DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the tribunal is erroneous in point of law.  I set aside the tribunal’s decision, and, since I consider it expedient to do so, I make my own findings of fact and substitute for the tribunal’s decision my own decision that the claimant was entitled to incapacity benefit for the period from 6 April 1998 to 31 August 1999.

2.	This appeal arises out of a decision made as long ago as 6 April 1998 that the claimant was not entitled to incapacity benefit because he did not satisfy the all work test of entitlement to benefit  The claimant, who suffers from a number of relevant physical and mental conditions, was found not to satisfy the test on the basis of an assessment of 9 points for physical descriptors and 3 points for mental descriptors made by an examining medical officer on 25 March 1998.  On 24 June 1999 a tribunal awarded the claimant a further 3 points for physical descriptors, but since the new total of 12 points was still less than the 15 points required to satisfy the all work test, the tribunal dismissed the appeal.  However, on 24 October 2000 a deputy Commissioner allowed the claimant’s appeal against the first tribunal’s decision on the ground that the tribunal had not dealt in sufficient detail with the mental descriptors and the case was eventually re-heard by a new tribunal on 20 November 2001.  On that occasion the tribunal awarded the claimant 12 points in respect of physical descriptors and 5 points in respect of mental descriptors, but since the score in respect of mental descriptors was still less than the 6 necessary to enable those points to be added to the points for physical descriptors, the tribunal again dismissed the appeal.  

3.	The evidence which was before both tribunals included a report from a consultant psychiatrist dated 12 April 1999 diagnosing the claimant as having a paranoid personality structure and summarising his mental condition as follows:

	“In summary, therefore, this man has long-standing difficulties in his personality structure, which whilst not amounting to a mental illness, certainly causes him great distress and has resulted in him having a very poor history of peer relationships.”

The tribunal considered that evidence in reaching their findings in respect of the daily living descriptors (Activity 16), which they expressed as follows:

	“The adjudication officer accepted that due to his back pain the appellant has difficulty in sleeping.  His mind races, he has strange dreams and is left feeling rough and exhausted the following day.  The examining doctor commented that he had little motivation and had to force himself 16(e) 1 point confirmed.  The appellant claims that he is frequently distressed at some time of the day due to fluctuation of moods.  He specifically states that he becomes tearful and upset, particularly early evening when he has to face the long night ahead.  The consultant psychiatrist confirms that he suffers great stress.  However, on evidence, the only time he is distressed is early evening.  The descriptor looks to the frequency of the mood change rather than the significance of quality.  A change once a day does not suffice  CSIB/2/96.  16(c) – no point awarded.”

4.	Descriptor 16(c) is satisfied if a claimant “is frequently distressed at some time of the day due to fluctuation of mood” and, as the tribunal noted, in CSIB/2/96 it was held that the term “frequent” in descriptor 16(c) denotes a substantial or significant number of times during the day.  However, in Northern Ireland decision C25/01-02(IB) the Commissioner disagreed with that decision, and held that distress which occurred once per day could or could not be frequent, depending on the other circumstances.  The Commissioner said:

	“I do not, however, agree that distress taking place once a day cannot as a matter of law be said to be frequent distress.  I think distress once per day could or could not be frequent depending on other circumstances e.g. duration.  The word “frequently” is an ordinary English word and it is for the Tribunal to apply.  It would be reasonable to conclude, depending on the context and the surrounding circumstances, that distress once per day either was or was not frequent.  I do not think it can be said as a matter law that distress taking place at least once a day, either can or can not be said to be frequent.  Had the legislature wished to say that distress had to take place more than once a day, it could quite easily have done so by some phrase such as ‘frequently and more than once per day’.  It did not do so.”

I granted leave to appeal on 3 May 2002 in order to consider whether the tribunal applied descriptor 16(c) correctly in the light of C25/01-02(IB), and  in a submission dated 22 May 2002 the Secretary of State’s representative supported the appeal and suggested that I should substitute my own decision that the claimant did satisfy descriptor 16(c) and, accordingly, was entitled to benefit.

5.	I  agree with the Commissioner in C/25/01-02(IB) that descriptor 16(c) does not require episodes of distress due to fluctuation of mood to take place more frequently that once each day, but I would approach the question of when a claimant can be said to be frequently distressed due to fluctuation in mood in a somewhat different way.  I share the view of the Commissioner that the words “at some time of the day” do not indicate the unit of time by reference to which the  frequency of episodes of distress must be assessed.  However, I consider that the purpose of those  words is to indicate that it is episodes of distress which occur during day-time hours which are to be taken into account in deciding if the descriptor is satisfied.  In the context of mental disability, distress which occurs at night has a different significance from distress which occurs during the day, and I consider that the words “at some time of the day” in descriptor 16(c) indicate that it is only diurnal episodes of distress due to fluctuation in mood which are to be taken into account.  In my view, the descriptor is satisfied if day-time episodes of distress due to fluctuation of mood occur frequently over a period of days, irrespective of whether they take place more or less often than once a day.  However, whilst the duration or severity of any particular incident may be relevant in deciding whether it is sufficiently significant to be taken into account, I respectfully question whether such matters are relevant in deciding whether distress is frequent.

6.	The claimant stated that he became tearful and upset particularly in the early evening, and, as the Secretary of State’s representative has pointed out, that statement was consistent with the claimant also becoming upset at other times.  On the basis of the evidence which was accepted by the tribunal, it seems clear that the claimant suffered episodes of distress in the evenings and also at other times due to fluctuation of mood on a virtually daily basis. For the reasons I have given, I consider that the claimant did satisfy descriptor 16(c), and was therefore entitled to one additional point for mental disabilities.  The total points score to which the claimant was entitled for mental disabilities was therefore 6, which added to the points score of 12 for physical disabilities, gives a total score of 18 points and so entitled him to an award of incapacity benefit.  I consider it expedient to substitute for the tribunal’s decision my own decision to that effect, but because the claimant made a new claim, the award must be for the fixed period from 6 April 1998 to 31 August 1999.

					(Signed)	E A L Bano
							Commissioner

					(Date)		19 June 2002