[2004] UKSSCSC CSIB_33_2004 (18 May 2004)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSIB/33/04

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  L T PARKER 

Oral Hearing

Appellant:  Secretary of State		     Respondent:  

Tribunal:  Dundee			     Tribunal Case No:  

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1.	The decision of the tribunal sitting in Dundee on 3 September 2003 (the tribunal) is wrong in law.  I therefore remit the case to a new tribunal for a fresh determination.

The legislation

2.	As a result of the decision of the Court of Appeal in Howker v Secretary of State for Work and Pensions and the Social Security Advisory Committee [2002] EWCA Civ 1623 (Howker) and that of Collins J in the Divisional Court in R. v Secretary of State for Social Security Ex p. Moule (Moule), regulation 27(b) (regulation 27(b)) of the Social Security (Incapacity for Work)(General) Regulations 1995 (the regulations) at all relevant times reads:-

“A person who does not satisfy the personal capability assessment shall be treated as incapable of work if – 
…..
(b)	he suffers from specific disease or bodily or mental disablement and, by reason of such 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.”

Oral hearing

3.	The case came before me for an oral hearing on 13 May 2004.  The Secretary of State was represented by Mr Brodie, Advocate, instructed by Mr Crilly, Solicitor, of the Office of the Solicitor to the Advocate General.  The respondent was represented (as she was at the tribunal hearing) by Mr Kinghorn, Senior Solicitor at the Dundee North Law Centre.  I am grateful to them both for their succinct and helpful submissions.  I address their arguments in the course of my own decision.

Background

4.	A claim for incapacity benefit (IB) was made from 15 July 2002.  Entitlement to IB depends on incapacity for work, the main test for which is the personal capability assessment (PCA); in order to satisfy that test through the physical descriptors, under regulation 25 of the regulations she requires to score at least 15 points.  However, under regulation 10 (although the application of this regulation is not suggested in the present case), the claimant is treated in certain circumstances as satisfying the PCA without that test being applied; the other exempting provision is regulation 27, which also treats a claimant as incapable of work but in the very different situation where the person has failed the PCA.

5.	In an IB questionnaire (the questionnaire) dated 8 February 2003, the respondent commented:-

	“I have been off for some time with back trouble, disc trouble and sciatica….but have recently found I also have multiple gall stones….I am sick most of the time and can’t eat much, also severe pain.”

6.	She ticked boxes which indicated she had no problems with any of the various physical descriptors but added:-

	“To all the questions it varies from day to day depending upon how I am feeling as my liver is inflamed with gall stones, it can be very painful and hope to get an operation as soon as possible so I can get back to normal I hope”.

It appears from the above that pain came as much from the gall stones as from her back.

7.	She was examined on behalf of the decision maker (DM) by a medical adviser (the adviser) on 20 March 2003.  It was the adviser’s opinion that no physical descriptor applied as “there was no significant functional disablement” and further than she did not fall within any of the circumstances set out under regulation 27.

8.	On 18 April 2003 a DM superseded the prior IB award and held that no points were appropriate as the claimant did not satisfy the PCA, that she could not be treated as incapable of work and she was therefore not entitled to IB from and including 18 April 2003.  The respondent appealed to the tribunal.

The tribunal decision

9.	Mr Kinghorn lodged the following information for the benefit of the tribunal at its hearing, firstly a letter from himself to the respondent’s general practitioner (GP) dated 22 August 2003 and secondly, the GP’s response of 27 August 2003.  

10.	In the former document (the representative’s letter), Mr Kinghorn stated:-

“My client informs me that she suffers from back problems and gall stones and these affect a number of her activities.  She is currently awaiting an operation but does not have a date yet.  If you have a date for her operation perhaps you could let me know.

With regard to activities, she states:

•	It is painful to sit for more than 30 minutes before she gets pain and does not feel comfortable.
•	She needs to hold on when getting up from a chair.
•	Bending and kneeling is not possible because of pain and she needs support when getting up from a bending or kneeling position.
•	When standing after about 10 minutes, she needs to move around because of pain.

