and inquiring rhetorically why, if he is all right as the doctor thinks, he has to see his G.P. every two weeks, go to hospital at least once a month and another clinic every month, he is awaiting another hospital appointment for a different illness and his blood pressure remains high, for which his G.P. is going to refer him to a specialist.

18.	The first ground on which leave to appeal was given points to a possible error of law on the part of the tribunal in that it may have reviewed the decision maker’s decision to establish whether or not it was a decision which a reasonable tribunal could have reached, rather than reconsidered the matter afresh on the basis of the evidence before the tribunal.  It is clear that the role of the tribunal is to reconsider the matter (which in many cases will be done at a full oral hearing), making its own findings of fact and giving its own reasons for its ultimate decision, rather than simply to review the previous decision with the limited remit of deciding whether or not the decision was one which could reasonably have been reached.  It follows that if the tribunal did take the review rather than the reconsideration approach, it erred in law.

19.	It is very difficult to ascertain from the tribunal’s statement of reasons whether or not it did fall into that error.  The chairman understandably draws attention to the emphasis laid on the provision of new evidence, referred to in both paragraph 7 and paragraph 9.  A claimant is certainly not obliged to produce new evidence; he or she is fully entitled to argue that the approved doctor got it wrong, especially where the doctor has assessed a claimant’s abilities differently from the way in which the claimant himself or herself assessed those abilities.  On the other hand, the tribunal referred to accepting that the claimant had a moderately severe health problem but finding no grounds for increasing the 5 points awarded.  Similarly, the tribunal accepted the opinion of the examining doctor.  Those passages point to a reconsideration by the tribunal and its making its own findings of fact.  Further, the law stated in the decision maker’s submissions, adopted by the tribunal, speaks of the decision maker’s decision as “correct”, rather than “reasonable”.  In all the circumstances, I take the view on balance that the tribunal did reconsider the matter, although it expressed itself unfortunately when giving its reasons.  Given my conclusion on other points, however, my decision on this aspect is immaterial to the ultimate outcome of the appeal.

20.	The second ground on which the chairman gave leave to appeal raises the question of the adequacy of the tribunal’s reasons.  I agree that the second sentence of paragraph 9 has the air of a mantra.  Moreover, in this case it is an inaccurate mantra, since, as I have already mentioned, the claimant did not give his consent to a full clinical assessment, although clearly some examination was carried out.  In addition, the assessment that the claimant had a “moderately severe mental health problem”, which the tribunal accepted, was the conclusion of the previous doctor (p.87), not of the doctor who conducted the examination on 30th May 2007, who concluded that the claimant’s mental health condition caused “mild functional impairment” (p.37).

21.	These difficulties arise in the context of a claimant who had previously been awarded incapacity credits and who was losing his benefit.  The tribunal correctly reminded itself that the burden was on the Secretary of State to show that he was no longer entitled.  Yet there is nothing in the decision which addresses expressly why, in a case where the claimant was complaining of additional health problems since the last assessment, he no longer satisfied the personal capability assessment.  There is no express reference to the physical descriptors, other than the statement that they were all considered.  It does not appear from the statement of reasons, except indirectly through the error mentioned in the previous paragraph, that the tribunal had considered the papers relating to the original award of incapacity credits.

22.	I accept that, as submitted in the decision maker’s submission to the tribunal and adopted by it, an existing decision in favour of a claimant may be superseded on the ground that there has been a fresh medical examination: see regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, S.I. 1999 No. 991.  It nevertheless remains the decision maker’s duty to decide on the claimant’s entitlement having regard to all the relevant evidence, which may include the evidence of previous medical examinations.  That proposition applies with at least equal force to tribunals, who may well find that a principal ground of appeal is that the claimant’s condition has not improved.

