Incapacity benefit decisions

Incapacity benefit decisions

Don't panic.
You don't need to know anything about Social Security Commissioners or their decisions in order to successfully pursue an appeal against a decision that you are capable of work.

However, welfare rights workers and some claimants do sometimes include decisions in their appeal submissions. Commissioners' decisions are binding on tribunals, so a relevant one can be very useful.

For example, if a commissioner holds that, for the purposes of incapacity for work, chronic fatigue syndrome should be regarded as both a physical and mental health condition then tribunals must consider both the physical and the mental health test when deciding whether a claimant with CFS/ME passes the personal capability assessment.

This could be very important in deciding whether the claimant scores sufficient points to pass the test of incapacity for work.

Often it's not so straightforward, however. Sometimes different commissioners may come to completely opposite conclusions and it's then up to a tribunal to decide which commissioner they will follow. Or the facts of the case may be materially different from yours. Or the decision may be very helpful in some regards, but actually quite damaging to your case in others, so you may not want to alert the tribunal to it.

Find out more
If you want to know more, there's a brief section on using commissioners decisions in our guide to The Best Possible Support for Clients with DLA and AA Appeals which can be downloaded by all Benefits and Work members. (We'll be adding similar information to the incapacity for work appeals guide soon).

Searchable decisions
We've published the full text of over 160 incapacity for work commissioners' decisions on the site. We haven't written summaries of them - though we explain where to find summaries in the guide mentioned above. Instead, however, we've done our best to make it possible for you to search the full text of the decisions - something that isn't possible anywhere else on the internet.

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If, for example, if you want to find any incapacity for work decisions relating to epilepsy then simply type the word epilepsy into the search box above and click on Go.

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All of the incapacity decisions will be grouped together in one place - though not necessarily at the start of the search results - they will begin with the letters CIB or CSIB.

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This decision has been reproduced in plain text only. If you wish to submit a copy of a decision as part of an appeal, please download a Word copy from the link below.

http://www.osscsc.gov.uk/aspx/view.aspx?id=2235

CIB/912/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER



A summary of the Commissioner’s decision

1. This appeal to the Social Security Commissioner succeeds. My decision is that the Darlington appeal tribunal erred in law in its decision of 29 November 2006. I must therefore set the tribunal’s decision aside.

2. This is, however, not the end of the matter. In my judgment I am not in a position to decide the merits of the claimant’s appeal from the original decision of the Secretary of State concerning the alleged overpayment of incapacity benefit. It follows that I have no option but to send this appeal back for rehearing by a different tribunal. This rehearing is subject to my further directions at paragraph 54 below.

3. I should obviously make it clear that the fact that the claimant’s appeal to the Commissioner has succeeded should not be taken as any indication as to the outcome of the rehearing by the new tribunal. The new tribunal will need to form its own view of the merits of the case and in particular make its own findings of fact and then reach a decision in accordance with the relevant law.

The substance of this appeal to the Commissioner

4. In short, the substance of this appeal is as follows. The Darlington appeal tribunal heard the claimant’s appeal against the decision of the Secretary of State dated 18 October 2005. The Secretary of State’s decision was that the claimant had been overpaid a total of £9,587.07 in incapacity benefit between 16 June 2003 and 22 June 2005, which was recoverable from him on the basis that he had failed to disclose the material fact that he was earning in excess of the permitted work lower limit as from the earlier of those two dates. The tribunal dismissed the claimant’s appeal and confirmed the Secretary of State’s decision.

The permitted work rules and the background to this appeal

5. At this point the background to the appeal needs to be set out. For some years there have been rules in place that have allowed recipients of incapacity benefit to undertake a certain limited amount of work without it affecting their entitlement to benefit. The name and nature of these rules have varied over the years. In April 2002 the old therapeutic work rules were superseded by the permitted work rules. The relevant rules are contained in regulations 16 and 17 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995 No. 311). I should add here that the rules in place at the material time for these proceedings have since been further amended as from 10 April 2006 by the Social Security (Incapacity for Work) Amendment Regulations 2006 (SI 2006/757), which have substituted entirely new versions of regulations 16 and 17 with effect from that date. The provisions in place since April 2006 are in certain respects both simpler and more permissive – reflecting the official policy emphasis on welfare-to-work strategies – than those in force previously.

6. In summary, and in outline only, the rules in force as from 8 April 2002 allowed incapacity benefit recipients to undertake permitted work in four types of situation. The first was where the claimant did not earn more than £20 a week (the permitted work lower limit); such work could be undertaken indefinitely. The second, again for an unlimited period, was where the claimant was in “supported work” and did not earn more than a higher weekly figure, then £66 a week (now raised to £86 a week). The third was limited (at that time) to a period of up to 26 weeks and providing that the permitted work higher limit was not exceeded and the average working hours did not exceed 16 a week. In certain circumstances this could be extended immediately for one further period of 26 weeks. The last was where the work was part of a supervised treatment programme, again so long as the earnings did not exceed the higher threshold.

The chronology of events in this appeal

7. For present purposes the material facts in this appeal are as follows. The claimant, a man now aged 57, has been in receipt of invalidity benefit since 1993 (which later became incapacity benefit in 1995 – the mechanics of that process can be ignored for the moment). The stated incapacity, at least at the outset, was joint pains. On 17 June 2002, so after the April 2002 changes came into force, the claimant completed a Therapeutic Work form declaring that from that date he was working as a handyman in a residential care home for on average of 15 hours a week with earnings of £61.50 a week (docs 1-2).

8. The Department wrote to the claimant on 19 June 2002 (docs 3-4) confirming that he fell under the permitted work rules and in particular the third variant described above, namely the permitted work higher limit rule (the upper limit at that stage was £66 a week). The letter indicated that this dispensation lasted until 15 December 2002, but might then be renewed for a further 26 weeks.

9. On 11 December 2002 the residential care home manager, and the claimant’s employer, returned a form to the Department, confirming the claimant’s employment details and asking that the claimant be able to start supported permitted work (docs 5-. The Department replied on 17 December 2002 to the effect that an employer could not be a Job Broker or Advisor in these circumstances (docs 9-12). The claimant was asked whether he wished (i) still to apply for an extension; (ii) to reduce his earnings to the £20 level; or (iii) to give up the employment.

10. On 23 December 2002 the claimant returned a PW6 form to the Department (docs 13-14). He indicated that he wished to start Supported Permitted Work. His current permitted work was duly extended for a further six months to 15 June 2003 (docs 15-16).

11. The Department then sent him a PW7 form in June 2003 outlining his various options at the expiry of the current arrangements (docs 17-20). The claimant indicated on 13 June 2003 that he would be reducing his earnings to £20 or less as from 16 June 2003. The claimant confirmed this on a PW1 form, which was completed on 24 June 2003 – this stated that from 16 June he was working 4 hours a week for £16.80 a week (doc 23).

12. In response, on 2 July 2003 the Department sent the claimant a standard two-page letter DL/PW1. The letter comprised four parts. The first part read as follows:

“About your work

Thank you for telling us about your work. From the information you have given us I am pleased to tell you that the work falls within the permitted work rules.

You told us that you started work on 16.6.03.

This means that you can work and earn no more than £20.00 a week for an unlimited period, without your Incapacity Benefit being affected.

You may be able to increase your hours to less than 16 and earn no more than £67.50 a week, but you should tell us about this before you change your hours or earnings.”

13. The next section, of similar length, was headed “How your earnings may affect your benefit” and gave very general advice about the impact on various benefits and liability for income tax. The third section of the letter read in full as follows:

“Changes you must tell us about

You must tell us if:-
• your earnings change
• your hours of work increase
• you change employer
• you stop work”

14. The letter then closed with three short paragraphs headed “More Information”, giving advice about how to obtain further details. The matter seems to have rested there for two years until the summer of 2005 – no doubt in part at least because so far as the Department was concerned the claimant was now covered by the unlimited period permitted work rules (the first scenario mentioned in paragraph 6 above), and so there was certainly no obvious need for a six monthly check as had been the case previously.

15. In June 2005 the Department sent the claimant a PW8 enquiry form about his work (docs 28-29). The claimant stated that he was still working as a handyman for the residential care home and that he worked 15 hours a week for £74.56 a week. He enclosed copies of his last two payslips by way of confirmation (docs 30-31).

16. On 27 June 2005, in response to a further enquiry, the claimant reported that his hours had increased to 15 a week and his wage to £74.56 as from 2 May 2005 (doc 32). However, in an apparent contradiction of this he stated in a formal statement to the Department on 13 July 2005 (docs 33-34) that “I have always worked for 15 hours a week since starting the permitted work” (which was said to be from 2003). He also stated that the care home manager (who “is very knowledgeable when dealing with benefit queries”) had advised him that he could continue working indefinitely without it affecting his incapacity benefit. He had not sought any further advice and indicated that he would now be reducing his hours and hence his wages to £20 a week or below.

17. The claimant’s employer subsequently confirmed (docs 35-36) that the claimant’s hours had been 15 a week since June 2003 and that his wages were £61.50 a week at that time and had risen by small increments steadily to £74.56 a week in August 2005.

The supersession decision

18. On 8 September 2005 a decision maker made a supersession decision, superseding the invalidity benefit award of 29 January 1993 and the incapacity benefit award of 13 April 2005 on the basis of a change in circumstances (doc 37). This was said to be that although the claimant had worked in the permitted work higher limit category from 17 June 2002 to 15 June 2003, since 16 June 2003 he had been allowed to earn no more than £20 a week but had in fact earned more than that. He was therefore treated as capable of work as from 16 June 2003 and so not entitled to incapacity benefit.

The overpayment decision

19. This supersession decision in turn prompted an overpayment decision on 18 October 2005 by a different decision maker (docs 38-40). This was to the effect that there had been an overpayment of incapacity benefit amounting to £9,587.07 for the period from 16 June 2003 to 22 June 2005. A small amount representing a week or so in benefit (£93.84) was said to be recoverable for the period from 16 to 22 June 2003 owing to the direct credit transfer arrangements in place. The bulk of the alleged overpayment (£9,493.23) related to the balance of the period of two years or so. This was said to be recoverable (under section 71 of the Social Security Administration Act 1992) because the claimant had failed to disclose the material fact that he had earned in excess of the permitted work limit. The Department’s debt management branch then wrote to the claimant on 2 November 2005 asking for the sum of £9,587.07 to be repaid.

The claimant’s appeal to the tribunal

20. The claimant appealed against the overpayment decision (docs 44-45), stating that he was under the impression that he was able to continue working throughout the period in question so long as his weekly earnings were below the higher weekly limit. His employer had, he said, advised him that this was possible. His employer also provided a letter in support (docs 46-47), explaining that his understanding that such work was within the permitted work rules as his organisation contracted directly with the local authority and the NHS for the provision of care services and the work was supervised and community based. However, a decision maker later declined to change the overpayment decision (doc 48).

21. The claimant sought advice and his representative prepared a submission which, amongst other points, challenged the validity of the supersession decision and in the alternative argued that the claimant was engaged in supported permitted work (doc 49). An appeal tribunal quite properly adjourned the matter on 1 September 2006 for the Secretary of State to produce a supplementary submission addressing these issues (docs 50-51). That further submission was duly produced (docs 52-57) and the matter re-listed before the Darlington tribunal on 29 November 2006. The claimant and his representative attended and there is a short note of the proceedings (docs 58-59). As is regrettably so often the case nowadays, no presenting officer attended the hearing on behalf of the Department, notwithstanding the substantial sum of allegedly overpaid benefit at issue.
The tribunal’s decision to dismiss the claimant’s appeal

22. The tribunal decided to dismiss the claimant’s appeal and to confirm the Secretary of State’s decision that there was a recoverable overpayment in the sum of £9,587.07 (doc 60). The tribunal subsequently issued a Statement of Reasons for its decision (docs 62-63). This recorded that the only live issue was whether the claimant had been engaged in supported permitted work (as had been also noted on the Record of Proceedings). There had, it seems, been a short adjournment in the course of the hearing so that the claimant and his representative could consider whether any further oral submissions were to be made on the supersession point. Apparently no other facts were challenged and no further submissions made.

23. The key and final paragraph in the tribunal’s Statement of Reasons read as follows:

“9. The history of the claim is set out in the papers. It is not disputed. It need not be repeated here. The tribunal find as a fact that the appellant misrepresented his earnings. The evidence which supports our finding of fact is contained in the two submissions of the Secretary of State, which we accepted. There was no challenge to the factual information in respect of the information which the appellant had provided or neglected to provide to the Secretary of State. Consequently the Tribunal was satisfied that the appellant had failed to disclose a material fact that he was earning in excess of the permitted lower limit from 16 June 2003 on that date. As a consequence the appellant had received an overpayment of incapacity benefit amounting to £9,587.07 and that sum which had been paid would not have been paid but for the appellant’s failure to disclose. That sum is therefore recoverable from the appellant. The appeal was dismissed.”

The composition of the tribunal

24. For completeness and for the record I start with a point that has not been discussed by either the claimant’s representative or the representative of the Secretary of State in the conduct of this appeal to the Commissioner. The Record of Proceedings states that the tribunal on 29 November 2006 comprised a lawyer member and a doctor member (doc 58). The doctor’s name has not been crossed out and there is no indication in the chairman’s notes that the doctor stood down. The Statement of Reasons also records that “The evidence which supports our finding of fact is contained in the two submissions of the Secretary of State, which we accepted”. Unless the chairman was using the royal “we”, this implies that the case was indeed heard and determined by a two-member tribunal. Against this, however, the Statement of Reasons is headed with the legal chairman’s name alone.

25. The point, of course, is that the correct composition of appeal tribunals is carefully regulated by legislation. The general rule is that incapacity benefit appeals involving the personal capability assessment are dealt with by a two-member tribunal (a lawyer and a doctor) while incapacity benefit appeals on other issues (e.g. late claims) are determined by a lawyer member sitting alone. The precise rule is set out in regulation 36(2)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991). This provides that a tribunal shall consist of a legally qualified panel member and one medically qualified panel member where:
"(i) the issue, or one of the issues, raised on the appeal is whether the personal capability assessment is satisfied, or
(ii) the appeal is made under section 11(1)(b)” [of the Social Security (Recovery of Benefits) Act 1997].
26. There is no suggestion in this case that either situation set out in scenarios (i) or (ii) above applied in this appeal (nor that regulation 36(2)(b) was relevant). It followed that as a matter of law the appeal should have been heard by a lawyer member sitting alone. The complexities which arose in Deputy Commissioner’s decision CIB/3236/2006 do not arise here. As I have indicated, the documentary evidence is ambiguous on this point. I also bear in mind that a busy chairman and/or clerk will sometimes neglect to cross out a tribunal member or party’s name in the paperwork when they do not attend. The claimant and his representative, who were both present, will doubtless remember the composition of the tribunal. If it were necessary to ask them at this late stage, I would put enquiries in train. However, this appeal can be disposed of on other grounds and so the point need not be explored further. All I need say is that if (and I emphasise if) it so happens that the appeal was in fact heard by a two-member tribunal on 29 November 2006, that is a further ground for setting aside the tribunal’s decision.
The claimant’s grounds of appeal to the Commissioner
27. The claimant’s representative details three grounds of appeal before the Commissioner (doc 67). In summary, she argues that the tribunal erred in law by (1) failing to address the supersession point in the submission; (2) failing to make it clear whether the overpayment was found to be recoverable on the basis of misrepresentation or failure to disclose; and (3) failing to identify the nature of the duty to disclose and in particular whether it arose under regulation 32(1), (1A) or (1B) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987 No 1968). She does not in terms challenge the tribunal’s (implicit) conclusion that the claimant had not been engaged in supported permitted work. That may well have been wise, as it is by no means clear that the claimant’s employer (and supervisor) himself fell within the definition of ‘a person employed by a public or a local authority or voluntary organisation’ (etc) (in regulation 17(1)(iii) and (1E)). A District Chairman granted the claimant leave to appeal to the Commissioner.
28. The Secretary of State’s representative now involved in this matter has produced a very helpful and comprehensive submission to the Commissioner, which it is difficult to do justice to within the constraints of this decision (docs 89-94). In terms of disposition, the Secretary of State supports the appeal but invites me to set aside the tribunal decision and substitute my own decision, which he suggests would be on a firmer factual and legal footing but would be essentially to the same effect. Unsurprisingly, the claimant’s representative welcomes the former submission but as to the latter argues that a remittal to a fresh tribunal would be a more appropriate outcome (doc 97).
The Commissioner’s observations and decisions on those grounds of appeal
29. In summary, I agree broadly with the Secretary of State’s representative for the reasons that follow that the tribunal decision was erroneous in point of law and so must be set aside. However, I agree with the claimant’s representative, again for the reasons set out below, that a referral back to a differently constituted tribunal is the more appropriate course of action to take. There will therefore have to be a rehearing before a new tribunal.
30. Putting to one side for a moment the rather technical supersession issue, I agree with both representatives that the tribunal erred in law in at least two respects. First, the tribunal failed to make it clear whether the overpayment was recoverable on the grounds of misrepresentation or failure to disclose (or both). The tribunal started off in paragraph 9 of its Statement of Reasons by finding “as a fact that the appellant misrepresented his earnings” but then later in the same paragraph it stated that it “was satisfied that the appellant had failed to disclose a material fact that he was earning in excess of the permitted lower limit from 16 June 2003”. In short I agree with the claimant’s representative that there is no adequate explanation in the Statement of Reasons enabling the claimant to understand the basis of the alleged recoverable overpayment.
31. If the overpayment is indeed recoverable on the basis of a failure to disclose, then the second error of law, as identified by both representatives, concerns the tribunal’s failure to particularise the nature of the duty to disclose under regulation 32. The tribunal in paragraph 9 of its Statement of Reasons asserts rather than explains this failure to disclose, without addressing the regulation 32 point at all. This is a further error of law.
32. I therefore conclude that the Darlington tribunal’s decision of 29 November 2006 was erroneous in point of law and so must be set aside (Social Security Act 1998, section 14(). The Secretary of State’s representative argues that the facts are sufficiently clearly recorded for me to substitute my own decision for that of the tribunal under section 14((a) of the 1998 Act. I do not consider this to be an appropriate or expedient course of action. In my judgment there remain a number of matters to be resolved and it is best that these are dealt with by the fact-finding tribunal, not least in the light of a recent decision of the Court of Appeal which is discussed further below. I am also conscious of the size of the alleged overpayment in question in this case, so had there been any doubt in my mind I think justice will in any event be better served by a rehearing before a new tribunal.
The supersession point
33. It may assist the new tribunal if I make the following observations by way of general guidance. I do so bearing in mind that the fact-finding and application of the relevant law will ultimately be a matter for the new tribunal. The first issue that arises is whether the overpayment decision was invalid on the basis that the previous superseding decision was itself invalid, as the claimant’s representative argues. The normal rule in statute is that a superseding decision takes effect from the date of that decision (Social Security Act 1998, section 10(5) and (6)). There are, however, exceptions to that rule.
34. The original departmental submission to the tribunal was that the decision maker could rely on regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991). This provision allows a decision maker to supersede from the date of the change of circumstance (here 16 June 2003), rather than from the date of the superseding decision (here 8 September 2005), in relation to “an incapacity benefit decision where there has been an incapacity determination”.
35. The Secretary of State’s representative now involved in these proceedings argues that regulation 7(2)(c)(ii) does not apply because the decision to be superseded was the 1993 invalidity benefit decision which does not qualify as an incapacity benefit decision (doc 90, paras. 12-13). I agree with this analysis. The Secretary of State’s representative goes on to submit (doc 91, paras. 14-18), that the decision maker was still entitled to supersede from the date of the relevant change of circumstance under a different provision, namely regulation 7(2)(c)(iii).

36. In this regard the new tribunal should note that the version of regulation 7(2)(c)(iii) in force at the date of the superseding decision was different to the law as it stands today. This is as a result of amendments made in April 2006 by the Social Security (Miscellaneous Amendments) (No. 2) Regulations 2006 (SI 2006 No. 832). This is most readily evident by comparing the text in the respective editions for 2005 (at page 582) and 2006 (at page 563; see also the commentary at page 574) of Volume 3 of the annotated Social Security Legislation. The effect of that change is discussed in the context of attendance allowance by Mr Commissioner Mesher in CA/2650/2006.

Hooper and the supersession point

37. The tribunal should furthermore note the recent decision of the Court of Appeal in Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495, shortly to be reported also as decision R(IB) 4/07. This was a case that also involved a claimant who had been in receipt of invalidity benefit and then (after 1995) incapacity benefit. The Department sought recovery of a substantial overpayment on the basis that the claimant had failed to disclose the material fact that he was working and earning more than £20 a week. For present purposes the important passage is at paragraph 42 of the Court’s judgment, where Dyson LJ ruled as follows:

“It follows that, although the tribunal did not consider the Regulation 7(2)(c) issue, if they had done so, they would have been bound to decide that regulation 7(2)(c)(ii) did not apply because the decision being superseded was not an ‘incapacity benefit decision’ within the meaning of regulation 7A(1) of the 1999 Regulations; and that for the same reason, regulation 7(2)(c)(iii) did apply. They would, therefore, have been bound to dismiss the appeal against the supersession decision.”

