[2007] UKSSCSC CIB_400_2007 (24 July 2007)

CIB/400/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This appeal to the Social Security Commissioner succeeds.  The decision of the Chester appeal tribunal sitting on 31 October 2006 is wrong in law.  Accordingly I must set it aside.

2.	But this is not the end of the matter. I am not in a position to decide the merits of the claimant’s appeal from the original decision of the Secretary of State on his entitlement (or otherwise) to incapacity credits.  It follows that I have no option but to send this appeal back for rehearing by a fresh tribunal in Chester.

3.	However, the fact that the claimant’s appeal to the Social Security Commissioner has succeeded should not be taken as any indication as to the outcome of the rehearing by the new tribunal.  The new tribunal might find in the claimant’s favour and allow his appeal against the Secretary of State’s decision.  Alternatively, depending on the view it takes of the facts, that new tribunal may end up coming effectively to the same or similar decision as the previous tribunal, in which case the appeal will be disallowed.

4.	The claimant had been incapable of work since February 2004.  He was not entitled to incapacity benefit as he did not meet the contribution conditions, but he was initially awarded incapacity credits.  In February 2006 he completed the standard IB50 questionnaire (or rather his wife completed it for him, for reasons that will become apparent).  He was then examined on 24 April 2006 on behalf of the Department by a doctor, who completed the computerised IB85 report form.

5.	A decision maker on behalf of the Secretary of State considered the various documentation on 17 May 2006 and decided that the claimant scored no points for physical descriptors and one point for mental health issues.  As a result the decision awarding incapacity credits was superseded with effect from that date.  The claimant appealed.

6.	The claimant’s appeal was heard by an appeal tribunal at Chester on 31 October 2006.  The claimant attended with his representative from the CAB.  The tribunal dismissed the appeal.  It confirmed the substance of the Secretary of State’s decision but awarded 6 points for manual dexterity descriptor 7(f).  However, this was insufficient to reach the total required to satisfy the personal capability assessment and so the appeal still failed.

7.	The tribunal subsequently produced a Statement of Reasons for its decision.  The claimant appealed to the Commissioner on two grounds.  The first related to the tribunal’s alleged failure to explain why manual dexterity descriptor 7(d) did not apply.  The second related to the examining doctor’s alleged lack of competence in using the computerised report form.  Mr Commissioner Turnbull granted leave to appeal on the first of these two points.  Given my conclusion on the first ground of appeal, I do not need to consider the second ground of appeal and pass no comment on it.

8.	I am satisfied that the first ground of appeal is made out.  I do not accept the submission of the representative of the Secretary of State that the tribunal has provided adequate reasons for rejecting the potential application of descriptor 7(d).

9.	Manual dexterity descriptor 7(d) applies where a person “cannot use a pen or pencil”.
As Mr Commissioner Howell QC stated in Commissioners’ decisions CIB/13161/1996 and CIB/13508/1996 (at para 38):

“the descriptor ‘cannot use a pen or pencil’ in activity 7 (‘Manual dexterity’) must mean by necessary common sense implication that the claimant scores the points if he is physically unable to use a pen or pencil to write in a normal manner. A fair reading does not need the schedule itself to spell out that this is what is meant, rather than a total inability to wield a pen or pencil for any purpose at all, even punching a hole in a sheet of paper.” 

10.	The scope of descriptor 7(d) was also considered in some detail by Mr Commissioner Rice in the reported decision R(IB) 1/98 (included in the appeal bundle, as appended to the submission of the Secretary of State’s representative, under its original file reference number of CIB/16237/1996).  At paragraph 7 of that decision, the Commissioner explained as follows:

“Accordingly, if a person cannot use a pen or pencil for the purposes for which a pen or pencil is normally used with either the right or the left hand, depending upon which is the command hand, he will prime facie be entitled to 15 points. Of course it may be that in unusual circumstances a person who, is for example right-handed, and has lost the use of that hand for writing, has acquired a compensating skill in his left hand.  If that is the case, then he will not satisfy the descriptor.  It may be that his skill in the left hand is not as good as it was originally in the right hand, but provided the skill attains a reasonable standard, so that he could be said in everyday language to be able to use a pen or pencil to write reasonably clearly and at a reasonable speed, as well as to accomplish other things, such as ticking forms and signing his name, he will not be entitled to the 15 points.  It is all  a matter of fact in any particular instance.  Seemingly in the case of an ambidextrous person, he will not satisfy the test, so long as he has sufficient use of one hand.”

