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CIB/2011 2001

 

This decision has been reproduced in plain text only. If you wish to submit a copy of a decision as part of an appeal, please download a Word copy from the link below.

http://www.osscsc.gov.uk/aspx/view.aspx?id=937

CIB/2011/2001
CIB/2012/2001
CIB/2013/2001


DECISION OF THE SOCIAL SECURITY COMMISSIONER


1. I set aside the decisions of the North Shields appeal tribunal dated 26 April 2001 and I substitute my own decisions. The claimant is to be treated as incapable of work from 7 March 1997 to 4 July 1997. He is to be treated as capable of work from 7 December 1996 to 6 March 1997, from 5 July 1997 to 1 August 1997 and from 18 June 1998 to 19 July 1998.


REASONS

2. I held an oral hearing of these appeals. The claimant neither attended nor was represented. The Secretary of State was represented by Ms Deborah Haywood of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions. I am very grateful to Ms Haywood for her helpful submissions.

3. These appeals have a long history. The claimant was entitled to invalidity benefit until 16 February 1995. He was then disallowed benefit on review and that decision, which was effective to 12 April 1995, was upheld on appeal. A Commissioner dismissed a further appeal (CS/12225/96). On 6 September 1996, an adjudication officer decided that the claimant was not entitled to incapacity benefit (which had replaced invalidity benefit) from 13 April 1996. That decision was upheld on appeal on 24 July 1997 and a Commissioner refused leave to appeal (CIB/5242/97). On 7 January 1997, the claimant submitted a new claim which was effective from 7 December 1996. On 1 August 1997, an adjudication officer decided, in two separate decisions, that the claimant was to be treated as capable of work because he could not be deemed under regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995 to satisfy the all work test and he had failed without good cause to attend, or submit to, a medical examination on 4 July 1997. A tribunal dismissed appeals against those decisions and the claimant appealed to a Commissioner. Meanwhile, he had been accepted as being incapable of work from 2 August 1997. However, on 18 June 1998, an adjudication officer decided that the claimant was to be treated as capable of work because he had failed without good cause to attend a medical examination on 17 June 1998. A tribunal dismissed an appeal against that decision and the claimant appealed to a Commissioner. By that time, incapacity had again been accepted from 20 July 1998.

4. The three appeals to a Commissioner that I have mentioned covered the periods from 7 December 1996 to 1 August 1997 and from 18 June 1998 to 19 July 1998. They came before me with three other cases and I determined all six appeals on 12 September 2000 (CIB/2645/99 et al.). I allowed all six appeals and referred the three relevant cases to another tribunal with the following directions:

“21. ….. I direct that the three cases be heard together and be treated as one appeal and that the tribunal be constituted under regulation 36(2)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 by a legally qualified panel member and a medically qualified panel member who were not members of any of the tribunals whose decisions I have set aside.

22. I further direct that, before the cases are heard by the tribunal, the Secretary of State shall consider whether he is prepared to accept, with the benefit of such evidence is now available, that the claimant should be treated as incapable of work for all, or any part of, the two periods now in issue (i.e., 7 December 1996 to 1 August 1997 and 18 June 1998 to 19 July 1998).

23. The tribunal should first consider any concession made by the Secretary of State and then, to the extent that it is necessary to do so, they should consider the following three questions:

firstly, whether the claimant may be treated as satisfying the all work test from 7 December 1996 to 4 July 1997 by virtue of regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995;

secondly, whether the claimant is to be treated as capable of work under regulation 8(2) (for either of the periods identified below) on the ground that he failed without good cause to attend for or submit himself to a medical examination on 4 July 1997;

thirdly, whether the claimant is to be treated as capable of work under regulation 8(2) from 18 June 1998 to 19 July 1998 on the ground that he failed without good cause to attend for or submit himself to a medical examination on 17 June 1998 and, if not, whether he may continue to be treated as incapable of work under regulation 28 during that period or whether he must actually be assessed under the all work test or be found to satisfy a condition of regulation 10.

If the first and second question are both answered in the claimant’s favour, the tribunal must consider whether the claimant may continue to be treated as satisfying the all work test from 4 July 1997 to 1 August 1997 by virtue of regulation 28 or whether he must actually be assessed under the all work test or be found to satisfy a condition of regulation 10. If the first question is answered in the claimant’s favour and the second is not, the claimant will be treated as capable of work under regulation 8(2) from 4 July 1997 to 1 August 1997. If neither question is answered in the claimant’s favour, he will be treated as capable of work under regulation 8(2) from 7 December 1996 to 1 August 1997. If the second question is answered in the claimant’s favour but the first is not, the claimant will have to be assessed under the all work test or be found to satisfy a condition of regulation 10 in respect of the whole period from 7 December 1996 to 1 August 1997.”