She states that she can have bouts of violent sickness due to her gall stones, particularly if something disagrees with her and that can have an affect (sic) on her incontinence.  The disc in her back is also pront (sic) to “popping out” and requires to be adjusted.

I would be grateful if you could comment as to whether or not the above symptoms are consistent with [the respondent’s] diagnosis.”

11.	The GP’s response (the GP’s reply) was as follows:-

“Regarding her back problems, the limitation in activities which she has described to you is entirely consistent with a problem she is reported to have had a year ago when she was seen by an Orthopaedic Consultant……At the time he thought she was suffering from a disc prolapse.  Since then, none of us in the surgery have seen her in this connection and there is, therefore, no up to date record of her condition.

In regard to her gall stones problem, she is awaiting surgery and we are well aware of the problems she is having prior to the problem being addressed which are as she has stated to you.

I would certainly support her appeal against being cut off Incapacity on the grounds of her gall bladder problem alone – until she has had her surgery.”

12.	The respondent attended the tribunal venue accompanied by her representative Mr Kinghorn.  No presenting officer appeared on behalf of the DM.  Outwith the presence of the respondent, the chairman explained that the tribunal was minded to allow the appeal on the basis of the application of regulation 27 and requested Mr Kinghorn to discuss this with his client.  He did so and, on return, indicated that the respondent was happy to proceed on this basis.

13.	In its decision notice, the tribunal states:-

“[The respondent’s] appeal is allowed.  We are not satisfied that grounds to supersede have been established and accordingly she remains entitled to incapacity benefit with effect from 18/4/03.

We accept evidence and derive particular assistance from the latest report from her general practitioner, to the effect that [the respondent] is presently suffering significant symptoms from her gallstones, for which she is awaiting surgery.

Having considered all of the evidence, we consider that she should currently be considered as exempt from the personal capability assessment in terms of regulation 27.  Her appeal is allowed on this basis.”

14.	In its statement of reasons for the decision, so far as material the text reads:-

“Findings of fact
…..
2.	She was subsequently examined in terms of the personal capability assessment by a medical adviser.  Following upon that examination a decision maker made the decision set out on page 78 of the Tribunal papers, the terms of which are incorporated into the findings of fact by reference.
…..
4.	The terms of the letter dated 22/8/03 from Dundee North Law Centre and the reply from [the GP] dated 27/8/03 which are contained at pages 87 and 88 of the Tribunal papers are incorporated into the findings of fact by reference.

Reasons for decision

1.	The decision which is appealed to the Tribunal is a decision by which the decision maker has reported (sic) to supersede a previous award.  The onus is therefore on the Secretary of State to establish grounds for supersession.  As is now invariably the case in incapacity benefit appeals, the Secretary of State was not represented at the Tribunal hearing.

2.	One of the consequences of the failure to be represented at the hearing is that the Secretary of State deprived himself of an opportunity of considering and commenting upon the additional evidence which was produced to the Tribunal on the day of the hearing.

3.	In this particular appeal important evidence was produced in the form of a letter to [the respondent’s] GP and the reply from the GP in response to that letter.

4.	In particular, the GP confirms that she is having problems with gallstones for which she is presently awaiting surgery.  He confirms the disabilities outlined in her representative’s letter.

5.	We have had regard to the decision of the Court of Appeal in the case of Secretary of State v Howker.  Standing the various medical problems from which [the respondent] is presenting suffering (as detailed by her GP) we consider that there would be a substantial risk to both her physical and mental health if she were found capable of work and this will remain the position until she has had her operation in respect of the gallstones.

6.	We are accordingly not satisfied that grounds to supersede have been established and [the respondent’s] appeal is therefore successful”.

