[2005] UKSSCSC CSIB_223_2005 (19 August 2005)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSIB/223/05

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  D J MAY QC

Oral Hearing

Appellant:  				                    Respondent:  Secretary of State

Tribunal:  Edinburgh			     Tribunal Case No:  

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the appeal tribunal given at Edinburgh on 3 February 2005 is erroneous upon a point of law.  I set it aside.  I remit the case to a freshly constituted tribunal for a rehearing.

2.	This appeal came before me for an oral hearing on 18 August 2005.  The claimant was represented by Miss Docherty of the Community Help and Advice Initiative.  The Secretary of State was represented by Mr Bartos, Advocate, instructed by Mr Crilly, Solicitor, of the Office of the Solicitor to the Advocate General.

3.	The claimant has appealed to the Commissioner against the decision of the tribunal which disallowed his appeal against the decision of the Secretary of State of 27 August 2004 and confirmed that decision.  The decision maker on 27 August 2004 superseded a decision of 1 April 2004 and found that the claimant was capable of work from 27 August 2004 as he had not satisfied the personal capability assessment.

4.	Both parties before me were in agreement that the tribunal erred in law in respect that they did not deal with the argument advanced by the claimant that he fell within the exceptional circumstances set out in regulation 27(b) of the Social Security (Incapacity for Work)(General) Regulations 1995.  I agree with parties in that respect.  The operation of regulation 27(b) was clearly put in issue before the tribunal in the letter of appeal to them by the claimant.  It should also be recorded that finding in fact 1 is inaccurate.  That finding in fact was in the following terms:

	“[The claimant] made a claim for incapacity benefit on 22nd April 2004.  As the contribution conditions for an award of benefit are not satisfied his claim was treated as a claim for Credited Earnings (incapacity credit)”.

Mr Bartos said that the matter had been checked and that the appeal concerned incapacity benefit not credits.

5.	Having set the decision of the tribunal aside, it is then necessary for me to give directions to the freshly constituted tribunal.  The first matter is that the tribunal should satisfy themselves that there are grounds to supersede the awarding decision under and in terms of regulation 6(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  In doing so they should have regard to what is said in paragraph 125 of R(IB) 2/04.  If they are satisfied that there were grounds established to supersede they then must apply the personal capability assessment.  If the claimant scores sufficient points and is found to be incapable of work, that is sufficient to dispose of the appeal.  If not, then they will require to consider whether the claimant came within the exceptional circumstances set out in regulation 27(b) of the regulations referred to above.  Following upon the decision of the Court of Appeal in Howker v the Secretary of State for Work and Pensions R(IB) 3/03, the version of the regulation to be applied is in the following terms:

“27.  A person who is not incapable of work in accordance with the personal capability assessment shall be treated as incapable of work if – 
…
(b)	he suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of that person if he were found capable of work; …”.
In this case the specific disease or bodily or mental disablement that requires to be considered is set out in the examining medical practitioner’s report.  He diagnosed that the claimant suffered from:

	“(1) anxiety and depression

	(2) irritable bowel syndrome”.

6.	The parties to the appeal made submissions to me which were markedly different in relation to the approach to be adopted towards the application of regulation 27(b)

7.	Miss Docherty was content that I remitted the case to a freshly constituted appeal tribunal for a rehearing.  She was content with the directions I have given the tribunal in relation to supersession and the application of the personal capability assessment, which I put to her.  It was her submission that the statutory provision contained in regulation 27(b) was applied in the terms set out therein.  She submitted that there is evidence contained in the general practitioner’s report of 28 October 2004 at page 66 which in terms supports satisfaction of the condition.  There the general practitioner said:

	“… I think it likely however that if he were found fit for work then his anxiety and depression would worsen, and as a consequence his irritable bowel syndrome is likely to flare up”.

She was content that this evidence be assessed with the other evidence in the case including the contrary evidence of the examining medical practitioner and the tribunal reach a conclusion thereon as to whether regulation 27(b) was satisfied.  She was further content that in the assessment of the risk as to whether it was substantial or not, that this should be left to the tribunal as a jury question for them to exercise a reasonable judgement thereon.  Whilst she appreciated that the approach taken by Mr Commissioner Jacobs in CIB/0026/2004, which I deal with later, would be advantageous to some claimants, she found it difficult to understand how a tribunal would be in a position to apply the regulation in the context of attempting to set out a range of work which the claimant could do.  As a matter of background, she also told me that after the tribunal decision, the claimant had made a claim for jobseeker’s allowance.  He had been referred to a disability advisor who was concerned that a jobseeker’s agreement might not be appropriate having regard to his health.  In these circumstances, the disability advisor referred him to an occupational psychologist who reached the conclusion that the claimant was incapable of work.  He was advised to reclaim.  As six months had elapsed between the decision appealed against to the tribunal and that advice, he did so.  His claim was successful and incapacity benefit was awarded.

