DECISION OF SOCIAL SECURITY COMMISSIONER

Reference No: CSIB 43 2003

1.	My decision is that the decision of the tribunal given at Glasgow on 27 August 2002 is erroneous upon a point of law.  I set it aside.  I make the decision the tribunal ought to have made.  It is to the same effect.  Namely that the appeal against the decision maker is disallowed and the decision of the Secretary of State issued on 7 February is confirmed.

2.	This appeal came before me for an oral hearing on 29 July 2003.  It was heard along with appeals by the claimant on CSIS/42/03 and CSIB/316/03.  The claimant was represented by Mr Craig.  The Secretary of State was represented by Mr Brodie, Advocate, instructed by Mr Brown, Solicitor, of the Office of the Solicitor to the Advocate General.

3.	The claimant appealed to the tribunal against the Secretary of State’s decision of 7 February 2001.  That decision accepted her claim as having been from 19 December 2000.  It was the claimant’s position in the appeal that she had been incapable of work earlier than that date.  The decision made by the Secretary of State followed upon production of an MED 3 dated 19 December 2000 from her general practitioner he certified that he had examined the claimant on that date and had advised her that she should refrain from work for a period of three months.

4.	Regulation 2(1) of the Social Security (Medical Evidence) Regulations 1976 as amended provides:-

	“2–(1)	Subject to regulation 5 where a person claims he is entitled to any benefit, allowance or advantage I (other than industrial injuries benefit or statutory sick pay), and his entitlement to that benefit, allowance or advantage depends on his being incapable of work, then in respect of each day until he has been assessed for the purposes of the personal capability assessment, he shall provide evidence of such incapacity–
	(a)	by means of a certificate in the form of a statement in writing given by a doctor in accordance with the rules set out in Part I of Schedule 1 to these Regulations on the form set out in Part II of that Schedule; or
	(b)	where a doctor–
		(i)	has not given a statement under sub-paragraph (a) of this paragraph since the patient was examined and wishes to give such a statement but more than one has passed since the examination; or
		(ii)	advises that the patient should refrain from work on the basis of a written report from another doctor, 
	by means of a special statement given in accordance with the rules set out in Part I of Schedule 1A to these Regulations on the form set out in Part II of the Schedule; or
	(c)	where the question of whether a person is capable or incapable of work falls to be determined in accordance with the personal capability assessment and the Secretary of State so requests, a statement in writing given by a doctor in accordance with the rules set out in Part II of that Schedule; or
	(d)	where it would be unreasonable to require a person to provide such a statement in accordance with sub-paragraphs (a) to (c), such other evidence as may be sufficient to show that he should refrain (or should have refrained) from work by reason of some specific disease or bodily or mental disablement.”

5.	It is accepted that none of the certificates or statements specified in regulation 2(1)(a), (b) or (c) had been provided covering any date or period prior to 19 December 2000.

6.	In the claimant’s letters of appeal to the tribunal at pages 1 and 2 and in her letters at pages 40 and 41, she did not seek to demonstrate that regulation 2(1)(d) of the regulation applied in that it would have been unreasonable to require her to produce a certificate of the type mentioned in regulation 2(1)(a), (b) or (c).  Her position was quite simply that she was incapable of work.

7.	The tribunal in determining the claimant’s appeal found the following facts:-

	“3.	The tribunal found that the appellant had been incapable of work from 19.12.00 and not earlier and refused the appeal.
4.	The tribunal found the following facts:
(a)	The appellant has suffered from menorrhagia with iron deficiency.
(b)	The appellant has suffered from depression since at least December 2000 and probably to a lesser extent from January 2000 or earlier
(c)	The appellant was engaged in a Training for Work course from April 1999 to April 2000 although she attended irregularly
(d)	The appellant broke her toes in 1998 but this was not a significant medical issue albeit that there may have been some residual discomfort in the period under consideration.
(e)	The appellant consulted her GP 4 times in 2000 as noted on page 46 of the papers and for the reasons noted.
(f)	The appellant’s GP was asked around the end of 2000 to certify her as incapable of work from 19.12.99 but declined to do so.
(g)	The appellant’s GP considered that the appellant’s condition had worsened by the end of 2000 and certified her as incapable of work from 19.12.00.  The appellant was diagnosed as suffering from depression and prescribed medication.

