DECISION OF SOCIAL SECURITY COMMISSIONER

Commissioner’s Decisions: CSIB 1521 2001

1.	The claimant’s appeal, brought with leave of the chairman, succeeds.  I find an error of law in the decision of the Glasgow appeal tribunal (the tribunal) sitting on 28 September 2001.

2.	This appeal has the support of the Secretary of State.  Using my powers under s.14(8)(a)(i) of the Social Security Act 1998, I set aside the tribunal’s decision and substitute my own in its place to the following effect:-

The claimant remains entitled to Incapacity Benefit from and including 4 February 2001 on the basis that he reaches 10 points from mental health descriptors under Part II of the Schedule (the schedule) to the Social Security (Incapacity for Work) (General) Regulations 1995 (the regulations).  In addition to points for descriptors 16(a), 16(c), 16(d), 17(c), 17(d), 17(f) and 18(d), awarded by the tribunal, he satisfies 18(b).  This brings points arising under the mental health descriptors to the requisite 10 points.  He therefore satisfies the personal capability assessment (PCA).  Offset is to be made, if appropriate, for any job seeker’s allowance already paid in the period in respect of which arrears of incapacity benefit now fall due.

The issue

3.	Does mental health descriptor 18(b) (18(b)) require physical violence by the claimant?

4.	18(b) falls under the activity “interaction with other people” and reads:-

“Gets upset by ordinary events and it results in disruptive behavioural problems.”

Background

5.	When completing his IB50, the claimant said he feels irritable.  He constantly shouts and argues with his wife and family, including his two year old daughter.  The examining doctor accepted that the claimant describes irritability and that he loses his temper.  The claimant’s general practitioner documents mood swings associated with irritability. 

6.	Having seen and heard the claimant, the tribunal considered him a credible witness.  Specifically, the tribunal found that he suffered regularly from mood swings which could last several hours and is uptight and loses his temper easily, which could be triggered off by anything.  However, although he shouts and argues, he does not demonstrate any physical violence nor make any attempts at self-harm.  

7.	Although the tribunal added several mental health descriptors (the Secretary of State had awarded only descriptor 18(d)), the tribunal refused 18(b):-

“…. we note that the appellant told us freely that he never indulges in physical violence.  Likewise, he is never actually engaged in suicide or self-harm.  He stated early on in the hearing that he was ‘destructive’ but no specific indication of this other than in terms of general verbal abuse was offered later in evidence.  We gained the overall impression from the appellant’s evidence therefore that his behaviour involving, as it often did, displays of bad temper and sometimes shouting nonetheless fell short of what could be described as ‘disruptive behavioural problems’.  We did not consider that the reactions which the appellant showed to everyday events went quite so far as this.”

Appeal to the Commissioner

8.	The claimant’s representative appealed to the Commissioner on his behalf.  It is submitted that shouting, arguing and verbal abuse represents disruptive behaviour in the context of family life.  It is not necessary that the claimant resorts to physical violence.

9.	The written submission from the Secretary of State supports the appeal.  It is suggested that I substitute my own decision in the case in the appellant’s favour, having found 18(b) to be satisfied.

Oral Hearing

10.	The case came before me for an oral hearing at my direction on 4 July 2002.  The claimant was represented by Mr Gerald Boyle, from Greater Easterhouse Money Advice Centre, who has represented him throughout.  The Secretary of State was represented by Ms Stirling, Advocate, instructed by Ms Cullen, Solicitor, of the Office of the Solicitor to the Advocate General.  I am indebted to them both.  Ms Stirling adhered to the Secretary of State’s written submission that the tribunal’s decision was erroneous in law because it appeared to require an element of physical violence for satisfaction of 18(b). She also asked me to substitute my own decision in the claimant’s favour.

My conclusion and reasons

11.	The various descriptors deal with different matters.  Otherwise, there is no point in each descriptor existing separately.  Consequently, the exact terms of each descriptor and activity are crucial.  However, this does not prevent, in a particular case, the evidence relevant to one being also relevant to another.  By the reasoning utilised by Commissioner Mitchell in CSIB/13/96 there is no bar to double counting, so that the same circumstances may constitute full or part satisfaction of more than descriptor.  In all instances, there is, of course, the precondition that the cause of any difficulty is a mental health disablement.  

12.	Possible overlapping descriptors with 18(b) are 16(c) (“is frequently distressed at some time of the day due to fluctuation of mood”) and 18(d) (“gets irritated by things that would not have bothered him before he became ill”).  Both descriptors were held by the tribunal to be satisfied.

13.	“Disruptive” means bursting or breaking asunder.  However, although at first this might seem to indicate a forcible severance, this is not necessarily so.  The most famous historical example is the Disruption, which was the great split in the Established Church of Scotland.  On 18 May 1843, 451 ministers walked out of the church in which they were gathered (St Andrew’s and St George’s) in Edinburgh and formed the Free Church of Scotland.  No physical violence was involved but their action seriously interrupted the continuity of the status quo.  

14.	Likewise, the claimant’s conduct has to be extreme enough to affect the fabric of life around him, whether at home or in the wider community.  This must be inherent in the fact that two points are awarded rather than simply one, as for “irritated” in 18(d).  However, the tribunal erred in considering that physical violence was essential.  

15.	On the evidence in this case, there is substantial overlap with descriptor 18(d).  However, a claimant could satisfy 18(d) where what irritates him are not ordinary events, as in 18(b), provided they  would not have bothered him before he became ill; or a claimant may show his irritation by sulking or becoming merely peevish, neither of which would amount to such extreme active conduct as is required for 18(b).  Conversely, “disruptive behavioural problems” may constitute sobbing and emotional displays rather than shouting and verbal abuse, so that a claimant might satisfy 18(b) but not 18(d) because no annoyance is demonstrated.

16.	As the tribunal applied too stringent an approach for 18(b), I must set aside its decision.  Provided it applies the correct legal test, a tribunal errs in law only if it draws inferences from the evidence which no reasonable adjudicator could draw.  The evidence here is borderline and a reasonable tribunal could have concluded from it that the claimant’s conduct was not so extreme as to satisfy 18(b).  However, the issue for me is whether I should remit to a new tribunal to begin again or substitute my own decision.  A reasonable tribunal could equally and rationally infer that 18(b) is satisfied on the evidence accepted by the tribunal.  Given that both parties urge me to substitute my own decision in the claimant’s favour, I therefore use my own judgement to do so.  

17.	The appeal is accordingly allowed and my substituted decision is as set out at paragraph 2 above.

					(Signed)
					L T PARKER
					Commissioner
					Date:  11 July 2002