23.	In the present case, the decision maker rightly, in my view, put the evidence of the claimant’s previous favourable assessment before the tribunal.  It appears to me, however, that the submission to the tribunal plays down the effect of the decision of Mr. Commissioner Bano in CIB/3179/2000 as to the relevance of previous assessments.  While the Commissioner made clear that it was no longer necessary for a tribunal to compare its findings with a previous assessment to see whether a ground for review was established, he did not accept the Secretary of State’s submission that assessments made two or three years previously were not relevant because they shed no light on the claimant’s capability at the date of the supersession decision and found that the tribunal had erred in law in failing to consider whether to adjourn or postpone the hearing in order to obtain previous medical reports and in failing to take account of previous favourable assessments.  There are numerous other decisions of the Commissioners drawing attention to the relevance of previous assessments. 

24.	The potential relevance of the previous assessment in the present case is highlighted by the further submission to the tribunal that the decision maker has regarded the clinical findings and observations contained in the previous assessments but chose to give greater weight to the medical assessment of 30th May 2007 as it was a much more contemporaneous appraisal of the claimant’s abilities.  I can see nothing in the papers before the tribunal which supports that submission.  If the decision maker intended to refer to the references at p.49 to “the evidence held”, I regard those references as an insufficient basis for the submission. 

25.	Having regard to those various matters, I conclude that the tribunal failed to give adequate reasons for its decision and so erred in law.  Accordingly, I set the decision aside.

26.	The next question for me is whether or not the matter should now be remitted to a new tribunal.  For the reasons set out below, it is not necessary for me to remit the case, since I can give the decision I consider appropriate, making such further findings of fact as are expedient.  

27.	As regards mental descriptors, the decision maker and the tribunal had the brief evidence of the G.P. on two occasions, the evidence of the claimant on the second form IB50 (there being no relevant evidence on the first) and the appeal notioce and the detailed report of the examining doctor on the two forms IB85.  The evidence is consistent that the claimant suffers from depression.  The question for the tribunal was what effect that had on the claimant’s abilities, as shown by the mental descriptors in the personal capability assessment.  The view that the claimant was suffering from a moderately severe condition was formed by the first doctor on the basis of statements made to him by the claimant and his examination.  He nevertheless concluded that the claimant was likely to improve significantly within twelve months.  The view that the claimant was suffering from mild functional impairment was formed by the second doctor also on the basis of statements made to him by the claimant and his examination.  Many of the statements relied on by the two doctors covered similar subject matter but the forms show that the claimant gave different answers or said different things at the two examinations.  The descriptors which the second doctor found were satisfied were all ones which the first doctor had found were satisfied.  They were also descriptors which were appropriate to reflect the claimant’s self-assessment on form IB50; they covered frequent distress during the day owing to mood swings, sleep problems interfering with daytime activities, worry about the stress of work, irritability and a preference for being alone for six hours or more each day.  By the time the second assessment was made, the claimant had been on anti-depressant drugs for at least a period, which he said he found helpful.

28.	The overall impression is thus that the second doctor’s report gave a picture of a person who, on his own account of himself and upon examination, had improved since the previous report.  That improvement was consistent with the previous prognosis and with the claimant’s own statement on form IB50.  The only point made on mental descriptors in the appeal letter relates to insomnia, which is recognised by the second doctor and in respect of which the claimant has been given the relevant award of 1 point.  I have considered the various descriptors which the second doctor did not regard as satisfied, but there is nothing in the evidence which persuades me to conclude that additional points ought to have been awarded (or indeed that any points awarded ought not to have been awarded).  In those circumstances and for those reasons I concur in the tribunal’s finding of fact that there are no grounds for increasing the award of points in respect of mental descriptors.

29.	I should make clear that in coming to this conclusion I have not overlooked the fact that there are some factual discrepancies.  I note in particular the different statements about the claimant’s ceasing work and the origin and development of the claimant’s depression.  Nevertheless, the overall impression is overwhelmingly as stated in the preceding paragraph.

30.	This brings me to the physical descriptors.  The first report is of very little assistance to the claimant, since the only physical descriptor found to be satisfied related to vision and in all other respects he was found to have no problems.  It is to be noted that on that occasion a clinical examination was completed.  The activities with which the claimant said he had problems in his second form IB50 were sitting, getting up, bending or kneeling, standing, walking, going up and down stairs, carrying a 2.5 kilo bag of potatoes, vision and fits.  No further information is given in relation to sitting, standing, walking or going up and down stairs.  In relation to getting up and bending or kneeling, the claimant said he sometimes suffered pain and in relation to carrying, he said he had problems with his shopping but had friends who helped him and he split his shopping into small bags.  The form does not indicate the frequency with which the claimant experienced pain.  I have already referred to his vision and what he said about fits.