8.	Mr Bartos on the other hand submitted that a literal application of the statutory provision is that the substantial risk would require to arise in circumstances where the person was found capable of work not actually doing any work.  Mr Bartos submitted that such an approach would result in its application being very limited indeed.  He could not conceive of a situation where it could have effect on the physical health of the claimant or another person if it was restricted to a finding of incapacity for work.  It was his position that it was necessary to look beyond simply assessing the risk in the context of a finding of capacity for work.  He referred me to the approach taken to the application of the statutory provision taken by Mr Commissioner Jacobs in CIB/0026/2004 where he said:
“The trigger factors

30.	The application of regulation 27(b) is triggered by two factors. The first trigger is that there ‘would be a substantial risk’ to the health of any person. The second trigger is that the risk must arise from the claimant being ‘found capable of work’. Both of these triggers appear to give rise to difficulties of interpretation.

31.	The person whose health is at risk need not be the claimant. It might be another person working with the claimant or even a customer or member of the public. But in the context of this case, it is likely that only the claimant would be affected. 

32.	For the first trigger, the claimant has to show that there ‘would’ be a substantial risk. That raises the issue: in the context of what work might the risk arise? It cannot be that the risk must arise regardless of what work the claimant did. That would render it redundant, because there is almost always going to be some work that a claimant could do without risk. Nor can it be sufficient that the risk would arise only in particular types of work that the claimant would never otherwise do. That would makes its scope too wide, because there will often be types of work that a particular claimant cannot do without risk.

33.	For the second trigger, the risk must arise from the claimant being ‘found capable of work’. The provision does not say that the risk must arise from the claimant working. But it surely makes little or no sense to limit it to the rare cases where the decision on capacity for work would itself cause the risk to the claimant’s health. 

34.	It is possible to make sense of the apparent difficulties with these triggers by reading them together. The emphasis in the second trigger on the claimant being found capable of work puts the emphasis on the consequence of that decision. The capacity for work decision will in practice usually require the claimant to make a claim for a jobseeker's allowance. In order to qualify for that benefit, the claimant must be subject to a jobseeker's agreement. That agreement will set out the work that the claimant must seek in order to retain entitlement to the allowance. That work is defined taking into account the claimant’s health, qualifications, skills and experience. 

35.	Set in that context, the trigger factors must be interpreted as follows. The risk must be assessed in relation to the type of work for which the claimant would otherwise be required to be available. That retains the emphasis on the effect of the claimant being found capable of work. It confines within a sensible scope the range of work that must be taken into account when assessing the risk to the claimant’s health. And it makes a sensible relationship between the conditions governing entitlement to benefit for those incapable for work and for those seeking work. It prevents claimants relying on regulation 27(b) when there is work that they could do without risk to their health. But it allows claimants to rely on the provision when the work they would otherwise be required to seek would put their health, or someone else’s, at substantial risk. 

36.	This does not mean a return to the previous law on invalidity benefit, under which capacity for work was determined by reference to specific job descriptions suggested by the adjudication officer. It involves a wider consideration than that. It involves a consideration of the risk to health involved in the general type of work that the claimant is otherwise qualified, experienced or skilled to undertake”. 

9.	Mr Bartos’ submission was to the effect that I should direct the freshly constituted tribunal to approach the application of regulation 27(b) in the manner set out by Mr Commissioner Jacobs.

10.	Arising out of that submission, I asked him to make submissions as to how that approach to the statutory provision squared with the question asked of the examining medical practitioner, which in this case is recorded at page 47 and does not put the interpretative gloss on the statutory provision that Mr Bartos said it ought to have.  The second matter I wished him to address me on was the issue of what terms in relation to health were likely to be incorporated into a jobseeker’s agreement.