38. It seems to me that that is very strong authority for the argument put by the Secretary of State’s representative on this point in the present appeal. For completeness I should confirm that I agree that the tribunal erred in law in dealing with this point. It relied by implication on regulation 7(2)(c)(ii), as had the decision maker, but that was an incorrect approach. The tribunal compounded the error by not addressing the point made by the claimant’s representative in her written submission.

39. This, of course, is not the end of the matter. The new tribunal must then consider whether it is in a position to rectify the ineffective supersession decision made by the original decision maker. In doing so it will apply the principles laid down in the Tribunal of Commissioners’ decision R(IB) 2/04 (and especially at paragraphs 72-82). It is entirely a matter for the new tribunal, but it may be thought unlikely that the superseding decision in the present case is completely ‘incoherent’ in the sense used in decision CIS/362/2002.

40. On the assumption that the tribunal finds that it is able to rectify the defective supersession decision, and thereby the procedural validity of the overpayment decision, the tribunal will then have to address the substantive overpayments issue. In this context I draw the tribunal’s attention to the submissions by the Secretary of State’s representative in relation to both misrepresentation (docs 91-92, paras. 19-22) and failure to disclose (docs 92-93, paras. 23-33), along with any further submissions that the claimant’s representative wishes to make on each of those alternative heads of recovery.

The failure to disclose issue and Hooper

41. I have no further comments to make on the misrepresentation point at this juncture. This is an area with which the tribunal will undoubtedly be familiar with the applicable law. However, some further observations are due on the failure to disclose issue given the circumstances of this case. The Secretary of State’s representative very fairly notes in relation to the facts of this case that he “had some difficulty in reaching the conclusion that there was a failure to disclose” (doc 92, para. 24). The tribunal will therefore wish to scrutinise the arguments now advanced on behalf of the Secretary of State with particular care.

42. In this context I should again draw the attention of the new tribunal to the Court of Appeal’s decision in Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495. In headline terms the Court decided – perhaps counter-intuitively to the layperson – that the word “should” does not necessarily mean “must”. However, in doing so the Court followed the approach taken by Mr Commissioner Mesher in R(IB) 4/05 and by Mr Commissioner Howell QC in CIB/1985/2004.

43. The facts of Hooper are similar but not entirely on all fours with the present case. The similarities include the facts that both cases concerned long-term recipients of invalidity benefit who had subsequently transferred to incapacity benefit and from whom the Department was seeking to recover a substantial overpayment based on an alleged failure to disclose work (which was found not to be exempt work). In Hooper (and indeed the earlier Commissioners’ decisions relied on by the Court of Appeal), however, the issue of whether there had been a failure to disclose revolved around the contents of a factsheet sent to all incapacity benefit claimants in March or April of 2002, which set out the new permitted work rules. In the present case there is no suggestion that the claimant received that factsheet – and, of course, he first started his handyman job in June 2002.

44. Dyson LJ in the Court of Appeal’s decision in Hooper (at paragraph 4) explained the important parts of the factsheet as follows:
“After describing what work would be permitted, the document contains a section headed ‘how does permitted work affect my benefit?’ It states that ‘permitted work will not affect your incapacity benefit’ and then:
‘You will no longer need to get a doctor to agree that the work will help your medical condition, but you should tell the office that deals with your benefit before you start work. You should fill in an application form before you do any permitted work.’”

45. Mr Commissioner Jacobs, in his own decision in Hooper (under file reference CIB/1146/2005 at paragraph 7)), concluded that this passage in the factsheet imposed a duty on the claimant to report the fact that he was going to start work: “I read that passage as containing an instruction to the claimant to report that he was going to start work. The word ‘should’ in both places is not the most mandatory term that could have been used, but it is commonly used as a polite way of wording an instruction and that is how I read it.”

46. The Court of Appeal, allowing the claimant’s appeal on this point, disagreed with Mr Commissioner Jacobs. At paragraphs 53 and 54 of its judgment the Court of Appeal cited extensively from the decisions of Mr Commissioner Mesher in R(IB) 4/05 and of Mr Commissioner Howell QC in CIB/1985/2004. In terms of guidance to tribunals and decision-makers, the most important passage in the judgment of Dyson LJ is to be found at paragraphs 56 and 57:

56. I agree with the reasoning of both of these commissioners. Read in the context of the factsheet as a whole, I do not consider that the words “you should tell the office… before you start work” and “you should fill in an application form before you do any permitted work” are the language of clear and unambiguous mandatory requirement. The consequences for a claimant of not complying with a requirement in accordance with regulation 32(1) can be very serious. That is why in my view, if the Secretary of State wishes to impose a requirement on claimants within the meaning of regulation 32(1), it is incumbent on him to make it absolutely clear that this is what he is doing. There should be no room for doubt in the mind of a sensible layperson as to whether the SSWP is imposing a mandatory requirement or not.
57. Mr Commissioner Jacobs said that the word “should” in the factsheet was a “polite way of wording an instruction”. There may be contexts where the dictates of politeness are such that “should” means “must”. Even in a social context, “should” may not mean “must”. As Thomas LJ pointed out in argument, “you should go to the doctor” does not mean the same as “you must go to the doctor”. The former is more the language of “you would be well advised to go to the doctor”. The latter is an instruction. But there is no reason why the Secretary of State should have felt inhibited from using the clear and unambiguous word “must” in the present context. The context is not one which demanded politeness at the expense of clarity.

47. In the light of those observations, the new tribunal will need to consider carefully how far, if at all, the decision in Hooper is applicable in the circumstances of the present case. I note again that there is no suggestion in this case that the claimant received the factsheet that was the subject matter of the Court of Appeal decision. That factsheet was necessarily in the nature of general information to all claimants. In the present case, however, the claimant received a series of official forms and letters directed to his particular circumstances. There is no suggestion, for example, that he did not receive the letter of 2 July 2003 at docs 26-27. There is an argument that this letter might be seen as somewhat equivocal in its terms. The first paragraph on the first page of the letter, extracted at paragraph 12 above, does appear to be similar in content and tone to that of the factsheet in Hooper. Immediately after that opening paragraph is the second paragraph which opens as follows:

“How your earnings may affect your benefit

Permitted work will not affect your Incapacity benefit…”

48. On the other hand, over the page, on the second page of that letter, is the third paragraph referred to above (at paragraph 13), which is on the face of it mandatory in nature as it uses “must” rather than “should”. The tribunal will doubtless note the comment of Dyson LJ in Hooper (at paragraph 56) that “There should be no room for doubt in the mind of a sensible layperson as to whether the SSWP [Secretary of State for Work and Pensions] is imposing a mandatory requirement or not.” To put it another way, taking the letter as whole, the tribunal will need to be satisfied that disclosure was required rather than merely advisable.

Back to the misrepresentation issue

49. However, the letter may not be the only relevant factor. I also note the comment by the Secretary of State’s representative that the claimant in the present case was paid by order book until August 2004 (doc 91, para. 21). I also accept, as the claimant’s representative points out (doc 97), that there is no copy of the order book instructions in the present appeal bundle. It is important to note that the Secretary of State’s representative, in the conclusion to his submission to the Commissioner, puts the case for the recovery of the bulk of the overpayment (leaving aside the small sum relating to direct credit transfer arrangements) on the basis of misrepresentation alone, and not failure to disclose. Obviously this is different to how the case was put to the tribunal.

The possible relevance of regulation 17(1D) and CIS/3605/2005

50. There is one final matter that should be mentioned. This point may be relevant to the period covered by, and so the amount of, the overpayment that is said to be recoverable. I explained above at paragraph 6 that under the permitted work rules in force from April 2002 a claimant could work initially for a period of up to 26 weeks, providing the permitted work higher limit was not exceeded and the average working hours did not exceed 16 a week. I also mentioned that in certain circumstances this could be extended immediately for one further period of 26 weeks, as indeed happened here. What I did not mention at that stage was that the rules also provided thereafter for a gap period of 52 weeks, during which a claimant either did no work or worked within the lower limit rules. After the expiry of the gap period of 52 weeks, then a claimant could recommence work within the higher limit rules, providing he had the support of e.g. a job broker or adviser and there was evidence that such work would improve his capacity for full-time work. This further extension period could be for 52 weeks. The relevant provision at the time was regulation 17(1D) of the 1995 Regulations.

51. This provision may be significant for the following reason. The Department here is effectively saying that, the claimant having exhausted his back-to-back successive 26 weeks periods of permitted work between June 2002 and June 2003, the entire overpayment of incapacity benefit for the period of some two years from June 2003 is recoverable from the claimant. An argument to the contrary might run as follows. If the claimant had followed the correct procedures, he could have worked for £20 for the gap period of 52 weeks from June 2003, or not worked at all, and then entirely properly restarted working within the higher limit rules for a further 52-week extension period under regulation 17(1D) as from June 2004 (using broad rather than precise dates).

52. In this context I draw the parties’ attention to the decision of Mr Commissioner Levenson in CIS/3605/2005. That was, of course, a case involving recovery of income support, not incapacity benefit, and different principles may apply (see e g Social Security (Payments on Account etc) Regulations 1988 (SI 1988 No. 664), regulation 13). However, at paragraph 12 Mr Commissioner Levenson observed as follows:

“Section 71(1) limits recoverability to those payments which would not have been made but for the misrepresentation of failure to disclose. This means that, in the circumstances which arose in the present case, the tribunal was quite right (and, indeed, obliged) to find that the Secretary of State was entitled to recover a lesser amount than that which the uncorrected the entitlement decision indicated might be recoverable.”

53. I considered whether it would be helpful to have submissions on this point before resolving this appeal to the Commissioner. However, in my view that would now serve little useful purpose, as the matter must go back to a tribunal in any event. I therefore deal with it in the context of my directions below.

The decision of the Commissioner and directions to the Secretary of State and the Tribunals Service

54. My decision is therefore as follows. The claimant’s appeal to the Commissioner succeeds. The decision of the Darlington appeal tribunal on 29 November 2006 is erroneous in point of law. I must therefore set the tribunal’s decision aside. It is neither appropriate nor expedient for me to make the decision the tribunal should have made, and so determine the claimant’s appeal against the decision of the Secretary of State. I therefore remit the claimant’s appeal against that decision to a fresh tribunal for rehearing (Social Security Act 1998, section 14((b)). I do so with the following directions, which are subject to any further directions as issued by a District Chairman in the Tribunals Service for the better conduct of this appeal:

(1) The Secretary of State should prepare a supplementary submission to the new tribunal. This supplementary submission should cover the following further points, along with any other matters which are considered to be material:
(i) whether the Secretary of State stands by the submission to the Commissioner at doc 93 para 35 that the alleged overpayment in this case is recoverable solely on the ground of misrepresentation, or whether the Secretary of State is still also alleging a failure to disclose;
(ii) if the Secretary of State is also alleging a failure to disclose, the supplementary submission should contain the full text of regulation 32 of the Social Security (Claims and Payments) Regulations 1987 (SI 1987 No 1968) as in force at the relevant time, along with the full decision in Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495, shortly to be reported as decision R(IB) 4/07;
(iii) if the Secretary of State is relying in whole or in part on misrepresentation as a ground for recovery, then copies of the relevant order book declarations and instructions should be produced;
(iv) whether the Secretary of State is continuing to seek recovery for the entire period in question, bearing in mind the possible argument relating to regulation 17(1D) and CIS/3605/2005, raised at paragraphs 50-52 above;
(v) in any event, the supplementary submission should also contain the full text of 16 and 17 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995 No. 311) and regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991) as they applied at all material times.

(2) The Tribunals Service should arrange for the claimant’s appeal to be reheard by a differently constituted appeal tribunal and in accordance with such further directions as a District Chairman may issue.








(signed on the original) N J Wikeley
Deputy Commissioner

3 August 2007

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CIB/400/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This appeal to the Social Security Commissioner succeeds. The decision of the Chester appeal tribunal sitting on 31 October 2006 is wrong in law. Accordingly I must set it aside.

2. But this is not the end of the matter. I am not in a position to decide the merits of the claimant’s appeal from the original decision of the Secretary of State on his entitlement (or otherwise) to incapacity credits. It follows that I have no option but to send this appeal back for rehearing by a fresh tribunal in Chester.

3. However, the fact that the claimant’s appeal to the Social Security Commissioner has succeeded should not be taken as any indication as to the outcome of the rehearing by the new tribunal. The new tribunal might find in the claimant’s favour and allow his appeal against the Secretary of State’s decision. Alternatively, depending on the view it takes of the facts, that new tribunal may end up coming effectively to the same or similar decision as the previous tribunal, in which case the appeal will be disallowed.

4. The claimant had been incapable of work since February 2004. He was not entitled to incapacity benefit as he did not meet the contribution conditions, but he was initially awarded incapacity credits. In February 2006 he completed the standard IB50 questionnaire (or rather his wife completed it for him, for reasons that will become apparent). He was then examined on 24 April 2006 on behalf of the Department by a doctor, who completed the computerised IB85 report form.

5. A decision maker on behalf of the Secretary of State considered the various documentation on 17 May 2006 and decided that the claimant scored no points for physical descriptors and one point for mental health issues. As a result the decision awarding incapacity credits was superseded with effect from that date. The claimant appealed.

6. The claimant’s appeal was heard by an appeal tribunal at Chester on 31 October 2006. The claimant attended with his representative from the CAB. The tribunal dismissed the appeal. It confirmed the substance of the Secretary of State’s decision but awarded 6 points for manual dexterity descriptor 7(f). However, this was insufficient to reach the total required to satisfy the personal capability assessment and so the appeal still failed.

7. The tribunal subsequently produced a Statement of Reasons for its decision. The claimant appealed to the Commissioner on two grounds. The first related to the tribunal’s alleged failure to explain why manual dexterity descriptor 7(d) did not apply. The second related to the examining doctor’s alleged lack of competence in using the computerised report form. Mr Commissioner Turnbull granted leave to appeal on the first of these two points. Given my conclusion on the first ground of appeal, I do not need to consider the second ground of appeal and pass no comment on it.

8. I am satisfied that the first ground of appeal is made out. I do not accept the submission of the representative of the Secretary of State that the tribunal has provided adequate reasons for rejecting the potential application of descriptor 7(d).

9. Manual dexterity descriptor 7(d) applies where a person “cannot use a pen or pencil”.
As Mr Commissioner Howell QC stated in Commissioners’ decisions CIB/13161/1996 and CIB/13508/1996 (at para 38):

“the descriptor ‘cannot use a pen or pencil’ in activity 7 (‘Manual dexterity’) must mean by necessary common sense implication that the claimant scores the points if he is physically unable to use a pen or pencil to write in a normal manner. A fair reading does not need the schedule itself to spell out that this is what is meant, rather than a total inability to wield a pen or pencil for any purpose at all, even punching a hole in a sheet of paper.”

10. The scope of descriptor 7(d) was also considered in some detail by Mr Commissioner Rice in the reported decision R(IB) 1/98 (included in the appeal bundle, as appended to the submission of the Secretary of State’s representative, under its original file reference number of CIB/16237/1996). At paragraph 7 of that decision, the Commissioner explained as follows:

“Accordingly, if a person cannot use a pen or pencil for the purposes for which a pen or pencil is normally used with either the right or the left hand, depending upon which is the command hand, he will prime facie be entitled to 15 points. Of course it may be that in unusual circumstances a person who, is for example right-handed, and has lost the use of that hand for writing, has acquired a compensating skill in his left hand. If that is the case, then he will not satisfy the descriptor. It may be that his skill in the left hand is not as good as it was originally in the right hand, but provided the skill attains a reasonable standard, so that he could be said in everyday language to be able to use a pen or pencil to write reasonably clearly and at a reasonable speed, as well as to accomplish other things, such as ticking forms and signing his name, he will not be entitled to the 15 points. It is all a matter of fact in any particular instance. Seemingly in the case of an ambidextrous person, he will not satisfy the test, so long as he has sufficient use of one hand.”

11. In the present case the claimant had described himself on the IB50 form as right-handed. He has suffered an injury to his right arm and so stated that “I have had to learn to write with my left hand as I cannot hold a pen as if to write as I have no control over my right hand.” However, he also explained that “I do not write very well with my left hand so my wife has filled in the form for me.”

12. The examining doctor described the claimant as “normally left-handed” and reported that he had observed the claimant as having “no difficulty writing with a pen in left hand”. There was, therefore, a clear conflict of evidence between that of the claimant in the IB50 and the examining doctor in the IB85.

13. At the tribunal hearing the claimant was recorded as having said “slight problem L hand – learnt to write”. The slight problem appears to relate to a cyst on the hand (para 9 of the tribunal’s Statement of Reasons). The claimant’s representative evidently raised manual dexterity as an issue in dispute (see para 8 of the Statement of Reasons). The tribunal continued by noting that the claimant “…said that he had been right handed but his arm had been completely paralysed for 18 months. He said that the IB50 questionnaire had been completed by his wife and that he could not write a letter although he could sign his name” (presumably this means with his left hand, although the point is by no means clear). The tribunal went on to confirm that the claimant had difficulty turning taps or cooker knobs with his right hand and so applied manual dexterity descriptor 7(f), which scored 6 points.

14. In short the reason why the tribunal erred in law is as follows. The tribunal failed to explain why descriptor 7(d) did not apply. Indeed, although the Statement of Reasons is in many ways admirably thorough, it does tend in places to recite the evidence, rather than make findings of fact on that evidence. Thus the reader is told that the claimant “said that the IB50 questionnaire had been completed by his wife and that he could not write a letter although he could sign his name”. However, the tribunal has failed to record its finding of facts on this issue. Did it accept the claimant’s evidence? If so, why did descriptor 7(d) rather than 7(f) not apply? If not, why did the tribunal not accept the claimant’s evidence? This uncertainty means the decision cannot stand.

15. I therefore find the tribunal’s decision to be erroneous in point of law and must set it aside under section 14( of the Social Security Act 1998. I am not in a position on the papers before the Commissioner to decide the claimant’s appeal against the Secretary of State’s original decision on it merits. I must therefore send the claimant’s appeal against the decision of the Secretary of State back to a new appeal tribunal to be determined afresh (section 14((b) of the 1998 Act). As I explained at the outset, the fact that the claimant’s appeal to the Social Security Commissioner has succeeded should not be taken as any indication as to the outcome of the rehearing by the new tribunal.

16. I direct the new tribunal to consider the claimant’s appeal entirely afresh. In considering which manual dexterity descriptor applies, the tribunal should have regard to the guidance of Mr Commissioner Howell QC in CIB/13161/1996 and CIB/13508/1996 and of Mr Commissioner Rice in R(IB) 1/98, discussed above. The new tribunal will therefore have to make findings of fact as to the claimant’s ability or inability to write with his right hand and his left hand respectively. In particular, the tribunal will have to consider how far, if at all, the claimant has developed a compensating skill of writing with his left hand. This will involve consideration of whether or not it is accurate to say that the claimant’s dominant hand is now his left hand, and so resolve the conflict in evidence between the IB50 and the IB85.

17. There is one final matter that I should mention, which is no criticism of the appeal tribunal itself. The Secretary of State’s original submission to the tribunal is headed “Department for Work and Pensions Appeal Tribunal”. This heading on page 1A thus gives the wholly misleading impression that the appeal tribunal is some form of internal departmental tribunal. This is both inaccurate and unacceptable. The appeal tribunal is an independent judicial tribunal established under the provisions of the Social Security Act 1998. Its members are appointed by the Lord Chancellor (now on the recommendation of the Judicial Appointments Commission). The independence of the tribunal and its members are also guaranteed by the recently enacted Tribunals, Courts and Enforcement Act 2007. The Secretary of State should take steps to ensure that this heading is not replicated on any further submissions as it may mislead appellants. The Regional Chairman of the Tribunals Service in Liverpool may also wish to satisfy himself that the tribunal’s independence is not compromised again in this fashion.

(signed on the original) N J Wikeley
Deputy Commissioner
24 July 2007

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CIB/912/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER



A summary of the Commissioner’s decision

1. This appeal to the Social Security Commissioner succeeds. My decision is that the Darlington appeal tribunal erred in law in its decision of 29 November 2006. I must therefore set the tribunal’s decision aside.

2. This is, however, not the end of the matter. In my judgment I am not in a position to decide the merits of the claimant’s appeal from the original decision of the Secretary of State concerning the alleged overpayment of incapacity benefit. It follows that I have no option but to send this appeal back for rehearing by a different tribunal. This rehearing is subject to my further directions at paragraph 54 below.

3. I should obviously make it clear that the fact that the claimant’s appeal to the Commissioner has succeeded should not be taken as any indication as to the outcome of the rehearing by the new tribunal. The new tribunal will need to form its own view of the merits of the case and in particular make its own findings of fact and then reach a decision in accordance with the relevant law.

The substance of this appeal to the Commissioner

4. In short, the substance of this appeal is as follows. The Darlington appeal tribunal heard the claimant’s appeal against the decision of the Secretary of State dated 18 October 2005. The Secretary of State’s decision was that the claimant had been overpaid a total of £9,587.07 in incapacity benefit between 16 June 2003 and 22 June 2005, which was recoverable from him on the basis that he had failed to disclose the material fact that he was earning in excess of the permitted work lower limit as from the earlier of those two dates. The tribunal dismissed the claimant’s appeal and confirmed the Secretary of State’s decision.