11.	In the present case the claimant had described himself on the IB50 form as right-handed.  He has suffered an injury to his right arm and so stated that “I have had to learn to write with my left hand as I cannot hold a pen as if to write as I have no control over my right hand.” However, he also explained that “I do not write very well with my left hand so my wife has filled in the form for me.”

12.	The examining doctor described the claimant as “normally left-handed” and reported that he had observed the claimant as having “no difficulty writing with a pen in left hand”.  There was, therefore, a clear conflict of evidence between that of the claimant in the IB50 and the examining doctor in the IB85.

13.	At the tribunal hearing the claimant was recorded as having said “slight problem L hand – learnt to write”.  The slight problem appears to relate to a cyst on the hand (para 9 of the tribunal’s Statement of Reasons).  The claimant’s representative evidently raised manual dexterity as an issue in dispute (see para 8 of the Statement of Reasons).  The tribunal continued by noting that the claimant “…said that he had been right handed but his arm had been completely paralysed for 18 months.  He said that the IB50 questionnaire had been completed by his wife and that he could not write a letter although he could sign his name” (presumably this means with his left hand, although the point is by no means clear).  The tribunal went on to confirm that the claimant had difficulty turning taps or cooker knobs with his right hand and so applied manual dexterity descriptor 7(f), which scored 6 points.

14.	In short the reason why the tribunal erred in law is as follows.  The tribunal failed to explain why descriptor 7(d) did not apply.  Indeed, although the Statement of Reasons is in many ways admirably thorough, it does tend in places to recite the evidence, rather than make findings of fact on that evidence.  Thus the reader is told that the claimant “said that the IB50 questionnaire had been completed by his wife and that he could not write a letter although he could sign his name”.  However, the tribunal has failed to record its finding of facts on this issue.  Did it accept the claimant’s evidence?  If so, why did descriptor 7(d) rather than 7(f) not apply?  If not, why did the tribunal not accept the claimant’s evidence?  This uncertainty means the decision cannot stand.

15.	I therefore find the tribunal’s decision to be erroneous in point of law and must set it aside under section 14(8) of the Social Security Act 1998.  I am not in a position on the papers before the Commissioner to decide the claimant’s appeal against the Secretary of State’s original decision on it merits.  I must therefore send the claimant’s appeal against the decision of the Secretary of State back to a new appeal tribunal to be determined afresh (section 14(8)(b) of the 1998 Act). As I explained at the outset, the fact that the claimant’s appeal to the Social Security Commissioner has succeeded should not be taken as any indication as to the outcome of the rehearing by the new tribunal.

16.	I direct the new tribunal to consider the claimant’s appeal entirely afresh.  In considering which manual dexterity descriptor applies, the tribunal should have regard to the guidance of Mr Commissioner Howell QC in CIB/13161/1996 and CIB/13508/1996 and of Mr Commissioner Rice in R(IB) 1/98, discussed above.  The new tribunal will therefore have to make findings of fact as to the claimant’s ability or inability to write with his right hand and his left hand respectively.  In particular, the tribunal will have to consider how far, if at all, the claimant has developed a compensating skill of writing with his left hand.  This will involve consideration of whether or not it is accurate to say that the claimant’s dominant hand is now his left hand, and so resolve the conflict in evidence between the IB50 and the IB85.

17.	There is one final matter that I should mention, which is no criticism of the appeal tribunal itself.  The Secretary of State’s original submission to the tribunal is headed “Department for Work and Pensions Appeal Tribunal”.  This heading on page 1A thus gives the wholly misleading impression that the appeal tribunal is some form of internal departmental tribunal.  This is both inaccurate and unacceptable.  The appeal tribunal is an independent judicial tribunal established under the provisions of the Social Security Act 1998.  Its members are appointed by the Lord Chancellor (now on the recommendation of the Judicial Appointments Commission).  The independence of the tribunal and its members are also guaranteed by the recently enacted Tribunals, Courts and Enforcement Act 2007.  The Secretary of State should take steps to ensure that this heading is not replicated on any further submissions as it may mislead appellants.  The Regional Chairman of the Tribunals Service in Liverpool may also wish to satisfy himself that the tribunal’s independence is not compromised again in this fashion.

	(signed on the original)		N J Wikeley
			Deputy Commissioner
		24 July 2007