CIB/1361/2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The decision of the Social Security Commissioner

1.		This appeal by the claimant to the Social Security Commissioner succeeds.

2.		The decision of the Darlington appeal tribunal sitting on 10 December 2007 is wrong in law.  Accordingly I must set it aside.

What happens next in this appeal

3.		But this is not the end of the matter. Unfortunately 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 her entitlement to incapacity benefit.  It follows that I have no option but to send this appeal back for rehearing by a fresh tribunal in Darlington.  I make further directions in relation to this rehearing in paragraphs 26-31 below.

4.		The fact that the claimant’s appeal to the 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 her 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 decision as the previous tribunal.

The background to the appeal to the tribunal

5.		The claimant is a young woman now aged 24 who has apparently been in receipt of incapacity benefit since at least 2001.  The present file includes a copy of a report (known as an IB85) from one of the department’s Examining Medical Practitioners (or EMPs) from April 2003.  Her disabling conditions were described as depression/anxiety and previous anorexia. The present file does not include the score sheet used by the decision maker following that medical in 2003, but it seems likely that the result of that assessment was that the claimant was found incapable of work at that stage.  On my calculation the likely score on the personal capability assessment was 14 mental health points (10 points being required for such a finding of incapacity for work).

6.		The claimant completed a new questionnaire (an IB50 form) in February 2007.  She stated her condition to be stress/depression due to an eating disorder and years of abuse.  The format of the IB50 is such that there are extensive and detailed questions about physical health problems but relatively little space to set out mental health problems – even assuming a person is both able and willing to set out such matters in detail, which in the nature of things may be more difficult than with physical limitations.

7.		In June 2007 a different EMP examined the claimant on behalf of the Department. The examining doctor completed a new-style electronic IB85 form.  This doctor’s overall conclusion was that the claimant’s mental health condition was “very mild” and the impact on day to day living was “minimal”. 

8.		The decision maker also had a copy of a report from the claimant’s GP.  This confirmed the diagnosis of anxiety/depression.  The GP’s report also noted overdose attempts in 2001, 2002, 2003 and 2005, that there had been CPN counselling in the past and that the outlook was “uncertain”.  

9.		Based on all these papers, a decision maker concluded on behalf of the Secretary of State that the claimant scored only 4 mental health points and so was not incapable of work.  This decision was later confirmed on reconsideration.

The claimant’s appeal to the tribunal

10.		The claimant lodged an appeal to the tribunal.  She explained her problems in a little more detail on the appeal form.  She asked for a paper hearing of her appeal – a decision that, of course, may have been influenced by the nature of her problems.

11.		In due course the Darlington appeal tribunal dealt with the claimant’s appeal at a paper hearing.  The tribunal confirmed the Secretary of State’s decision, agreeing with the descriptors chosen by the Secretary of State (which were the same as those identified by the examining doctor).

12.		The tribunal chairman later issued a statement of reasons for the tribunal’s decision.  This explained why the tribunal concluded that the claimant had no hearing problems (picking up on another issue mentioned on the IB50).  The tribunal’s statement also agreed with the findings and conclusions of the examining doctor as regards the mental health descriptors.

13.		Although the tribunal’s statement referred to the claimant’s appeal letter, it made no reference to either the findings of the earlier medical examination from 2003 or the more recent GP’s evidence on the enquiry form.

The arguments on the appeal to the Social Security Commissioner

14.		Mr Commissioner Mesher granted the claimant permission to appeal, essentially on two grounds. The first was that it was arguable that the tribunal had not dealt adequately with the claimant’s long history of mental health problems.  The second related to whether the tribunal was in error in not expressly considering regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995 (S.I .1995 No. 311 – “the 1995 Regulations”).  In other words, even if she did not attain the requisite number of points on the assessment, would there have been a substantial risk to the claimant’s health if she were found capable of work?

15.		The Secretary of State’s representative now involved in the case supports the claimant’s appeal to the Social Security Commissioner.  He argues that the tribunal did not properly address the claimant’s own evidence about her problems and also failed to consider the potential application of regulation 27.

The reasoning of the Social Security Commissioner

16.		I agree with this submission.  The tribunal pointed to the EMP’s report as justification for its decision – but it needed to explain why the claimant’s own evidence had not been accepted.  It also needed to explain why the GP’s evidence had not been persuasive.  There was, moreover, arguably sufficient evidence on the papers at least to consider the application of regulation 27.

17.		I therefore set aside the tribunal’s decision.  Sadly, I am not in a position to decide this matter myself.  The claimant’s appeal against the decision of the Secretary of State must therefore be sent back for rehearing by a different tribunal.

Is giving up a course of study the same as stopping work for descriptor 17(a)?

18.		There is one final matter on which perhaps I should comment. It relates to an inconsistency between the two EMP reports. The EMP who conducted the 2003 examination expressed the view that mental stress was a factor in making the claimant stop work (the test for mental health descriptor 17(a)).  The doctor noted “Started attending child care course about 18/12 ago – but could not cope with it.”  The doctor who carried out the 2007 examination expressed a different view, stating that mental health was not a factor in stopping work, and that EMP added by way of explanation that the claimant “has never been employed”.