The permitted work rules and the background to this appeal

5. At this point the background to the appeal needs to be set out. For some years there have been rules in place that have allowed recipients of incapacity benefit to undertake a certain limited amount of work without it affecting their entitlement to benefit. The name and nature of these rules have varied over the years. In April 2002 the old therapeutic work rules were superseded by the permitted work rules. The relevant rules are contained in regulations 16 and 17 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995 No. 311). I should add here that the rules in place at the material time for these proceedings have since been further amended as from 10 April 2006 by the Social Security (Incapacity for Work) Amendment Regulations 2006 (SI 2006/757), which have substituted entirely new versions of regulations 16 and 17 with effect from that date. The provisions in place since April 2006 are in certain respects both simpler and more permissive – reflecting the official policy emphasis on welfare-to-work strategies – than those in force previously.

6. In summary, and in outline only, the rules in force as from 8 April 2002 allowed incapacity benefit recipients to undertake permitted work in four types of situation. The first was where the claimant did not earn more than £20 a week (the permitted work lower limit); such work could be undertaken indefinitely. The second, again for an unlimited period, was where the claimant was in “supported work” and did not earn more than a higher weekly figure, then £66 a week (now raised to £86 a week). The third was limited (at that time) to a period of up to 26 weeks and providing that the permitted work higher limit was not exceeded and the average working hours did not exceed 16 a week. In certain circumstances this could be extended immediately for one further period of 26 weeks. The last was where the work was part of a supervised treatment programme, again so long as the earnings did not exceed the higher threshold.

The chronology of events in this appeal

7. For present purposes the material facts in this appeal are as follows. The claimant, a man now aged 57, has been in receipt of invalidity benefit since 1993 (which later became incapacity benefit in 1995 – the mechanics of that process can be ignored for the moment). The stated incapacity, at least at the outset, was joint pains. On 17 June 2002, so after the April 2002 changes came into force, the claimant completed a Therapeutic Work form declaring that from that date he was working as a handyman in a residential care home for on average of 15 hours a week with earnings of £61.50 a week (docs 1-2).

8. The Department wrote to the claimant on 19 June 2002 (docs 3-4) confirming that he fell under the permitted work rules and in particular the third variant described above, namely the permitted work higher limit rule (the upper limit at that stage was £66 a week). The letter indicated that this dispensation lasted until 15 December 2002, but might then be renewed for a further 26 weeks.

9. On 11 December 2002 the residential care home manager, and the claimant’s employer, returned a form to the Department, confirming the claimant’s employment details and asking that the claimant be able to start supported permitted work (docs 5-. The Department replied on 17 December 2002 to the effect that an employer could not be a Job Broker or Advisor in these circumstances (docs 9-12). The claimant was asked whether he wished (i) still to apply for an extension; (ii) to reduce his earnings to the £20 level; or (iii) to give up the employment.

10. On 23 December 2002 the claimant returned a PW6 form to the Department (docs 13-14). He indicated that he wished to start Supported Permitted Work. His current permitted work was duly extended for a further six months to 15 June 2003 (docs 15-16).

11. The Department then sent him a PW7 form in June 2003 outlining his various options at the expiry of the current arrangements (docs 17-20). The claimant indicated on 13 June 2003 that he would be reducing his earnings to £20 or less as from 16 June 2003. The claimant confirmed this on a PW1 form, which was completed on 24 June 2003 – this stated that from 16 June he was working 4 hours a week for £16.80 a week (doc 23).

12. In response, on 2 July 2003 the Department sent the claimant a standard two-page letter DL/PW1. The letter comprised four parts. The first part read as follows:

“About your work

Thank you for telling us about your work. From the information you have given us I am pleased to tell you that the work falls within the permitted work rules.

You told us that you started work on 16.6.03.

This means that you can work and earn no more than £20.00 a week for an unlimited period, without your Incapacity Benefit being affected.

You may be able to increase your hours to less than 16 and earn no more than £67.50 a week, but you should tell us about this before you change your hours or earnings.”

13. The next section, of similar length, was headed “How your earnings may affect your benefit” and gave very general advice about the impact on various benefits and liability for income tax. The third section of the letter read in full as follows:

“Changes you must tell us about

You must tell us if:-
· your earnings change
· your hours of work increase
· you change employer
· you stop work”

14. The letter then closed with three short paragraphs headed “More Information”, giving advice about how to obtain further details. The matter seems to have rested there for two years until the summer of 2005 – no doubt in part at least because so far as the Department was concerned the claimant was now covered by the unlimited period permitted work rules (the first scenario mentioned in paragraph 6 above), and so there was certainly no obvious need for a six monthly check as had been the case previously.

15. In June 2005 the Department sent the claimant a PW8 enquiry form about his work (docs 28-29). The claimant stated that he was still working as a handyman for the residential care home and that he worked 15 hours a week for £74.56 a week. He enclosed copies of his last two payslips by way of confirmation (docs 30-31).

16. On 27 June 2005, in response to a further enquiry, the claimant reported that his hours had increased to 15 a week and his wage to £74.56 as from 2 May 2005 (doc 32). However, in an apparent contradiction of this he stated in a formal statement to the Department on 13 July 2005 (docs 33-34) that “I have always worked for 15 hours a week since starting the permitted work” (which was said to be from 2003). He also stated that the care home manager (who “is very knowledgeable when dealing with benefit queries”) had advised him that he could continue working indefinitely without it affecting his incapacity benefit. He had not sought any further advice and indicated that he would now be reducing his hours and hence his wages to £20 a week or below.

17. The claimant’s employer subsequently confirmed (docs 35-36) that the claimant’s hours had been 15 a week since June 2003 and that his wages were £61.50 a week at that time and had risen by small increments steadily to £74.56 a week in August 2005.

The supersession decision

18. On 8 September 2005 a decision maker made a supersession decision, superseding the invalidity benefit award of 29 January 1993 and the incapacity benefit award of 13 April 2005 on the basis of a change in circumstances (doc 37). This was said to be that although the claimant had worked in the permitted work higher limit category from 17 June 2002 to 15 June 2003, since 16 June 2003 he had been allowed to earn no more than £20 a week but had in fact earned more than that. He was therefore treated as capable of work as from 16 June 2003 and so not entitled to incapacity benefit.

The overpayment decision

19. This supersession decision in turn prompted an overpayment decision on 18 October 2005 by a different decision maker (docs 38-40). This was to the effect that there had been an overpayment of incapacity benefit amounting to £9,587.07 for the period from 16 June 2003 to 22 June 2005. A small amount representing a week or so in benefit (£93.84) was said to be recoverable for the period from 16 to 22 June 2003 owing to the direct credit transfer arrangements in place. The bulk of the alleged overpayment (£9,493.23) related to the balance of the period of two years or so. This was said to be recoverable (under section 71 of the Social Security Administration Act 1992) because the claimant had failed to disclose the material fact that he had earned in excess of the permitted work limit. The Department’s debt management branch then wrote to the claimant on 2 November 2005 asking for the sum of £9,587.07 to be repaid.

The claimant’s appeal to the tribunal

20. The claimant appealed against the overpayment decision (docs 44-45), stating that he was under the impression that he was able to continue working throughout the period in question so long as his weekly earnings were below the higher weekly limit. His employer had, he said, advised him that this was possible. His employer also provided a letter in support (docs 46-47), explaining that his understanding that such work was within the permitted work rules as his organisation contracted directly with the local authority and the NHS for the provision of care services and the work was supervised and community based. However, a decision maker later declined to change the overpayment decision (doc 48).

21. The claimant sought advice and his representative prepared a submission which, amongst other points, challenged the validity of the supersession decision and in the alternative argued that the claimant was engaged in supported permitted work (doc 49). An appeal tribunal quite properly adjourned the matter on 1 September 2006 for the Secretary of State to produce a supplementary submission addressing these issues (docs 50-51). That further submission was duly produced (docs 52-57) and the matter re-listed before the Darlington tribunal on 29 November 2006. The claimant and his representative attended and there is a short note of the proceedings (docs 58-59). As is regrettably so often the case nowadays, no presenting officer attended the hearing on behalf of the Department, notwithstanding the substantial sum of allegedly overpaid benefit at issue.
The tribunal’s decision to dismiss the claimant’s appeal

22. The tribunal decided to dismiss the claimant’s appeal and to confirm the Secretary of State’s decision that there was a recoverable overpayment in the sum of £9,587.07 (doc 60). The tribunal subsequently issued a Statement of Reasons for its decision (docs 62-63). This recorded that the only live issue was whether the claimant had been engaged in supported permitted work (as had been also noted on the Record of Proceedings). There had, it seems, been a short adjournment in the course of the hearing so that the claimant and his representative could consider whether any further oral submissions were to be made on the supersession point. Apparently no other facts were challenged and no further submissions made.

23. The key and final paragraph in the tribunal’s Statement of Reasons read as follows:

“9. The history of the claim is set out in the papers. It is not disputed. It need not be repeated here. The tribunal find as a fact that the appellant misrepresented his earnings. The evidence which supports our finding of fact is contained in the two submissions of the Secretary of State, which we accepted. There was no challenge to the factual information in respect of the information which the appellant had provided or neglected to provide to the Secretary of State. Consequently the Tribunal was satisfied that the appellant had failed to disclose a material fact that he was earning in excess of the permitted lower limit from 16 June 2003 on that date. As a consequence the appellant had received an overpayment of incapacity benefit amounting to £9,587.07 and that sum which had been paid would not have been paid but for the appellant’s failure to disclose. That sum is therefore recoverable from the appellant. The appeal was dismissed.”

The composition of the tribunal

24. For completeness and for the record I start with a point that has not been discussed by either the claimant’s representative or the representative of the Secretary of State in the conduct of this appeal to the Commissioner. The Record of Proceedings states that the tribunal on 29 November 2006 comprised a lawyer member and a doctor member (doc 58). The doctor’s name has not been crossed out and there is no indication in the chairman’s notes that the doctor stood down. The Statement of Reasons also records that “The evidence which supports our finding of fact is contained in the two submissions of the Secretary of State, which we accepted”. Unless the chairman was using the royal “we”, this implies that the case was indeed heard and determined by a two-member tribunal. Against this, however, the Statement of Reasons is headed with the legal chairman’s name alone.

25. The point, of course, is that the correct composition of appeal tribunals is carefully regulated by legislation. The general rule is that incapacity benefit appeals involving the personal capability assessment are dealt with by a two-member tribunal (a lawyer and a doctor) while incapacity benefit appeals on other issues (e.g. late claims) are determined by a lawyer member sitting alone. The precise rule is set out in regulation 36(2)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991). This provides that a tribunal shall consist of a legally qualified panel member and one medically qualified panel member where:
"(i) the issue, or one of the issues, raised on the appeal is whether the personal capability assessment is satisfied, or
(ii) the appeal is made under section 11(1)(b)” [of the Social Security (Recovery of Benefits) Act 1997].
26. There is no suggestion in this case that either situation set out in scenarios (i) or (ii) above applied in this appeal (nor that regulation 36(2)(b) was relevant). It followed that as a matter of law the appeal should have been heard by a lawyer member sitting alone. The complexities which arose in Deputy Commissioner’s decision CIB/3236/2006 do not arise here. As I have indicated, the documentary evidence is ambiguous on this point. I also bear in mind that a busy chairman and/or clerk will sometimes neglect to cross out a tribunal member or party’s name in the paperwork when they do not attend. The claimant and his representative, who were both present, will doubtless remember the composition of the tribunal. If it were necessary to ask them at this late stage, I would put enquiries in train. However, this appeal can be disposed of on other grounds and so the point need not be explored further. All I need say is that if (and I emphasise if) it so happens that the appeal was in fact heard by a two-member tribunal on 29 November 2006, that is a further ground for setting aside the tribunal’s decision.
The claimant’s grounds of appeal to the Commissioner
27. The claimant’s representative details three grounds of appeal before the Commissioner (doc 67). In summary, she argues that the tribunal erred in law by (1) failing to address the supersession point in the submission; (2) failing to make it clear whether the overpayment was found to be recoverable on the basis of misrepresentation or failure to disclose; and (3) failing to identify the nature of the duty to disclose and in particular whether it arose under regulation 32(1), (1A) or (1B) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987 No 1968). She does not in terms challenge the tribunal’s (implicit) conclusion that the claimant had not been engaged in supported permitted work. That may well have been wise, as it is by no means clear that the claimant’s employer (and supervisor) himself fell within the definition of ‘a person employed by a public or a local authority or voluntary organisation’ (etc) (in regulation 17(1)(iii) and (1E)). A District Chairman granted the claimant leave to appeal to the Commissioner.
28. The Secretary of State’s representative now involved in this matter has produced a very helpful and comprehensive submission to the Commissioner, which it is difficult to do justice to within the constraints of this decision (docs 89-94). In terms of disposition, the Secretary of State supports the appeal but invites me to set aside the tribunal decision and substitute my own decision, which he suggests would be on a firmer factual and legal footing but would be essentially to the same effect. Unsurprisingly, the claimant’s representative welcomes the former submission but as to the latter argues that a remittal to a fresh tribunal would be a more appropriate outcome (doc 97).
The Commissioner’s observations and decisions on those grounds of appeal
29. In summary, I agree broadly with the Secretary of State’s representative for the reasons that follow that the tribunal decision was erroneous in point of law and so must be set aside. However, I agree with the claimant’s representative, again for the reasons set out below, that a referral back to a differently constituted tribunal is the more appropriate course of action to take. There will therefore have to be a rehearing before a new tribunal.
30. Putting to one side for a moment the rather technical supersession issue, I agree with both representatives that the tribunal erred in law in at least two respects. First, the tribunal failed to make it clear whether the overpayment was recoverable on the grounds of misrepresentation or failure to disclose (or both). The tribunal started off in paragraph 9 of its Statement of Reasons by finding “as a fact that the appellant misrepresented his earnings” but then later in the same paragraph it stated that it “was satisfied that the appellant had failed to disclose a material fact that he was earning in excess of the permitted lower limit from 16 June 2003”. In short I agree with the claimant’s representative that there is no adequate explanation in the Statement of Reasons enabling the claimant to understand the basis of the alleged recoverable overpayment.
31. If the overpayment is indeed recoverable on the basis of a failure to disclose, then the second error of law, as identified by both representatives, concerns the tribunal’s failure to particularise the nature of the duty to disclose under regulation 32. The tribunal in paragraph 9 of its Statement of Reasons asserts rather than explains this failure to disclose, without addressing the regulation 32 point at all. This is a further error of law.
32. I therefore conclude that the Darlington tribunal’s decision of 29 November 2006 was erroneous in point of law and so must be set aside (Social Security Act 1998, section 14(). The Secretary of State’s representative argues that the facts are sufficiently clearly recorded for me to substitute my own decision for that of the tribunal under section 14((a) of the 1998 Act. I do not consider this to be an appropriate or expedient course of action. In my judgment there remain a number of matters to be resolved and it is best that these are dealt with by the fact-finding tribunal, not least in the light of a recent decision of the Court of Appeal which is discussed further below. I am also conscious of the size of the alleged overpayment in question in this case, so had there been any doubt in my mind I think justice will in any event be better served by a rehearing before a new tribunal.
The supersession point
33. It may assist the new tribunal if I make the following observations by way of general guidance. I do so bearing in mind that the fact-finding and application of the relevant law will ultimately be a matter for the new tribunal. The first issue that arises is whether the overpayment decision was invalid on the basis that the previous superseding decision was itself invalid, as the claimant’s representative argues. The normal rule in statute is that a superseding decision takes effect from the date of that decision (Social Security Act 1998, section 10(5) and (6)). There are, however, exceptions to that rule.
34. The original departmental submission to the tribunal was that the decision maker could rely on regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991). This provision allows a decision maker to supersede from the date of the change of circumstance (here 16 June 2003), rather than from the date of the superseding decision (here 8 September 2005), in relation to “an incapacity benefit decision where there has been an incapacity determination”.
35. The Secretary of State’s representative now involved in these proceedings argues that regulation 7(2)(c)(ii) does not apply because the decision to be superseded was the 1993 invalidity benefit decision which does not qualify as an incapacity benefit decision (doc 90, paras. 12-13). I agree with this analysis. The Secretary of State’s representative goes on to submit (doc 91, paras. 14-18), that the decision maker was still entitled to supersede from the date of the relevant change of circumstance under a different provision, namely regulation 7(2)(c)(iii).

36. In this regard the new tribunal should note that the version of regulation 7(2)(c)(iii) in force at the date of the superseding decision was different to the law as it stands today. This is as a result of amendments made in April 2006 by the Social Security (Miscellaneous Amendments) (No. 2) Regulations 2006 (SI 2006 No. 832). This is most readily evident by comparing the text in the respective editions for 2005 (at page 582) and 2006 (at page 563; see also the commentary at page 574) of Volume 3 of the annotated Social Security Legislation. The effect of that change is discussed in the context of attendance allowance by Mr Commissioner Mesher in CA/2650/2006.

Hooper and the supersession point

37. The tribunal should furthermore note the recent decision of the Court of Appeal in Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495, shortly to be reported also as decision R(IB) 4/07. This was a case that also involved a claimant who had been in receipt of invalidity benefit and then (after 1995) incapacity benefit. The Department sought recovery of a substantial overpayment on the basis that the claimant had failed to disclose the material fact that he was working and earning more than £20 a week. For present purposes the important passage is at paragraph 42 of the Court’s judgment, where Dyson LJ ruled as follows:

“It follows that, although the tribunal did not consider the Regulation 7(2)(c) issue, if they had done so, they would have been bound to decide that regulation 7(2)(c)(ii) did not apply because the decision being superseded was not an ‘incapacity benefit decision’ within the meaning of regulation 7A(1) of the 1999 Regulations; and that for the same reason, regulation 7(2)(c)(iii) did apply. They would, therefore, have been bound to dismiss the appeal against the supersession decision.”

38. It seems to me that that is very strong authority for the argument put by the Secretary of State’s representative on this point in the present appeal. For completeness I should confirm that I agree that the tribunal erred in law in dealing with this point. It relied by implication on regulation 7(2)(c)(ii), as had the decision maker, but that was an incorrect approach. The tribunal compounded the error by not addressing the point made by the claimant’s representative in her written submission.

39. This, of course, is not the end of the matter. The new tribunal must then consider whether it is in a position to rectify the ineffective supersession decision made by the original decision maker. In doing so it will apply the principles laid down in the Tribunal of Commissioners’ decision R(IB) 2/04 (and especially at paragraphs 72-82). It is entirely a matter for the new tribunal, but it may be thought unlikely that the superseding decision in the present case is completely ‘incoherent’ in the sense used in decision CIS/362/2002.

40. On the assumption that the tribunal finds that it is able to rectify the defective supersession decision, and thereby the procedural validity of the overpayment decision, the tribunal will then have to address the substantive overpayments issue. In this context I draw the tribunal’s attention to the submissions by the Secretary of State’s representative in relation to both misrepresentation (docs 91-92, paras. 19-22) and failure to disclose (docs 92-93, paras. 23-33), along with any further submissions that the claimant’s representative wishes to make on each of those alternative heads of recovery.

The failure to disclose issue and Hooper

41. I have no further comments to make on the misrepresentation point at this juncture. This is an area with which the tribunal will undoubtedly be familiar with the applicable law. However, some further observations are due on the failure to disclose issue given the circumstances of this case. The Secretary of State’s representative very fairly notes in relation to the facts of this case that he “had some difficulty in reaching the conclusion that there was a failure to disclose” (doc 92, para. 24). The tribunal will therefore wish to scrutinise the arguments now advanced on behalf of the Secretary of State with particular care.

42. In this context I should again draw the attention of the new tribunal to the Court of Appeal’s decision in Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495. In headline terms the Court decided – perhaps counter-intuitively to the layperson – that the word “should” does not necessarily mean “must”. However, in doing so the Court followed the approach taken by Mr Commissioner Mesher in R(IB) 4/05 and by Mr Commissioner Howell QC in CIB/1985/2004.

43. The facts of Hooper are similar but not entirely on all fours with the present case. The similarities include the facts that both cases concerned long-term recipients of invalidity benefit who had subsequently transferred to incapacity benefit and from whom the Department was seeking to recover a substantial overpayment based on an alleged failure to disclose work (which was found not to be exempt work). In Hooper (and indeed the earlier Commissioners’ decisions relied on by the Court of Appeal), however, the issue of whether there had been a failure to disclose revolved around the contents of a factsheet sent to all incapacity benefit claimants in March or April of 2002, which set out the new permitted work rules. In the present case there is no suggestion that the claimant received that factsheet – and, of course, he first started his handyman job in June 2002.

44. Dyson LJ in the Court of Appeal’s decision in Hooper (at paragraph 4) explained the important parts of the factsheet as follows:
“After describing what work would be permitted, the document contains a section headed ‘how does permitted work affect my benefit?’ It states that ‘permitted work will not affect your incapacity benefit’ and then:
‘You will no longer need to get a doctor to agree that the work will help your medical condition, but you should tell the office that deals with your benefit before you start work. You should fill in an application form before you do any permitted work.’”

45. Mr Commissioner Jacobs, in his own decision in Hooper (under file reference CIB/1146/2005 at paragraph 7)), concluded that this passage in the factsheet imposed a duty on the claimant to report the fact that he was going to start work: “I read that passage as containing an instruction to the claimant to report that he was going to start work. The word ‘should’ in both places is not the most mandatory term that could have been used, but it is commonly used as a polite way of wording an instruction and that is how I read it.”