5. The tribunal sat to consider these matters on 26 April 2001. The claimant did not attend the hearing and was not represented. The Secretary of State had made no concession and so the tribunal considered the three questions posed in paragraph 23 of my decision of 12 December 2000. They answered the first question adversely to the claimant because they were not satisfied there had been any of the changes of circumstances required by regulation 28(2)(b)(i), (ii) or (iii). They decided the second question in the claimant’s favour on the ground that the claimant was on a pilgrimage to Lourdes on that date and he had good cause for not attending the medical examination. They decided the third question against the claimant. The chairman’s statement of reasons then records:

“The Tribunal noted the Commissioner also directed that if they found the answer to question 1 to be no and the answer to question 2 to be yes then they must assess whether or not the appellant was subject to the all-work test or had he been found to satisfy regulation 10 for the period 7 December 1996 to the 1 August 1997. As the tribunal had answered the Commissioner’s questions in the order just recited they then had to decide whether the appellant was subject to the all-work test or did he satisfy regulation 10.

“The tribunal considered that regulation 10 was not satisfied because the appellant’s argument on regulation 10(2)(e)(ii) was not conclusive in the appellant’s favour. There was no evidence of a severe mental illness so that was not in the appellant’s favour either.

“There was no evidence that he satisfied regulation 10(2)(a)-(d) or any subsection of (e). Hence the appellant had to be found to be subject to the all-work test.

“For these reasons the appellant’s appeals were dismissed.”

The claimant now appeals with my leave.

6. The claimant’s first ground of appeal is that the tribunal sat without him or his representative being present and before he had submitted all his evidence. I do not accept that the tribunal erred in this respect. The claimant had been refused a hearing at his home but there was no evidence as to why he could not have arranged transport to the hearing venue and there was no explanation for his representative’s non-attendance. Had the claimant attended, or been represented at, the hearing, he could have produced his further evidence then and, in any event, the claimant has not satisfied me that he had compelling further evidence that was not before the tribunal.

7. The claimant’s second ground of appeal is that the tribunal did not follow my directions. I accept that that is so, although no doubt I must take some of the blame as my directions were plainly not as clear as they should have been. When I said that the claimant would “have to be assessed under the all work test”, if the second question I left to the tribunal was decided in the claimant’s favour but the first was not, I meant that the tribunal would have to carry out the assessment and decide how many points the claimant scored. That the tribunal did not do. They erred in law in that respect

8. The claimant’s third ground of appeal alleges that the tribunal failed to have regard to evidence as to the extent of his disablement. This adds nothing to his second ground. His fourth ground of appeal alleges a failure by the Benefits Agency to release data concerning the all work test, but I am not satisfied that there was any data relevant to the claimant’s case that was not disclosed.

9. In view of my finding that the tribunal erred in law, it is necessary for me to consider what decisions should be given in place of the tribunal’s in the light of the evidence before me.

10. Before I deal with the questions I previously left to the tribunal, it is convenient to deal with a central point of the claimant’s case. He has consistently maintained that he was entitled to be treated as capable of work because he suffered from “an active and progressive form of inflammatory polyarthritis” within regulation 10(2)(e)(iii) of the 1995 Regulations. On 20 October 1998, the claimant’s general practitioner wrote:

“I reiterate the [claimant] suffers Multiple Arthritis. It’s active, progressive and inflammatory and per his hips has reached ‘burnt out’ stage.”

Despite the fact that the claimant was then only 42 years old, both hips were to be surgically replaced and that has subsequently been done. Ms Haywood, however, relied upon the approach taken by Dr Roger Thomas, a medical policy adviser to the Department of Social Security in a note written on 27 April 1998. He contrasted osteoarthritis, characterised by the loss of articular cartilege and overgrowth and remodelling of the underlying bone, with inflammatory arthrides, characterised by inflammation of the synovial lining of the joint and erosion of bone rather than cartilege destruction and overgrowth of bone. The former, he said, was thought to be due to stresses applied to the joints and their capacity to withstand them and the latter tended to be systemic illnesses caused by immunological disorder. He added:

“Osteoarthritis and an inflammatory polyarthritis such as rheumatoid arthritis are thus two distinct groups of conditions. It may be helpful to further differentiate these two types of arthritis by contrasting:

i osteoarthritis where any joint inflammation is secondary to the disease process, whereas in the inflammatory arthrides the inflammation is the primary process and

ii in inflammatory polyarthritis all the affected joints will be involved in the primary inflammatory process whereas in osteoarthritis only some, or possible none, of the joints are involved in secondary inflammation.”