11.	Mr Bartos in answer to the second question which I posed to him, referred me to regulations 31(c) and (d) and 13(3) of the Jobseekers Allowance Regulations 1996.  Regulation 31 deals with the contents of a jobseeker’s agreement.  These provide:

“31.  The prescribed requirements for a jobseeker’s agreement are that it shall contain the following information – 
…
(c)	any restrictions on the claimant’s availability for employment, including restrictions on the location or type of employment in accordance with regulations 5, 8, 13 and 17; 
(d)	a description of the type of employment which the claimant was seeking …”.

Regulation 13(3) provides:

	“(3)  A person may restrict his availability in any way providing the restrictions are reasonable in the light of his physical or mental condition”.

12.	Mr Bartos then went on to submit that for the purposes of regulation 27(b) of the Social Security (Incapacity for Work)(General) Regulations 1995, the tribunal would not require to specify or consider what type of employment a claimant could do that would require to go into a jobseeker’s agreement.  He said that for the purposes of regulation 27(b) the assessment was somewhat broader than was required for the purposes of a jobseeker’s agreement.  His position was that to enable them to apply the regulation, the tribunal would require to ask the claimant:

	“If you did not satisfy the requirement under the assessment, what sort of work could you do?”

It was his position that if the answer to that question was in the negative, it was difficult to see how the claimant could have discharged the onus of bringing himself within the exception.  If the claimant answered in the affirmative, that he was capable of doing some work, the tribunal would then have to determine the range of work and carry out an assessment as to whether he could do the work.  It was his position that CIB/4357/2004 was an example of how this operated in practice.

13.	Mr Bartos also submitted that the fact that the question asked of the examining medical practitioner in his report form, did not place the interpretative gloss of the statutory provision which he said existed along the lines set out by Mr Commissioner Jacobs was not material.  It simply meant that the tribunal had to assess the evidence as it was.

14.	In the event I favour the approach to regulation 27(b) set out by Miss Docherty in her submission and accept it, I direct the tribunal to apply the regulation strictly in the terms in which it is written and in the manner set out in paragraph 7.  It is clear from the approach set out in paragraph 7 that the tribunal will have a simple, crisp and direct issue to determine.  The question as to whether, if the tribunal find that there was a risk to the claimant’s health it was substantial, is a jury question for them on which they must make a reasonable judgement.  I have made the direction I have for the following reasons.  It is quite clear to me that Parliament intended regulation 27(b) to be applied in the restrictive way that the language of the paragraph provides.  Unlike Mr Commissioner Jacobs in paragraph 33 of his decision, I can see the sense of the limitation and I am prepared to accept that Parliament meant what it said.  The regulation is headed “Exceptional circumstances” and the other circumstances contained in (a), (c) and (d) demonstrate severe and exceptional conditions.  I consider that Mr Commissioner Jacobs has sought to broaden the scope of the regulation beyond what it says.  It is quite clear from evidence which exists in this case that it is possible to apply the regulation on the basis that it means what it says and that it is not in the terms in which it is written without content or meaning.  Further, it is also clear that in cases where a person has not passed the personal capability assessment and does not fall within the statutory exceptions contained in regulation 27 that, in respect of a jobseeker’s agreement, health can be a material factor in the framing and constitution of such an agreement.  The circumstances in this case following the claimant’s application for jobseeker’s allowance following his unsuccessful appeal to the tribunal, as outlined to me by Miss Docherty, demonstrate that claimants who neither satisfy the personal capability assessment and do not fall within the exceptions of regulation 27 can have such disabilities they have taken into account when a jobseeker’s agreement is sought to be framed and constituted.  I am at a loss to see how tribunals can properly apply the legislation in the context set out by Mr Commissioner Jacobs and by Mr Bartos in his submission.  How a tribunal is to determine what range of work that must be taken into account when assessing the risk to the claimant’s health is beyond me in the absence as in this case of an evidential basis to do so.  I do not consider the questions that Mr Bartos posed were particularly helpful as in most cases the reply from the claimant would be likely to be “I am unfit for work”.  It further appears to me that if the interpretative gloss set out by Mr Commissioner Jacobs was to be applied, then the question posed to the examining medical practitioner would be incomplete as it makes no reference to the broader interpretation set out by him.  It is these considerations which cause me to frame the direction I have given to the fresh tribunal in the manner I have.  The fresh tribunal will note that the claimant has succeeded in a fresh claim for incapacity benefit.  They should seek submissions on the effect that that may have on the decision which they are required to take.

15.	The appeal succeeds.

						(Signed)
						D J MAY QC
						Commissioner
						Date:  19 August 2005