![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
UK Social Security and Child Support Commissioners' Decisions |
||
You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2004] UKSSCSC CIB_2873_2003 (10 March 2004) URL: http://www.bailii.org/uk/cases/UKSSCSC/2004/CIB_2873_2003.html Cite as: [2004] UKSSCSC CIB_2873_2003 |
[New search] [Printable RTF version] [Help]
[2004] UKSSCSC CIB_2873_2003 (10 March 2004)
DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS
Decision
The appeal against the decision of the Secretary of State dated 13 February 2003 superseding his earlier decision by which he awarded incapacity benefit is allowed. On application of the personal capability assessment to the claimant as at 13 February 2003, his score was 18 points. In particular, he attained 15 points by satisfying Descriptor 13(a), i.e. "No voluntary control over bowels". The claimant consequently remains entitled to incapacity benefit from and including 7 July 2001.
Introduction
Legislation
"Provision shall be made by regulations
(a) defining a personal capability assessment by reference to the extent to which a person who has some specific disease or bodily or mental disablement is capable or incapable of performing such activities as may be prescribed;
(b) as to the manner of assessing whether a person is, in accordance with a personal capability assessment, incapable of work".
"…an assessment of the extent to which a person who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in the Schedule, or is incapable by reason of such disease or bodily or mental disablement of performing those activities".
(1) Activity |
(2) Descriptor | (3) Points |
Continence (other than enuresis (bed wetting)) |
(a) No voluntary control over bowels (b) No voluntary control over bladder (c) Loses control of bowels at least once a week (d) Loses control of bladder at least once a month (e) Loses control of bowels occasionally (f) Loses control of bladder at least once a month (g) Loses control of bladder occasionally (h) No problem with continence |
15 15 15 9 3 0 0 |
"In determining the extent of a person's incapacity to perform any activity listed in Part I he shall be assessed as if he were wearing any prosthesis with which he is fitted [or, as the case may be, any aid or appliance which he normally wears or uses]".
The words in parentheses were added by the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996 (SI 1996 No 3207) ("the 1996 Regulations"), with effect from 6 January 1997.
The Facts
The Parties' Submissions
(i) A person, such as the claimant, who has fitted an ileostomy or colostomy bag falls within Descriptor 13(a), because he has "no voluntary control over [his] bowels". Such a person is therefore entitled to 15 points for that descriptor and, as those points in themselves are sufficient to satisfy the PCA, is entitled to incapacity benefit.
(ii) However, whether or not this first submission is correct, it is incumbent upon the Commissioners to follow the Northern Ireland Court of Appeal in Perry v Adjudication Officer (reported as an appendix to R 8/99 (IB)) in which, albeit outside the ratio of the case, that Court considered this very point in the context of an identical statutory provision, and found that a person fitted with a colostomy bag necessarily falls within Descriptor 13(a).
(i) A person who has an ileostomy or colostomy bag fitted has control over his bowels, because, although he cannot control the flow of faeces from his body into the bag, he can control the emptying of the bag. Far from falling within Descriptor 13(a), he falls within Descriptor 13(h), as he has no problems with continence - he does not suffer from leakage or mess, and can lead a relatively normal life, without mishap.
(ii) Obiter dicta of the Northern Ireland Court of Appeal are merely persuasive so far as Commissioners are concerned and, if this Tribunal of Commissioners considers the view of the Court of Appeal to be wrong, it is not bound to (and should not) follow it.
Perry v Adjudication Officer
"[I]t is no more than a receptacle, which is very different from the anal sphincter, and we do not consider that it can readily be regarded as an artificial substutute for that. Many artificial aids clearly could not be classed as prostheses, such as wheelchairs, zimmer frames and dialysis machines. We agree with the decision of the Social Security Commissioner who held in Decision number CSIB/74/1996 that an incontinence pad is not a prosthesis, for it does not purport to be a substitute for a body part. We consider that a colostomy bag falls on the same side of the line…"
As a colostomy bag was not a prosthesis, the claimant had to be assessed for PCA (then, the all work test) purposes as if he were not wearing it. As a result, of course, he clearly fell within Descriptor 13(a), and was entitled to incapacity benefit on the basis of the 15 points achieved under that descriptor alone. That was the ratio of the Court of Appeal's decision.
"The appellant is able by the use of his colostomy bag to function quite satisfactorily and it was not suggested that he was handicapped in his work. We are conscious that if it is held he has no voluntary control over his bowels he will, even after the amendment effected to Regulation 25(2) takes effect, be entitled to incapacity benefit although his working ability is substantially intact, and we doubt if that was the intention of Parliament in enacting the statutory provisions. Nevertheless, we do not see any escape from such a conclusion. Even if we adopt a purposive construction of the regulations, we do not find it possible to hold that the wearer of a colostomy bag has voluntary control over his bowels. It is true that he can prevent "bowel accidents", the uncontrolled escape of faeces, by keeping in place the bag, which acts as a secure receptacle, and emptying it at convenient intervals. But on the ordinary use of language that is not voluntary control of the bowels themselves, which is the way in which [Descriptor] 13(a) is worded. The Commissioner held that the appellant had "no problem with his bowels", which in one sense may be true. In the context of [Descriptor] 13, however, that has to be contrasted with lack of voluntary control over his bowels and must in our view mean that the claimant has normal voluntary control. The appellant patently has not such control…. We accordingly are unable to agree with the conclusion of the Commissioner in the present case that the appellant has "no problem with his bowels"."
"Although the social security legislation governing Northern Ireland is not contained in the same Act as applies to Great Britain… we nevertheless consider that, where the relevant provisions are identical (as they are in this case), the same judicial approach should equally be adopted…. It would be naturally expected that, wherever the statutory provisions operative both in Northern Ireland and Great Britain are identical, such provision should be interpreted uniformly…. Accordingly, in our judgment, it is incumbent upon us, particularly as the decision of the Court of Appeal in Ireland was unanimous… to follow that decision…."
"Pads or appliances (such as a stoma bag) do not provide voluntary control, they merely alleviate the effects of lack of control."
Even if we had considered not following Perry, these factors would have further inclined us against doing so.
Activity 13
"The proper functioning of any sphincter or other structure of the gastro intestinal tract so as to prevent regurgitation or premature emptying".
Summary
(Signed) His Honour Judge Gary Hickinbottom
Chief Commissioner
(Signed) Mr Commissioner Henty
(Signed) Mrs Commissioner Parker
10 March 2004