46. The Court of Appeal, allowing the claimant’s appeal on this point, disagreed with Mr Commissioner Jacobs. At paragraphs 53 and 54 of its judgment the Court of Appeal cited extensively from the decisions of Mr Commissioner Mesher in R(IB) 4/05 and of Mr Commissioner Howell QC in CIB/1985/2004. In terms of guidance to tribunals and decision-makers, the most important passage in the judgment of Dyson LJ is to be found at paragraphs 56 and 57:

56. I agree with the reasoning of both of these commissioners. Read in the context of the factsheet as a whole, I do not consider that the words “you should tell the office… before you start work” and “you should fill in an application form before you do any permitted work” are the language of clear and unambiguous mandatory requirement. The consequences for a claimant of not complying with a requirement in accordance with regulation 32(1) can be very serious. That is why in my view, if the Secretary of State wishes to impose a requirement on claimants within the meaning of regulation 32(1), it is incumbent on him to make it absolutely clear that this is what he is doing. There should be no room for doubt in the mind of a sensible layperson as to whether the SSWP is imposing a mandatory requirement or not.
57. Mr Commissioner Jacobs said that the word “should” in the factsheet was a “polite way of wording an instruction”. There may be contexts where the dictates of politeness are such that “should” means “must”. Even in a social context, “should” may not mean “must”. As Thomas LJ pointed out in argument, “you should go to the doctor” does not mean the same as “you must go to the doctor”. The former is more the language of “you would be well advised to go to the doctor”. The latter is an instruction. But there is no reason why the Secretary of State should have felt inhibited from using the clear and unambiguous word “must” in the present context. The context is not one which demanded politeness at the expense of clarity.

47. In the light of those observations, the new tribunal will need to consider carefully how far, if at all, the decision in Hooper is applicable in the circumstances of the present case. I note again that there is no suggestion in this case that the claimant received the factsheet that was the subject matter of the Court of Appeal decision. That factsheet was necessarily in the nature of general information to all claimants. In the present case, however, the claimant received a series of official forms and letters directed to his particular circumstances. There is no suggestion, for example, that he did not receive the letter of 2 July 2003 at docs 26-27. There is an argument that this letter might be seen as somewhat equivocal in its terms. The first paragraph on the first page of the letter, extracted at paragraph 12 above, does appear to be similar in content and tone to that of the factsheet in Hooper. Immediately after that opening paragraph is the second paragraph which opens as follows:

“How your earnings may affect your benefit

Permitted work will not affect your Incapacity benefit…”

48. On the other hand, over the page, on the second page of that letter, is the third paragraph referred to above (at paragraph 13), which is on the face of it mandatory in nature as it uses “must” rather than “should”. The tribunal will doubtless note the comment of Dyson LJ in Hooper (at paragraph 56) that “There should be no room for doubt in the mind of a sensible layperson as to whether the SSWP [Secretary of State for Work and Pensions] is imposing a mandatory requirement or not.” To put it another way, taking the letter as whole, the tribunal will need to be satisfied that disclosure was required rather than merely advisable.

Back to the misrepresentation issue

49. However, the letter may not be the only relevant factor. I also note the comment by the Secretary of State’s representative that the claimant in the present case was paid by order book until August 2004 (doc 91, para. 21). I also accept, as the claimant’s representative points out (doc 97), that there is no copy of the order book instructions in the present appeal bundle. It is important to note that the Secretary of State’s representative, in the conclusion to his submission to the Commissioner, puts the case for the recovery of the bulk of the overpayment (leaving aside the small sum relating to direct credit transfer arrangements) on the basis of misrepresentation alone, and not failure to disclose. Obviously this is different to how the case was put to the tribunal.

The possible relevance of regulation 17(1D) and CIS/3605/2005

50. There is one final matter that should be mentioned. This point may be relevant to the period covered by, and so the amount of, the overpayment that is said to be recoverable. I explained above at paragraph 6 that under the permitted work rules in force from April 2002 a claimant could work initially for a period of up to 26 weeks, providing the permitted work higher limit was not exceeded and the average working hours did not exceed 16 a week. I also mentioned that in certain circumstances this could be extended immediately for one further period of 26 weeks, as indeed happened here. What I did not mention at that stage was that the rules also provided thereafter for a gap period of 52 weeks, during which a claimant either did no work or worked within the lower limit rules. After the expiry of the gap period of 52 weeks, then a claimant could recommence work within the higher limit rules, providing he had the support of e.g. a job broker or adviser and there was evidence that such work would improve his capacity for full-time work. This further extension period could be for 52 weeks. The relevant provision at the time was regulation 17(1D) of the 1995 Regulations.

51. This provision may be significant for the following reason. The Department here is effectively saying that, the claimant having exhausted his back-to-back successive 26 weeks periods of permitted work between June 2002 and June 2003, the entire overpayment of incapacity benefit for the period of some two years from June 2003 is recoverable from the claimant. An argument to the contrary might run as follows. If the claimant had followed the correct procedures, he could have worked for £20 for the gap period of 52 weeks from June 2003, or not worked at all, and then entirely properly restarted working within the higher limit rules for a further 52-week extension period under regulation 17(1D) as from June 2004 (using broad rather than precise dates).

52. In this context I draw the parties’ attention to the decision of Mr Commissioner Levenson in CIS/3605/2005. That was, of course, a case involving recovery of income support, not incapacity benefit, and different principles may apply (see e g Social Security (Payments on Account etc) Regulations 1988 (SI 1988 No. 664), regulation 13). However, at paragraph 12 Mr Commissioner Levenson observed as follows:

“Section 71(1) limits recoverability to those payments which would not have been made but for the misrepresentation of failure to disclose. This means that, in the circumstances which arose in the present case, the tribunal was quite right (and, indeed, obliged) to find that the Secretary of State was entitled to recover a lesser amount than that which the uncorrected the entitlement decision indicated might be recoverable.”

53. I considered whether it would be helpful to have submissions on this point before resolving this appeal to the Commissioner. However, in my view that would now serve little useful purpose, as the matter must go back to a tribunal in any event. I therefore deal with it in the context of my directions below.

The decision of the Commissioner and directions to the Secretary of State and the Tribunals Service

54. My decision is therefore as follows. The claimant’s appeal to the Commissioner succeeds. The decision of the Darlington appeal tribunal on 29 November 2006 is erroneous in point of law. I must therefore set the tribunal’s decision aside. It is neither appropriate nor expedient for me to make the decision the tribunal should have made, and so determine the claimant’s appeal against the decision of the Secretary of State. I therefore remit the claimant’s appeal against that decision to a fresh tribunal for rehearing (Social Security Act 1998, section 14((b)). I do so with the following directions, which are subject to any further directions as issued by a District Chairman in the Tribunals Service for the better conduct of this appeal:

(1) The Secretary of State should prepare a supplementary submission to the new tribunal. This supplementary submission should cover the following further points, along with any other matters which are considered to be material:
(i) whether the Secretary of State stands by the submission to the Commissioner at doc 93 para 35 that the alleged overpayment in this case is recoverable solely on the ground of misrepresentation, or whether the Secretary of State is still also alleging a failure to disclose;
(ii) if the Secretary of State is also alleging a failure to disclose, the supplementary submission should contain the full text of regulation 32 of the Social Security (Claims and Payments) Regulations 1987 (SI 1987 No 1968) as in force at the relevant time, along with the full decision in Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495, shortly to be reported as decision R(IB) 4/07;
(iii) if the Secretary of State is relying in whole or in part on misrepresentation as a ground for recovery, then copies of the relevant order book declarations and instructions should be produced;
(iv) whether the Secretary of State is continuing to seek recovery for the entire period in question, bearing in mind the possible argument relating to regulation 17(1D) and CIS/3605/2005, raised at paragraphs 50-52 above;
(v) in any event, the supplementary submission should also contain the full text of 16 and 17 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995 No. 311) and regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991) as they applied at all material times.

(2) The Tribunals Service should arrange for the claimant’s appeal to be reheard by a differently constituted appeal tribunal and in accordance with such further directions as a District Chairman may issue.


(signed on the original) N J Wikeley
Deputy Commissioner

3 August 2007

PLH Commissioner's File: CIB 920/07


SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER
[ORAL HEARING]

1. In this case which was before me as an application by the claimant for leave to appeal against the decision of the Bristol appeal tribunal (Mrs M Street, chairman, sitting alone) on 11 October 2006 it is conceded by the Secretary of State that leave to appeal has to be granted and the tribunal decision set aside as erroneous in point of law. It was an incapacity benefit case where the claimant had been working at the same time as continuing to draw benefit, and the first question was whether he had exceeded the permitted limits for “exempt work”. The chairman’s decision unfortunately embodies a material misdirection in that she held there could be no question of averaging his weekly earnings for this purpose, following the authority of an earlier Commissioner’s decision though that had been overruled by the decision of the Court of Appeal in R(IB) 1/06 Secretary of State v. Doyle [2006] EWCA Civ. 466 on 27 April 2006, where it was held that the Social Security Benefit (Computation of Earnings) Regulations 1996 SI. No. 2745 (which do include a provision for averaging in some circumstances) apply.

2. I held an oral hearing which had been directed by another Commissioner. The claimant appeared in person and the Secretary of State was represented by Henry Hendron, an employed barrister with the solicitor’s office, Department for Work and Pensions. Both sides consented under rule 11(3) of the Social Security Commissioners Procedure Regulations 1999 SI No. 1495 to my treating and determining the application as a full appeal on the footing that it was appropriate for leave to be granted.

3. The claimant is a man now aged 57 who had been claiming and receiving incapacity benefit for many years since its introduction in 1995, having been on sickness and invalidity benefit before then on the ground that he was incapable of work because of depression. In 1996 he obtained advice from his local social security office about beginning to do a small amount of work for therapeutic purposes and what effect this might have on his incapacity benefit. At the end of August that year he gave notice that he wished to undertake a very small amount of therapeutic work consisting of giving sedentary conversation classes to mature students on two evenings a week only, for two hours each evening, both the hours and the earnings of this very limited employment being under the permitted limits for “therapeutic work” at that time. A decision was given on 17 October 1996 on the basis of this information, accepting the specified work as “exempt” so that it did not affect his continuing entitlement to incapacity benefit.

4. He continued to draw this benefit uninterruptedly for a further period of some eight and a half years, until a fraud investigation revealed that he had in fact been working and earning on a consistent basis for extended periods at far higher levels in terms of both hours and earnings than he had ever disclosed to the department, and that on more than one occasion the answers he had given in response to enquiries about whether he was working were untrue. His benefit was stopped and, on the basis of his still having been found “incapable of work” at all material times by examinations for what is now the personal capability assessment, entitlement was recalculated retrospectively to 7 December 1997 applying regulations 16 and 17 Social Security (Incapacity for Work) (General) Regulations 1995 SI No. 311 as from time to time in force, by which a person who actually does work in any day of a week for which he claims incapacity benefit is to be treated as capable (and so disqualified) unless the work, and in particular the hours and earnings, fall within strictly defined limits.

5. Applying this provision the claimant was found disentitled to a large part of the benefit he had previously been awarded and paid; and a total of over £32,000 was determined to be recoverable from him as an overpayment of benefit caused by his failure to disclose to the department the true facts about the work he was doing and the earnings he was receiving. The revised form of the departmental decision dated 12 July 2006 (pages 229 to 241) dealt with both entitlement and overpayment questions, set out the relevant amounts, dates and reasoning in great detail, and was the decision that came under appeal before the tribunal on 11 October 2006.

6. After an extended hearing at which the claimant gave evidence and was given a full opportunity to challenge both the principle and the detail of the decisions made and the evidence against him, the substance of the departmental decisions was confirmed, with only relatively minor modifications to the calculations in respect of the work and earnings for particular weeks. The chairman found in essence that despite the answers he had given to departmental enquiries the claimant had in fact been working regularly, repeatedly and frequently for a number of employers during the years being considered; and both his hours and his earnings over extended periods of time had been far in excess of anything he had disclosed in connection with his incapacity benefit. Moreover he had been well aware of the limits, and the terms on which permission had originally been granted to him to undertake therapeutic work without it affecting his benefit, yet from 1997 onwards had failed to report the fact that he was working and had knowingly given misleading answers to enquiries subsequently.

7. Accordingly subject to the recalculation of the total amount involved the full amount of overpaid benefit was recoverable from him by reason of failure to disclose and misrepresentation: see the chairman’s very full and clear decision notice and statement of reasons at pages 286 to 299, issued respectively on 25 October 2006 and 4 January 2007.

8. As Mr Hendron for the Secretary of State was right to concede, that decision however unfortunately embodies a material error of law in that the method of calculation used embodied an assessment of the claimant’s actual earnings (which fluctuated) on a week-by-week basis over the whole period at issue, in order to identify those weeks in which he had been over the limits for “permitted work” under regulations 16 and 17. As both the departmental officer giving the original decision on behalf of the Secretary of State and the tribunal then understood it, that was the correct way of carrying out the calculation and, in contrast to the parallel calculation of the number of hours worked where regulation 17 permits averaging over longer than a single week in some circumstances, there was no provision permitting weekly earnings to be averaged: see the express statement to this effect in the chairman’s statement of reasons at page 295.

9. However this view of the matter has now been held incorrect by the decision of the Court of Appeal in Secretary of State v. Doyle above, which holds that “earnings” for all incapacity benefit purposes are to be construed in accordance with the Computation of Earnings regulations already cited. Since those regulations do contain at paragraph 8 a provision for the calculation of the weekly amount of an employed earner’s earnings which permits a limited amount of averaging in some circumstances, and the weeks to which earnings are attributed may differ, it must follow in my judgment that the tribunal’s decision must be set aside as unsafe, and the calculations of the claimant’s entitlement and of any resultant overpayment will have to be done all over again in accordance with the Court of Appeal’s decision; though what actual practical difference it will all make is impossible to tell at this stage before the recalculations have actually been carried out.

10. In those circumstances I grant the application for leave and allow the claimant’s appeal against the decision of the tribunal to the extent of setting that decision aside as erroneous in point of law for the reason already explained, and remitting the case in accordance with section 14((b) Social Security Act 1998 for the questions of the claimant’s entitlement to incapacity benefit over the relevant period, and the amount of any consequent overpayment of benefit recoverable from him, to be redetermined with the calculations reworked on the basis of the Court of Appeal’s decision.

11. I direct that the redetermination is to be carried out by the same tribunal as dealt with the case on 11 October 2006 unless for any reason that is impracticable to arrange within a reasonable time, in which case it will be for the Regional Chairman to give apppropriate procedural directions. I consider it right in this instance for the case to be referred back to the same tribunal as before, since the error of law identified on behalf of the Secretary of State in relation to the Computation of Earnings regulations appears to me the only ground on which the chairman’s decision, given after the comprehensive hearing that took place before her on 11 October 2006, can properly be challenged.

12. In particular, despite the arguments advanced to me both in writing and orally by the claimant in which he sought to dispute her findings because of what he said were inaccuracies either on her part, or on the part of departmental officers at earlier stages of the proceedings or in correspondence, I was left wholly unpersuaded that there was any arguable ground in law for challenging the very careful and detailed findings of fact embodied in the decision and reasons issued after the hearing of 11 October 2006; and in my judgment the findings of dishonest misrepresentation and failure to make proper disclosure were entirely justified by the evidence and unassailable as a matter of law.

13. I therefore further direct that on the rehearing and redetermination that will now have to take place the findings embodied in that decision may quite properly be taken by the tribunal as its starting point, unless and except to the extent that the claimant is able to demonstrate by specific evidence that there is good reason for varying or departing from them, which of course he must be given an opportunity to do. He must also be given an appropriate opportunity to demonstrate, by reference to specific documents, a point which he sought to make throughout the appeal hearing before me but I found myself unable to accept as having any validity from what he was then able to produce, that a separate appeal hearing to which he referred as having taken place on 7 February 2007 in other proceedings involving himself and the Weston super Mare District Council (possibly involving housing benefit) were of some potential relevance on the questions of entitlement and recoverability of incapacity benefit at issue in these present proceedings.

14. Finally I direct the tribunal which will now rehear and redetermine the claimant's appeal against the revised departmental decision of 12 July 2006 that its function is to determine the claimant’s true entitlement to incapacity benefit over the relevant period and the amount (if any) of any overpayments of that benefit which ought in consequence to be legally recoverable from him. Consequently the question of whether the work found to have been undertaken by the claimant actually met the conditions in force from time to time for exempt or therapeutic work at all, quite apart from the question of the number of hours or the amount of earnings involved, is a matter for consideration by the tribunal; and it is not bound on the appeal by what the previous statement of reasons described as a “generous” acceptance of the work done after 1997 as having been properly authorised and “therapeutic”.

15. The claimant must not therefore assume that this question will again effectively be “taken as read” in his favour at the rehearing, and should be prepared to deal with the question of whether the type of work he undertook after 1997, and the circumstances including the reasons for which he actually undertook it, met the prescribed conditions for exempt or therapeutic work as from time to time in force (the relevant conditions and limits being, according to his own express written and oral submissions to me, matters of which he was throughout well aware).

16. The Secretary of State needs also to address this issue in the further written submission he will have to make in any event to the tribunal incorporating his re‑working of the entitlement and overpayment calculations, in advance of the rehearing and in time for these to be adequately considered both by the tribunal and by the claimant himself. On the extent to which any averaging of earnings paid in respect of particular periods of work is actually called for or appropriate under regulation 8 of the Computation of Earnings regulations, I direct the tribunal that any averaging under regulation 8(3) is permissive rather than mandatory or universal. Any use of it in the context of incapacity benefit must be for the relatively short‑term purpose of determining on a week-by-week basis whether the true level at which the claimant is then currently working and earning takes him over the permitted limits for that week so as to disqualify him: cf. CG 4941/03 paragraphs 18 to 20, where I had to consider the same provision in the context of another weekly benefit (invalid care allowance).

17. The application and appeal are allowed and the case remitted to the tribunal for redetermination accordingly. The claimant’s three sets of written observations dated respectively 15 August 2006 at pages 315 to 317, 11 April 2007 at pages 329 to 330, and 19 June 2007 with annexure at pages 331 to 335, submitted to me for the purposes of this appeal are all to be copied to the tribunal and included for its information in the papers before it for the rehearing.
(Signed)
P L Howell
Commissioner
17 July 2007

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PLH Commissioner's File: CIB 920/07


