THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSIB/146/04

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  D J MAY QC

Oral Hearing

Appellant:  Secretary of State		     Respondent:  

Tribunal:  Dundee			     Tribunal Case No:  

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the appeal tribunal given at Dundee on 11 November 2003 is erroneous upon a point of law.  I set it aside.  I remit the case to a freshly constituted appeal tribunal for a rehearing.

2.	This appeal came before me for an oral hearing on 20 October 2004.  The Secretary of State, who is the appellant, was represented by Mr Brodie, Advocate, instructed by Mr Brown, Solicitor, of the Office of the Solicitor to the Advocate General.  The claimant was represented by Mr Kinghorn, Solicitor of Dundee North Law Centre.

3.	The history of this case is that the claimant was awarded incapacity benefit on 7 September 2001 from 22 August 2001.  She had been found incapable of work following medical assessment and the award of 11 points following satisfaction of a number of the mental health descriptors.  In March 2003, the claimant’s general practitioner was requested to give a report on the claimant’s condition.  This she did.  Thereafter a doctor approved by the Secretary of State gave a report on 27 March 2003 that, after consideration the general practitioner’s report, in his opinion the claimant was not in an exempt category.  This finding is not a matter of dispute.  On 7 April 2003 the claimant completed an incapacity for work questionnaire.  Following upon that there was an incapacity for work medical report dated 12 May 2003.  Included in that report was advice that the claimant did not fall within the exceptional circumstances provided for in the legislation.  The report also expressed a view in relation to the descriptors satisfied by her.  Following upon that report the Secretary of State made a decision on 23 May 2003 in which he superseded the decision of 7 September 2001 awarding incapacity benefit.  The grounds for supersession were the provisions of regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 as the Secretary of State had received medical evidence following an examination by an approved doctor since the awarding decision was made.  The decision was that the claimant is capable of work and cannot be treated as incapable of work and therefore she is not entitled to incapacity benefit from and including 23 May 2005.  The claimant appealed against that decision to a tribunal.  The grounds of appeal are set out at page 2.  They do not in terms address the conditions set out in regulation 27 of the Social Security (Incapacity for Work)(General) Regulations 1995.

4.	The claimant’s appeal was heard before the tribunal.  The decision of the tribunal was in the following terms:-

“[The claimant’s] appeal is allowed.  We are not satisfied that grounds to supersede have been established and accordingly she remains entitled to incapacity benefit with effect from 25/5/03.

We derive considerable assistance from the commendably detailed report from [the claimant’s] GP contained at pages 116 and 117 of the Tribunal papers.  From this it is perfectly plain that her GP considers that a return to work would have a significantly detrimental effect upon her mental health.

We also derive considerable assistance from [the claimant’s] evidence to us today which is to the same effect.

We accordingly consider that she should be considered exempt from the personal capability assessment in terms of regulation 27 of the Social Security (Incapacity for Work)(General) Regulations 1995 following upon the decision of the Court of Appeal in Howker v Secretary of State.

We are therefore not satisfied that grounds to supersede have been established and she remains entitled to Incapacity Benefit.
…...”

5.	The Secretary of State has appealed against that decision to the Commissioner. 

6.	Both parties accepted that in relation to supersession the tribunal’s decision errs in law.  Both parties accepted, and I agree with them, that supersession was established under regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  On that ground alone the tribunal’s decision falls to be set aside.  

7.	Mr Brodie’s principal submission however was that the tribunal erred in law on other grounds.  It was his submission that the legislative scheme contained in the Social Security Contributions and Benefits Act 1992 and the Social Security (Incapacity for Work)(General) Regulations 1995 in circumstances where regulation 10 did not apply, which is the accepted position in this case, was that where the own occupation test is not applicable or had ceased to apply, which is also the case here the question as to whether the claimant was capable or incapable of work fell to be determined in accordance with a personal capability assessment.  In that regard he referred me to section 171C(1) of the Social Security Contributions and Benefits Act 1992 and section 171C(5) of the same Act.  He then directed me to the exceptional circumstances contained in regulation 27 of the Social Security (Incapacity for Work)(General) Regulations 1995.  

8.	For the purposes of this appeal it was agreed by parties that the version of the regulation which fell to be applied was as follows:-

	“27. – (1) A person who is not incapable of work in accordance with the personal capability assessment shall be treated as incapable of work if any of the circumstances set out in paragraph (2) apply to him.”
	…..
	(b)	he suffers from specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work.”

