DECISION OF SOCIAL SECURITY COMMISSIONER

Commissioner’s Reference: CSIB 53 2003

1.	The decision of the Glasgow appeal tribunal (the tribunal) held on 4 October 2002 is wrong in law.  I set it aside.  I return the appeal to a freshly constituted tribunal for rehearing and redetermination.

Background

2.	In issue is a supersession of incapacity benefit (IB) from 28 February 2002 by a decision maker (DM) dated 28 February 2002.

3.	This followed a report from the appellant’s general practitioner (GP) in which the GP said the appellant had long standing anxiety symptoms and low mood since about 1995 and then an examination in respect of the personal capability assessment (PCA) by a doctor on behalf of the Department (the medical adviser) on 26 October 2002.  The medical adviser listed the diagnoses as sleep problems and tension and applied the mental health assessment.  This was under a rubric which stated:-

	“This part is to be completed when a specific mental illness is diagnosed or when there is mental disablement as a result of a mental, physical or sensory condition.”

4.	The DM followed the opinion of the medical adviser and found no mental health descriptors to be applicable under Part II of the Schedule (the schedule) to the Social Security (Incapacity for Work)(General) Regulations 1995 (the regulations).  The result was that the claimant failed the PCA.  He appealed to a tribunal.

The relevant parts of the regulations

5.	“The personal capability assessment

24. For the purposes of section 171C(2)(a) of the Contributions and Benefits Act the personal capability assessment is an assessment of the extent to which a person who has come specific disease or bodily or mental disablement is capable of performing the activities prescribed in the Schedule, or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

Incapacity under the personal capability assessment

25. – (1) For the purposes of section 171C(2)(b) of the Contributions and Benefits Act a person is incapable of work in accordance with the personal capability assessment when one or more of the descriptors in Part I or Part II apply to him if, by adding the points listed in column (3) of the Schedule against the descriptor, he obtains a total score of at least – 

(a)	15 points in respect of descriptors specified in Part I; or
(b)	10 points in respect of descriptors specified in Part II; or
(c)	15 points in respect of descriptors specified in Parts I and II
…..

(3) In determining the extent of a person’s incapacity to perform any activity listed in Part I or Part II, it shall be a condition that the person’s incapacity arises –

(a) 	in respect of a disability listed in Part I, from a specific bodily disease or disablement; or
(b)	in respect of a disability listed in Part II, from some specific mental illness or disablement.

Calculation of scores

26. – (1) In determining a person’s score for the purposes of regulation 25(1)(c) – 

(a)	an aggregate score of between 6 and 9 points in respect of those descriptors specified in Part II shall be treated as a score of 9 points when added to the score in respect of descriptors specified in Part I:

(b)	an aggregate score of less than 6 points in respect of the descriptors specified in Part II shall be disregarded.
……..”

6.	The schedule includes:-
					“Part II

				                 MENTAL DISABILITIES

	(1)
Activity	(2)
Descriptor	(3)
Points		

	15. Completion of tasks.	15(a)	Cannot answer the telephone and reliably take a message	2		
		(b)	Often sits for hours doing nothing.
………..”	2		

The tribunal decision

7.	The appellant has been represented by the same representative throughout (the representative).  For the benefit of the tribunal, she lodged a letter from a psychiatrist (the psychiatrist) dated 3 October 2002 which followed an assessment by the psychiatrist of the appellant on 18 September 2002.  It was the psychiatrist’s opinion that the appellant had “Atypical Depression”.  The psychiatrist also accepted that the appellant has “additional long-standing abnormal and unusual experiences” which the psychiatrist thought required investigation to exclude organic aetiology.

8.	The tribunal found that the appellant satisfied descriptors attracting 7 points under Part II of the schedule.  As this did not reach the necessary threshold under regulation 25(1)(b) he nevertheless still failed the PCA.  