11. The diagnosis of the claimant’s condition has always been osteoarthritis rather than rheumatoid arthritis and that may be why his general practitioner used the term “Multiple Arthritis” rather than “polyarthritis”. The claimant points to a letter from the Benefits Agency dated 10 April 1997 stating that the adjudication officer had always accepted that [the claimant] suffered from polyarthritis. That seems to me to be incorrect and, in any event, is not the Secretary of State’s position now. I accept that the claimant’s condition was “inflammatory” but it seems to me that the use of that word as a qualification of “polyarthritis” in regulation 10(2)(e)(iii) suggests that the word “inflammatory” in the Regulations was intended to refer to a primary process rather than a secondary process. Therefore, in the absence of any medical opinion that the term “inflammatory polyarthritis” would be an apt description of osteoarthrits affecting several joints with inflammation as a secondary process, I accept the distinction drawn by Dr Thomas. Accordingly, I find that the claimant was not suffering from a form of polyarthritis within the scope of regulation 10(2)(e)(iii).

12. The claimant has also argued that he suffered from “a severe mental illness, involving the presence of mental disease, which severely and adversely affects a person’s mood or behaviour, and which severely restricts his social functioning, or his awareness of his immediate environment” within regulation 10(2)(e)(viii) of the 1995 Regulations. Although he plainly has suffered from mental illness from time to time, there is no evidence that at the times material to these appeals, the claimant was suffering from a severe mental illness within the scope of the Regulations,

13. I turn to the questions I left to the tribunal in my decision of 12 September 2000. Firstly, like the tribunal, I am not satisfied that there had been a deterioration in the claimant’s condition between 6 September 1996 and 7 December 1996 so as to entitle the claimant to the benefit of regulation 28 of the 1995 Regulations. At the material time, regulation 28 provided:

“28. (1) Where the all work test applies, the test shall, if the conditions set out in paragraph (2) are met, be treated as satisfied until a person has been assessed or until he falls to be treated as capable of work in accordance with regulation 7 or 8.
(2) The conditions are –
(a) that the person provides evidence of his incapacity for work in accordance with the Social Security (Medical Evidence) Regulations 1976 (which prescribe the form of doctor’s statement or other evidence required in each case); and
(b) that it has not within the preceding 6 months been determined, in relation to his entitlement to any benefit, allowance or advantage which is dependent on him being incapable of work, that the person is capable of work under regulation 7 or 8, unless –
(i) he is suffering from some specific disease or bodily or mental disablement which he was not suffering from at the time of that determination; or
(ii) a disease or bodily or mental disablement which he was suffering from at the time of that determination has significantly worsened; or
(iii) in the case of a person who was treated as capable of work under regulation 7 (failure to provide information), he has since provided the information requested by the Secretary of State under that regulation.”

As Ms Haywood submitted, the period between 6 September 1996 and 7 December 1996 is relatively short and, while there is evidence of disability during that period and of greater disability at various dates both before and after that period, there is no evidence that he was suffering from any disablement on 7 December 1996 that he had not been suffering from three months earlier or that the extent of his disablement had significantly worsened during that period. Nor is there any evidence of any new source of disablement or of a significant worsening of disablement during the next few months. However, from 7 March 1997, the condition mentioned in regulation 28(2)(b) was satisfied because it was more than six months since the determination of 6 September 1997. As it is not suggested that the condition mentioned in regulation 28(2)(a) was not satisfied, it follows that the claimant was entitled to be treated under regulation 28 as incapable of work from 7 March 1997 until the date fixed for the medical examination which was 4 July 1997. (I overlooked this point when I gave my directions to the tribunal on 12 September 2000).

14. The second question is whether the claimant had good cause for failing to attend or submit to a medical examination on 4 July 1997. This was the question determined in the claimant’s favour by the tribunal on the ground that the claimant was in Lourdes at the time of the examination. Ms Haywood submitted that that finding was perverse. I agree. The date for the examination was suggested by the claimant (see docs 12, 13, 17 and 19 on file CIB/2011/01), there is a report completed by the examining doctor and his chaperon stating they had seen the claimant on that date (docs 25 to 29) and there was a letter from the claimant complaining about what had happened on that date (doc 52 to 53). He plainly was not in Lourdes on 4 July 1997.