1. SOCIAL SECURITY ACTS 1992-1998
APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
[ORAL HEARING]

In this case which was before me as an application by the claimant for leave to appeal against the decision of the Bristol appeal tribunal (Mrs M Street, chairman, sitting alone) on 11 October 2006 it is conceded by the Secretary of State that leave to appeal has to be granted and the tribunal decision set aside as erroneous in point of law. It was an incapacity benefit case where the claimant had been working at the same time as continuing to draw benefit, and the first question was whether he had exceeded the permitted limits for “exempt work”. The chairman’s decision unfortunately embodies a material misdirection in that she held there could be no question of averaging his weekly earnings for this purpose, following the authority of an earlier Commissioner’s decision though that had been overruled by the decision of the Court of Appeal in R(IB) 1/06 Secretary of State v. Doyle [2006] EWCA Civ. 466 on 27 April 2006, where it was held that the Social Security Benefit (Computation of Earnings) Regulations 1996 SI. No. 2745 (which do include a provision for averaging in some circumstances) apply.
I held an oral hearing which had been directed by another Commissioner. The claimant appeared in person and the Secretary of State was represented by Henry Hendron, an employed barrister with the solicitor’s office, Department for Work and Pensions. Both sides consented under rule 11(3) of the Social Security Commissioners Procedure Regulations 1999 SI No. 1495 to my treating and determining the application as a full appeal on the footing that it was appropriate for leave to be granted.
The claimant is a man now aged 57 who had been claiming and receiving incapacity benefit for many years since its introduction in 1995, having been on sickness and invalidity benefit before then on the ground that he was incapable of work because of depression. In 1996 he obtained advice from his local social security office about beginning to do a small amount of work for therapeutic purposes and what effect this might have on his incapacity benefit. At the end of August that year he gave notice that he wished to undertake a very small amount of therapeutic work consisting of giving sedentary conversation classes to mature students on two evenings a week only, for two hours each evening, both the hours and the earnings of this very limited employment being under the permitted limits for “therapeutic work” at that time. A decision was given on 17 October 1996 on the basis of this information, accepting the specified work as “exempt” so that it did not affect his continuing entitlement to incapacity benefit.
He continued to draw this benefit uninterruptedly for a further period of some eight and a half years, until a fraud investigation revealed that he had in fact been working and earning on a consistent basis for extended periods at far higher levels in terms of both hours and earnings than he had ever disclosed to the department, and that on more than one occasion the answers he had given in response to enquiries about whether he was working were untrue. His benefit was stopped and, on the basis of his still having been found “incapable of work” at all material times by examinations for what is now the personal capability assessment, entitlement was recalculated retrospectively to 7 December 1997 applying regulations 16 and 17 Social Security (Incapacity for Work) (General) Regulations 1995 SI No. 311 as from time to time in force, by which a person who actually does work in any day of a week for which he claims incapacity benefit is to be treated as capable (and so disqualified) unless the work, and in particular the hours and earnings, fall within strictly defined limits.
Applying this provision the claimant was found disentitled to a large part of the benefit he had previously been awarded and paid; and a total of over £32,000 was determined to be recoverable from him as an overpayment of benefit caused by his failure to disclose to the department the true facts about the work he was doing and the earnings he was receiving. The revised form of the departmental decision dated 12 July 2006 (pages 229 to 241) dealt with both entitlement and overpayment questions, set out the relevant amounts, dates and reasoning in great detail, and was the decision that came under appeal before the tribunal on 11 October 2006.
After an extended hearing at which the claimant gave evidence and was given a full opportunity to challenge both the principle and the detail of the decisions made and the evidence against him, the substance of the departmental decisions was confirmed, with only relatively minor modifications to the calculations in respect of the work and earnings for particular weeks. The chairman found in essence that despite the answers he had given to departmental enquiries the claimant had in fact been working regularly, repeatedly and frequently for a number of employers during the years being considered; and both his hours and his earnings over extended periods of time had been far in excess of anything he had disclosed in connection with his incapacity benefit. Moreover he had been well aware of the limits, and the terms on which permission had originally been granted to him to undertake therapeutic work without it affecting his benefit, yet from 1997 onwards had failed to report the fact that he was working and had knowingly given misleading answers to enquiries subsequently.
Accordingly subject to the recalculation of the total amount involved the full amount of overpaid benefit was recoverable from him by reason of failure to disclose and misrepresentation: see the chairman’s very full and clear decision notice and statement of reasons at pages 286 to 299, issued respectively on 25 October 2006 and 4 January 2007.
As Mr Hendron for the Secretary of State was right to concede, that decision however unfortunately embodies a material error of law in that the method of calculation used embodied an assessment of the claimant’s actual earnings (which fluctuated) on a week-by-week basis over the whole period at issue, in order to identify those weeks in which he had been over the limits for “permitted work” under regulations 16 and 17. As both the departmental officer giving the original decision on behalf of the Secretary of State and the tribunal then understood it, that was the correct way of carrying out the calculation and, in contrast to the parallel calculation of the number of hours worked where regulation 17 permits averaging over longer than a single week in some circumstances, there was no provision permitting weekly earnings to be averaged: see the express statement to this effect in the chairman’s statement of reasons at page 295.
However this view of the matter has now been held incorrect by the decision of the Court of Appeal in Secretary of State v. Doyle above, which holds that “earnings” for all incapacity benefit purposes are to be construed in accordance with the Computation of Earnings regulations already cited. Since those regulations do contain at paragraph 8 a provision for the calculation of the weekly amount of an employed earner’s earnings which permits a limited amount of averaging in some circumstances, and the weeks to which earnings are attributed may differ, it must follow in my judgment that the tribunal’s decision must be set aside as unsafe, and the calculations of the claimant’s entitlement and of any resultant overpayment will have to be done all over again in accordance with the Court of Appeal’s decision; though what actual practical difference it will all make is impossible to tell at this stage before the recalculations have actually been carried out.
In those circumstances I grant the application for leave and allow the claimant’s appeal against the decision of the tribunal to the extent of setting that decision aside as erroneous in point of law for the reason already explained, and remitting the case in accordance with section 14((b) Social Security Act 1998 for the questions of the claimant’s entitlement to incapacity benefit over the relevant period, and the amount of any consequent overpayment of benefit recoverable from him, to be redetermined with the calculations reworked on the basis of the Court of Appeal’s decision.
I direct that the redetermination is to be carried out by the same tribunal as dealt with the case on 11 October 2006 unless for any reason that is impracticable to arrange within a reasonable time, in which case it will be for the Regional Chairman to give apppropriate procedural directions. I consider it right in this instance for the case to be referred back to the same tribunal as before, since the error of law identified on behalf of the Secretary of State in relation to the Computation of Earnings regulations appears to me the only ground on which the chairman’s decision, given after the comprehensive hearing that took place before her on 11 October 2006, can properly be challenged.
In particular, despite the arguments advanced to me both in writing and orally by the claimant in which he sought to dispute her findings because of what he said were inaccuracies either on her part, or on the part of departmental officers at earlier stages of the proceedings or in correspondence, I was left wholly unpersuaded that there was any arguable ground in law for challenging the very careful and detailed findings of fact embodied in the decision and reasons issued after the hearing of 11 October 2006; and in my judgment the findings of dishonest misrepresentation and failure to make proper disclosure were entirely justified by the evidence and unassailable as a matter of law.
I therefore further direct that on the rehearing and redetermination that will now have to take place the findings embodied in that decision may quite properly be taken by the tribunal as its starting point, unless and except to the extent that the claimant is able to demonstrate by specific evidence that there is good reason for varying or departing from them, which of course he must be given an opportunity to do. He must also be given an appropriate opportunity to demonstrate, by reference to specific documents, a point which he sought to make throughout the appeal hearing before me but I found myself unable to accept as having any validity from what he was then able to produce, that a separate appeal hearing to which he referred as having taken place on 7 February 2007 in other proceedings involving himself and the Weston super Mare District Council (possibly involving housing benefit) were of some potential relevance on the questions of entitlement and recoverability of incapacity benefit at issue in these present proceedings.
Finally I direct the tribunal which will now rehear and redetermine the claimant's appeal against the revised departmental decision of 12 July 2006 that its function is to determine the claimant’s true entitlement to incapacity benefit over the relevant period and the amount (if any) of any overpayments of that benefit which ought in consequence to be legally recoverable from him. Consequently the question of whether the work found to have been undertaken by the claimant actually met the conditions in force from time to time for exempt or therapeutic work at all, quite apart from the question of the number of hours or the amount of earnings involved, is a matter for consideration by the tribunal; and it is not bound on the appeal by what the previous statement of reasons described as a “generous” acceptance of the work done after 1997 as having been properly authorised and “therapeutic”.
The claimant must not therefore assume that this question will again effectively be “taken as read” in his favour at the rehearing, and should be prepared to deal with the question of whether the type of work he undertook after 1997, and the circumstances including the reasons for which he actually undertook it, met the prescribed conditions for exempt or therapeutic work as from time to time in force (the relevant conditions and limits being, according to his own express written and oral submissions to me, matters of which he was throughout well aware).
The Secretary of State needs also to address this issue in the further written submission he will have to make in any event to the tribunal incorporating his re‑working of the entitlement and overpayment calculations, in advance of the rehearing and in time for these to be adequately considered both by the tribunal and by the claimant himself. On the extent to which any averaging of earnings paid in respect of particular periods of work is actually called for or appropriate under regulation 8 of the Computation of Earnings regulations, I direct the tribunal that any averaging under regulation 8(3) is permissive rather than mandatory or universal. Any use of it in the context of incapacity benefit must be for the relatively short‑term purpose of determining on a week-by-week basis whether the true level at which the claimant is then currently working and earning takes him over the permitted limits for that week so as to disqualify him: cf. CG 4941/03 paragraphs 18 to 20, where I had to consider the same provision in the context of another weekly benefit (invalid care allowance).
The application and appeal are allowed and the case remitted to the tribunal for redetermination accordingly. The claimant’s three sets of written observations dated respectively 15 August 2006 at pages 315 to 317, 11 April 2007 at pages 329 to 330, and 19 June 2007 with annexure at pages 331 to 335, submitted to me for the purposes of this appeal are all to be copied to the tribunal and included for its information in the papers before it for the rehearing.
(Signed)
P L Howell
Commissioner
17 July 2007

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PLH Commissioner's File: CIB 920/07

1. SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER


[ORAL HEARING]

In this case which was before me as an application by the claimant for leave to appeal against the decision of the Bristol appeal tribunal (Mrs M Street, chairman, sitting alone) on 11 October 2006 it is conceded by the Secretary of State that leave to appeal has to be granted and the tribunal decision set aside as erroneous in point of law. It was an incapacity benefit case where the claimant had been working at the same time as continuing to draw benefit, and the first question was whether he had exceeded the permitted limits for “exempt work”. The chairman’s decision unfortunately embodies a material misdirection in that she held there could be no question of averaging his weekly earnings for this purpose, following the authority of an earlier Commissioner’s decision though that had been overruled by the decision of the Court of Appeal in R(IB) 1/06 Secretary of State v. Doyle [2006] EWCA Civ. 466 on 27 April 2006, where it was held that the Social Security Benefit (Computation of Earnings) Regulations 1996 SI. No. 2745 (which do include a provision for averaging in some circumstances) apply.
I held an oral hearing which had been directed by another Commissioner. The claimant appeared in person and the Secretary of State was represented by Henry Hendron, an employed barrister with the solicitor’s office, Department for Work and Pensions. Both sides consented under rule 11(3) of the Social Security Commissioners Procedure Regulations 1999 SI No. 1495 to my treating and determining the application as a full appeal on the footing that it was appropriate for leave to be granted.
The claimant is a man now aged 57 who had been claiming and receiving incapacity benefit for many years since its introduction in 1995, having been on sickness and invalidity benefit before then on the ground that he was incapable of work because of depression. In 1996 he obtained advice from his local social security office about beginning to do a small amount of work for therapeutic purposes and what effect this might have on his incapacity benefit. At the end of August that year he gave notice that he wished to undertake a very small amount of therapeutic work consisting of giving sedentary conversation classes to mature students on two evenings a week only, for two hours each evening, both the hours and the earnings of this very limited employment being under the permitted limits for “therapeutic work” at that time. A decision was given on 17 October 1996 on the basis of this information, accepting the specified work as “exempt” so that it did not affect his continuing entitlement to incapacity benefit.
He continued to draw this benefit uninterruptedly for a further period of some eight and a half years, until a fraud investigation revealed that he had in fact been working and earning on a consistent basis for extended periods at far higher levels in terms of both hours and earnings than he had ever disclosed to the department, and that on more than one occasion the answers he had given in response to enquiries about whether he was working were untrue. His benefit was stopped and, on the basis of his still having been found “incapable of work” at all material times by examinations for what is now the personal capability assessment, entitlement was recalculated retrospectively to 7 December 1997 applying regulations 16 and 17 Social Security (Incapacity for Work) (General) Regulations 1995 SI No. 311 as from time to time in force, by which a person who actually does work in any day of a week for which he claims incapacity benefit is to be treated as capable (and so disqualified) unless the work, and in particular the hours and earnings, fall within strictly defined limits.
Applying this provision the claimant was found disentitled to a large part of the benefit he had previously been awarded and paid; and a total of over £32,000 was determined to be recoverable from him as an overpayment of benefit caused by his failure to disclose to the department the true facts about the work he was doing and the earnings he was receiving. The revised form of the departmental decision dated 12 July 2006 (pages 229 to 241) dealt with both entitlement and overpayment questions, set out the relevant amounts, dates and reasoning in great detail, and was the decision that came under appeal before the tribunal on 11 October 2006.
After an extended hearing at which the claimant gave evidence and was given a full opportunity to challenge both the principle and the detail of the decisions made and the evidence against him, the substance of the departmental decisions was confirmed, with only relatively minor modifications to the calculations in respect of the work and earnings for particular weeks. The chairman found in essence that despite the answers he had given to departmental enquiries the claimant had in fact been working regularly, repeatedly and frequently for a number of employers during the years being considered; and both his hours and his earnings over extended periods of time had been far in excess of anything he had disclosed in connection with his incapacity benefit. Moreover he had been well aware of the limits, and the terms on which permission had originally been granted to him to undertake therapeutic work without it affecting his benefit, yet from 1997 onwards had failed to report the fact that he was working and had knowingly given misleading answers to enquiries subsequently.
Accordingly subject to the recalculation of the total amount involved the full amount of overpaid benefit was recoverable from him by reason of failure to disclose and misrepresentation: see the chairman’s very full and clear decision notice and statement of reasons at pages 286 to 299, issued respectively on 25 October 2006 and 4 January 2007.
As Mr Hendron for the Secretary of State was right to concede, that decision however unfortunately embodies a material error of law in that the method of calculation used embodied an assessment of the claimant’s actual earnings (which fluctuated) on a week-by-week basis over the whole period at issue, in order to identify those weeks in which he had been over the limits for “permitted work” under regulations 16 and 17. As both the departmental officer giving the original decision on behalf of the Secretary of State and the tribunal then understood it, that was the correct way of carrying out the calculation and, in contrast to the parallel calculation of the number of hours worked where regulation 17 permits averaging over longer than a single week in some circumstances, there was no provision permitting weekly earnings to be averaged: see the express statement to this effect in the chairman’s statement of reasons at page 295.
However this view of the matter has now been held incorrect by the decision of the Court of Appeal in Secretary of State v. Doyle above, which holds that “earnings” for all incapacity benefit purposes are to be construed in accordance with the Computation of Earnings regulations already cited. Since those regulations do contain at paragraph 8 a provision for the calculation of the weekly amount of an employed earner’s earnings which permits a limited amount of averaging in some circumstances, and the weeks to which earnings are attributed may differ, it must follow in my judgment that the tribunal’s decision must be set aside as unsafe, and the calculations of the claimant’s entitlement and of any resultant overpayment will have to be done all over again in accordance with the Court of Appeal’s decision; though what actual practical difference it will all make is impossible to tell at this stage before the recalculations have actually been carried out.
In those circumstances I grant the application for leave and allow the claimant’s appeal against the decision of the tribunal to the extent of setting that decision aside as erroneous in point of law for the reason already explained, and remitting the case in accordance with section 14((b) Social Security Act 1998 for the questions of the claimant’s entitlement to incapacity benefit over the relevant period, and the amount of any consequent overpayment of benefit recoverable from him, to be redetermined with the calculations reworked on the basis of the Court of Appeal’s decision.
I direct that the redetermination is to be carried out by the same tribunal as dealt with the case on 11 October 2006 unless for any reason that is impracticable to arrange within a reasonable time, in which case it will be for the Regional Chairman to give apppropriate procedural directions. I consider it right in this instance for the case to be referred back to the same tribunal as before, since the error of law identified on behalf of the Secretary of State in relation to the Computation of Earnings regulations appears to me the only ground on which the chairman’s decision, given after the comprehensive hearing that took place before her on 11 October 2006, can properly be challenged.
In particular, despite the arguments advanced to me both in writing and orally by the claimant in which he sought to dispute her findings because of what he said were inaccuracies either on her part, or on the part of departmental officers at earlier stages of the proceedings or in correspondence, I was left wholly unpersuaded that there was any arguable ground in law for challenging the very careful and detailed findings of fact embodied in the decision and reasons issued after the hearing of 11 October 2006; and in my judgment the findings of dishonest misrepresentation and failure to make proper disclosure were entirely justified by the evidence and unassailable as a matter of law.
I therefore further direct that on the rehearing and redetermination that will now have to take place the findings embodied in that decision may quite properly be taken by the tribunal as its starting point, unless and except to the extent that the claimant is able to demonstrate by specific evidence that there is good reason for varying or departing from them, which of course he must be given an opportunity to do. He must also be given an appropriate opportunity to demonstrate, by reference to specific documents, a point which he sought to make throughout the appeal hearing before me but I found myself unable to accept as having any validity from what he was then able to produce, that a separate appeal hearing to which he referred as having taken place on 7 February 2007 in other proceedings involving himself and the Weston super Mare District Council (possibly involving housing benefit) were of some potential relevance on the questions of entitlement and recoverability of incapacity benefit at issue in these present proceedings.
Finally I direct the tribunal which will now rehear and redetermine the claimant's appeal against the revised departmental decision of 12 July 2006 that its function is to determine the claimant’s true entitlement to incapacity benefit over the relevant period and the amount (if any) of any overpayments of that benefit which ought in consequence to be legally recoverable from him. Consequently the question of whether the work found to have been undertaken by the claimant actually met the conditions in force from time to time for exempt or therapeutic work at all, quite apart from the question of the number of hours or the amount of earnings involved, is a matter for consideration by the tribunal; and it is not bound on the appeal by what the previous statement of reasons described as a “generous” acceptance of the work done after 1997 as having been properly authorised and “therapeutic”.
The claimant must not therefore assume that this question will again effectively be “taken as read” in his favour at the rehearing, and should be prepared to deal with the question of whether the type of work he undertook after 1997, and the circumstances including the reasons for which he actually undertook it, met the prescribed conditions for exempt or therapeutic work as from time to time in force (the relevant conditions and limits being, according to his own express written and oral submissions to me, matters of which he was throughout well aware).
The Secretary of State needs also to address this issue in the further written submission he will have to make in any event to the tribunal incorporating his re working of the entitlement and overpayment calculations, in advance of the rehearing and in time for these to be adequately considered both by the tribunal and by the claimant himself. On the extent to which any averaging of earnings paid in respect of particular periods of work is actually called for or appropriate under regulation 8 of the Computation of Earnings regulations, I direct the tribunal that any averaging under regulation 8(3) is permissive rather than mandatory or universal. Any use of it in the context of incapacity benefit must be for the relatively short term purpose of determining on a week-by-week basis whether the true level at which the claimant is then currently working and earning takes him over the permitted limits for that week so as to disqualify him: cf. CG 4941/03 paragraphs 18 to 20, where I had to consider the same provision in the context of another weekly benefit (invalid care allowance).
The application and appeal are allowed and the case remitted to the tribunal for redetermination accordingly. The claimant’s three sets of written observations dated respectively 15 August 2006 at pages 315 to 317, 11 April 2007 at pages 329 to 330, and 19 June 2007 with annexure at pages 331 to 335, submitted to me for the purposes of this appeal are all to be copied to the tribunal and included for its information in the papers before it for the rehearing.


(Signed)

P L Howell
Commissioner
17 July 2007

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CIB 143 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1 I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I take the decision that the tribunal should have taken. But this is not to the advantage of the appellant. My decision, in place of that of the tribunal, is:

Appeal dismissed. The appellant is not incapable of work as measured by the personal capability assessment on 30 01 2006. Nor is the appellant to be treated as incapable of work by reference to regulation 27 of the Social Security (Incapacity for Work) Regulations 1995. The decision to that effect of the Secretary of State of that date, superseding the previous decision of the Secretary of State, is confirmed.

2 The claimant and appellant (C) is appealing with my permission against the decision of the Newcastle upon Tyne appeal tribunal on 6 09 2006 under reference U 44 230 2006 00274

REASONS FOR THE DECISION

3 The decision under appeal was made on 30 01 2006. It was a decision, effective from the date of decision, superseding the decision made on 25 07 2005 that C was incapable of work. The decision was said to be about incapacity credits. I take it in reality to be a decision about entitlement to claim income support rather than jobseeker’s allowance, as C was 31 at the time and had never worked.

The evidence
4 C filled in an IB50 form on 19 12 2005. He stated his problems as alcoholism, depression and an ulcer. He said he had no physical limitations save for dizzy spells through drink. He was seen by an approved doctor on 23 01 2006. The examination took place from 14.22 to 15.00.The doctor recorded diagnoses of alcohol abuse, dyspepsia and anxiety and depression. In Box 7 (Description of a typical day) in the electronic IB85 report, the doctor recorded, among other details:

“Drinks about 10 cans a day
Usually begins drinking on rising
Uses benzodiazepines every day
Uses cannabis every day
Had an accident 1 week(s) ago. They suffered a minor fire due to poor concentration.”

5 The approved doctor confirmed that C had no physical limitations as measured by the personal capability assessment. The doctor also conducted a mental health examination. The descriptors that the doctor thought applied to C were DLb (need for alcohol before midday) and CPf (anxiety that going back to work would make the illness worse). At the end of the report, the doctor allowed the standard computer generated wording in box 58 (dealing with regulation 27 of the Social Security (Incapacity for Work)(General) Regulations 1995) to stand. In box 7(ctd) (medical examination findings), the doctor allowed the following standard wording to stand (notwithstanding that this directly contradicts both the information earlier in the same box and the approved doctor’s own opinion about DLb):

“Addictions:
Signs of drug use: no signs of use
Smell of alcohol: not detected
Jaundice: not jaundiced
Unsteady: steady
Pupils: normal pupils
Needle marks: No needle marks present
Phlebitis: No phlebitis at injection site
Signs of intoxication: sober
Disinhibition: absent
Labile Mood: absent
Slurred speech: absent.”

6 The failure by the doctor to cancel out the computer-generated inconsistency in this list of factors - let alone the inconsistencies with other statements and opinions recorded by the doctor elsewhere in the IB85 - gives rise to the question whether this is actually a report of the doctor or merely unchecked automatically generated wording from the underlying software programme. That is important in this appeal because C’s grounds of appeal include the statement:

“Because I was drunk when you interviewd me and the decision you made on the questions you asked a did not say half of them a would like to be seen again.”

If C is right, then the approved doctor’s report is deficient in box 7(ctd) but may be correct elsewhere in box 7. This calls into questions the weight to be put on that evidence. And it leaves unresolved the question whether C was describing his situation accurately when he talked about cannabis and other drugs. There is little corroborative evidence of this. If C was drunk, what reliance can be placed on C’s evidence as recorded in box 7?

7 The decision maker acting for the Secretary of State reported to C differently, perhaps unintentionally. On the standard letter IB 65, “About your personal capability assessment”, the writer told C that it was accepted that he was too frightened to go out alone (OPf).
This did not alter the decision that C was not incapable of work.

