PLH                                                                             Commissioner's File:  CIB 2061/01

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Incapacity Benefit
Tribunal:	Sunderland
Tribunal case ref:	U/44/236/2000/02324
Tribunal date:	5 December 2000
Reasons issued:	5 April 2001

1.	This claimant’s appeal must be dismissed, as in my judgment there was no error of law in the decision of the tribunal sitting at Sunderland on 5 December 2000, that she was not entitled to incapacity benefit from 26 July 2000 because her condition did not qualify her for the required number of points on either the physical or the mental descriptor scales for what is now called the “personal capability assessment”.
2.	The claimant is a lady now aged 51 who according to the medical evidence is of an anxious disposition and has an extended history of emotional or nervous difficulties, from which other members of her family have also suffered.  There is no dispute that at the time the tribunal were concerned with she was still suffering from the after-effects of the death of her mother who she had looked after, and was having a struggle to cope with her own life because of loneliness and financial difficulties which meant that she was having to sell her mother's house.  She had been diagnosed by her GP as suffering a reactive depression and prescribed valium, and was still experiencing anxiety, panic attacks and mood swings.  
3.	She was examined by a doctor on behalf of the department on 6 July 2000. Although he accepted that she was suffering from stress and other problems at this period of her life he did not find that she qualified for points on any of the very specific descriptors on the personal capability scales, for reasons which he identified in detail in his report.  For example her condition did not cause her to withdraw and sit for hours doing nothing, she could concentrate to watch and follow a TV programme and complete normal tasks, she did not need encouragement to get up and dress in the morning, she was still managing to care for her personal appearance and sleep problems were not interfering with her daytime activities.  His assessment was that she scored no points on the mental descriptor activities, and none on the physical scale either, since he found that she did not have physical difficulties with sitting or rising from sitting even though she had identified problems with these due to restlessness and anxiety and the medication she was taking.  
4.	On the basis of that report the incapacity benefit she had previously been getting (on the basis I think of her own GP’s diagnosis following the death of her mother on 22 March 1999) was terminated, and the issue before the tribunal on appeal against that decision was whether the Secretary of State had been justified in doing so.  Rightly recognising that this issue depended purely on questions of medical and factual judgment about the practical effects of her condition in terms of the descriptor scales, the Sunderland welfare rights officer (who was by then acting as her representative, and has done an excellent job of pursuing the proceedings on her behalf) obtained medical reports from her own GP and a consultant psychiatrist in support of the challenge to the examining doctor’s findings.  
5.	The GP’s letter dated 3 November 2000 at page 55 was in very guarded and qualified terms emphasising that he did not wish to be put in a position antagonistic to the detailed assessment of the Benefits Agency doctor “who it should be remembered has full training and expertise in these matters, whereas I have not”.  The GP merely suggested tentatively that he “suspected” the claimant would or might score points on some of the descriptors for completion of tasks, coping with pressure and interaction with other people.  The report of the consultant psychiatrist Dr Morgan dated 10 November 2000 at pages 56 to 64 went into her psychiatric history in a lot more detail and concluded by expressing the general opinion that “given her personality and depressive illness, in my opinion because of her mental disability, she is eligible for incapacity benefit”.  However when it came to the detailed descriptors for mental disability his report records simply that the claimant herself told him which of these applied to her, such as “she often sits for hours doing nothing” and merely totalled up the points attributable to these statements (which came to 11) without recording any findings or opinion of the consultant himself independently of what the claimant had said.  
6.	Her appeal to the tribunal was also on general grounds, that the decision to take away her incapacity benefit was wrong because the nervous illness from which she was suffering meant that she could not do a job of work at the present time: see page 51.  
7.	The tribunal gave what was obviously full and careful consideration to the claimant’s appeal, and rejected it.  In particular they did so because they carried out their own assessment of the various mental health descriptors taking account of what the claimant told them in evidence herself at the hearing, in conjunction with various questions they asked her to enable them to form their own view of whether points on any of the mental descriptors were appropriate, in a more sophisticated way than asking her directly about them as a mere checklist.  As they put it in the statement of reasons for their decision issued to the parties on 5 April 2001 at pages 66E to 66G: 
“7.  The tribunal spent considerable time with the appellant discussing her daily life and routines which encompassed situations covered by the various mental health descriptors. The tribunal was mindful that when conducting the mental health assessment, evidence should elicited by careful questioning and conversation rather than through direct questioning on the specific descriptors”.
8.	The tribunal then proceeded to go through a number of the specific points and comments made to them by the claimant, who as they recorded “talked in quite a lively and forthcoming way about her life”, and concluded that they could not find any of the mental health descriptors which would actually apply to her and she displayed no symptoms which would justify any of the mental health descriptors being applicable.  They expressed themselves in agreement with the findings of the examining doctor, who had similarly spent time addressing each of the descriptors, that while she may have suffered the usual bereavement problems after the death of her mother she seemed to be coping better by the time of that examination and the decision under appeal, and accordingly did not score points on the mental health descriptor scale.  
