THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The decision of the Kirkcaldy appeal tribunal of 25 July 2008 is not erroneous in law.  The claimant’s appeal against it is disallowed.

REASONS FOR DECISION

1.	The claimant is a 39 year old woman.  She suffers from anxiety and depression, back pain and a bladder problem.  She has claimed incapacity for work since 8 March 1998.  On 
6 December 2007, she returned an IB50 form to the Department.  She was then medically examined for the purposes of the personal capability assessment on 12 March 2008.  On receipt of the report of that examination, a decision maker, on 1 April 2008, awarded her zero physical points and seven mental health points under that assessment, held that she was no longer incapable of work and superseded her entitlement to incapacity benefit from that date.  That decision was confirmed at reconsideration.

2.	The claimant appealed.  Her representative presented a written submission to the tribunal, document 79.  In it, he raised no issue regarding any physical descriptor but suggested that the tribunal award points to the claimant for the following additional mental health descriptors; 16(e), 17(d), 18(a), 18(e) and 18(f).

3.	The tribunal awarded points for descriptors 18(e) and 18(f) but refused to make any award for descriptors 16(e), 17(d) and 18(a).  The effect of the tribunal’s decision was to increase the claimant’s total mental health pointage to nine, still less than the 10 needed to satisfy the personal capability assessment.  They thus upheld the decision maker’s decision.

4.	The claimant now appeals with my leave.  Her appeal is not supported by the Secretary of State for Work and Pensions in his submissions, documents 144 – 145.  

5.	The ground of appeal stated on the claimant’s behalf by her representative in documents 89 – 91 relates to one issue only – the tribunal’s refusal to award points for descriptor 18(a).  In his written submission, the claimant’s representative does not query the tribunal’s treatment of descriptors 16(e) and 17(d).  

6.	Descriptor 18(a), appearing in part II of the schedule to the Incapacity for Work (General) Regulations 1995, reads as follows

“Cannot look after himself without help from others”.

It is common ground between the claimant’s representative and the Secretary of State that the descriptor refers to the danger of self-neglect and the help needed to maintain a reasonable standard of self-care, including eating and personal hygiene.  That interpretation is indubitably correct.  It is supported by Mr Commissioner May QC (as he then was) in paragraph 25 of CIB/4196/1997.  In paragraph 18 of CIB/5336/2002, Mr Commissioner Jacobs (as he then was) explicitly agreed with the comments by Mr Commissioner May QC to which I have just referred.  Mr Commissioner Jacobs also added comments of his own to the same effect in paragraph 19 of the above decision.

7.	The matter at issue in these proceedings focuses on the second part of descriptor 18(a) i.e. the phrase “without help from others”.  What assistance provided to a claimant by other people amounts to “help from others” enabling that claimant to be awarded the two mental health points assigned to that descriptor?

8.	The argument advanced by the claimant’s representative which is resisted on behalf of the Secretary of State was not presented to the tribunal on document 79.  Nor, so far as I can see from the record of proceedings, was it presented orally to the tribunal.  It runs as follows.  The claimant receives and, indeed, requires counselling to assist her in dealing with the long-term psychological effects of childhood sexual abuse.  She is also regularly prescribed repeat prescriptions of anti-depressants.  It is submitted that without that counselling and medication, she would be at risk of self-neglect and would not feed herself adequately or attend properly to her personal hygiene.  It is then further submitted that therefore the above counselling and prescription of medication constitute “help from others” which satisfies descriptor 18(a).

9.	I reject the argument narrated in paragraph 8 above.  Given that descriptor 18(a) is concerned with necessary self-care to obviate self-neglect, the “help from others” envisaged by it can, in my view, take two forms.  Firstly, that help can be provided by physical attention to a claimant with e.g. feeding, washing or bathing or taking medication.  Secondly, especially given that the descriptor relates to mental disability, it can also be provided by psychological prompting and/or encouragement to ensure that a claimant performs such tasks himself.  I specifically hold that the assistance suggested by the claimant’s representative to be within descriptor 18(a) is not such prompting and encouragement.  More generally, it is too remote to be encompassed by the descriptor.  It lacks the immediacy and intimacy which it envisages and requires.  

10.	I reach the conclusions expressed in paragraph 9 above for the following reasons.

(a)	Firstly, and most tellingly, the argument advanced by the claimant’s representative is precluded by the natural meaning of the language of the descriptor.  I note that that is the test used by Mr Commissioner Jacobs in paragraph 19 of CIB/5336/2002.  To my mind, the ordinary meaning of the words used refers to direct help from others, whether physical or psychological, to carry out acts of basic self-care.
(b)	Secondly, I consider that my reading of the latter part of the descriptor is consistent with the reading of the earlier part of it by Mr Commissioner May QC and Mr Commissioner Jacobs in the cases cited in paragraph 5 above.
(c)	Thirdly, I also consider that my conclusion is consistent with the actual decisions in those cases.  In CIB/4196/1997 it was held that assistance with a claimant’s finances and the paying of his bills was not covered by descriptor 18(a).  In CIB/5336/2002, it was held that help with shopping was likewise not covered by it.  
(d)	Fourthly, I draw support for my conclusion from comments of 
Mr Commissioner Jacobs in paragraph 19 of CIB/5336/2002 where he refers to “the immediate aspects of self-care” (my italics).  That, to my mind, is consistent with demanding a degree of immediacy and intimacy in the acts which are required to satisfy the latter part of descriptor 18(a).
(e)	Fifthly, in principle, a claimant is assessed under the personal capability assessment on the basis of his physical and mental functioning with the benefit of any medication prescribed and taken and any other treatment received.  The counselling and the repeat prescriptions of anti-depressants in this case should be regarded in that light.  Even according to the argument of the claimant’s representative, those two forms of treatment obviate the danger of self-neglect on the claimant’s part.  They enable her to maintain an acceptable level of self-care without any direct assistance from another person.  They are not however themselves such assistance.  

11.	I have decided the question discussed in paragraphs 5 – 10 above on the explicit assumption that the counselling which the claimant receives has the effect ascribed to it by the claimant’s representative.  I note however that that position is not explicitly supported in the statement from the claimant’s counsellor herself, document 80.  My interpretation of document 80 is supported by the terms of paragraphs 1 – 2 on documents 147 – 148, observations by the claimant’s representative on the Secretary of State’s submission.  Those paragraphs are a sustained argument from inference.

12.	For the above reasons, I do not consider that the tribunal erred in law by failing to take the approach to descriptor 18(a) advanced by the claimant’s representative.

13.	Further, I also hold that the reasoning laid out by the tribunal to justify their decision on descriptor 18(a) in paragraph 9 of their statement of reasons on document 87 is sound and reflects common sense.  That reasoning is also clearly articulated.  

14.	To summarise, the tribunal did not err in law in how they dealt with descriptor 18(a) nor indeed in any other respect.  The claimant’s appeal is disallowed.

					(signed)
					A J Gamble
					Judge of the Upper Tribunal 
					Date: 26 November 2008