Commissioners file:  CIB/5083/2001

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.  For the reasons given below, this appeal is dismissed.  The appeal is brought with the leave of a commissioner from the decision of the Bristol Appeal Tribunal given on 28 August 2001 that the claimant scored only 14 points on the personal capability test and that his appeal from the decision of the secretary of state that the claimant was not entitled to incapacity benefit from and including 28 March 2001 because he was capable of work was therefore refused.

2.  The claimant’s grounds for this appeal were essentially that he was not capable of work as was demonstrated by the fact that he underwent major surgery on his back in July 2001 and that he ought to have been awarded an additional 3 points on the personal capability assessment in that sometimes he could not rise from sitting to standing without holding on to something.

3.  The fact that the claimant was not fit to return to work does not mean that he was entitled to incapacity benefit.  Normally that entitlement only arises when a claimant scores 15 points or more on the personal capability assessment.  However, the commissioner who granted leave to appeal raised the question whether this claimant was entitled to incapacity benefit by reason of regulation 27(2)(c) (the reference to regulation 27(1)(c) is plainly a typographical error) of the Social Security (Incapacity for Work)(General) Regulations 1995 in the light of the evidence before the tribunal that he had needed the major surgery to which I have referred. 

4.  Regulation 27(1) provides that the claimant is to be treated as incapable of work if any of the circumstances in regulation 27(2) apply to him.  Regulation 27(2)(c) covers the case where there exists medical evidence that he requires a major surgical operation or other major therapeutic procedure and it is likely that the operation or procedure will be carried out within 3 months of the date of a medical examination carried out for the purposes of the personal capability assessment.

5.  The medical examination was carried out on 15 February 2001.  At that date, there seems to have been no evidence that any major surgical operation was required.   However, after appealing from the decision of the decision maker, the claimant had an MRI scan (the notice of appeal dated 5 April 2001 stated that he was going to the hospital on 12 April, and would possibly have an MRI scan), and on 23 April a doctor at the hospital recommended an operation after seeing the result of the scan (file p.95).

6.  At least from that time onwards, the claimant would have been entitled to                                                                                                                                                                                                                                                                                                                                                                                                                apply afresh for incapacity benefit and to rely on regulation 27 as establishing his incapacity for work and his entitlement to benefit.  However, the abolition of the “down to the date of the decision” rule meant that the tribunal could only consider the position up to 28 March 2001, and the wording of regulation 27 quoted above meant that that regulation could only assist him if his operation was likely within 3 months of the medical examination on 15 February 2001.  There has never been any suggestion that that was the case.

7.  Accordingly, regulation 27 had no application and the tribunal was correct to ignore it in coming to its decision.

8.  The medical evidence confirms that the claimant had a serious problem with his back.  However, that cannot conclude the claim in his favour.  The issue on the personal capability assessment was the extent to which that problem prevented the claimant from performing the functions with which the assessment was concerned.  The claimant has taken issue with only one finding by the tribunal in this respect.  He contends that he ought to have been awarded an additional 3 points on the ground that he sometimes could not rise from an upright chair without holding on to something (file p.122).  The decision maker had awarded him 3 points for this descriptor, but he told the tribunal that at times when he was suffering, he had to use the chair arms to get up and that when there were no arms he would put his hands on his knees, put his feet behind him and get up that way.  In my judgment the expression “without holding onto something” does not cover holding on to his own knees.   The tribunal was entitled to conclude, as it did, that he was not entitled to any points under this descriptor, and it gave good reasons for this conclusion.  The appeal is therefore dismissed. 

(signed)	Michael Mark
		Deputy Commissioner

		18 June 2002
CIB/5083/2001