19.		On the face of it this is a clear conflict.  It may, of course, in part reflect a difference in the questioning skills of the first and second EMP respectively.  But the underlying question is whether abandoning a course of study at college can amount to stopping work for the purpose of descriptor 17(a).  There appears to be no direct authority on the point.

20.		It is certainly clear that “work” is wider than “paid work”.  In decision CIB/3764/2001, the late Miss Commissioner Fellner noted that there is no general definition of “work” for the purposes of either the Social Security Contributions and Benefits Act 1992 or the 1995 Regulations. The learned Commissioner also, observed, however, that voluntary work could in certain circumstances count as work for the purposes of regulation 16 and 17, which define the limits of exempt work.  Miss Commissioner Fellner concluded: “ If voluntary work would, in the absence of the specific exemption, be work which would deprive a person doing it of entitlement to incapacity benefit, I do not see why voluntary work should not in principle also be embraced by descriptor 17(a)” (paragraph 9).  I respectfully agree.

21.		I am not convinced, however, that leaving a course of study necessarily counts as stopping work in the context of descriptor 17(a).  It is perfectly true, of course, that a college course can be akin to work in terms of the need to observe a regular timetable, to meet targets and to interact with others.  To that extent the mischief – the aim of descriptor 17(a) – may be seen as the same. However, as a matter of the ordinary meaning of language it is not clear to me that the terms are interchangeable.  If a student is asked “are you working at present?”, she might reply “no, I’m at college”, or (more likely) “no, I’m at college but I am working three evenings a week at the local supermarket”.

22.		Moreover, whereas regulations 16 and 17 make express reference to voluntary work, there is no suggestion in those provisions that following a course of study comes within the definition of the admittedly vague term “work”.  I am also not persuaded that the wide definition of “work” in regulation 16(6) as “any work which a person does, whether or not he undertakes it in expectation of payment”, is broad enough to include following a course of study.  Rather, I would see a course of study as preparatory to work, rather than work itself for these purposes.  In other words, there is a (not always very clearly demarcated) conceptual line between education for the world of work and the world of work itself.

23.		My view, therefore, is that the view expressed by Miss Commissioner Fellner in CIB/3764/2001 would not normally apply to ceasing college studies.  There is, of course, special provision made for people aged 16 to 19 to be excluded from incapacity benefit if they are in full-time education (section 30A(2A)(e) and (7), and regulation 17 of the Social Security (Incapacity Benefit) Regulations 1995 (S.I. 1995 No. 2946).  There is, however, no general rule treating claimants as capable of work simply because they are undertaking a course of full-time or part-time education.  In my view this lends support to the notion that “work” and “study” are seen in general as separate concepts for the purpose of descriptor 17(a).

24.		I accept that there may well be some difficult borderline questions.  For example, many college courses involve work placements (and a childcare course may be just such a course).  I think it must ultimately be a question of fact as to whether a course with such a vocational element amounts to “work” for the purpose of regulation 17.

25.		However, on the facts of this case I need not resolve this matter finally.  It is not essential to my decision on this appeal and indeed for that reason I have not invited submissions on the point.  The question may need to be revisited and determined following full argument in the context of some later appeal.	

The decision of the Social Security Commissioner

26.		Leaving that issue aside, therefore, it follows that I must set aside the tribunal’s decision as wrong in law and refer it to a new tribunal (Social Security Act 1998, section 14(8)(b)).  The new tribunal will consider the matter afresh.  

27.	I emphasise that the fact that the appeal to the Commissioner has succeeded is no indication of the final outcome at the rehearing.  Experience shows that the threshold of 10 points for mental health descriptors is a high hurdle to meet.

28.	The new hearing should be an oral hearing.  The claimant is encouraged to attend to explain her position.  She has received some assistance from a welfare rights officer for the local NHS Care Trust and it is to be hoped that that assistance can be continued and will extend to include representation.
29.	The claimant should understand that the rehearing has to be a rehearing of the original appeal.  The new tribunal will therefore be concerned with her position as at the date of the original decision in August 2007, not as it is now.  It follows that the knee condition, which she refers to in her letter seeking leave to appeal, may or may not be relevant to the new tribunal’s determination.

30	The new tribunal should first consider whether or not the claimant reached the relevant points threshold for the personal capability assessment at the material time.  If not, the tribunal should go on to consider whether regulation 27(b) applies.  In doing so, the tribunal should bear in mind the observations of Mrs Commissioner Parker in CSIB/33/2004 that “the risk must arise from the broad results of a claimant being found capable of work and is not confined to the risks arising directly from the tasks within a claimant’s job description” (paragraph 40).	

31.	Before listing for rehearing, the file should be placed before a District Chairman for further case management directions.  The District Chairman may wish to consider whether it is appropriate, given the stated history of sexual abuse, that the rehearing be heard by an all female tribunal, or at least a tribunal that includes a female medically qualified member.

	(signed on the original)		N J Wikeley
			Deputy Commissioner

								23 September 2008