[2007] UKSSCSC CIB_360_2007 (15 June 2007)

CIB/360/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The decision of the Stratford appeal tribunal dated 15 September 2006 is erroneous in law.  I set it aside and refer the case to a differently constituted appeal tribunal for determination.   

REASONS

1.	The claimant, who is a man born in 1948, developed depression in the 1990s and gave up his work as a chartered accountant.  He also suffers from heart disease and hypertension, though these doe not appear to affect his ability to work, and from a degree of deafness.  Incapacity benefit was awarded to him in 1999.  In September 2004 the claimant was examined by a medical services doctor under the personal capability assessment.  It is not clear from the papers whether the claimant had been assessed under the personal capability assessment previously.
2.	The examining doctor found the claimant’s condition to be such that he scored no points under the physical descriptors in the personal capability assessment; he scored 3 points under the mental health descriptors..  On 22 September 2004 a decision-maker superseded with effect from 15 October 2004 the previous decision awarding incapacity benefit to the claimant.  The claimant appealed to the appeal tribunal; as a result, the decision was reconsidered but not changed.  
3.	The tribunal first dealt with the claimant’s appeal on paper in August 2005 and dismissed it, but their decision was set aside by a decision of Mr Commissioner Lloyd-Davies under section 14(7) of the Social Security Act 1998 in June 2006.  The claimant’s appeal was remitted to differently constituted appeal tribunal, which dismissed it after an oral hearing on 15 September 2006.   The claimant appeals against that decision with the leave of Mr Commissioner Lloyd-Davies, who gave leave on the grounds that it was arguable that the tribunal should have explained in more detail why regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995.
4.	In my view, the tribunal did err in law in that they have given inadequate reasons for concluding that the claimant was not to be treated as incapable of work by virtue of regulation 27(b).
5.	In their statement of reasons, the tribunal gave careful consideration to how the claimant scored under the personal capability assessment.  They confirmed the award of no points for physical descriptors; under the mental health descriptors the tribunal concluded that the claimant scored 5 points, not 3 as decided by the decision-maker.  But this still meant that the claimant was not incapable of work in accordance with the personal capability assessment.
6.	In those circumstances, the tribunal had to decide whether the claimant was to be treated as incapable of work by virtue of regulation 27.  The only provision of regulation 27 that might be applicable was regulation 27(b), which remains in force, as a result of the decisions of the High Court in R v Secretary of State ex p Moule and the Court of Appeal in Howker v Secretary of State [2002] EWCA Civ 1623, in the following terms:
A person … shall be treated as incapable of work if … 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 any person if he were found capable of work.
7.	In the papers were two letters from the claimant’s consultant psychiatrist.  The first, dated 29 June 2005, said
This patient has been under my care for many years with a chronic depression.  He is totally unfit to work and I understand that he needs documentary proof of this fact and of his regular attendance at the out patient department at […] Hospital.
I would be happy to supply any further information if required.
8.	The second letter, dated 26 May 2006, said
This patient has been under my care for many years with a major depressive disorder.  Originally he was at work when he came under my care but progressively this became more difficult.  He has attended his out patient appointments on a regular basis and although reasonably well presented he is very susceptible to stress and disintegrates easily.
…
[The claimant] has on occasion tried to do voluntary work and has made efforts to secure some form of employment after he was retired from his original professional [sic].  These efforts have usually met with disastrous consequences and I have advised him that for his own health and well being this is not appropriate.
…  I would be very happy to supply a more detailed report if this would be of assistance.
9.	In their statement of reasons the tribunal noted that the claimant received no medication for mental health difficulties and that the examining doctor had performed a thorough mental health examination of the claimant, as a result of which he had only found two mental health descriptors to be applicable to the claimant.  As regards the consultant’s letters, the tribunal recorded that they were surprised and disappointed that the claimant had not taken up the consultant’s offers to give a more detailed report. Given the claimant’s professional background, they thought it was reasonable to expect him to obtain one.  They considered that the consultant’s letters were looking backwards in time, whereas the tribunal found that the claimant’s condition ‘had at the worst stabilised  and at the best got better’.
10.	After some further reasoning concerning the personal capability assessment, the tribunal said
27.	Regulation 27 of the 1995 Regulations did not apply as the clinical evidence did not support such a finding.
11.	A tribunal is required to give an adequate statement of their reasons.  A statement of reasons is adequate for this purpose if it tells the reader why a tribunal reached a particular conclusion, and does so in sufficient detail to enable it to be seen whether any error of law was made in reaching that conclusion.  The reasoning in paragraph 27 is not adequate.  First, it is ambiguous; it is not clear whether the tribunal were finding that there was no clinical evidence at all that supported a finding that the criteria of regulation 27(b) were met, in which case the decision would have been perverse (and therefore erroneous in law) as there was plainly was some such evidence in the form of the claimant’s consultant’s letters.   
12.	I consider it more likely that paragraph 27 of the decision means that on balance the medical evidence did not support the finding.  But on that view the reasoning is still inadequate as it does not enable the reader to understand why the tribunal rejected the evidence of opinion from the claimant’s consultant.  The tribunal were not obliged to agree with the consultant, but in order to make their reasoning understandable they were obliged to set out their reasons for disagreeing with him.  Merely saying that the clinical evidence did not support a finding that regulation 27(b) applied does not enable the reader to understand the tribunal’s process of reasoning, given that the consultant’s letters were part of the clinical evidence and they in combination did strongly support a conclusion that there would be a substantial risk to the claimant’s mental health if he were found capable of work.