Appeal to the Commissioner by the Secretary of State

15.	In the written grounds, it was initially suggested that the tribunal erred in applying regulation 27 without first considering the PCA.  However, I pointed out that in CIB/601/1997, which the Secretary of State produced in support of this ground, at paragraph 15 Mr Commissioner Levenson said:-

	“…. it is not necessary to postpone consideration of regulation 27 until after considering the all work test, this is a matter of choice for the tribunal guided by the chairman.  Although regulation 27 only applies to a person who does not satisfy the all work test, in the present case that is the decision of the adjudication officer and that is the decision that stands unless and until the tribunal determines otherwise.  Accordingly, if the tribunal finds that the case comes within regulation 27 (and I am not to be taken as expressing a view one way or the other on that point) it need not consider the all work test.”

The Secretary of State has not further pursued that argument. 

16.	It was next pointed out that a claimant can only be assisted by regulation 27(c) when:-

	“there exists medical evidence that he requires a major surgical operation or other major therapeutic procedure and it is likely that that operation or procedure will be carried out within three months of the date of a medical examination carried out for the purposes of the PCA”.

It was submitted by the Secretary of State that had not been shown.  However, as I pointed out in my determination granting leave, it seems apparent “that the tribunal was not applying regulation 27(c) as such, but only considering the forthcoming operation as relevant to how long it considered 27(b) would be satisfied”.  (The tribunal has never actually mentioned paragraph (b) of regulation 27, which is sloppy; however it is clear from the full text that it is this paragraph only which it has in mind).  The Secretary of State has expressly accepted this.

17.	The Secretary of State’s final written ground of appeal was that the tribunal was wrong in concluding that the Secretary of State had failed to establish grounds to supersede: this is because under regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (the decisions and appeals regulations), a fresh medical examination by a Secretary of State’s medical adviser itself provides a ground of supersession and there was such here.  That argument is maintained by Mr Brodie. 

18.	Additionally, he first submits  that the tribunal’s reasoning is inadequate (a ground which I accepted was arguable in my grant of leave), and secondly that there is insufficient evidence on which the tribunal could found its decision; he therefore invites me to reduce that decision and to substitute my own, confirming that the DM’s decision of 18 April 2003 was correctly made.  Mr Kinghorn concedes that there may be insufficient facts and reasons given to underpin the tribunal’s decision but does not agree that there was insufficient evidence on which a determination under regulation 27(b) could be based; furthermore, he suggests that the appropriate course of action is for me to remit the matter to a fresh tribunal because the respondent has been provided with no oral opportunity to give evidence in support of her contention that she either satisfies the PCA, or alternatively, falls within regulation 27(b).

My conclusion and reasons

A ground to supersede

19.	Supersession is a two stage process: firstly, an adjudicating authority must be satisfied that legal permission to supersede arises under one of the grounds set out in regulation 6 of the decisions and appeals regulations and, secondly, that following such supersession, the correct decision from the relevant date is that the appellant does not satisfy the PCA and cannot be treated as incapable of work.  Fulfilment by the Secretary of State of the first technical stage is inevitable in IB cases; this is because either regulation 6(2)(g) of the decisions and appeals regulations applies in that the Secretary of State has received another report from a medical adviser since the awarding decision was made, or alternatively, regulation 6(2)(a)(i) of those regulations does through a relevant change of circumstances by the first assessment under the PCA (following the reasoning of a Tribunal of Commissioners at paragraphs 125-126 of conjoined cases numbered CIB/4751/2002, CDLA/4753/2002, CDLA/4939/2002 and CDLA/5141/2002).  However, satisfying the second stage is a very different matter and is one of substance.  The burden of proof remains on the DM to demonstrate that, on supersession, the correct decision from the relevant date is that the appellant is no longer to be regarded as incapable of work.

20.	I do not accept Mr Brodie’s submission that the tribunal erred in its approach to whether supersession had been made out.  It used unfortunate and loose language in its simple statement, “we are not satisfied that grounds to supersede have been established”; but having regard to context, it is clear that the tribunal was addressing the second stage referred to above.  As noted, this is the crucial stage in IB cases.  Standing the tribunal’s determination that the respondent’s situation fell within the terms of regulation  27(b), it is readily apparent that the tribunal considered that the DM had not shown that from the relevant date, even if she failed the PCA, the respondent should not have the benefit of being treated as incapable of work.  There is no error of law here by the tribunal which could justify my setting its decision aside.

