CIB 5361/97

The Social Security and Child Support Commissioners
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992 
SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the social security appeal tribunal given on 3 June 1997 and recorded in the note and statement of reasons at pages 76-80A of the case papers was erroneous in point of law. I set it aside and refer the case to a differently constituted tribunal to redetermine all relevant questions on this claimant's capacity for work under the all work test from 20 November 1996.

2. This is a claimant's appeal brought with the leave of the full-time chairman. The claimant is a man now aged 52 who became unable to work in late 1995 due to back pain. He became subject to the "all work test" for incapacity benefit under Pt XIIA Social Security Contributions and Benefits Act 1992 from 1996. His appeal to the tribunal arose from the need for a determination about whether he was entitled to contribution credits. Their decision was incorrectly expressed on page 79 to the effect that he "is not entitled to incapacity benefit from and including 20 November 1996"; but nothing of any substance turns on that, as entitlement to contribution credits in this context depends on exactly the same question as entitlement to the benefit itself, namely whether the all work test under the Social Security (Incapacity for Work) (General) Regulations 1995 SI No. 311 is satisfied.

3. The claimant appeals against the tribunal's decision that it was not, as only 10 points on the physical descriptor table in Part I of the schedule to the regulations applied to him instead of the required 15. The grounds of appeal put forward on his behalf were that the tribunal's reasons for preferring the evidence of an examining doctor to that of himself and his own doctor as to how badly he was disabled were not sufficiently stated, and this was supported by the adjudication officer: see pages 81, 88-90. The main reason for that support was the adjudication officer's understanding based on what was said by another Commissioner in case CSIB 17/96 that it amounts to an error of law if specific findings and a statement of the reasons why a claimant's evidence has not been accepted in full are not separately recorded in relation to each descriptor that may possibly be in issue on the appeal. 

4. I am not sure that this ground of support was necessarily well founded in this case. The assessment of the sufficiency of a tribunal's stated reasons can never be a purely mechanistic exercise and I would be hesitant to hold a tribunal in error in law where, as here, the record shows them to have given careful consideration to the claimant's evidence and a fair reading of their stated reasons leaves very little room for doubt about why they reached the result they did. In particular, the paragraph on page 80A where they contrast 'what the appellant was saying' about whether he met the physical descriptors and 'what the doctor found on clinical examination' appears to me to make it perfectly obvious why they regarded the latter as the more reliable evidence of the claimant's actual capabilities. 

5. It is not however necessary for me to decide whether the appeal could have succeeded on that ground alone, as the papers show a much more serious flaw in the way this claimant's case has been dealt with. To understand this, it is necessary to bear in mind the way in which Part I of the descriptor table for the all work test is constructed, and the express requirements of the regulations as to how it is to be applied. (Part II, the mental descriptor table, operates in a different way and is not in point here). 

6. Under Part I of the schedule each activity to be tested for physical disabilities has several different descriptors and a number of points assigned to each. In each case the top descriptor in the table represents the most severe level of disability and carries the highest points; the bottom ones represent "no problems" which carry no points, and the ones in between represent a descending (not an ascending) scale of severity and appropriate point scores. Only one point score for each activity is to be taken, though as is clear from the descriptors themselves and from reg 26 two or even more descriptors may well be equally applicable to a person for any given activity. Reg 26(3) deals with this by making it mandatory that:
  
"(3) In determining a person's score in respect of descriptors specified in Part 1 where more than one descriptor specified for any activity applies to him, only one descriptor shall be counted and that shall be the descriptor with the highest score in respect of each activity which applies to him." 

7. Since the descriptors with the highest scores are the ones that appear the furthest up each section of the table, the only valid way to conduct an assessment of a person's physical disability score in accordance with this mandatory requirement of the regulations must therefore be to work down from the top of each section of the table and stop as soon as one comes to a descriptor that applies to him. 

8. Astonishingly, it appears that the examining doctor who carried out the all work test and prepared the medical report on which the tribunal mainly relied in deciding this case against the claimant did the precise opposite, because he had been given the impression in "training sessions" that this was what he should do. This emerges from a note obtained from the doctor and included among the papers before the tribunal, because the adjudication officer dealing with the case had been alert enough to spot an inconsistency between the claimant's own assessment of his disabilities on an earlier form and that attributed to him by the doctor in compiling the medical report: see pages 59-60. 
9. The doctor's response should be quoted in full:
  
"I cannot honestly recall but since these are contemporaneous notes I feel that the patient must have said this. In any event and in addition at the training sessions it was stressed to work from the bottom up and tick first appropriate descriptor."
10. The adjudication officer in a helpful further submission dated 12 May 1998 at pages 104-105 says 
  
"I submit that in adopting a system of scoring descriptors from the "bottom up" the EMO is operating a system that is not compatible with regulation 26(3) of the Social Security (Incapacity for Work)(General) Regulations 1995. This approach constitutes an error in law."
He makes the point that in the instant case (and no doubt in others) adopting a "bottom up" approach can directly affect the total number of points a claimant could score in the all work test.

11. I agree with that submission. Since the medical evidence on which the tribunal chiefly relied seems to have been prepared on a basis that was wrong and contrary to what the regulations expressly say, it must follow that their decision is unsafe and erroneous in law. I therefore set it aside and refer the case to a fresh tribunal which I direct to redetermine the case applying the correct basis of assessment under the regulations having regard to whatever further medical evidence is then before them.

12. This appeal is therefore allowed and the case remitted accordingly. There are obviously some disturbing implications if this doctor's apparent misunderstanding of what the all work test requires has affected the evidence given in other cases or the same "training" has infected other doctors but those are matters to be considered elsewhere.
(Signed)

P L Howell
Commissioner 

20 May 1998