8 C appealed. The matter came before a tribunal on 20 06 2006. The chairman adjourned the hearing, noting that C smelt of alcohol (the hearing was at 15.30), because C was not represented and the tribunal considered it was in his interests to get a representative and also medical evidence. He instructed Gateshead Law Centre to act. The Centre put in a skeleton argument supported by medical evidence. This adopted the finding of the doctor that DBb and CPf were met, and also argued that DLe (sleep problems during the day), OPd (irritable behaviour) CTg (forgetfulness resulting in mishaps) were present. It also argued that the conditions of regulation 27(b) of the Social Security (Incapacity for Work)(General) Regulations 1995 were met. It contended that if C were found capable of work there would be a substantial risk to his health and possibly to that of others.

9 The medical evidence was from C’s general practitioner. The general practitioner confirmed that C had suffered from alcohol dependency syndrome for 7 years. The doctor estimated that C consumed about 200 units of alcohol a week. The general practitioner had been told of C’s drug taking by C but had no objective evidence of this from drug screens. However, the records suggested C had been reporting taking drugs for ten years.

10 The general practitioner advised that he would not diagnose an anxiety or depressive disorder and saw no objective evidence of a stomach ulcer, as against dyspepsia. On the regulation 27 issues, the general practitioner commented:
“In your letter you enquire whether your client is suffering from physical/mental disability which could put his health or that of another at substantial risk, should he be made to go back to work. [C] does indeed suffer from alcohol dependence syndrome, which can be considered a mental illness and does have physical effects. However, I am unable to say whether he would put his health or that of another person at substantial risk. To the contrary, should [C] engage with available drug and alcohol services (which have been offered to him) and undergo a detoxification from alcohol, being in paid employment would be one of the strongest factors like to reduce his chances of relapsing back to drinking alcohol.”

The tribunal decision
11 The tribunal held a full oral hearing with C and his representative present. The record of proceedings shows that the tribunal took care examining the mental health descriptors. It concluded that C met four of the tests: DLb, CTg, CPf, and OPd. It picked up all the specific points raised for C. The total of these descriptors was 7 points, so the decision that C was not incapable of work was not changed.

12 The representative also argued the case under regulation 27. On this issue the tribunal recorded:

“Commissioner Jacobs considered the meaning of the phrase “there would be a substantial risk to the mental or physical health of any person if he were found capable of work” and said that it was not limited to the rare case in which a decision in favour of capacity for work would itself cause the risk to the claimant’s health.
Instead one looks to the consequences of such a decision namely that the claimant will become a jobseeker and will be available for work, the type determined taking account of the claimant’s health, qualifications, skill and experience. “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 of 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.. 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.

The appellant is 32 years of age. He has never worked. There is no evidence that there would be a substantial risk to the mental or physical health of any person if he were found capable of work as defined. His general practitioner does not support such a contention. Regulation 27 of the Social Security (Incapacity for Work)(General) Regulations 1995 does not apply.”

Grounds of appeal
13 The grounds of appeal for C related only to the decision on regulation 27. I confirm my view when granting permission to appeal that there is no error law by the tribunal with regard to the personal capability assessment. On that, I accept the tribunal’s findings as established. C was not incapable of work as measured by the personal capability assessment. This appeal is therefore confined only to the issues raised with regard to regulation 27.

14 I granted permission to appeal specifically limited to the issue whether the tribunal had considered regulation 27(b) adequately. In my reasons for doing so, I commented that the tribunal’s reasons paraphrased without attribution the comments on page 719 of Social Security Legislation 2006, Volume 1, (Commentary by Bonner, Hooker and White), Thomson, Sweet& Maxwell, (“the Commentary”) about Commissioner Jacobs’ decision in CIB 26 2004, including quotations from paragraphs 35 and 36 of that decision.

15 The relevance of that is that the main ground of appeal for C was that the tribunal had set out the correct test in law but had failed to apply it. Alternatively, it had failed to make relevant findings of fact.

16 On the narrow issue of adequacy, I agree with the grounds of appeal. While I note that it was submitted for the Secretary of State that the tribunal did not err in law in its decision, I do not agree. I have set out in full the relevant part of the tribunal’s decision. It is preceded by three formal paragraphs and then two paragraphs dealing with C’s oral evidence and then its findings about the mental health descriptors. There are no findings of fact in the tribunal decision about regulation 27. Its statement that there is “no evidence” of substantial risk fails to identify the evidence of risk or to weigh it. As the point was specifically in issue, the decision is clearly inadequate.

17 The grounds of appeal raised a wider issue, namely whether the tribunal was right in law to adopt the language it selected from the Commentary as the correct test in applying regulation 27. The law is not as clear as the tribunal impliedly suggests, and the Commentary exposes the differences. As the Commentary emphasises, the views expressed in CIB 26 2004 are not held unanimously by Commissioners. In particular, the Commentary notes in detail that in CSIB 223 2005 Commissioner May QC took a narrower view of regulation 27(b). The tribunal implicitly rejected that Commissioner’s approach in stating the test it applied. However, I agree with C’s representative that it is not clear whether it applied the wider test it set out as it has failed to state how it reached the conclusion it did on the evidence and submissions before it.

18 I therefore invited the parties to make submissions on the proper interpretation of regulation 27. I also added to the papers the other decisions mentioned specifically on this point in the Commentary. These are CIB 3519 2002, CIB 26 2004, CIB 1695 2005, CSIB 33 2004, CSIB 146 2004, CSIB 223 2005. I also added an extract from the Incapacity Benefit Handbook for Approved Doctors, med-S2/IBHB, Version 3 Final (“the Handbook”).

19 Both Miss Terry, as the secretary of state's representative and Ms Angela Joynes, solicitor to Gateshead Law Centre, C’s representative, made detailed submissions in reply to my directions commenting on the caselaw. I am grateful to both. Neither asked for an oral hearing. As they have put their cases fully in writing, I decided the matter on the papers.

Is a personal capability assessment necessary before deciding about regulation 27?
20 Miss Terry contended first that in CSIB 146 2004 Commissioner May QC decided that regulation 27 should be applied only to claimants who had been found to be incapable of work under the standard tests. The Commentary points out, though she did not, that in so deciding Commissioner May QC was disagreeing expressly with Commissioner Levenson in CIB 248 1997 and CIB 601 1997. In the earlier of those cases Commissioner Levenson considered that on an appeal a tribunal might need to deal with the personal capability assessment only in a cursory manner. I think the disagreement explored in the Commentary on this point is more apparent than real as it depends on the level of decision making being considered. The opening words of regulation 27 have changed between the wording in issue in CIB 248 1997 and the current wording. The current wording is in my view unambiguous.
An official must decide that the assessment is not satisfied before moving on to consider regulation 27.

21 CSIB 146 2004 was an unusual case because the tribunal rejected the official evidence about the claimant’s personal capability assessment before deciding that regulation 27 applied to the claimant. As Commissioner May commented at paragraph 11, that removed the evidential basis for the official decision that the claimant failed the personal capability assessment. On the facts the tribunal therefore left the assessment undecided. But I disagree with his generalisation from those unusual facts to the proposition that all tribunals must look at the personal capability assessment before examining regulation 27. An official must do that. A tribunal need not. It has the benefit of section 12((a) of the Social Security Act 1998. It need not consider any issue that is not raised in the appeal. If there is no dispute about the application of the assessment in a particular appeal, then it need not be in issue.
For example, it was not put in issue by Miss Joynes in C’s appeal to the Commissioner in this case.

Regulation 27(b)
22 I do not need to repeat the curious history of the operative wording of regulation 27(b) here. It is set out in the Commentary at page 717, although not in the legislation itself. For current purposes, the relevant parts of regulation are to be read as follows:

“(1) A person who is not incapable of work in accordance with the personal capability assessment shall be treated as incapable of work if any of the circumstances set out in paragraph (2) apply to him.

(2) The circumstances are that –

… he suffers from some specific disease or bodily or mental disablement and, by reason of such disease of disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work …”.

23 As Miss Terry notes, this involves two tests: (a) that the claimant has a specific disease or disablement and (b) there a substantial risk to someone if, because of that disease or disablement, the claimant is expected to work while diseased or disabled in that way.

“some specific disease or bodily or mental disablement”
24 Regulation 27 requires identification of the specific disease or disablement that gives rise to its potential application, although Commissioners have made clear that this does not require a detailed aetiology. In some cases, however, a detailed aetiology – or formal statement of the cause or reasons for a diagnosis – may assist assessment of the consequences of the diagnosis The first of those tests is met here by the evidence of the general practitioner that C suffers not merely from alcohol abuse (the description of the approved doctor) but alcohol dependence syndrome, and an express rejection of other diagnoses.

25 The general practitioner’s use of a precise clinical term and clear associated evidence identify the disease or disablement relevant to regulation 27 precisely. It is the disease identified in the World Health Organisation International Classification of Diseases as F10.2, alcohol dependence syndrome. The clinical description in the WHO classification, as applied to this disease, is:

“ a cluster of physiological, behavioural, and cognitive phenomena in which the use of alcohol takes on a much higher priority for a given individual than other behaviours that once had greater value. A central descriptive characteristic of the dependence syndrome is the desire (often strong, sometimes overpowering) to take alcohol. There may be evidence that return to alcohol use after a period of abstinence leads to a more rapid reappearance of other features of the syndrome than occurs with nondependent individuals.”

The diagnostic guidelines are:

“A definite diagnosis of dependence should usually be made only if three or more of the following have been present together at some time during the previous year:

• A strong desire or sense of compulsion to take alcohol
• Difficulties in controlling alcohol-taking behaviour in terms of its onset, termination, or levels of use
• A physiological withdrawal state when alcohol use has ceased or been reduced, as evidence by; the characteristic withdrawal syndrome for alcohol; or use of alcohol with the intention of relieving or avoiding the withdrawal symptoms
• Evidence of tolerance, such that increased doses of alcohol are required in order to achieve effects originally produced by lower does (clear examples of this are found in alcohol-dependent individuals who may take daily doses sufficient to incapacitate or kill nontolerant users)
• Progressive neglect of alternative pleasures or interests because of alcohol use, increased amount of time necessary to obtain or take alcohol or to recover from its effects
• Persisting with alcohol use despite clear evidence of overtly harmful consequences, such as harm to the liver through excessive drinking; efforts should be made to determine that the user was actually, or could be expected to be, aware of the nature and extent of the harm”.

This can be found on the website of the World Health Organisation at
http://www.who.int/substance_abuse/terminology/definition1/en/index.html. It is cited in part in the Incapacity Benefit Handbook for Approved Doctors at section 3.7.

26 The question in this case is therefore whether C, because he has the disease set out above, presents the risk defined in regulation 27(b) to himself or some other person if he is found capable of work.

“a substantial risk to the … health of any person if he were found capable of work”
27 The issue that arises from this wording is the context of the assessment of risk. Should the tribunal have in mind only the evidence of the failed personal capability assessment, or should it assess the risk against the probable results of that failure? The views of Commissioner Jacobs about the interpretation of this test are set out in the Commentary as quoted by the tribunal. Those views were expressly supported by Commissioner Parker in CSIB 33 2004, as also cited at length in the Commentary. As the tribunal recognised, this required some consideration of the consequences of the claimant working. In CSIB 223 2005 Commissioner May QC took another view. He put his disagreement with the contextual approach bluntly in paragraph 7 of his decision (also quoted at length in the Commentary):

“I am at a loss to see how tribunals can properly apply the legislation in the context set out by Mr Commissioner Jacobs…”

The submissions of the parties
28 Miss Terry made the following submission:

“In … CSIB 223 2005 … the Commissioner considered CIB 26 2004 and CSIB 33 2004 and disagreed with both in respect of the requirement to identify the type of work that the appellant may be required to be available for, if found capable of work. The Commissioner directed, in paragraph 14, that the tribunal to which he remitted the case

“apply the regulation strictly in the terms in which it is written”

The secretary of state's representative submits that she agrees with this approach and further submits that the personal capability assessment is not a test of whether a claimant is incapable of specific work, hence why should regulation 27 be so limited.”

This is consistent with the view taken by the Secretary of State before Commissioner May. As I quote below, he expressly adopted the submissions of the Secretary of State in reaching his decision. It is inconsistent with her support elsewhere in the submission for the Secretary of State that the tribunal did not err in law. If it did not err in law, then it applied the contextual test proposed by Commissioner Jacobs correctly. But I have rejected that other submission so put this inconsistency on one side.

29 Miss Terry identified the need to find that a claimant suffers from a specific disease or bodily or mental disablement. I agree with that point, and have set out the clear evidence that this test is met by C. She cites CSIB 33 2004 and CIB 3519 2002 to note that whether a risk is “substantial” is a question of fact. That is common ground also. She then cites the observation in CSIB 1695 2005 that it would need to be established that the range of work for which a claimant is otherwise qualified and that he could do is so small that there was a substantial risk to health if he were found capable of work. Miss Terry then draws my attention also to CSIB 179 2006 and CSIB 656 2006 as cases affirming the narrower approach to interpreting regulation 27. I am grateful to her for drawing my attention to those other decisions, both decisions of Commissioner May endorsing his previous views.

30 For C, Ms Joynes argued that the tribunal had stated the test correctly, but had not then applied it or, if it had, it had failed adequately to explain how it had applied to C’s claim. In a full response to the submission for the Secretary of State, she contended that Miss Terry’s submission conflates two separate tests: the personal capability test and the regulation 27 test. A decision about one does not define the scope of the other. The submission continues:

“A natural consequence of being found capable of work is that the claimant becomes a jobseeker and the assumption is that as a result of being available for work and actively seeking work he would eventually secure employment. Therefore, it is submitted that there should be some assessment by the tribunal of the kind of work the claimant would have a reasonable prospect of securing when looking at whether there would be a substantial risk to him or any person if he were found capable of work.

It is submitted that the approach in CSIB 223 2005 is too narrow an interpretation of the Regulation. The fact that the Regulation refers not only to the risk to the claimant but also to any person suggests that Parliament intended the element of “substantial risk” to be assessed within the working environment and not just be confined to the “broad results” of a capability finding on a claimant.

It is noted that in CSIB 33 2004 Commissioner Parker expressly approves the broader interpretation of the Regulation given by Commissioner Jacobs in CIB 26 2004. Commissioner Parker also provides some useful guidance to tribunals when considering the kind of work that a claimant would need to be available for and actively seeking. It is also made clear in this decision that risk is not to be confined to risks arising from the tasks associated with the claimant’s job description and must arise from “the broad results of a claimant being found capable of work.”

It is further noted that CSIB 223 2005 has not been approved by another Commissioner and the decision referred to at paragraph 16 of the Secretary of State’s submission (CSIB 179 2006) is another case decided by Commissioner May in which he reiterates his preferred approach.”

31 Informal enquiries and an electronic search of recent Commissioners’ decisions suggest that the most recent decision issued from London that deals expressly with the point is that of deputy Commissioner Paines QC in CIB 1695 2005, issued in late 2005. He states:

“11 As regards the approach to regulation 27(b), I agree with paragraphs 34 to 36 of CIB 26 2004, to which the secretary of state's representative has referred. When a claimant suffers from a specific disease or disablement (as the claimant plainly does), the issue of whether there should be a substantial risk to his or anyone’s health if he were found capable of work is to be decided by reference to, among other things, the types of work that the claimant would be likely to be required to be available for.”

12 The decision it to be taken on the balance of probabilities but, in order for regulation 27(b) to apply, the tribunal must be satisfied that the substantial risk to health referred to in the regulation would exist.”

The Commissioner went on to apply that test to the evidence in the appeal and to reach his own decision in place of that of the tribunal.

The burden and standard of proof
32 The reminder about the burden of proof is salutary in this context, as is the context of its operation. The regulation 27 issue only arises when it has been shown (at least to the satisfaction of an official) that the claimant is otherwise not incapable of work as measured in the standard way. Once that is established, the usual consequence will be that the Secretary of State has shown that there are grounds to supersede any previous award, and that is what will happen. It is then for the claimant to show, on the balance of probabilities, that there would be a substantial risk to her or him – or to anyone else – if he works.

33 It is not clear on existing authority if the claimant will be assisted by the evidential assumption in regulation 15 of the Regulations. This provides that a person incapable of work for part of a day is incapable for the whole day. This is again an area where Commissioners have not reached an entirely consistent view. See the Commentary at page 711. I agree with the endorsement by Commissioner Mesher in CIB 399 2003 of the view that the assumption only applies when a claimant is found incapable of work, and not to individual descriptors. On that approach, my view is that consistency suggests it should also apply to regulation 27(b). If there is a substantial risk at some time during a day, then there is a substantial risk on that day.

The role of the Secretary of State in applying regulation 27
34 In practice, the Secretary of State will take the first steps in considering regulation 27 for the claimant. It is for that reason that I directed that extracts from the official guidance to approved doctors in the Handbook be put in the case papers. The Handbook (at paragraph 3.8.1) sets out the four criteria within regulation 27, including the one at issue in this case. It wrongly states in that paragraphs that “the law stipulates that before these criteria can be applied by Decision Makers medical advice must be sought from a doctor “approved” by the Secretary of State”. That is accurate for regulations 10 and 11 and the other parts of regulation 27 but not for this test. However, the result is that an approved doctor is asked to consider this aspect of a claim together with the other provisions in regulation 27. And, as noted already, the standard computer programme operating behind the electronic IB85 provides answers for the doctor to the questions posed by regulation 27. If that is completed properly, the decision maker will have a medical opinion on the regulation in every case. Does that answer the question about the kind of work to be evaluated?

35 I can see nothing specific in the guidance to approved doctors that deals with the issue of the kind of work on which an approved doctor is expressing an opinion. The Handbook, at paragraphs 3.8.3 (substantial risk to the health of the person), gives appropriate guidance on “substantial risk” and also comments on the position in cases of mental health and heart disease. In paragraph 3.8.3.3 it deals with risk to another person, and advises: “… you should consider if there is a substantial risk of violence or psychological harm which could not be anticipated or adequately controlled.” It makes no other comment on this aspect of the test. It is therefore left to the approved doctor to decide as he or she thinks best.

The work to be assessed
36 With those points in mind, I return to the question posed by this appeal. What work, if any, is relevant to regulation 27(b)? The core guidance given by Commissioner May in CSIB 223 2005 is as follows:

“14 In the event I favour the approach to regulation 27(b) set out by Miss Doherty [the secretary of state's representative] and accept it, I direct the tribunal to apply the regulation strictly in the terms in which it is written and in the manner set out in paragraph 7. It is clear from the approach set out in paragraph 7 that the tribunal will have a simple, crisp and direct issue to determine.”

37 Paragraph 7 summarises the whole of the submission by Miss Doherty, much of which is not relevant to this point. The relevant part is:

“It was her submission that the statutory provision contained in regulation 27(b) was applied in the terms set out therein. She submitted that there is evidence contained in the general practitioner’s report … which in terms supports satisfaction of the condition… She was content that this evidence be assessed with the other evidence including the contrary evidence of the examining medical practitioner and the tribunal reach a conclusion thereon as to whether regulation 27(b) is satisfied… Whilst she appreciated that the approach taken by Mr Commissioner Jacobs in CIB 26 2004, which I deal with later, would be advantageous to some claimants, she found it difficult to understand how a tribunal would be in a position to apply the regulations in the context of attempting to set out a range of work which the claimant could do.”

38 I confess I am not entirely clear of the significance of the word “strictly” in this context. It was not used in the submission of Miss Doherty as summarised in paragraph 7, and which the Commissioner directs the tribunal to apply. But it is the key word in paragraph 14 isolated by Miss Terry in her submission to me. In paragraph 7, Miss Doherty seems to be arguing for a literal interpretation. How far does “strictly” take one beyond that?

39 All the sets of special circumstances in regulation 27 are there to deal with exceptional situations where a claimant of working age has been found to be capable of work in the objective manner determined by the personal capability assessment. And it is for a claimant, not the Secretary of State, to establish that they apply. The exceptions are based on the assumption, as are other regulations in the Social Security (Incapacity for Work) Regulations 1995, that the personal capability assessment does not deal with every situation that makes in it inappropriate for someone to be required to be available for work and actively to seek work. The regulations in Part III of those Regulations all deal with such situations. They exempt, for example, those on a long list of other benefits, those with infectious or contagious diseases, and all late-term pregnant women.

40 There is one fundamental difference between the test in issue in this appeal and the personal capability assessment, the exemptions, and the other tests in regulation 27. It is one of only two tests in the 1995 Regulations that recognises that asking a claimant to work may created risks to or for others. The other regulation is regulation 11, dealing with infectious diseases. (Depending on one’s viewpoint, I should perhaps add a third, the protection for unborn children in the regulations dealing with pregnant women).

41 In this context, regulation 27(b) can be seen to be asking officials and tribunals to make two separate assessments of risk: that to the claimant and that to other people in a work situation with the claimant. Those risks may or may not be parallel. For example, on the facts in CIB 1695 2005, an epileptic may put both herself and work colleagues at risk if she collapses without warning, perhaps dropping hot food or liquid or falling downstairs.
By contrast, risks caused by some systemic disabilities may pose a major risk to the individual with the weakness but little risk to others.

42 If those different risks are assessed separately, then some of the differences between the “strict” view and the other view start to evaporate when tested in practical surroundings. Take the example of heart disease (see the Handbook, paragraph 3.8.2.2). Approved doctors are asked to consider the position of someone found capable of work with uncontrolled heart disease, particularly if also suffering from other problems such as lung disease. In such cases there may be a substantial risk to the individual whatever he or she is asked to do, notwithstanding that he or she does not score 15 points in the personal capability assessment on the day of examination. Any work may occasion that risk, and the nature of the work may be irrelevant. It is not evident that there will also be a high risk to others arising from the heart disease of a workmate or colleague.