15. The examination was to have been at the claimant’s home. The claimant objected to the examination on the ground that the doctor was to be accompanied by a chaperon and that the doctor had not signed a document stating that the refusal of incapacity benefit on the ground of lack of contributions had been withdrawn. Regulation 8 of the 1995 Regulations provides:

“8. (1) Where a question arises as to whether a person is capable of work, he may be called by or on behalf of a doctor approved by the Secretary of State to attend a medical examination.
(2) Subject to paragraph (3) where a person fails without good cause to attend for or submit himself to such an examination, he shall be treated as capable of work.
(3) A person shall not be treated as capable of work under paragraph (2) unless written notice of the time and place for the examination was sent to him at least 7 days beforehand, or unless he agreed to accept a shorter period of notice.”

In my decision of 12 September 2000, (CIB/2645/99 et al), I said:

“Of course, a claimant is always entitled to refuse a medical examination but, if the examination is arranged under regulation 8(1) with the notice required by regulation 8(3), he or she must accept that the consequence will be a decision under regulation 8(2), treating him or her as capable of work, unless there is good cause for the refusal. A doctor is entitled to insist on a suitable chaperon being present and a claimant who unreasonably refuses to allow such a chaperon to be present is to be taken to be refusing to submit to the examination. No reasonable explanation has been proffered for the objection to the chaperon in this case. The doctor had no authority to sign any statement as to the claimant’s entitlement to incapacity benefit and the claimant was not entitled to insist on any decision with respect to his entitlement to incapacity benefit being reversed before submitting to the examination. The examination was required because, not only was entitlement to incapacity benefit still in issue but the all work test was relevant to his entitlement to other benefits and to “credits” for his contribution record. (If the examination was not necessary it would not matter that there had been a decision under regulation 8(2).)”

I stand by that statement. Plainly the Benefits Agency employee who was acting as a chaperon owed a duty of confidentiality and was not entitled to broadcast to the world details of the claimant’s medical condition. Equally plainly, a claimant cannot expect medical details to be kept from the Benefits Agency who must determine his or her entitlement to benefit or incapacity credits. A claimant who insists on strict medical confidentiality must forego his or her right to benefits or credits.

16. In my decision dated 12 September 2000 (CIB/2645/99 et al.), I said that “a claimant is entitled to argue that, if it was unreasonable for the examination to be arranged, he or she had good cause for refusing to submit to it”. There is no doubt that the claimant in this case was disabled and Ms Haywood accepted that he might well have been found to satisfy the all work test had he been examined. However, it is not certain that the claimant would have scored the necessary 15 points, particularly in view of the observations recorded by the doctor on 4 July 1997, and the whole point of an examination is to enable a claimant’s capacity to perform certain activities to be assessed accurately. For the reasons I have already given, it is not established that the claimant was entitled to be treated as incapable of work by virtue of regulation 10, although an examination might have resulted in a different view being taken. The integrity of the social security system depends on there being appropriate tests in place and I am not satisfied that it was unreasonable of the Secretary of State to require an examination in this case. Accordingly, I do not accept that the claimant had “good cause” for his failure to submit to the examination on 4 July 1997. It follows that he is to be treated as capable of work from 7 December 1996 to 6 March 1997 and from 5 July 1997 to 1 August 1997. I am not concerned with the propriety of the decision to treat him as incapable of work from 2 August 1997.

17. The third question is whether the claimant had good cause for failing to attend a medical examination on 17 June 1998. That examination was to be at an assessment centre at 1.30 pm. The Benefits Agency arranged a taxi for the claimant. The Secretary of State contends that the taxi driver could not get an answer from the claimant’s home and that the claimant telephoned the assessment centre at 2.55 pm from an advice agency where he was assisting another claimant. The claimant contends that the taxi did not turn up and that he waited in all day. He denies having been at an advice centre. The claimant has consistently failed to attend medical examinations or hearings before tribunals. I do not accept his evidence that he was prepared to be examined on 17 June 1998 and waited for the taxi. I prefer the admittedly hearsay evidence advanced on behalf of the Secretary of State. Given the history of this case and notwithstanding the evidence of the claimant’s general practitioner as to the extent of his disablement, I consider that it was not unreasonable for the Secretary of State to arrange the examination. Accordingly, I am satisfied that the claimant did not have good cause for failing to attend the examination. He is to be treated as capable of work from 18 June 1998 to 19 July 1998.

18. Thus, the claimant’s first appeal is successful in part. His two other appeals are not successful.




(signed) MARK ROWLAND
Commissioner
5 November 2002