Adequacy of reasoning

21.	The test for sufficiency of reasoning laid down for statutory tribunals by the Lord President of the Court of Session in Wordie Property Co. Ltd. v. Secretary of State for Scotland, 1984 S.L.T. 345 at p.348 is this:-

	“ …all that requires to be said is that in order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way.  The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it.”

22.	In Singh v Secretary of State for the Home Department (Singh) 2000 SC 219, the First Division of the Inner House of the Court of Session approved the above as, “the proper and well established test for assessing the adequacy and sufficiency of reasons given by an administrative tribunal” (see page 222, paragraph E of the Court’s judgement).  Mr Brodie submits that this approval, albeit in an immigration context whereas the Wordie judgement was in a planning appeal, makes clear that the latter correctly summarises the basic test on the nature and extent of reasons which have to be given by all statutory tribunals.

23.	The Court of Session in Singh nevertheless recognised that the duty to provide adequate reasons varies according to the kind of tribunal and the procedural rules under which it works.  However, I have no difficulty in accepting Mr Brodie’s proposition that, with the above qualification, the ambit of what was required in Wordie applies equally to appeal tribunals; R(A) 1/72, which has been recognised as setting out the appropriate test in the social security context since its date, is in substantially the same terms.

24.	At paragraph 8, Commissioner Temple said:-

	“The obligation to give reasons for the decision…..imports a requirement to do more than only to state the conclusion, and for the determining authority to state that on the evidence the authority is not satisfied that the statutory conditions are met, does no more than this…..the minimum requirement must at least be that [a party] looking at the decision should be able to discern on the face of it the reasons why the evidence has failed to satisfy…..a decision based, and only based, on a conclusion that the total effect of the evidence fails to satisfy, without reasons given for reaching that conclusion, will in many cases be no adequate decision at all.”

25.	A tribunal is not obliged to prefer any one particular item of evidence to another but it has a duty to assess all of the evidence, reach a reasoned view on which it prefers and why and briefly to explain to the parties the process by which it has analysed the evidence in the way it has when applying the statutory tests.

26.	I accept Mr Brodie’s submission that  the tribunal erred in law in that it has failed in the above minimum obligation.  I fully understand its irritation.  It was faced with a situation, sadly all too common in IB cases, where no presenting officer appears on behalf of the DM at the hearing.  If new evidence is lodged for example, or a new point arises at the hearing, there is no-one to give the tribunal any assistance from the DM’s perspective.  Commissioners have despaired of reiterating to the Department for Work and Pensions that a tribunal holds a judicial hearing and that the claimant and the tribunal are entitled to the basic courtesy of input from a presenting officer relating to the decision which is under appeal.  However, none of this detracts from a tribunal’s own duty to give adequate facts and reasons for any determination which it makes.

27.	In its findings of fact, the tribunal incorporated the terms of the DM’s decision under appeal to it.  In so far as this was an acceptance by the tribunal that the claimant did not satisfy the PCA, it did not address the claimant’s contentions to the contrary set out in the representative’s letter.  The only other findings by the tribunal are an incorporation of the terms of that letter and of the GP’s reply.  However, the GP’s reply was neutral insofar as the claimant’s contentions related to back problems; it gave some support to asserted difficulties from gall stones, although the response is not specific as to whether these problems are relevant to descriptors under the PCA, or have a wider significance (as for example under regulation 27(b)). 

28.	These matters are not clarified by the tribunal and nowhere does the tribunal address the adviser’s clinical findings and opinion, unless it does so obliquely by incorporating the DM’s decision which clearly relied on the adviser’s report; but in that case it does not weigh the conflict in evidence which then arises and its findings of fact are internally inconsistent.

