Comissioners file:  CIB/5133/2001

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.  This appeal is dismissed.  The appeal is brought with the leave of a chairman from a decision of a tribunal given on 17 May 2001.  The claimant has indicated that he does not require an oral hearing of this appeal and I am satisfied that I can determine the appeal without such a hearing.

2.  The claimant was born in 1937.  He is self-employed and in 2000 he was working about 16 hours a week as a driver/porter.  In particular he would drive his wife to market and boot fairs.  His records (file, pp.3-4) show that between October 1996 and April 2000, a period of three and a half years, he was off work due to sickness 28 times, generally for periods of 4 to 7 days.  Most of these absences were self-certified, in 18 cases (in 2 of which a medical certificate was provided) with a diagnosis of back sprain, in 8 of which cases the back sprain was coupled with leg sprain or leg cramps.  Two of the absences were due to laryngitis, a medical certificate being provided in each case, although a third absence on grounds of laryngitis and flu was self certified.  Six of the later absences were self-certified as due to sinus and throat problems, in one case coupled with stomach problems, while one early absence was self-certified as due to gastric flu.

2.  On the 27th occasion, the claimant claimed incapacity benefit between 5 and 11 March 2000, a total of 7 days, due to a bad attack of sinus and throat problems.  This claim was self-certified and was accepted.  He then made a further self-certified claim for a period of 6 days from 25 to 30 April 2000.  This claim was dated 10 May 2000, but is stated at p.1B of the file to have been made on 15 May 2000.

3.  Regulation 2(1) of the Social Security (Medical Evidence) Regulations 1976, so far as applicable, provides that, subject to regulation 5, where a person claims that he is entitled to any benefit and his entitlement to that benefit depends on his being incapable of work, then in respect of each day until he has been assessed for the purposes of the personal capability assessment he shall provide evidence of such incapacity as set out in that regulation.  In most cases, what is required is a medical certificate in the prescribed form.  Regulation 5 permits self-certification for a spell of incapacity which lasts less than 8 days or for the first 7 days of a longer spell of incapacity.

4.  Regulation 5(2) provides that “spell of incapacity” has the meaning given to it by section 171B(3) of the Social Security Contributions and Benefits Act 1992.  That section in turn provides that a spell of incapacity means a series of 4 or more consecutive days of incapacity for work, and that any two such spells not separated by a period of more than 8 weeks shall be treated as one spell of incapacity.  Once two such spells are treated as a single spell by virtue of this provision, it must in turn be treated as a single spell together with a subsequent spell which occurs within the next 8 weeks, and this “triple period” single spell will in turn will be subject to aggregation with a later spell within 8 weeks, and so on.

5.  As the period from 25 to 30 April was not separated from the earlier period of 5 to 11 March by more than 8 weeks, the two periods were therefore to be treated as one spell of incapacity for the purposes of regulation 5.  Indeed, one has to go back to 1997 to find a time when a period in excess of 8 weeks did separate two periods of incapacity.

6. The own occupation test normally applies whenever a person has been engaged in remunerative work for more than 8 weeks in the preceding 21 weeks.  However, it only applies until the 197th day of incapacity for work in a particular spell of incapacity.  Remarkably, in the present case the spells of incapacity going back to May 1997 are never separated by a  period of more than 8 weeks.  Moreover, when one totals the days of incapacity from May 1997, the 197th day was on 11th March 2000.  It follows that the proper test to be applied in April 2000 was the all work test and not the own occupation test.

6.  On previous occasions, the claims had been accepted despite the absence of medical evidence, but on this occasion the decision maker decided not to accept it immediately but to refer it for an opinion from the medical services (file, p.11).  Meanwhile, the claimant made a further claim for incapacity benefit for the period from 5 to 18 June 2000 during which period he had been suffering from what he described as sciatica.  He provided a medical certificate from his GP dated 12 June 2000 that he should refrain from work for 1 week due to back pain.  This claim was accepted.  The proper test to be applied in this case would have been the all work test if the claimant had been incapable of work in April 2000, but would have been the own occupation test if he had not been incapable of work in April 2000 as more than 8 weeks would then have elapsed since March 2000.

7.  The medical examination took place on 25 July 2000.  The claimant appears to have described his history of sinus, stomach and back problems, and the medicines he took for them.  However, he only produced out of date zantac tablets with no name on the container.  The examination on that day disclosed no problems at that time, but, as the claimant points out, he had no problems on that day.  The examination appears to have had no regard at all to the question of the claimant’s ability to work between 25 and 30 April, and the examining medical practitioner does not seem to have appreciated that his services were required in relation to that claim.  His report is of no value at all in the circumstances on that issue, and the decision maker should have derived no benefit from it in coming to a conclusion on the claim for that period.