13.	A possible clue as to the tribunal’s thinking is in paragraphs 16 and 17 of the statement of reasons, where the tribunal describe the consultant’s second letter as looking back in time, and go on to find that the claimant’s condition has stabilised or improved.  This reasoning is not, however, directed at the regulation 27(b) issue and does not deal with the statement in the first letter (written after the date of the Secretary of State’s decision) that the claimant ‘is’ unfit for work.
14.	In his submission to me, the Secretary of State submits that it was open to the tribunal on the evidence as to the claimant’s lifestyle, the findings of the examining doctor (which included a finding that regulation 27(b) did not apply) and the claimant’s score under the personal capability assessment, to find that the requirements of regulation 27(b) were not met.  But that is not the point.  I do not consider the issue of law raised by the decision to be whether or not it was open to the tribunal, as a matter of law, to conclude that regulation 27(b) was not satisfied in the claimant’s case – an issue on which I prefer to express no opinion as it is a difficult matter of medical judgement - but rather whether the tribunal have given an adequate statement of their reasons for the decision that they reached.  
15.	The Secretary of State also draws my attention to Mr Commissioner May’s disagreement in CIB/223/2005 with the decision of Mr Commissioner Jacobs on the approach to applying regulation 27(b) in CIB/26/2004; his representative also refers to a number of other decisions, including my decision in CIB/1695/2005 in which I agreed with CIB/26/2004.  The Secretary of State says that he agrees with the approach in CIB/223/2005 of applying the regulation strictly in the terms in which it is written, and submits that, since the personal capability assessment is not a test of whether a claimant is capable of specific work, regulation 27 should also not be limited to being a test of whether a claimant is capable of specific work.
16.	I certainly agree that one must apply the regulation in the terms in which stands following the Moule and Howker decisions, and that the question to be answered is whether there would be the necessary degree of risk to health ‘if he were found capable of work’.  But I do not see how that can be done without thinking through the consequences of such a finding in a particular claimant’s case.  I do not consider that the maker of the regulation only had in mind cases in which merely learning of the finding would cause damage to health; he must have had in mind the health consequences of the claimant returning to the workplace.  
17.	The degree of detail in which those consequences will need to be thought through will depend on the circumstances of the case; while I agree with Mr Jacobs that this involves considering the types of work that the claimant might be required to do, I do not consider that it will necessarily involve a thought experiment conducted in such detail as imagining the terms of future hypothetical negotiations between the claimant and a Jobcentre, or testing the degree of risk to health by reference to specific detailed job descriptions.  A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant’s background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing.  They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b). 
18.	Regulation 27(b) requires one to start by identifying a disease or disablement; the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial.  For example, in my decision in CIB/1695/2005, which concerned a claimant suffering from epilepsy, I considered that the requirements of regulation 27(b) were not satisfied because – while one could readily imagine types of work that the claimant could not safely perform, such as work involving driving or the operation of heavy machinery – there was an adequate range of work that the claimant could do in which there would not be a substantial risk to health from his suffering a seizure in the workplace.
19.	In the present case, the tribunal will need to answer the question posed by regulation  27(b) in the context of the claimant’s depressive condition and the consequences for his mental health of being faced with the demands of work.  They will need to decide whether, as the claimant’s consultant suggests, the demands of any form of work that the claimant would have the physical or intellectual ability to perform would be too much for him given his susceptibility to stress.
20.	More detailed evidence from the claimant’s consultant is clearly of the greatest importance.  I suggest that a District Chairman should give consideration either to obtaining a report from the consultant or to directing the claimant to obtain a further more detailed report from him, and setting the date for the hearing with a view to allowing enough time for such a report to be obtained.
21.	Fairly obviously, the report will give the greatest assistance to the tribunal if it goes into more detail on the history  of the claimant’s giving up his profession and the work he has subsequently attempted unsuccessfully, the progress of the claimant’s condition since he gave up his professional work and the reasons for the consultant’s view on whether there is work the claimant could do whose demands would not be too much for him. 
22.	The claimant has, perhaps understandably, commented adversely on a passage in the statement of reasons which says that the members convened, read the papers with even greater care and were ready for the claimant when he arrived.  The record of proceedings indicates at page 88 that there had to be a replacement medically qualified panel member, who arrived at 10.25 not having seen the papers, and the hearing started late at 10.40.  I can well understand a tribunal’s wish to reassure an unsuccessful appellant that his case has been considered carefully.  I have no doubt that it was.  Considerable attention to detail is evident in the tribunal’s handling of the personal capability assessment issues.  I do not doubt that the medically qualified panel member did consider the papers with the chairman in the interval between his arrival and the start of the hearing, and that they will have been actuated by an understandable desire not to keep the claimant waiting for too long.  The sentence that the claimant complains of is not happily expressed in all the circumstances, but the claimant should have no doubt that his case will be carefully considered by the new tribunal, which will in any event be differently constituted.  

	(signed on the original)	Nicholas Paines QC
		Deputy Commissioner
		
		15 June 2007