43 Another example is the risk of violence or psychological harm by the claimant to others (Handbook, paragraph 3.8.3.3). This may pose little risk to the claimant. The nature of the risk to others will depend to some extent on the kind of work that the claimant may be asked to do. That requires going beyond the non-specific idea that the risk is to be assessed without any focus on the kind of work the claimant may do. Consider this example further. If it were known that a person whose presence in the workplace might, because of a specific mental disablement, lead to a risk of violence that may on occasion be severe, it could be relevant to know the context of that individual’s work before the risk could be assessed. Commissioner May’s approach appears to assume that this could be dealt with by assumptions about the jobseeker’s agreement that the individual would be asked to agree. But that is a question of evidence not of assumption. What has the claimant done in the past? What was the claimant doing at the time of the decision? What are the claimant’s qualifications? Take the case of a qualified person who now suffers from unpredictable violent behaviour following an accident or illness. Different views might be taken of someone whose background suggested that the person might work with children or old or defenceless adults – in other words, in one of the millions of jobs in health, education, welfare, caring and similar activities, as compared with someone whose background suggested that the sort of work to be expected is manual work in a disciplined context.
A link between the work and the risk
44 The final element of the test is that the disease or disablement must be shown to give rise to a substantial risk if the claimant is found capable of work. It must be shown that there is a probability of a substantial risk to the claimant or another person because of that finding. In some cases the future risks arising, in particular to claimants themselves, from a disablement or disease will not be altered by the finding that a claimant has become capable of work. In those cases, the link required in regulation 27(b) will not be present. The risk is not there “if” the claimant is found capable of work, but only “whether or not” he or she is so found.

Application to this case
45 I consider that I should take the decision myself rather that refer it back to a tribunal. There is evidence in the papers from the claimant’s own applications and letters, from the general practitioner, from the approved doctor, and in the record of proceedings of the tribunal. There is evidence that C has no work experience, skills or qualifications. It is also clear that C has no relevant physical limitations. A few identified mental health descriptors are satisfied. I have set out fully above the specific cause of the main form of disease or disablement of C relevant to regulation 27(b). There is no other obvious source of evidence that can add to this picture. I cannot see why the question of risk needs to go back to a tribunal. Nor do I consider it necessary, as Ms Joynes suggested, to send the case back to a tribunal to make findings of fact about the work that C might be asked to undertake. In some cases that might be important. The employment history of this claimant admits of no such uncertainties. The original decision was made two years ago, and the appeal must be decided as at that time. It should now be determined.

46 The decision of the tribunal on the application of the personal capability assessment is confirmed. But it is of little help on regulation 27. It made no relevant findings of fact.

47 Turning to the specific evidence about the application of regulation 27(b), I hesitate about putting much weight on the approved doctor’s IB85 report. It contains internal conflicts and little specific evidence. It must be seen against the conflict of evidence, which I cannot resolve, about whether C was drunk at the time of the medical examination but the doctor did not notice. The most one can conclude is that the approved doctor did not identify any obvious risk from a resumption of work beyond initial anxiety. There is limited other evidence: the details of the personal capability assessment, the evidence of the general practitioner, and C’s personal history. There is nothing relevant recorded in the record of proceedings of the tribunal proceedings.

48 Does that evidence suggest the probability of a substantial risk to C’s health if he is expected to work in the kind of work to which a person with no physical limitations, no qualifications, no skills and no experience might be directed? I think not. The most that can be said is that the alcohol dependence syndrome might be exacerbated by anxiety when first going to work as C has no experience of it. I have set out the evidence of the general practitioner on this question in full. He declines to give support to C, but notes that in the longer term work would be a positive step. What is clear from the diagnosis and prognosis of alcohol dependence syndrome set out above is that there is a substantial risk to C’s health if he continues with his existing lifestyle. His general practitioner sees work as one of the most positive steps away from that risk. In my view, this is a case where there is no link established on the evidence between the general risk to C’s health posed by C’s disease or disablement and the finding that he is no longer incapable of work. Such evidence as there is suggests that the risk to health may be reduced by going to work. The other risk is of C injuring himself by carelessness. I have been shown no significant evidence that suggests that C is any more at risk from accidents while at work than if he continues his existing lifestyle. The link is again not present.

49 Is there a substantial risk to others? Here the link must be present as regards work colleagues. It is directly relevant to this point that a realistic view is taken of the kind of work to which C might be directed under a jobseeker’s agreement. I apply what I might term the Jacobs/Parker/Paines approach to regulation 27(b) in making this finding. I do so because I cannot see how risk to others can be assessed in the abstract with regard to a disease or disablement such as that suffered by C but without regard to the work context that might link with a disease or disablement to generate the risk. Any employment undertaken by C is most unlikely to be in the sort of caring activities that I used as examples when discussing a risk of violence at work. More probable, as I have already suggested, is a context of straightforward and structured unskilled work. I also take into account the description of C that arises from the personal capability assessment. In such a context, there is a risk of incidents caused by C’s carelessness. I assess that the risk to others from such carelessness, while undoubtedly present, is not likely to be substantial in the kind of work setting that C might be expected to enter. Indeed, as with the risk to himself, it may be that the risk he presents to others in a work setting is less than the risk to others that he presents in a domestic context. The one example of an incident of carelessness at home is potentially less of a risk in a work setting - where there will be management structures and fire and similar safety features in place - than at home. In my view, it has not been established that the risk to others presented by C if he found capable of work is probably a substantial risk.

50 I conclude on the facts that the specific disablements and diseases experienced by C in the period leading up to the decision on 30 10 2006 are not such as to create a substantial risk either to C’s own health or to the health of any other person if he is found capable of work.


David Williams
Commissioner
2 07 2007
[Signed on the original on the date stated]

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CIB/360/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The decision of the Stratford appeal tribunal dated 15 September 2006 is erroneous in law. I set it aside and refer the case to a differently constituted appeal tribunal for determination.

REASONS


1. The claimant, who is a man born in 1948, developed depression in the 1990s and gave up his work as a chartered accountant. He also suffers from heart disease and hypertension, though these doe not appear to affect his ability to work, and from a degree of deafness. Incapacity benefit was awarded to him in 1999. In September 2004 the claimant was examined by a medical services doctor under the personal capability assessment. It is not clear from the papers whether the claimant had been assessed under the personal capability assessment previously.
2. The examining doctor found the claimant’s condition to be such that he scored no points under the physical descriptors in the personal capability assessment; he scored 3 points under the mental health descriptors.. On 22 September 2004 a decision-maker superseded with effect from 15 October 2004 the previous decision awarding incapacity benefit to the claimant. The claimant appealed to the appeal tribunal; as a result, the decision was reconsidered but not changed.
3. The tribunal first dealt with the claimant’s appeal on paper in August 2005 and dismissed it, but their decision was set aside by a decision of Mr Commissioner Lloyd-Davies under section 14(7) of the Social Security Act 1998 in June 2006. The claimant’s appeal was remitted to differently constituted appeal tribunal, which dismissed it after an oral hearing on 15 September 2006. The claimant appeals against that decision with the leave of Mr Commissioner Lloyd-Davies, who gave leave on the grounds that it was arguable that the tribunal should have explained in more detail why regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995.
4. In my view, the tribunal did err in law in that they have given inadequate reasons for concluding that the claimant was not to be treated as incapable of work by virtue of regulation 27(b).
5. In their statement of reasons, the tribunal gave careful consideration to how the claimant scored under the personal capability assessment. They confirmed the award of no points for physical descriptors; under the mental health descriptors the tribunal concluded that the claimant scored 5 points, not 3 as decided by the decision-maker. But this still meant that the claimant was not incapable of work in accordance with the personal capability assessment.
6. In those circumstances, the tribunal had to decide whether the claimant was to be treated as incapable of work by virtue of regulation 27. The only provision of regulation 27 that might be applicable was regulation 27(b), which remains in force, as a result of the decisions of the High Court in R v Secretary of State ex p Moule and the Court of Appeal in Howker v Secretary of State [2002] EWCA Civ 1623, in the following terms:
A person … shall be treated as incapable of work if … he suffers from some specific disease or bodily or mental disablement and, by reasons 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.
7. In the papers were two letters from the claimant’s consultant psychiatrist. The first, dated 29 June 2005, said
This patient has been under my care for many years with a chronic depression. He is totally unfit to work and I understand that he needs documentary proof of this fact and of his regular attendance at the out patient department at […] Hospital.
I would be happy to supply any further information if required.
8. The second letter, dated 26 May 2006, said
This patient has been under my care for many years with a major depressive disorder. Originally he was at work when he came under my care but progressively this became more difficult. He has attended his out patient appointments on a regular basis and although reasonably well presented he is very susceptible to stress and disintegrates easily.
…
[The claimant] has on occasion tried to do voluntary work and has made efforts to secure some form of employment after he was retired from his original professional [sic]. These efforts have usually met with disastrous consequences and I have advised him that for his own health and well being this is not appropriate.
… I would be very happy to supply a more detailed report if this would be of assistance.
9. In their statement of reasons the tribunal noted that the claimant received no medication for mental health difficulties and that the examining doctor had performed a thorough mental health examination of the claimant, as a result of which he had only found two mental health descriptors to be applicable to the claimant. As regards the consultant’s letters, the tribunal recorded that they were surprised and disappointed that the claimant had not taken up the consultant’s offers to give a more detailed report. Given the claimant’s professional background, they thought it was reasonable to expect him to obtain one. They considered that the consultant’s letters were looking backwards in time, whereas the tribunal found that the claimant’s condition ‘had at the worst stabilised and at the best got better’.
10. After some further reasoning concerning the personal capability assessment, the tribunal said
27. Regulation 27 of the 1995 Regulations did not apply as the clinical evidence did not support such a finding.
11. A tribunal is required to give an adequate statement of their reasons. A statement of reasons is adequate for this purpose if it tells the reader why a tribunal reached a particular conclusion, and does so in sufficient detail to enable it to be seen whether any error of law was made in reaching that conclusion. The reasoning in paragraph 27 is not adequate. First, it is ambiguous; it is not clear whether the tribunal were finding that there was no clinical evidence at all that supported a finding that the criteria of regulation 27(b) were met, in which case the decision would have been perverse (and therefore erroneous in law) as there was plainly was some such evidence in the form of the claimant’s consultant’s letters.
12. I consider it more likely that paragraph 27 of the decision means that on balance the medical evidence did not support the finding. But on that view the reasoning is still inadequate as it does not enable the reader to understand why the tribunal rejected the evidence of opinion from the claimant’s consultant. The tribunal were not obliged to agree with the consultant, but in order to make their reasoning understandable they were obliged to set out their reasons for disagreeing with him. Merely saying that the clinical evidence did not support a finding that regulation 27(b) applied does not enable the reader to understand the tribunal’s process of reasoning, given that the consultant’s letters were part of the clinical evidence and they in combination did strongly support a conclusion that there would be a substantial risk to the claimant’s mental health if he were found capable of work.
13. A possible clue as to the tribunal’s thinking is in paragraphs 16 and 17 of the statement of reasons, where the tribunal describe the consultant’s second letter as looking back in time, and go on to find that the claimant’s condition has stabilised or improved. This reasoning is not, however, directed at the regulation 27(b) issue and does not deal with the statement in the first letter (written after the date of the Secretary of State’s decision) that the claimant ‘is’ unfit for work.
14. In his submission to me, the Secretary of State submits that it was open to the tribunal on the evidence as to the claimant’s lifestyle, the findings of the examining doctor (which included a finding that regulation 27(b) did not apply) and the claimant’s score under the personal capability assessment, to find that the requirements of regulation 27(b) were not met. But that is not the point. I do not consider the issue of law raised by the decision to be whether or not it was open to the tribunal, as a matter of law, to conclude that regulation 27(b) was not satisfied in the claimant’s case – an issue on which I prefer to express no opinion as it is a difficult matter of medical judgement - but rather whether the tribunal have given an adequate statement of their reasons for the decision that they reached.
15. The Secretary of State also draws my attention to Mr Commissioner May’s disagreement in CIB/223/2005 with the decision of Mr Commissioner Jacobs on the approach to applying regulation 27(b) in CIB/26/2004; his representative also refers to a number of other decisions, including my decision in CIB/1695/2005 in which I agreed with CIB/26/2004. The Secretary of State says that he agrees with the approach in CIB/223/2005 of applying the regulation strictly in the terms in which it is written, and submits that, since the personal capability assessment is not a test of whether a claimant is capable of specific work, regulation 27 should also not be limited to being a test of whether a claimant is capable of specific work.
16. I certainly agree that one must apply the regulation in the terms in which stands following the Moule and Howker decisions, and that the question to be answered is whether there would be the necessary degree of risk to health ‘if he were found capable of work’. But I do not see how that can be done without thinking through the consequences of such a finding in a particular claimant’s case. I do not consider that the maker of the regulation only had in mind cases in which merely learning of the finding would cause damage to health; he must have had in mind the health consequences of the claimant returning to the workplace.
17. The degree of detail in which those consequences will need to be thought through will depend on the circumstances of the case; while I agree with Mr Jacobs that this involves considering the types of work that the claimant might be required to do, I do not consider that it will necessarily involve a thought experiment conducted in such detail as imagining the terms of future hypothetical negotiations between the claimant and a Jobcentre, or testing the degree of risk to health by reference to specific detailed job descriptions. A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant’s background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b).
18. Regulation 27(b) requires one to start by identifying a disease or disablement; the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial. For example, in my decision in CIB/1695/2005, which concerned a claimant suffering from epilepsy, I considered that the requirements of regulation 27(b) were not satisfied because – while one could readily imagine types of work that the claimant could not safely perform, such as work involving driving or the operation of heavy machinery – there was an adequate range of work that the claimant could do in which there would not be a substantial risk to health from his suffering a seizure in the workplace.
19. In the present case, the tribunal will need to answer the question posed by regulation 27(b) in the context of the claimant’s depressive condition and the consequences for his mental health of being faced with the demands of work. They will need to decide whether, as the claimant’s consultant suggests, the demands of any form of work that the claimant would have the physical or intellectual ability to perform would be too much for him given his susceptibility to stress.
20. More detailed evidence from the claimant’s consultant is clearly of the greatest importance. I suggest that a District Chairman should give consideration either to obtaining a report from the consultant or to directing the claimant to obtain a further more detailed report from him, and setting the date for the hearing with a view to allowing enough time for such a report to be obtained.
21. Fairly obviously, the report will give the greatest assistance to the tribunal if it goes into more detail on the history of the claimant’s giving up his profession and the work he has subsequently attempted unsuccessfully, the progress of the claimant’s condition since he gave up his professional work and the reasons for the consultant’s view on whether there is work the claimant could do whose demands would not be too much for him.
22. The claimant has, perhaps understandably, commented adversely on a passage in the statement of reasons which says that the members convened, read the papers with even greater care and were ready for the claimant when he arrived. The record of proceedings indicates at page 88 that there had to be a replacement medically qualified panel member, who arrived at 10.25 not having seen the papers, and the hearing started late at 10.40. I can well understand a tribunal’s wish to reassure an unsuccessful appellant that his case has been considered carefully. I have no doubt that it was. Considerable attention to detail is evident in the tribunal’s handling of the personal capability assessment issues. I do not doubt that the medically qualified panel member did consider the papers with the chairman in the interval between his arrival and the start of the hearing, and that they will have been actuated by an understandable desire not to keep the claimant waiting for too long. The sentence that the claimant complains of is not happily expressed in all the circumstances, but the claimant should have no doubt that his case will be carefully considered by the new tribunal, which will in any event be differently constituted.


(signed on the original) Nicholas Paines QC
Deputy Commissioner

15 June 2007

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CIB/3339/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the claimant’s appeal. I set aside the decision of the Wakefield appeal tribunal dated 6 July 2006 and I refer the case to a differently constituted appeal tribunal for determination.

REASONS

2. On 16 January 2006, the Secretary of State superseded the claimant’s award of incapacity benefit and credits on the ground that he could no longer be treated as incapable of work because he had scored only one point on a personal capability assessment. The claimant appealed. The tribunal found he scored seven points in respect of the physical descriptors and two in respect of the mental descriptors but that was still not enough and his appeal was dismissed. He now appeals against the tribunal’s decision with my leave and the support of the Secretary of State.

3. An appeal to a Commissioner lies only on a point of law. The question of law that arises in this case is whether that the tribunal failed adequately to consider whether descriptors 13(d) and (e) in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 (S.I. 1995/311) were satisfied because the claimant “[l]oses control of [his] bowels once a week” or “[l]oses control of [his] bowels occasionally”. If those descriptors had been found to apply, a further 15 or 9 points respectively would have been awarded and, in either case, the claimant’s appeal would have been allowed.

4. The tribunal found –

“He has had irritable bowel syndrome for 10-15 years but is able to get to the toilet provided he has 2 minutes warning.

The claimant, however, had appealed to the tribunal on the ground that he lost control of his bowels once or twice a month. This is consistent with what he had said in the questionnaire he had completed in October 2005. There he had said –

“Over the last few months I have lost control of my bowel and bladder quite a few times which means I have to wash and change my clothing and underwear. I have also lost control of both bowel and bladder when I have been out which is very embarrassing.”

He is recorded as having told the examining medical officer on 3 January 2006 that bowel incontinence started a few months ago and had been unchanging for a few months. The doctor found there to be “no problem with continence”, having recorded that the claimant had stated that “daily living is not affected”, that his view was that “he has occasional faecal urgency but no true incontinence” that he had not carried out an abdominal examination but “the history regarding symptoms, investigation and treatment does not support a diagnosis of bowel and bladder incontinence”. It was that view that was adopted by the Secretary of State.

5. I quite accept that, if a claimant merely feels an urgent desire to go to the toilet and is able to control his bowels for long enough to get there, he is not entitled to any points under activity 13 in the Schedule. However, if he is not always able to get to the toilet in time, it seems to me he “loses control” on those occasions when he fails. I do not know whether the examining medical officer found that the claimant never lost control in that sense or whether his reference to there being “no true incontinence” meant that he considered that incontinence required there to be a complete loss of control, which would appear to be inconsistent with the legislation permitting points to be awarded for occasional loss of control. Applying a purposive construction to this legislation, as one must, it is clear that an occasional partial loss of control is sufficient to meet the terms of descriptor 13(e) unless the extent of the loss of control can be said to be de minimis in its effects.

6. In any event, the tribunal erred in not making any finding as to whether the claimant did occasionally lose control. To say that he was able to get to the toilet if he had sufficient warning does not amount to a finding as to whether or not he did always receive such a warning. The claimant’s written evidence was clearly to the effect that, occasionally, he did not and the tribunal had to decide whether or not to accept that evidence. I accept that the chairman’s note of the claimant’s oral evidence can be read as implying that he did always get to the toilet in time but, given the written evidence, I doubt that is what the claimant meant and, given the way the tribunal recorded its finding, I doubt that it is exactly what he said.

7. Accordingly, I allow this appeal. All issues, including the effects of the claimant’s heart condition, will be at large before the tribunal to whom this case is now referred.




(signed on the original) MARK ROWLAND
Commissioner
31 May 2007

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CIB/16/2007


DECISION OF THE SOCIAL SECURITY COMMISSIONER



1. This is an appeal by the claimant against the decision of the Middlesbrough Appeal Tribunal given on 21st September 2006. By its decision the tribunal dismissed the claimant’s appeal against the decision of the decision maker made on 26th June 2006 that the claimant was not incapable of work. The appeal is not supported by the Secretary of State.

2. For the reasons given below, I have concluded that the decision of the tribunal was erroneous in point of law as respects certain of the descriptors relevant to whether the claimant is capable of work. In the light of the material before me, I am able to substitute my own decision in relation to those descriptors and do so under the provisions of section 14((a) of the Social Security Act 1998. That, however, does not alter the overall outcome of the claimant’s appeal, since it does not lead to her being found to be incapable of work. I therefore allow the appeal but substitute my own decision to the same effect as that of the tribunal.

3. This appeal arises as follows. Very sadly, the claimant’s daughter died at the age of 28 in 2000. The claimant continued to work thereafter but suffered reactive depression and by 9th July 2001 was no longer able to work. She received statutory sick pay until 11th January 2002 and then claimed incapacity benefit. Under sections 171B(3) and 171C of the Social Security Contributions and Benefits Act 1992, the question whether or not the claimant was incapable of work was then to be determined in accordance with a personal capability assessment. The claimant was awarded incapacity benefit from 12th January 2002 pending assessment. She was then assessed on 8th May 2002 and found to be incapable of work.

4. On 17th June 2004 the claimant attended a medical examiner for a further personal capability assessment. On that occasion the examination was not completed because the doctor formed the view that the claimant had a severe mental health problem and was exempt from assessment. She went on, however, to advise the Secretary of State that the claimant’s condition would be expected to improve significantly in 18 months. I comment in passing that the fact that the assessment was not completed means that there is no evidence in the papers before me of the evidence relating to any previous assessment of the effect of the claimant’s mental health problems.