8.  Early in August, the claimant submitted a further claim for the period from 31 July to 5 August.  On this occasion he stated that he had a sprained back making it difficult to lift and drive any distance.  Once again, as this was within 8 weeks of the June claim, it ought to have been accompanied by medical evidence, but once again it was self-certified.  Instead of asking for medical evidence, the decision maker relied on the examination of 25 July in rejecting the claim together with the April claim on 23 November 2000.  Once again, this is incomprehensible, as a medical examination on that date, when the claimant was not claiming any problem, was of little if any value in determining whether the claimant had subsequently sprained, or otherwise hurt, his back, and if so whether that meant that he could not, or should not, work.

9.  The decision maker also pointed out that there was no evidence whatsoever of any back or sinus problems which would be expected if these claimed long term conditions existed.  At least as regards back problems, this is not entirely correct, as it appears from p.3 of the file that medical certificates had been supplied in respect of back problems twice in 1997 in addition to that provided in June 2000.  There also seems to have been a medical certificate in 1998 stating that the claimant had been referred to an ENT surgeon, although that was in relation to a diagnosis of laryngitis and not sinus problems.

10. The claimant appealed, stating that he had been suffering from sinus problems for 45 years and that these problems were well documented.  He also stated that he had suffered from back problems for 10 years and they were also documented.  Therefore he could not understand why it was stated that there was no evidence.  He also stated that he understood that if a claim for 7 days or less was made then there should be self-certification, but that a doctor would not issue a medical certificate if you returned to work in 7 days or less.

11. A decision maker then reviewed the decision of 23 November 2000 but considered it to be correct principally on the ground that the claimant had produced no evidence of his incapacity.

12.  It appears from the tribunal file that in February 2001 the claimant completed, signed and returned to the tribunal a form stating that he wanted a paper hearing.  He also stated in box 6 that he had no more evidence that he wanted to put before the tribunal.  Box 7 contains an authority, which the claimant gave, for the Appeals Service to get medical evidence.  However, the box begins “You are responsible for getting medical evidence.”  It was thus drawn to the attention of the claimant in the clearest possible way that it was for him to provide medical evidence.  This followed two decisions pointing out the lack of evidence.  The claimant therefore had every opportunity to produce medical evidence to the tribunal confirming a history of back and sinus problems, but failed to do so.

13. In those circumstances, the tribunal was amply justified in dismissing his appeal for the reasons given by it.  While it may be that the past incorrect treatment of his claims, coupled with the misleading information given to him in the Notes SC1 for October 1996 (file, pp.60-61) might have been a legitimate reason for his original failures to produce a medical certificate when making the two claims, as to which I express no opinion, he had no excuse for not producing medical evidence to the tribunal as to his medical history, and would then have been well advised to attend and give evidence personally as well.
  
14. If the current advice to claimants as to when a medical certificate is needed is in the same terms as at p.61 of the file, then it would be desirable for it to be amended to draw attention to the need for a medical certificate at an earlier stage on the second of two linked claims. 

15.  With reference to the points made by the claimant on his present appeal –
 a.  The combined effect of regulation 5 of the Medical Evidence Regulations and s.171B(3) of the Social Security Contributions and Benefits Act is that two spells of incapacity of 4 consecutive days or more not separated by a period of more than 8 weeks are treated as one spell of incapacity, so that after a total of 7 days of incapacity medical evidence is required. This is so even if there are different illnesses involved.
b.  The own occupation test applies whenever a person has been engaged in remunerative work for more than 8 weeks in the preceding 21 weeks until the 197th day of incapacity in any spell of incapacity as defined by s.171B(3) of the 1992 Act.  In any event, it is irrelevant to the application of regulation 5 whether it applies in a particular case or not.  The definition of “spell of incapacity” is imported into regulation 5 independently of the rest of s.171B.  
c.  The appropriate test in April 2000 should have been the all work test and not the own occupation test, but this could not have affected the decision of the tribunal, which turned on the absence of medical evidence to support the claim.   
d.  I agree with the observations made by the claimant as to the examining medical practitioner’s findings.  However, the claimant had the opportunity of taking along with him any medication for his sinus problems, but did not do so.
e.  The claimant was also given the opportunity to produce medical notes before the tribunal, and chose not to do so.

16. The appeal is accordingly dismissed.

					(signed)	Michael Mark
							Deputy Commissioner

							19 June 2002