CIB/748/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Blackpool appeal tribunal dated 30 October 2001 and I substitute my own decision, which is that the claimant’s award of incapacity benefit is superseded with effect from 6 June 2001 but “at the same rate” so that he remained entitled to incapacity benefit.

2.	The claimant had been awarded incapacity benefit from 9 May 2000.  On 4 June 2001, the claimant was examined by a medical practitioner for the purposes of a personal capability assessment and in the light of his report the Secretary of State decided that he scored only six points and so was not to be treated as incapable of work.  His existing award of incapacity benefit was superseded on that basis with effect from 6 June 2001.  The claimant appealed.  The Secretary of State refused to revise the decision and so the case came before the tribunal.  The tribunal awarded him 8 points.  The claimant now appeals against the tribunal’s decision on a point of law.  The appeal is supported by the Secretary of State.

3.	The claimant’s doctor had diagnosed anxiety, depression and alcoholism.  The tribunal accepted the first two diagnoses but “did not accept that he was suffering from mental disablement brought on by chronic alcoholism” because they found him mentally alert and able to follow proceedings and answer the questions without any hesitation and without prompting.  The claimant challenges this finding on the ground that it is based on a medical examination by the tribunal.  I do not accept that criticism because the tribunal were entitled to rely on their observations.  In any event, the criticism is not important because the question before the tribunal was whether, by reason of mental disablement, the claimant satisfied the relevant descriptors in Part II of the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 and the precise diagnosis was only of indirect relevance.

4.	The claimant’s second ground of appeal is that the tribunal had wrongly found that he did not satisfy descriptor 15(a),

“Cannot answer the telephone and reliably take a message.” 

The Secretary of State, adopting the examining medical officer’s opinion, had accepted that the claimant did satisfy that descriptor.  The tribunal chairman, in the statement of the tribunal’s reasons, explained –

“There were two reasons for this.  The first being that when he was asked what he would do if a pipe burst he said that he could not cope and that ‘I would ring the Council’.  It was not only the statement that he would ‘ring the Council’ that persuaded us that he would have no difficulty using the telephone but the manner in which it was said i.e. there was no hesitation, that it was the obvious thing to do.  The second reason why we would not allow this particular ground was that under regulation 24 [of the 1995 Regulations] mental points can only be scored if they result from mental disablement.  As we had not found that he was suffering from chronic alcoholism and that it was his consumption of alcohol which prompted the examining doctor to award points on this ground, the ground had to be disallowed.”

Both parties criticise those reasons on the ground that the descriptor deals with the ability to answer the telephone and reliably take a message rather than the ability to make a call.  I agree.  The tribunal were right in their construction of regulation 24 but they do not appear to have considered the possibility that, even if the claimant was not suffering from chronic alcoholism, he might have been unable to answer the telephone and reliably take a message because of his chronic anxiety.  The claimant in fact attributes his difficulty to both anxiety and drink.

5.	The tribunal had also found that the claimant satisfied the descriptor 16(b),

“Needs alcohol before midday.”

However, in the statement of reasons, the chairman wrote:

“Having now had the opportunity of reading the decision of Northern Ireland Commissioner Brown in R1/00(IB) the Tribunal was wrong in awarding this ground.  We made the mistake of equating needs with desire.  Whilst the Appellant may well have desired to have alcohol before midday we did not consider he needed [it] and we therefore were wrong to award him points under this head.”

I invited the parties to comment on the propriety of that comment.  The Secretary of State submits that that reveals an error of law because the claimant was not given the opportunity of dealing with the point raised by R1/00(IB).  I partly agree.  The chairman made it plain that the tribunal’s actual decision was to find the descriptor to be satisfied and it seems to me that a chairman is entitled to draw attention to a possible flaw in the tribunal’s reasoning, whether it is in favour of the claimant or the Secretary of State.  However, caution must be exercised where the chairman was not the only member of the tribunal.  The chairman in this case can be taken to know the reasoning of the medically-qualified panel member, and so it is not inappropriate to indicate that the reasoning of the tribunal as a whole was wrong, but the view as to the conclusion the tribunal “should” have reached is necessarily that of the chairman alone.  Often, it will be obvious from the tribunal’s findings of fact that the other member of the tribunal would have had no choice but to agree with the chairman but, in the present case the Secretary of State is of the view that R1/00(IB) can be distinguished and that the evidence supports the claimant.  It therefore seems to me that the Secretary of State is right, given the particular context of this case, that had R1/00(IB) been in the minds of the tribunal, the fine distinction between desire and need would have been explored in greater depth at the hearing.

6.	I accept that the tribunal erred in their approach to both descriptor 15(a) and descriptor 16(b).  The Secretary of State concedes that on the evidence, both descriptors were satisfied.  In other words, whether or not the tribunal’s approach to descriptor 16(b) was flawed, the Secretary of State concedes that they reached the right conclusion in respect of that descriptor, even though the chairman now says he would have reached a different conclusion had the correct approach been taken.  I am prepared to accept the Secretary of State’s concession in respect of both descriptors.  In relation to descriptor 15(a), the examining medical officer was of the view that the claimant could not be relied upon to take a message if he answered the telephone.   In relation to descriptor 16(b), the claimant’s own doctor gave a diagnosis of chronic alcoholism and, while the tribunal formed a different view based on their observations at the hearing, there is force in the Secretary of State’s submission that R1/00(IB) is to be distinguished because in that case the claimant had been off alcohol for a year and there is sufficient evidence that the claimant still had a need for alcohol in the present case.  The tribunal’s finding that descriptors 15(c) and 17(a), (d), (e) and (f) were satisfied has not been challenged.  Accordingly, the claimant scores a total of ten points on descriptors in Part II of the Schedule to the 1995 Regulations and is incapable of work for the purposes of his claim for incapacity benefit.

	(Signed)	MARK ROWLAND
		Commissioner
		25 February 2003