29.	So far as the tribunal’s reasons are concerned, these do not take the matter forward in any helpful or informative way.  All that the tribunal does is set out the statutory wording of regulation 27(b) and its only explanation for why the claimant falls within it is to preface that text with the following: “Standing the various medical problems from which [the claimant] is presently suffering (as detailed by her GP)”.  

30.	I accept Mr Kinghorn’s point that the tribunal included a medical member who, presumably, considered there was sufficient to bring the claimant’s situation within regulation 27(b).  Moreover, a tribunal is entitled to rely on the expertise of its member in evaluating the evidence.  I accept that too.  However, if a tribunal is acting on information known to it because of a member’s expertise, which is additional to the information in the papers, that must be put first to the parties for comment.  This is different from a tribunal using only the information in front of it but using its specialist experience to weigh that evidence.  

31.	The borderline is difficult but, for example, an instance of the former would be where a claimant says that she has asthma for which she is provided medication x, when the medical member of the tribunal knows that medication x is not prescribed for asthma but for a different medical condition; at minimum, such knowledge must be put to a claimant for comment.  It would be different, however, if a claimant alleges that she has severe asthma and describes her symptoms in relation to frequency of attacks, level of breathlessness, peak flow rate etc and the medical member of the tribunal uses professional experience to evaluate such difficulties as rather indicating a moderate degree of asthma only.  In the latter case, provided that the conclusions of a tribunal are sufficiently explained there is no breach of the rules of natural justice: a tribunal has not introduced its own evidence.  

32.	Here, however, the tribunal makes no attempt to explain wherein lay the substantial risk to the claimant’s health if she was found capable of work; therefore there is inadequate reasoning, which amounts to error of law, irrespective of how the medical expertise of the member has been utilised.  Certainly, any such risk is not self-evident to the lay person.

Sufficiency of evidence and the test under regulation 27(b)

33.	Whether or not there was sufficient evidence to underpin its decision inevitably depends upon the correct content of the test established by regulation 27(b).  It is a chicken and egg matter: because the tribunal did not even attempt an analysis of the test nor explain how the claimant fell within it, it is difficult to deduce the presence or otherwise of sufficient underpinning evidence.  However, the tribunal erred in failing to make clear it had the correct test in mind.  It was disadvantaged because the leading decision, that of Mr Commissioner Jacobs in CIB/0026/2004 (an analysis with which I respectfully agree), post-dated its own determination.  However, a judicial decision is considered to state the law as it has always been.

34.	Mr Commissioner Jacobs set out the above in paragraphs 30-36 of CIB/0026/2004:-

	“30.	The application of regulation 27(b) is triggered by two factors. The first trigger is that there ‘would be a substantial risk’ to the health of any person. The second trigger is that the risk must arise from the claimant being ‘found capable of work’. Both of these triggers appear to give rise to difficulties of interpretation.
	31.	The person whose health is at risk need not be the claimant. It might be another person working with the claimant or even a customer or member of the public. But in the context of this case, it is likely that only the claimant would be affected. 
	32.	For the first trigger, the claimant has to show that there ‘would’ be a substantial risk. That raises the issue: in the context of what work might the risk arise? It cannot be that the risk must arise regardless of what work the claimant did. That would render it redundant, because there is almost always going to be some work that a claimant could do without risk. Nor can it be sufficient that the risk would arise only in particular types of work that the claimant would never otherwise do. That would makes its scope too wide, because there will often be types of work that a particular claimant cannot do without risk.
	33.	For the second trigger, the risk must arise from the claimant being ‘found capable of work’. The provision does not say that the risk must arise from the claimant working. But it surely makes little or no sense to limit it to the rare cases where the decision on capacity for work would itself cause the risk to the claimant’s health. 
	34.	It is possible to make sense of the apparent difficulties with these triggers by reading them together. The emphasis in the second trigger on the claimant being found capable of work puts the emphasis on the consequence of that decision. The capacity for work decision will in practice usually require the claimant to make a claim for a jobseeker's allowance. In order to qualify for that benefit, the claimant must be subject to a jobseeker's agreement. That agreement will set out the work that the claimant must seek in order to retain entitlement to the allowance. That work is defined taking into account the claimant’s health, qualifications, skills and experience. 
	35.	Set in that context, the trigger factors must be interpreted as follows. The risk must be assessed in relation to the type of work for which the claimant would otherwise be required to be available. That retains the emphasis on the effect of the claimant being found capable of work. It confines within a sensible scope the range of work that must be taken into account when assessing the risk to the claimant’s health. And it makes a sensible relationship between the conditions governing entitlement to benefit for those incapable for work and for those seeking work. It prevents claimants relying on regulation 27(b) when there is work that they could do without risk to their health. But it allows claimants to rely on the provision when the work they would otherwise be required to seek would put their health, or someone else’s, at substantial risk. 
	36.	This does not mean a return to the previous law on invalidity benefit, under which capacity for work was determined by reference to specific job descriptions suggested by the adjudication officer. It involves a wider consideration than that. It involves a consideration of the risk to health involved in the general type of work that the claimant is otherwise qualified, experienced or skilled to undertake.”
35.	Mr Commissioner Jacobs did not discuss the adjective “substantial” in the above case but, as Mr Commissioner Rowland said at paragraph 7 of CIB/3519/2002, it is essentially a question of fact for a tribunal whether the claimant’s condition is sufficiently serious and:-

