[2006] UKSSCSC CIB_2537_2006 (02 November 2006)
CIB/2537/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Derby appeal tribunal dated 6 March 2006 and I refer the case to a differently constituted appeal tribunal for determination.

REASONS

2.	The claimant suffers from chronic fatigue syndrome.  She appears to have been accepted as incapable of work from 22 October 1987, being awarded invalidity benefit from 2 May 1988 and then incapacity benefit when that replaced invalidity benefit.  She was found to be capable of work in 1999 but successfully appealed against that decision.  Twice since then, she has been found to satisfy the personal capability assessment following medical examinations.  However, on 29 September 2005, following another medical examination, the Secretary of State found the claimant to be capable of work and superseded the award of incapacity benefit.  The claimant appealed but her appeal was dismissed.  She now appeals against the tribunal’s decision with the leave of a district chairman and the support of the Secretary of State.

3.	The tribunal did not consider the physical descriptors in Part I of the Schedule to the Social Security (incapacity for Work) (General) Regulations 1985 (S.I. 1995/311) in any detail at all.  That was largely because of the way the claimant has presented her case.  She describes herself as “ill” rather than “disabled” and she did not report any problem with the physical activities on her IB50 form.  On the other hand, she also says that she is often so exhausted that she is unable to do anything except retire to bed.  The tribunal noted that the claimant claimed only a “5 hour window” after getting up when she could function relatively normally.  It seems to me that she was therefore in fact claiming to be physically disabled during much of the day.  The Secretary of State’s current representative concedes that physical descriptors may be satisfied where a claimant cannot normally perform an activity as and when called on to do so and that the possibility of performing an activity on a repeated basis must be taken into account.  That that is so is clear from paragraph 15 of the combined decision in CIB/13161/1996 and CIB/13508/1996.  When granting leave to appeal, the district chairman said it was arguable that the tribunal was on notice that the appellant’s condition manifested itself in physical signs and symptoms and that the tribunal had made insufficient findings of fact.  I agree that the tribunal did err in that respect.  

4.	The tribunal relied on the fact that the claimant had not claimed any points in respect of physical descriptors and that none of the examining medical officers had identified any physical problems.  The examining medical officer in 2005 had been aware that the claimant had claimed exhaustion but, in respect of the physical descriptors (other than vision which the claimant had neglected to deal with on her IB50 form but which is not really in issue), she simply recorded “Claimant has no problem with these activities”.  That does not address what was really the claimant’s case, and it seems to me that the tribunal adopted that error.  It may be that, in reality, the proportion of a day for which the claimant was unable to perform most physical activities was too small for the incapacity to be significant.  However, if that was the case, the tribunal should have said so and it should have had regard to the fact that descriptors 5c and 6c contain the word “sometimes”.  Moreover, the Secretary of State’s submission to the tribunal had argued that the claimant could not score points under mental descriptor CTb, sitting for hours doing nothing, on the ground that the claimed cause was physical exhaustion rather than mental illness.  I do not think the Secretary of State was entitled to have it both ways.  If that aspect of the claimant’s disability did not fall within the scope of the mental descriptor, it fell within the scope of the physical descriptors, provided it was severe enough.

5.	The tribunal did consider the mental descriptors in Part II of the Schedule to the 1995 Regulations, in respect of which the claimant scored fifteen points in January 2002 and twelve points in September 2003.  The examining medical officer’s assessment in 2005 resulted in a score of three points (CPc, Cpe and CPf).  Following the claimant’s appeal, the Secretary of State conceded that three additional points should be awarded (CTe and CPa) and the tribunal added a further point (DLc).  In a written submission responding to the Secretary of State’s submission to the tribunal, the claimant had expressly argued for points under CTb, DLa, DLe, CPd and OPe and, as her current representative points out, oral evidence was given relevant to at least the first three of those descriptors.  She needed only ten points to satisfy the personal capability assessment on the mental health descriptors alone, as she had done previously.

6.	The tribunal’s statement of reasons records –

“… we determined that there was no evidence of mental health problems other than those awarded by the decision maker, and of DLc, awarded by the tribunal.  We accept the opinion of the EMO, a disinterested medical expert who addressed the criteria of the PCA.  We were also persuaded by the medical evidence in 2001 and 2003, and the decisions made by the decision maker following the PCAs, which demonstrate a pattern of improvement in [the claimant’s condition].  In 2001, she scored 15 points, and in 2003 12 points.”

The tribunal also referred in general terms to criticisms made by the claimant of the medical examination and found that “there were no grounds for invalidating the EMO’s report”.  When granting leave to appeal, the district chairman commented that the medical examination had taken only nine minutes.

7.	The tribunal was quite entitled to take the view that the medical examination was not so flawed that it should be disregarded altogether, although nine minutes does seem a little short for the taking of a history in respect of mental health if the outcome is to be the removal of benefit that the claimant has been receiving for 18 years. However, it does not follow that the claimant’s submissions indicating why she disagreed with specific conclusions drawn by the examining medical officer did not need answering.  I do not consider that the tribunal made it clear to the claimant why the evidence that she had given was not sufficient to enable her to satisfy the descriptors she claimed.  I hesitate to find that the tribunal erred in law in that respect only because it is arguable, although it has not been argued by the Secretary of State on this appeal, that proper reasons can be inferred from the material that was before the tribunal.

8.	In my judgment, the tribunal’s decision is erroneous in point of law because the tribunal ought to have considered the physical descriptors.  It is unnecessary for me to decide whether it also erred in failing to give adequate reasons for its decision in respect of the mental health descriptors.  

9.	I therefore set aside the tribunal’s decision and I refer the case to another tribunal.  The tribunal to whom I now refer the case should consider both the physical descriptors and the mental health descriptors and should ensure that adequate reasons are given in respect of all aspects of its decision.  The last tribunal may have been right that the claimant’s condition has been improving and so the claimant should not assume that she will succeed before the new tribunal merely because she has succeeded on this appeal.  There is some evidence that she is benefiting from medication and it is certainly to be hoped that improvement is possible.  On the other hand, not too much should be read into the improvement between 2002 and 2003 suggested by the personal capability assessment results, given that the claimant would not have known of either score until 2005 and could not have been expected to challenge the 2003 score even if she had, because twelve points was enough to ensure her incapacity benefit continued.

10.	Finally, I wish to commend the writer of the Secretary of State’s submission to the tribunal for the way in which he or she analysed the issues before the tribunal relating to the mental health descriptors.  I express no view as to the factual merits of the submissions made in respect of the individual descriptors – those will be matters for the new tribunal – but the way in which the issues raised by the claimant were identified and dealt with was extremely helpful.  The submission enabled the claimant to make a focussed submission in reply and the two sides’ submissions between them neatly set out the arguments that had to be considered by the tribunal.  It would be helpful if the claimant, who is now represented, were to make a further submission to the tribunal, dealing with the physical descriptors in the light of CIB/13161/1996 and CIB/13508/1996.  If she does, the Secretary of State may wish to make a submission in reply.

	(signed on the original)	MARK ROWLAND
		Commissioner
		2 November 2006