9.	(The pro forma decision notice used by the Appeals Service is misleading.  Between the first box, which relates to mental disabilities and the second box, relating to physical disabilities, is the sentence “If less than 6 carry forward 0.  If 6, 7, 8 or 9 the benefit threshold score is 10”.  To be compatible with regulation 26(1) of the regulations, a better version is:-

	“The benefit threshold score is 10 for mental disabilities and 15 for physical disabilities.  If descriptors are satisfied in both categories, the threshold score is 15.  In this last case only, if there are fewer than 6 points for mental health descriptors, no points are carried forward to add to the score for physical descriptors.  If there are 6, 7, 8 or 9 such points, 9 points are added to that score.”)

10.	It is clear from the lengthy record of proceedings and a very detailed full statement, that the tribunal exercised considerable care in the appellant’s case.  However its findings and reasons included these:-

“He often feels lethargic and simply cannot be bothered doing things which would otherwise be second nature to most people.  
……
….the appellant had clearly stated himself to the tribunal in answer to questions that he was capable of taking a telephone message but at times he just couldn’t be bothered…..
……
The tribunal accepted that he had reached the stage where he was very lethargic and would not complete routine activities…”

Appeal to the Commissioner

11.	The representative contends that descriptor 15(a) applies because the “….descriptor related to concentration and the client’s evidence supports that at times he is so apathetic that his concentration is very poor.”  

12.	It is also submitted that the tribunal did not deal properly either with the appellant’s sleep pattern or with his hallucinations and voices.  It is said that the erratic nature of the sleep pattern is a symptom of the claimant’s mental health problems and that he did not mention his abnormal experiences earlier through fear and embarrassment.

13.	The Secretary of State does not support the appeal.  

14.	It is submitted that the tribunal deal at length with the evidence about sleep disturbance but conclude:-

	“The actual evidence led, however, suggested that even if he had problems in his sleep, it did not appear to interfere with his day time activities and, therefore, no point was appropriate under that heading.”

15.	It is suggested that this adequately addresses problems relating to sleep and that the appellant’s evidence with regard to hallucinations and hearing voices was considered by the tribunal under the same heading as sleep disturbance.

16.	So far as descriptor 15(a) is concerned, the Secretary of State’s representative contends :-

	“Commissioner Goodman in CIB/14202/96, reported as R(IB) 2/98 (paragraph 6), states that the tribunal should be careful not to elevate to “mental disabilities”, for example, a mere disinclination to do certain tasks.  With regard to this and the evidence obtained above, I submit that the tribunal were correct in their decision not to award descriptor 15(a) and have given adequate reasons for their decision.”

My conclusion and reasons

Descriptor 16(e): sleep problems interfere with his day time activities

17.	I accept the Secretary of State’s submission.  In no way did the tribunal dismiss the claimant’s sleep problems but such are only half of the equation.  The appellant must demonstrate that they “interfere with his day time activities” and the tribunal was not so satisfied.

18.	Similarly, the tribunal did not err in its treatment of the appellant’s hallucinations and hearing of voices.  It did not deny their existence but concluded that no proper attempt had been made by the representative to demonstrate what descriptor was thereby satisfied.  It is not sufficient that a claimant has a disablement and problems due to that disablement.  It has to be shown that his circumstances exactly fit the statutory prescription.

19.	Evaluation of the evidence and determination of the merits is for the tribunal.  Provided its approach is both rational and proper and adequately explained, there is no error in law.  I find nothing of substance in the second and third grounds of appeal. 

Descriptor 15(a): cannot answer the telephone and reliably take a message

20.	The terms of specific descriptors must be read with the activity under whose heading they fall.  Activity 15 is “completion of tasks” and is not limited to matters of concentration.  Many of the descriptors, such as 15(a), use the word “cannot”.  It has been held with physical descriptors, and the same must apply to mental descriptors, that it is inappropriate to find that a claimant fails such a descriptor if it is shown that he can sometimes carry out the particular task.  Such a descriptor is satisfied when a person cannot normally carry out the activity as and when called upon to do so.

21.	I so held in CSIB/491/00.  In that case the claimant’s representative argued, in effect, that the word “reliably” turned 15(a) into a “sometimes” descriptor.  However, it was my opinion that “reliably” relates only to the quality of the message a claimant takes and not to the act of picking up the telephone and answering it.