	“….. a risk may be “substantial” if the harm would be serious, even though it was unlikely to occur and, conversely, may not be “substantial” if the harm would be insignificant, even though the likelihood of some such harm is great.”

Balancing the factors relevant to the nature of the risk in this way is similar to the test used in disability living allowance for supervision needs which are referable to “substantial danger”.  Mr Brodie and Mr Kinghorn accepted, as do I, that it reflects the right approach.

36.	While I acknowledge that Mr Commissioner Jacobs’ analysis makes sense of a difficult regulation, it nevertheless creates some problems of its own.  A claimant whose IB is refused may have claimed jobseeker’s allowance (JSA) pending the IB appeal; alternatively, he or she may have claimed income support (IS), (despite a ‘benefit penalty’ unless certain circumstances are applicable), or have claimed no other benefit.  

37.	If a claim for JSA has been made, a claimant must have suggested some employment which there is a reasonable prospect of securing having regard to his or her skills, qualifications and experience.  A JSA claimant may, however, place restrictions, if these are reasonable in the light of the claimant’s physical or mental condition, irrespective of the effect these restrictions have on the reasonable prospect of obtaining work, provided there are none which cannot be so justified.  It is a complex process.

38.	In this kind of case, the task of the IB tribunal is to elicit the kind of work which the JobCentre has accepted as that  for which the claimant must be both available and actively seeking, as set out in the “Jobseeker’s Agreement”.  The claimant then has to satisfy the IB tribunal that even such work nevertheless raises the necessary ‘substantial risk’.  It is important to keep in mind that the question only arises following a determination that a claimant is not incapable of work in accordance with the PCA, nor does he or she fall under regulation 10 where their condition is expressly acknowledged as sufficiently severe.

39.	So far as those who have not made a JSA claim are concerned, the tribunal (which through its chairman possesses the necessary expertise in the conditions of entitlement to JSA) will have to consider all the evidence and relevant law to determine the likely content of a jobseeker’s agreement to which a claimant would be subject had a successful JSA claim been made and then ask if the type of job set out in the hypothetical agreement raises the specified risk.  The problems are not insuperable but it does illustrate the difficult interface between the IB and JSA rules when applying regulation 27(b).

40.	Finally, I judge that Mr Kinghorn 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, Mr Brodie 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.

Summary

41.	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.

42.	I do not consider it appropriate to substitute my own determination as the respondent has not had the opportunity to give evidence on important points.  This appeal illustrates the danger where a tribunal does not deal with alternative arguments raised by the appeal in oral evidence and does not do so in its reasoning either; it does the claimant no favours if the decision in her favour is set aside and she has to start all over again.

						(Signed)
						L T PARKER
						Commissioner
						Date:  18 May 2004