They then went on to say:-

	“5.	The tribunal had some sympathy for the submission on behalf of the appellant that her condition had not changed from the end of 1999 to the end of 2000.  The appellant’s evidence was that her condition had not changed and that he had been incapable of work from 19.12.99.
	6.	The tribunal accepted that the appellant’s medical conditions had probably all existed during the year in question, but the issue was what effect those conditions had produced and whether the appellant had been made incapable of work.
	7.	The appellant’s GP had seen her on 4 occasions in 2000.  The GP had been asked to certify the appellant as incapable of work from 19.12.99 and had refused to do so because, it must be inferred, she did not agree that the appellant was incapable of work.  The tribunal had no difficulty accepting the evidence of the GP in her report at pages 45 to 47 of the papers.”

8.	I am satisfied that the issue before them was not as identified by them in paragraph 6 but whether the claimant had produced the evidence specified by regulation to support her claim for a date prior to 19 December 2000 in accordance with the regulations.  This she had not done nor did she attempt to focus a case based upon the proposition that it would be unreasonable to require her to provide such a statement.  That was conceded by Mr Craig.  By mis-identifying the issue, the tribunal erred in law.  They had as is apparent from paragraph 7 determined the appeal on the merits of incapacity for work rather than whether the evidential requirements had been satisfied.  As the issue of whether it would have been unreasonable for the claimant to be required to produce a certificate or statement of the type specified was not raised before the tribunal there was no necessity for them to deal with the issue, as Mr Brodie pointed out, by virtue of section 12(8) of the Social Security Act 1998.

9.	The thrust of Mr Craig’s submission was that as the claimant had offered and the tribunal had dealt with her evidence of incapacity, it could be inferred that the tribunal had accepted that it was unreasonable for her to be required to produce such a certificate or statement of the type specified from her doctor because they dealt with it.  I cannot accept that submission.  In my view if the tribunal were to hold that it was unreasonable to require the claimant to provide the medical certificate or statement, then that is something which the tribunal would require to directly and specifically record.  It seems to me that what the tribunal did in this case was simply to consider other evidence of incapacity, namely the medical report from the claimant’s general practitioner at pages 45-47 which did not support the claimant’s assertion of incapacity for work following upon an adjourned tribunal hearing and the evidence produced by the claimant herself.

10.	Mr Craig sought to advance another error in law which is encapsulated in paragraphs 5-9 of his written submission at pages 96 and 97.  However I consider that it is not necessary for me to say anything other than as the tribunal had mis-identified in paragraph 6 the issue which was before them thus the inference in paragraph 7 is of no consequence by virtue of the applications of the relevant test.

11.	In relation to disposal of the appeal, I am satisfied that I can make the decision that the tribunal ought to have made which is to the same effect.  In my view it will not do for the claimant to seek to advance evidence of her own that she is incapable of work and have it considered and assessed by the tribunal because the claimant’s general practitioner has refused to supply the necessary statement under regulation 2(1).  To hold otherwise would be to undermine the statutory provisions.  The scheme of the legislation is for medical certification of incapacity prior to assessment by personal capability assessment.  Regulation 2(1)(d) provides for the exception.  Other evidence of incapacity can only be sufficient, if accepted, where it is established that it was unreasonable to require the claimant to provide a statement of the sort set out in regulation 2(1).  That was not sought to be done before the tribunal and accordingly other evidence cannot  be considered for the purpose of being regarded as being sufficient.  In any event it would be difficult to see how the evidence of the claimant, even if it had been capable of assessment, could have been sufficient standing the competing evidence from her general practitioner to the contrary effect.  In the circumstances I have made the decision I have in paragraph 1 

12.	.  The appeal succeeds.  That success is of no benefit to the claimant.

						(Signed)
						D J MAY QC
						Commissioner							Date:  31 July 2003