31.	The second form IB85 does not identify back pain as one of the claimant’s conditions and records that he stated there were no problems other than those listed.  He was apparently no longer taking diclofenac.  He said he was able to walk for 10 minutes to the shops at a normal pace and could usually queue at the bus stop or checkout for half an hour.  He did not describe any physical problems getting out of bed, getting dressed or in the bathroom.  He said that he could go up and down stairs without difficulty..  Although the claimant declined to permit a clinical examination, he was informally observed to sit in an upright chair for 40 minutes without obvious discomfort, to rise easily unaided, to bend easily to pick something up and to walk a short distance.

32.	The claimant’s appeal form makes no reference to back pain.  It refers to pain in the claimant’s right foot which prevents him from walking, mentions his blood pressure, diabetes and cholesterol and refers to his vision.  As far as the blood pressure, diabetes and cholesterol level are concerned, it is not disputed that the claimant has those conditions, but the evidence before the decision maker and tribunal was that in the doctor’s opinion they would not be expected to cause any problem with the physical descriptors.  The claimant has not suggested that they do.  He faces the difficulty that if he is to be awarded points, the conditions need to affect his ability to satisfy the descriptors and there is no evidence that they do.  I pause here to mention that under section 171C(2)(a) of the Social Security Contributions and Benefits Act 1992 and regulation 24 of the Social Security (Incapacity for Work) Regulations 1995, S.I. 1995 No. 311, the personal capability assessment is an assessment of the extent to which a person “who has some specific disease or bodily or mental disablement” can or cannot perform the various specified activities.  Here, the claimant has the conditions referred to, but, as I have said, there is no evidence, even from him, that they affect his ability to perform the specified physical activities.  

33.	The claimant’s vision and the corn on his right foot are in a different category.  As far as the vision is concerned, although he says the doctor did not ask him about his vision, the report shows that his visual acuity was measured and on the basis of that examination and his informal observations, the doctor found that there was no significant impairment of vision.  It is to be observed that that does not mean that the claimant’s vision is perfect, as indeed the measurement of 6/9 shows.  But the descriptors only enable a claimant to score points for problems with vision if his or her vision is at least so poor that a friend cannot be recognised across the road at a distance of at least 15 metres.  The doctor’s assessment was that the claimant’s vision was not so impaired.

34.	 Similarly, the difficulty with the corn lies in the relevant descriptors.  The existence of the corn is accepted; it was seen by the first examining doctor.  A painful corn might well affect the ability to walk, as the claimant says in his appeal form.  But a claimant can only score points in relation to walking if he or she cannot walk more than 400 metres without stopping or severe discomfort.  The claimant says he can walk for 10 minutes at a normal pace.  That is likely comfortably to exceed 400 metres, although it may mean that he cannot walk more than 800 metres without stopping or severe discomfort.  A claimant in that position, however, satisfies a descriptor but scores no points.

35.	In those circumstances, I concur in the finding of the tribunal, implied from its acceptance of the second doctor’s report, that the claimant is not entitled to any points in respect of the physical descriptors.

36.	It follows that I find that the claimant scores 5 points only on the personal capability assessment as at the date of the decision maker’s decision.  He does not satisfy the personal capability assessment and the decision which I substitute for the decision of the tribunal is therefore a decision dismissing the appeal.

37.	For the sake of completeness I should say that the claimant’s letter dated 30th November 2007 suggests that his condition may have worsened since the date of the decision of 7th June 2007.  If that is the case, he will need to make another claim, if he has not already done so.  Under s.12(8)(b) of the Social Security Act 1998, a tribunal is not allowed to take account of any circumstances not obtaining at the time the decision appealed against was made, and in substituting for the tribunal’s decision a decision of my own which I consider appropriate, I am similarly constrained.

	(signed on the original)	E. Ovey
		Deputy Commissioner
							           21st May 2008