22.	In descriptor 15(a) the test focuses on a claimant’s ability on a usual basis to take an accurate message having answered the telephone.  But the impediment to the fulfilment of such an objective may arise in different ways.  I am unable to see any reason in principle why this does not include a situation where apathy prevents the claimant from picking up the telephone when it rings.  The appellant’s evidence to the tribunal was:-

		“Admits can answer phone but at times can’t be bothered”.

23.	What is, however, critical is that such apathy results from some specific mental illness or disablement.  This is necessary under regulation 24 of the regulations, which is further honed by the requirement of regulation 25(3) that in respect of descriptors listed in Part II of the schedule (such as descriptor 15(a)) the incapacity to perform a particular activity must arise from “some specific mental illness or disablement”.

24.	In R(IB) 2/98, a tribunal went wrong because it did not even consider whether the claimant’s difficulties arose “by reason of some specific disease or bodily or mental disablement” under regulation 24.  As the Commissioner rightly pointed out, at paragraph 6:-

	“When looking in isolation at the list of “mental disabilities” in the Schedule to the 1995 Regulations I consider that it would be easy, without I hope being cynical to say of almost anyone that they could acquire some points under the various descriptors.  For example the descriptor “Avoids carrying out routine activities because he is convinced they will prove too tiring or stressful” could, I would think, describe anyone at a given point of time.  The same is true of the descriptor “is scared or anxious that work will bring back or worsen his illness”.  In view of the general nature of some of these descriptors, I consider that tribunals ought to be sure that they do have some corroborative evidence preferably medical evidence, on these points.  They should be careful not to elevate to “mental disabilities”, for example a mere disinclination to do certain tasks or to go to work on a certain day or a disinclination for the society of one’s fellow human beings on certain occasions.”

25.	What I think the Secretary of State’s representative is stressing in the present case, without saying so directly, is that any or all of us may, on occasions, not bother to answer the telephone for various different reasons.  However, that cannot prevent a proper consideration of an individual’s case.  The GP and the psychiatrist confirmed a condition capable of constituting “some specific mental illness or disablement” under regulation 25(3)(b).  The medical adviser and the tribunal (although the latter did not refer to the issue in terms) both applied the mental health assessment.  If a tribunal is satisfied that the claimant has the appropriate mental disablement and it is this which causes apathy such that, although he is physically and mentally capable of answering a telephone and reliably taking a message, he does not normally bother even to begin the process, he may qualify.

Summary

26.	I therefore conclude the tribunal erred in law in its approach to descriptor 15(a).  I am aware that, even had he succeeded under this descriptor, the extra 2 points would be insufficient to pass the relevant threshold under regulation 25(1)(b) and this is not a case where regulation 26(1) is relevant.

27.	However, given the tribunal’s acceptance that the claimant was “very lethargic” and that they must have considered such lethargy due to mental disablement because they found descriptor 17(e) applied (“frequently finds there are so many things to do that he gives up because of fatigue, apathy or disinterest”), I am concerned that the tribunal did not directly address descriptor 15(b): “often sits for hours doing nothing”.

28.	I understand the tribunal’s objection to the representative’s “scatter-gun approach”.  It is inappropriate for a representative to claim points for almost every descriptor without indicating how it is suggested the appellant satisfies each one.  However, the tribunal’s view on descriptor 15(b) is not given and, standing its own emphasis on the appellant’s lethargy, it ought briefly to have stated this.  I am consequently persuaded I should not substitute my own decision dismissing the claimant’s appeal.

29.	Therefore, there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal.  The representative has produced more medical evidence to the Commissioner.  However, the tribunal did not err by failing to take account of evidence not in front of it.  Such evidence is now available for the benefit of the new tribunal and is relevant insofar as it is considered to reflect the appellant’s condition and circumstances as at the date of the adverse decision once more under appeal.

30.	My jurisdiction is limited to issues of law so my decision is not indication of the likely outcome of the rehearing.  It is apparent from the content of this decision what is required of the freshly constituted tribunal.  

						(Signed)
						L T PARKER
						Commissioner
						Date:  11 March 2003