CIB/2397/2002

1. This appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the Stevenage tribunal made on 21st November 2001 under reference U/42/137/2001/00401. I substitute my own decision. This is to the effect that on each day from and including 14th February 2001 the claimant continues to be incapable of work. I refer to the Secretary of State any questions relating to arrears or payment of any credits or benefit on this basis.

2. The claimant was born on 14th December 1945. She worked as an accountant until 1996, when she was made redundant. So far as concerns the present appeal she was certified as incapable of work with effect from 1st April 1999. She suffers from chronic renal failure and undergoes haemodialysis each Tuesday, Thursday and Saturday. On these days she has to rise at 5.45 am, get to the hospital, undergo dialysis for 2 hours, get home, and then sleep for up to 2 hours.

3. The Secretary of State awarded incapacity credits as from 18th April 2000 but subsequently decided to apply the scheme whereby the claimant’s capacity to work depends on the application of the Personal Capability Assessment. This is defined in regulation 24 of the Social Security (Incapacity for Work) (General) Regulations 1995. The rules for satisfying the assessment are set out in regulations 25 and 26. The Personal Capability Assessment itself is set out in the schedule to those regulations. A claimant’s capacity for work under this scheme depends on whether she has scored at least 15 points for physical descriptors in the assessment. (There is no evidence that mental descriptors are relevant in the present case). 

4. Accordingly, on 1st September 2000 the claimant returned form IB50, an incapacity for work questionnaire. She indicated, that none of the physical descriptors apply which would carry points. On 7th February 2001 the claimant was examined by Dr Black on behalf of the Benefits Agency. He agreed. He noted that on days on which she was not undergoing treatment the claimant lived a relatively normal life although on those days “she does tire more easily than she used to”.

5. On 14th February 2001 the Secretary of State decided that as from that date the claimant was to be treated as incapable of work on those days on which haemodialysis took place but in respect of all other days she was not incapable of work and was no longer entitled to credits. On 22nd June 2001 the claimant appealed to the tribunal against that decision. The tribunal met to consider the matter on 21st November 2001 and confirmed the decision of the Secretary of State. On 30th April 2002 a chairman of the tribunal refused to give the claimant leave to appeal to the Social Security Commissioner against the decision of the tribunal  She now appeals by leave of Mr Commissioner Bano granted on 29th August 2002. The Secretary of State agrees that the decision of the tribunal was made in error of law, but nevertheless submits that it made the only decision that was open to it. 

6. Regulation 13(2) of the Social Security (Incapacity for Work) (General) Regulations 1995 states:

13(2) A person referred to in [regulation 13(1)] shall be treated as incapable of work on any day on which he is engaged in that treatment.

Regulation 13(1)(a) refers to a person receiving:

13(1)(a) regular weekly treatment by way of haemodialysis for chronic renal failure or peritoneal dialysis for chronic renal failure.

Regulation 13(3) provides that:

13(3) A person who works during any week in which [she] receives treatment referred to in [regulation 13(1)] shall be treated as capable of work for the purposes of regulation 16 only on the actual day or days on which she works in that week.

Regulation 16 is about treating as capable of work people who actually work although they have been treated as or found to be incapable of work. It has no relevance in the present case, as the claimant does not in fact work.

7. The tribunal stated that it had considered regulation 13 but that:

“[it] was quite clear that it applied to a person who was actually working. None of the regulations dealt with a situation where a person was not working and then had to undergo treatment”.

8. These statements are incorrect as a matter of law. Regulation 13(3) only applies to a person who works but regulations 13(1) and (2) are not so limited. Possibly because of this error, the tribunal did not go on to consider regulation 6, although that regulation had been referred to in a submission to the tribunal made on behalf of the claimant. Regulation 6(1) deals with the “information or evidence required for the purposes of determining whether a person is capable or incapable of work”. However this is subject to regulation 6(3) which, so far as is relevant provides that:

	6(3) Paragraph (1) shall not apply in relation to a determination – 
(a)	…
(b)	whether a person is to be treated as incapable of work under any of regulations 10, 11 to 14.

9. The Secretary of State argues that regulation 6(3) only applies in respect of those days on which the claimant is treated as incapable of work by virtue of regulation 13, but that regulation 6(1) applies in respect of the other days. On behalf of the claimant it is submitted that if the claimant comes within regulation 13 on any days, then the situation is covered by regulation 6(3). On this point, the Secretary of State must be right. Otherwise regulation 13(2) would not limit the deemed incapacity to the days on which the claimant is engaged in treatment, but would treat the claimant as incapable of work for the whole of any week in which regular weekly treatment took place. Thus the evidence relating to the Personal Capability Assessment is relevant to those days on which the claimant is not engaged in treatment.

10. However, the claimant’s representatives have also referred to the decision of the Tribunal of Commissioners in R(IB) 2/99. The Commissioners held that, although incapacity benefit is a daily benefit, it does not follow that the all work test (the previous name given to the Personal Capability Assessment) “must be literally satisfied in relation to each day” (paragraph 13). A broad view should be taken, which includes considering the frequency of the bad days and the severity of the disablement on good and bad days. Each case has to judged on its merits and there are some cases where a claimant can properly be regarded as incapable of work both on days when the all work test is clearly satisfied and on other days in between those days, although there other cases where the claimant can be regarded as incapable of work only on days when the all work test is satisfied (paragraph 15).

11. As a matter of principle, there is no reason why the same approach should not be taken where credits are at stake, rather than benefit, and to cases where the days of incapacity are such by reference to regulation 13 rather than by reference to the Personal Capability Assessment. Indeed it would be unfair not to apply the same approach, especially since a claimant who is treated as incapable under regulation 13 might well be much more disabled on the relevant days than a claimant who scores 15 points on the Personal Capability Assessment in respect of the relevant days.
 
12. There is no dispute over the basic facts of this case and it is expedient that I substitute my own decision. The Secretary of State does not suggest that R(IB) 2/99 cannot apply in principle but argues that it does not apply on the facts of the present case. I disagree. Dialysis takes place on 3 days a week, she is more tired than previously on the other days, and although she is relatively well on those other days, taking a broad view of periods during which the claimant undergoes treatment, I do not see how it can be said in reality that the claimant is capable of work during those periods.

H. Levenson
Commissioner
11th April 2003