9.	They explained their reasons for preferring their own and the examining doctor’s findings about these descriptors to what was said in the medical evidence produced on behalf of the claimant as follows: 
“12.  The tribunal compared and contrasted the Benefits Agency Medical Service’s doctor’s findings and their own findings, with those of the report from Dr Peter Morgan dated 10 November 2000.  That report again identified [that] the death of the appellant’s mother had caused anxiety and a feeling of being unable to cope.  When it came to dealing with the mental health assessment within the personal capability assessment test Dr Morgan merely based his apportioning of points on what the appellant told him.  He identified the descriptors which the appellant had told him were appropriate, which totalled 11 points.  However, in relation to each of those descriptors he did not identify any clinical findings of his own or any objective testing to support those descriptors.  The tribunal found this a considerable weakness in the report.  On the balance of probabilities, and carefully weighing up all of the evidence the tribunal did not find that Dr Morgan had produced objective clinical evidence based on testings and findings of his own to support those 11 points but had merely repeated what the appellant had told him she felt were appropriate in terms of the descriptors.  Accordingly, the tribunal rejected that evidence as support for any findings under the mental health descriptors.”
They also explained why they accepted the examining doctor’s assessment of no points under either of the two physical descriptors the claimant had identified, and concluded that as there were no points awarded from either physical or mental health assessments the appeal was disallowed.  
10.	Against that decision the claimant appeals with the leave of the Commissioner granted on 11 September 2001, on two principal grounds each related to the mental health assessment only.  Rightly in my view, there is no appeal against the tribunal’s finding that she was entitled to no points on the physical descriptor scale as I do not think there is any arguable ground for challenging that part of their decision as erroneous in law.  The two grounds of appeal on the mental health aspects of the case are first that the tribunal had erred in carrying out what amounted to an “examination” of the claimant for themselves in the course of the hearing, even using that word at one point when referring to their questioning and discussion with her of her evidence about the effects of her condition on her daily life and ability to cope. Second, that their reasons for rejecting the report of the consultant psychiatrist Dr Morgan had been perverse and inadequately explained given his detailed reference to her psychiatric history and express conclusion that in his opinion because of her mental disability she was eligible for the benefit. 
11.	In my judgment however, neither of these contentions is well founded.  The prohibition which now appears in section 20(3) Social Security Act 1998 against an appeal tribunal carrying out its own physical examination of a claimant at the hearing (except in prescribed circumstances which do not apply to this case) has only ever applied to physical examinations, and even in that context has never prevented the tribunal relying on their own ocular observation of the claimant’s demeanour, behaviour and capabilities in appearing before them: see decision R(D) 1/95.  Plainly there is no question of the tribunal having infringed this prohibition in their “examination” (a word which I venture to think the tribunal chairman in his statement of reasons was using more in a legal than a medical sense) of the claimant, and what she was telling them about the practical effects of her mental condition in the course of the discussion at the hearing.  
12.	I agree with the submission dated 5 October 2001 at pages 82 to 83 by Mr N Sowden on behalf of the Secretary of State, that the way the tribunal went into the relevant mental descriptor issues with the claimant at the hearing in this case was a perfectly proper and usual approach to take.  As he rightly points out, they were faced with a conflict of medical reports and therefore had to attempt to decide for themselves which if any of the mental health descriptors were appropriate: the role of the tribunal is an inquisitorial one, and in the circumstances of this case it is difficult to see how they could properly have discharged it other than in the way they did.  
13.	Similarly in my judgment the Secretary of State’s submission is right to resist the second ground of appeal on the way the tribunal dealt with the evidence in Dr Morgan’s report.  It is of course correct to say that as recorded in that report Dr Morgan had gone carefully into the claimant’s previous medical history and applied tests of his own for the purpose of his own diagnosis and assessment of her condition, mentioning in particular concentration and short-term memory tests which both elicited some abnormality.  However it is also true that in the report Dr Morgan failed to record any objective clinical assessment of his own addressing the specific questions relevant to the mental health descriptors, independent of the statements he recorded the claimant herself as making to him about the ones she considered applied. In my judgment the tribunal were entirely justified in finding that a significant omission, which substantially detracted from the weight to be placed on the general conclusion in the claimant’s favour expressed at the end of the report.  
14.	Under the incapacity benefit legislation the decision on questions of medical fact and degree such as this case depended on is one to be made by the tribunal, which includes a medically qualified member as well as the legal chairman: the considered decision of the tribunal on such a question cannot be interfered with on appeal unless some issue of law, as distinct from medical and factual judgment, arises.  Here in my judgment the tribunal’s conclusion was justified on the evidence before them, was not one that could be characterised as intrinsically perverse, and was adequately and clearly explained in their statement of reasons.  I am not therefore persuaded that any error of law has been shown to warrant setting it aside.
15.	For those reasons, there being in my view no other arguable way in which it could have been said that the tribunal decision was erroneous in law, this appeal is dismissed.

(Signed)
P L Howell
Commissioner
2 January 2002