5. On 22nd December 2005 the claimant’s G.P. was sent a form asking for further information. He completed the form on 10th January 2006, stating that he had last seen the claimant on 16th November 2005. She had been suffering from recurrent anxiety and depression since 2000. It had recently improved but her recent visit resulted from a further episode of depression and he had again prescribed Fluoxetine. The claimant had had a carpal tunnel operation in August 2005 which had improved her carpal tunnel syndrome. Attached
to the report was a computer printout from which it appeared that the claimant’s depression in November 2005 resulted from family problems and in particular her sister’s illness.

6. The claimant herself was then asked to fill in an incapacity questionnaire, which she did on 20th January 2006. For the purposes of this appeal it is relevant to note that she described herself as receiving treatment for anxiety and depression “as and when necessary” and explained that she had recently had an anxiety attack after placing her mother in residential care and watching her sister’s health deteriorate. She also said that she had problems with her right hand as a result of carpal tunnel syndrome.

7. The claimant then underwent a further personal capability assessment on 9th June 2006. The doctor applied both the physical and the mental descriptors set out in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995, S.I. 1995 No. 311. The doctor concluded that the claimant did not satisfy any of the physical descriptors but that:

(1) mental stress was a factor in making her stop work;

(2) she frequently felt scared or panicky for no obvious reason; and

(3) she was scared or anxious that work would bring back or worsen her condition.

Those descriptors gave the claimants points of 2, 2 and 1 respectively. By way of summary, the doctor stated:

“There is no evidence of any significant cognitive impairment. The customer’s mental health condition causes mild functional impairment. Seems to be managing quite well with all her routines.”

8. The assessment report was considered by the decision maker on 26th June 2006 and the doctor’s view was accepted. The result was that the claimant scored 5 points on the mental assessment and none on the physical assessment. In order to be found incapable of work, the claimant had to score 10 points by reference to mental descriptors alone or 15 points by reference to physical descriptors alone or mental and physical descriptors taken together: regulation 25 of the Incapacity for Work Regulations. The claimant clearly failed to satisfy that requirement and was determined not to be incapable of work. That decision was notified to her by letter dated 28th June 2006.

9. The claimant appealed against the decision by notice of appeal dated 4th July 2006. She referred to her physical problems with her right hand and the disruption it caused to her sleep. She then continued:

“Consequently I feel tired during the day and therefore only do household tasks when I feel competent enough to do them and complete them.

I take medication for anxiety and depression in agreement with the doctor, as and when I need it during stressful situations that occur and have again become stressed and weepy at your reply to my medical assessment.

The day I went for my assessment I feel I appeared calm, confident and in control. However, this does not display the inner turmoil I feel when dealing with situations like these. I feel nervous, anxious and nauseous.”

The decision was reconsidered on 27th July 2006 but was not changed and the appeal proceeded.

10. In connection with the appeal the claimant was represented by the local authority welfare rights unit. Her representative obtained from her G.P. an opinion dated 30th August 2006 “for the period from 26th June 2006” on a number of mental and physical descriptors. For the purposes of the present appeal it should be noted that he expressed the view that:

(1) the claimant was frequently distressed at some time of the day due to fluctuation of mood;

(2) sleep problems interfered with the claimant’s daytime activities;

(3) the claimant sometimes avoided carrying out routine activities because she was convinced they would prove too tiring or stressful;

(4) the claimant was unable to cope with changes in daily routines;

(5) the claimant frequently found that there were so many things to do that she gave up because of fatigue, apathy or disinterest;

(6) the claimant became irritated by things that would not have bothered her before she became ill.

He described her as suffering from anxiety when out of her comfort zone.

11. The claimant’s representative put before the tribunal a written submission in which it was contended that the various descriptors set out in paragraph 10 applied in addition to those found by the decision maker to apply. Each such descriptor carries 1 point. On that basis the claimant would score 11 points by reference to mental descriptors and would satisfy the personal capability assessment test. It was also contended that the claimant’s carpal tunnel syndrome meant that she was unable to turn a sink tap or the control knobs on a cooker with one hand, although she could with the other. If so, she would be entitled to a further 6 points.

12. The claimant gave oral evidence at the hearing on 21st September 2006. She said that she had an agreement with her G.P. that she would take medication for anxiety and depression when she was desperately low. She had taken the tablets in November and December 2005 but not since then. She said that she still had a disturbed sleep pattern and would go to sleep on the couch during the day. She had panic attacks most days and was scared for no reason. She said that she gets up between 8.30 and 10.00 a.m., makes breakfast, tries to do a tidy round, if she wants to has a shower. She takes things at her own pace. Some days she cannot be bothered getting up. She does housework if she can be bothered. She watches TV, listens to music and reads books if her concentration is OK. She makes a meal, or her husband may
help if he is in. She answers the door after checking who it is and only answers the phone after leaving it to be collected by the answerphone. She used to do dressmaking as a hobby but no longer does. Her sister rings twice a day to make sure she is OK and her husband rings. She does not make any phone calls. She drives occasionally. As to driving, the claimant explained that her mother lives in Newcastle and she drives to see her. It takes 1½ hours and she might need to stop if she has an attack of feeling she does not want to be driving. She tries to visit her mother once a week but since June 2006 has only managed once a fortnight. She has terrible mood swings and does not feel calm as stated in the examining doctor’s report. She does go out with family and friends.

13. The claimant gave brief evidence about her physical difficulties as a result of carpal tunnel syndrome. She can write with her right hand (she is right-handed) but cannot tie a shoelace. She uses her left hand rather than her right to pick things up.

14. The tribunal, having considered the evidence, found that the claimant suffered from sleep problems which interfered with her daytime activities and awarded her 1 point in that respect. Otherwise it accepted the decision maker’s assessment both for mental and physical descriptors. The tribunal’s statement of reasons as respects the only physical descriptor in issue goes through the evidence carefully and fully and gives clear reasons for accepting the medical examiner’s opinion. Understandably, it does not form part of the claimant’s grounds of appeal and I need say no more about the physical descriptors.

15. The tribunal clearly gave equal care to the various mental descriptors which the claimant contended were satisfied. The claimant contends, however, that in relation to each descriptor which was found not to be satisfied, the tribunal either made inadequate findings of fact or gave unclear reasons or both. I will therefore deal with what the tribunal said later in this decision.

16. Leave to appeal against the tribunal’s decision was refused by the chairman but was granted by Mr. Commissioner Leveson on 22nd January 2007. His reasons were that the grounds of appeal were arguable and the reasoning of the tribunal seemed to make unwarranted assumptions about the nature of the evidence from the G.P.

17. In his submission on the appeal the Secretary of State summarised the claimant’s grounds as being essentially that the tribunal did not give sufficient explanation for preferring the examining practitioner’s opinions and evidence to that of the claimant’s G.P. The submission drew attention to two Commissioners’ decisions relevant to the point. In CIB/724/2005 the Commissioner expressed the view that the tribunal was entitled to take into account the lack of clinical examination by the G.P. and the fact that the forms he had ticked gave no indication of the reasoning which led to his conclusions, in contrast to the report of the medical examiner. In CIB/3706/97 the Commissioner commented that as the tribunal had in general preferred the evidence of the examining medical practitioner it was not surprising if it consequentially accepted the evidence of the claimant and his G.P. so far as it coincided but not otherwise. (That comment was made in relation to a submission that the tribunal had been picking and choosing the evidence from the claimant and his G.P. which it was prepared to accept.) The Secretary of State in this case also made the point that on all occasions on which
there was a difference of opinion the tribunal took into account its own questioning of the claimant.

18. The claimant’s representative made observations in reply stressing the independence of the G.P.’s evidence, as shown by his having made changes to the form as respects the physical descriptors and having answered adversely to the claimant’s case as respects some of the mental descriptors. She repeated that the tribunal had failed to provide sufficient findings of fact as to why they preferred evidence by the examining medical practitioner.

19. I turn now to consider the various descriptors contended to be satisfied.

Frequently distressed at some time of the day due to fluctuation of mood (descriptor 16(c))

20. The tribunal observed that the medical adviser had found the descriptor not satisfied on the basis that the claimant was not depressed on examination, there were no ideas of self harm and the claimant was not anxious on examination. The claimant’s evidence of mood swings and not feeling calm was acknowledged, but the tribunal said there was no evidence from her that she was distressed at some time of the day due to fluctuation of mood. The G.P.’s evidence was noted but the medical adviser’s opinion was preferred as it was based upon observations of and discussions with the claimant by a medical adviser and was a professional and unbiased opinion based upon those observations and clinical findings.

21. The grounds of appeal make reference to the G.P.’s evidence and point out that the tribunal did not ask what caused or triggered the mood swings and how often they occurred. The point is also made that the tribunal accepted the evidence of the claimant and the G.P. about sleep problems but rejected it as respects fluctuating moods.

22. The examining doctor’s report records (p.63) that the claimant said that every day the following symptoms occurred and were usually troublesome: low mood, tearfulness, anxiety, panic attacks and irritability. The format of the report, while allowing the doctor to state evidence in support of a conclusion, does not provide for reasons why evidence adverse to the conclusion was rejected, so it is not possible to see why the doctor did not regard the evidence just mentioned as of relevance, or, if it was regarded as relevant, why it was nevertheless outweighed by the other evidence referred to (which is not in itself particularly persuasive in relation to a question about fluctuation of moods). The tribunal does not appear to have taken that into account. Further, I do not understand why the tribunal said that there was no evidence from the appellant that she was distressed at some time of the day due to fluctuation of mood, having earlier recorded her evidence about mood swings. The tribunal may well have felt inhibited about pursuing this directly with the claimant, given the stress that is laid on not using mental health descriptors as a check list (see p.7 of the bundle) and so I do not find an error of law in that respect. In my view, however, the tribunal did fail to give adequate reasons for rejecting the evidence of the G.P. and apparently ignoring that of the claimant, and instead preferring the evidence of the examining doctor.

23. It further seems to me that the evidence is sufficient to show that the claimant does in fact satisfy the descriptor. What she said to the tribunal seems to me to be consistent, if stronger, than what she is recorded as having said to the examining doctor. I accept the
submission made by the claimant’s representative that the G.P. has not simply ticked every box presented to him but can be seen to have considered his answers. He has had much more opportunity than the examining doctor to assess how far the claimant’s mood is likely to fluctuate and cause her distress and I bear in mind the difficulties with the examining doctor’s opinion to which I have referred. In those circumstances, I award the claimant 1 point in respect of this descriptor.

Avoids carrying out routine activities because he is convinced they will prove too tiring or stressful (17(c))

24. Again the tribunal relied on the medical adviser’s opinion. On this occasion, however, the opinion was based on statements made by the claimant that she usually likes to make meals, she usually prefers to keep busy, she can usually easily vacuum, clean windows, clean the bathroom, wash dishes and do housework, that she drove to the examination, that she goes shopping for bread and milk most days and that chats to friends and family on the telephone most days. The tribunal also took account of the claimant’s own oral evidence, as summarised above and stated that there was no evidence that the claimant did not carry out routine activities because they were too stressful; rather it was simply the case that on some occasions she could not be bothered to do so.

25. The grounds of appeal are that the tribunal failed to give any sufficient reasons why it preferred the evidence of the examining doctor and failed to ask why the claimant could not be bothered. Attention was also drawn to the claimant’s evidence as respects driving to Newcastle.

26. This particular descriptor was recently considered by Mr. Commissioner Williams in CIB/1374/2006. The Commissioner said that it clearly requires (a) a finding whether the claimant avoids carrying out routine activities and (b) a finding whether (if he does so) that is because he is convinced that they will prove too tiring or stressful. That decision was given on 5th July 2006 and evidently was not before the tribunal. If it had been, no doubt the tribunal would have made more explicit findings on (a) and (b) as identified by the Commissioner, as would have been helpful. As it is, however, the tribunal referred to what was cumulatively a fairly substantial body of evidence from the claimant herself that she usually managed a considerable number of routine tasks and indeed preferred to keep busy. The claimant did not dissent from what she was recorded as having said to the examining doctor on this aspect of the case, except as to the number of times she went to the supermarket. The evidence of the examining doctor which the tribunal preferred was therefore very largely, albeit indirectly, the evidence of the claimant, although clearly the doctor had formed an opinion on the basis of that evidence which the tribunal took into account. This is not, as might have been thought, an example of preferring the evidence of the medical adviser to the evidence of the claimant and her G.P.; it is rather a case in which the G.P.’s view was largely contrary to the claimant’s own evidence of what she did. In fact she usually undertook, rather than avoided, routine activities. No elaborate reasoning for accepting the medical adviser’s view was required.

27. It is of course true that the tribunal also accepted the claimant’s own evidence that sometimes she could not be bothered to do the housework. In CIB/1374/2006 it was said
that the tribunal should have considered why, on the evidence, the claimant chose to do nothing. Was he convinced that the activities would prove too tiring or stressful? Here the claimant herself volunteered the explanation for her inactivity on such limited occasions as she was inactive, namely, that she could not be bothered. This appears to me to imply apathy or lack of interest rather than a conviction that the routine activities in question will prove too tiring or stressful. As to the claimant’s driving to Newcastle, the evidence was clearly that the claimant regularly undertook a fairly considerable drive, even if sometimes she had to stop en route.

28. Having regard to the above, in my view it was not an error of law for the tribunal not to pursue this descriptor further. In this connection I note that the claimant’s written submission to the tribunal spoke of it becoming “obsessive to keep busy because [the claimant] does not like to sit and think”, and stated, “she can get everything ready to start chores and cleaning and is too exhausted to do them.” If I had found an error of law on the part of the tribunal, I would nevertheless have reached the same conclusion on the evidence.

Unable to cope with changes in daily routine (17(d))

29. In relation to this descriptor the tribunal began by noting that the opinion of the medical adviser was that the claimant did not satisfy the descriptor because she was not anxious on examination, she had normal concentration and she had no significant lifestyle restrictions resulting from her mental health problems. Having recorded that the claimant’s G.P. was of the opposite opinion, the tribunal considered the evidence of a varying daily routine on the basis of what the claimant had told the tribunal: that is, that sometimes she went to Newcastle, sometimes she went to the supermarket, sometimes she went out and socialised with friends, she chose whether to have a shower when she got up, she took things at her own pace and sometimes she did not bother to get up. The tribunal concluded that there was nothing to suggest that the claimant had a rigid routine from which she could not change and overall, considering the details of the claimant’s daily life as described both to the tribunal and to the examining doctor, the claimant did not satisfy the descriptor.

30. In her grounds of appeal the claimant contends that the tribunal chose the evidence of the examining doctor over the evidence of the G.P. and that the tribunal failed to take into account that what the claimant described was her daily routine; she was used to doing different things on different days and it was routine for her. If she were given something different to do, she would be unable to cope. I assume that the claimant intended to raise in relation to this descriptor as well as the others the issue whether the tribunal had given adequate reasons for its preference of the examining doctor’s evidence.

31. In my view there is force in the point made on behalf of the claimant that a daily routine may have some variable elements if there is overall a broadly settled and regular pattern. In particular, it does not seem to me that a regular trip, such as the claimant’s trip to Newcastle, which is not made every day necessarily amounts to a change in daily routine for this purpose if it is nevertheless something done regularly. The descriptor is not, in my view, directed to day-to-day variations determined by the claimant in a pattern which she has herself established. Although with some hesitation, I have concluded that the tribunal erred in law in
considering the descriptor on the footing that it contemplated a rigid routine which the claimant herself could not change. I therefore set aside the tribunal’s decision in this respect.

32. On the footing that the descriptor itself is not so rigid, I consider that the evidence is very finely balanced. Clearly the claimant can accommodate some variety in her daily routine. The examining doctor thought that the claimant did not satisfy the descriptor, and I have set out in paragraph 29 above the reasons given as expressed by the tribunal. The G.P. thought that she did, but gave no reasons. Nothing in the claimant’s evidence illuminates what sort of change in routine would be beyond her capacity to cope with. At the end of the day I note that the examining doctor relied also on the claimant’s having attended the examination centre alone. That was clearly a significant departure from the claimant’s daily routine, not chosen by her and for a purpose of importance to her. The report records the claimant as having stated that she was only mildly stressed because of having to come to the examination centre and that is evidently how she appeared to the doctor. I note that she says that in fact she was much more anxious than she appeared. Even allowing for that, however, it seems that she coped well with this change in routine. In all the circumstances, I conclude that the claimant does not satisfy this descriptor.

Frequently finds that there are so many things to do that she gives up because of fatigue, apathy or disinterest (17(e))

33. As with descriptor 17(c) (avoids carrying out routine activities) the tribunal relied heavily on the claimant’s own account of how she spends her time, both to the medical adviser and to the tribunal itself. The tribunal concluded that the claimant “was able to carry out a full range of tasks across the day”. It noted her evidence that sometimes she could not be bothered to do housework but found that “there was no suggestion that the [claimant] felt this way frequently”. The tribunal reminded itself of the G.P.’s opinion that the descriptor was satisfied, but, faced with the conflict with the opinion of the medical adviser, reached its own conclusion on the basis of the claimant’s evidence, as already indicated.

34. The grounds of appeal also note the conflict between the G.P.’s view and the view of the examining doctor and I shall again assume that it is contended that there was a failure to give adequate reasons for the preference of the examining doctor’s view. Additionally it is contended that the tribunal failed to identify why the claimant could not be bothered to do housework on some days and the frequency of that occurrence. It is pointed out that the claimant said she did not make phone calls, that both her sister and her husband rang her and that in the first instance she left the call to be collected by the answerphone.

35. In my view, the tribunal, in noting the examining doctor’s reliance on the claimant’s own evidence of her usual activities and her preference for being busy and in finding as a fact that the claimant was able to carry out a full range of tasks, made clear enough the reasons for their preference of the examining doctor’s opinion over the opinion of the G.P. in the absence of any reasons to support the G.P.’s opinion. It seems to me implicit in the tribunal’s acceptance that sometimes the claimant could not be bothered to do housework that it was accepted that the claimant gave up through apathy or lack of interest, or possibly fatigue, because the tribunal went on to consider the issue of frequency. Again it seems possible that
the tribunal was inhibited from pursuing that issue too directly. Given, however, the evidence that the claimant was usually busy and preferred to be so, to which I have already referred, I take the view that the tribunal did not err in law in concluding that on any view there was no suggestion that the claimant did frequently feel she could not be bothered .

Gets irritated by things which would not have bothered her before she got ill (18(d))

36. The tribunal again noted that the medical advisor’s opinion was that the descriptor was not satisfied and that the G.P.’s opinion was that it was. The medical adviser’s opinion was said to be based on his assessment that the claimant has a calm nature and her mental health condition caused mild functional impairment only. There was nothing to substantiate the G.P.’s opinion. The claimant herself denied that she was a calm person. The tribunal preferred the examining doctor’s opinion because it was an opinion of a medical adviser trained in carrying out assessments for the personal capability assessment and was an unbiased opinion based upon observations of the claimant, clinical findings and discussions with the claimant.

36. The ground of appeal is that the tribunal failed to give adequate reasons for why it preferred the opinion of the medical adviser. Attention is drawn to what the claimant said in her appeal notice about her inner turmoil and to her evidence before the tribunal.

37. It is notable that the one respect in which the claimant appears to say that the medical adviser is downright wrong is on this question of being a calm person. She does not seem to have been asked directly whether or not she made the statement, but it seems that the claimant was effectively putting in issue whether what she said was accurately recorded, although the record of proceedings shows that the claimant did not say she was not a calm person but that she did not feel calm. This is not just a matter of the doctor’s assessment. One possible explanation might be that the claimant told the doctor she was calm by nature, meaning when she was well. The question how this discrepancy arose was not pursued at all. I note also that in fact the only evidence relied upon by the examining doctor in support of his conclusion reached on this aspect was that the claimant (as she had apparently said) had a calm nature. Given its potential importance for this descriptor, I have come to the conclusion that the tribunal’s duty to act inquisitorially means that the point should have been explored further and that failure to do so was an error of law. I therefore set aside the tribunal’s decision in this respect also.

38. On the evidence, then, the medical adviser concluded that the descriptor did not apply, but relied on a single statement of uncertain status. The G.P., who has the advantage of having known the claimant for some time, thought it did apply. The point made earlier, that the G.P. exercised judgment in answering the form before him, should be recalled here. The claimant by her written submission to the tribunal asserted that she feels very irritated by sudden noise and distraction. In general the tribunal appears to have accepted the claimant’s oral evidence; there is certainly no finding that she was prone to exaggeration. On this scanty material, I conclude that the claimant’s statements (excluding the possible statement to the examining doctor), supported by the G.P.’s evidence, should be accepted in preference the doctor’s opinion, based on one somewhat disputed statement. I therefore award the claimant 1 point in respect of this descriptor.

Overall conclusion

39. The result of my decision is that the claimant has scored 2 extra points. With the extra point awarded by the tribunal itself, that gives her a total of 8 points. By the operation of regulation 26 of the Incapacity for Work Regulations that would be treated as a score of 9 points if added to points in respect of physical descriptors. It remains, however, a score of 8 points for the purposes of a score determined by reference to mental descriptors alone and, as is obvious, falls short of the required score of 10 points.

40. For the reasons I have given I allow the appeal and set aside the decision of the tribunal. I substitute my own decision to the same effect as the decision of the tribunal and the decision maker. With effect from 26th June 2006 the claimant was not incapable of work and accordingly ceased to be entitled to incapacity benefit.






(signed on the original) E. Ovey
Deputy Commissioner
16th May 2007