9.	Mr Brodie referred me to the condition contained in that regulation which in his submission required for its application a claimant to be a person who is not incapable of work in accordance with the personal capability assessment.  In this case it was his submission that the tribunal did not address whether the claimant was such a person.  Indeed it was his submission that in rejecting the evidence of the examining medical practitioner in its entirety the tribunal had cut away the evidential basis upon which the decision maker had made his decision that the claimant was such a person.  It was his submission that the tribunal simply proceeded to consider the exemption contained in regulation 27 relied upon by them in determining that the exceptional circumstances applied to her.  That he submitted was abundantly clear when the tribunal’s reasons are perused.  What the tribunal said was:-

“3.	[The claimant] was, however, present and gave evidence to the Tribunal.  We found [the claimant] to be a reliable and credible witness and her evidence was, of course, not contradicted.

4.	We did not derive much assistance from the report of the medical adviser.  In the first place, we have noted that the medical adviser did not consider that [the claimant] was suffering from any form of mental disablement, labelling her condition “social phobia”.  Secondly, he was of the view that she has a “basically normal mental state”.  Despite the fact that no mental disability has been identified, the medical adviser has, perversely, nonetheless awarded points in terms of the mental health descriptors.  We were unable to follow his reasoning in this respect.

5.	There is a gross divergence between this opinion and the information provided by [the claimant’s] GP.  The GP has clearly had contact with [the claimant] over a period of years and is therefore in a very much better position to make a proper assessment of her mental health.  We therefore have little difficulty in preferring the GP evidence for this reason since his knowledge of [the claimant] is clearly extensive, and he has been able to indicate, in terms, that a previous spell of employment precipitated a long spell of depression which is associated with panic.

6.	We very much prefer the evidence and information produced both by [the claimant] and by her GP.

7.	We therefore conclude that there would be a substantial risk to her mental health if she were to be found capable of work.  The appeal is allowed on this basis.”

In proceeding in the manner they did he submitted that they erred in law.

10.	Mr Kinghorn’s submission was that the tribunal were under no obligation to consider the personal capability assessment when they considered that one of the exceptional circumstances had arisen.  He said that regulation 27 did not make it mandatory for them to do so.  It was his submission that the decision maker had made a decision that the claimant was a person who was not incapable of work in accordance with the personal capability assessment and the appeal did not alter that.  It was his submission that it was a matter for the tribunal whether or not to consider the personal capability assessment before making a determination on regulation 27.  In his submission where there was clear evidence, which they accepted, that the conditions for the regulation was satisfied, it would have been a fatuous exercise to have considered the personal capability assessment.  In making that submission he made reference to what was said by Mr Commissioner Levenson in paragraph 15 of CIB/601/1997 where the Commissioner said:-

	“…. it is not necessary to postpone consideration of regulation 27 until after considering the all work test, this is a matter of choice for the tribunal guided by the chairman.  Although regulation 27 only applies to a person who does not satisfy the all work test, in the present case that is the decision of the adjudication officer and that is the decision that stands unless and until the tribunal determines otherwise.  Accordingly, if the tribunal finds that the case comes within regulation 27 (and I am not to be taken as expressing a view one way or the other on that point) it need not consider the all work test.”

11.	I am persuaded by Mr Brodie that the tribunal did err in law in the manner in which they approached the case.  The application of regulation 27 is dependent upon the claimant being a person who is not incapable of work in accordance with the personal capability assessment.  In this case the tribunal had rejected the evidence which formed the factual basis upon which the decision maker had made the decision that she was not such a person.  Thus the factual foundation of the decision maker’s decision had been rejected by the tribunal.  That is quite clear from paragraph 4 of the reasons.  The tribunal had made its own decision on the appeal to them.  It allowed the claimant’s appeal.  The nature of an appeal to a tribunal is a complete hearing on all the issues.  Thus it cannot be said that, without any positive confirmation by the tribunal, any part of the decision of the decision maker stands.  There was no such confirmation.  In any event the tribunal went further than that.  They applied regulation 27 without any indication by them that they were satisfied that the condition for its operation was met.  It was not a matter of choice for the tribunal to determine whether to postpone consideration of regulation 27 until after considering the personal capability assessment as was suggested by Mr Commissioner Levenson.  There is a  sequence to the approach required encompassed within regulation 27.  It is not open to the tribunal to make what it may consider to be a pragmatic adaptation of the legislation.  It follows that I disagree with the passage from the decision of Mr Commissioner Levenson which I have quoted above.

12.	The appeal goes before a freshly constituted tribunal.  That tribunal are bound to hold that grounds for supersession of the awarding decision under 6(2)(g) have been established.  It will be for the tribunal to establish from the claimant whether she accepts, having regard to the decision of the decision maker following upon the medical report received by him, whether she is a person who is not incapable of work in accordance with the personal capability assessment.  If the claimant accepts this the tribunal can then proceed to consider any case she wishes to make under regulation 27.  On the other hand if she does not accept that, the tribunal will require to consider whether or not she is incapable of work in accordance with the personal capability assessment.  It is only if she is found not to be that they can in these circumstances consider regulation 27.

13.	The appeal succeeds.

						(Signed)
						D J MAY QC
						Commissioner
						Date:  21 October 2004