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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.



Commissioner’s file no: CIB/0215/2002

1. This is an appeal by the Claimant, brought with my leave, against a decision of the
Sunderland Appeal Tribunal made on 29 October 2001. For the reasons set out below that decision was in my judgment erroneous in law and I set it aside. I refer the matter for redetermination by a differently constituted appeal tribunal. This appeal therefore succeeds. I cannot substitute my own decision on the appeal because I do not have the evidence with which to do so.

2. The Tribunal’s decision was to dismiss the Claimant’s appeal against a decision of 10 January 2000. That decision superseded a previous decision awarding incapacity credits from 19 October 1998 and decided that the Claimant was not entitled to incapacity credits from that date. The decision maker, accepting the opinion of an examining doctor, decided that the Claimant scored 3 points from the mental health descriptors comprised in the all work test and no points from the physical activities comprised in that test.

3. In support of her appeal against the decision of 10 January 2000 the Claimant submitted a report dated 16 June 2000 by a Dr. Peter Morgan, consultant psychiatrist, who had interviewed her two days previously (but who had not seen her before). He considered that the Claimant scored 15 points on the mental health descriptors. The appeal was dismissed by an appeal tribunal which sat on 8 August 2000, but that decision was set aside by a Commissioner as erroneous in law. The appeal now before me is from the decision of the appeal tribunal on the rehearing directed by the Commissioner. As I have said, that tribunal also dismissed the appeal. It considered, however, that the Claimant scored 6 points on the descriptors identified by Dr. Morgan and also 2 points under Daily Living 16(a) – “needs encouragement to get up and dress”, making a total of 8, still less than the necessary 10.

4. In the grounds for this appeal, prepared by the Claimant’s representative, it is contended that the Tribunal erred in law in rejecting entitlement to points under 4 of the descriptors which Dr. Morgan considered that the Claimant satisfied. The Secretary of State contends that the Tribunal’s decision was not erroneous in law in any of those respects.

5. The first descriptor is 15(a) – “cannot answer the telephone and reliably take a message.” Dr. Morgan considered the Claimant to be suffering from symptoms of a mild learning disorder and from symptoms of stress related mixed anxiety and depressive reaction due to the threatening behaviour of the father of her child, born in June 1999. In respect of this descriptor he said: “she is afraid to answer the telephone because of her learning disorder she cannot take messages or write them down.” The Tribunal said: “She has now moved into her own house with her young son. She has had a telephone installed. It was inconceivable that she would go to this expense for something which she would be frightened to use.” The ground of appeal contends:

“The Appellant has a telephone but she only responds to a coded ring from either her
parents or her brother and it is the only way she has of contacting the emergency services in case her ex-partner starts causing trouble again.”

6. It seems to me that the Tribunal’s reasoning in relation to this descriptor was erroneous in law in that the descriptor relates to whether the Claimant is disabled, by reason of some specific mental illness or disablement, from answering the telephone and reliably taking a message. So, a person who, for example, by reason of some form of phobia was unable to answer a telephone, but could use it to make calls, could satisfy the descriptor. The Claimant’s claimed disability arose, as I understand it, from a fear that it might be the father of her child ringing. She did not contend that she was unable to make calls herself. The Tribunal’s reliance on the mere fact that the Claimant had had a telephone installed was therefore misplaced. However, I am nevertheless of the opinion that there was no evidence before the Tribunal on which it could properly have found that the Claimant was unable to answer the telephone, within the meaning of this descriptor. Her fear was that it might be the father of her child calling. I accept that it may be that that fear was made worse by her mental state. However, the ground of appeal accepts that the Claimant can answer if she knows that it is not the father calling (e.g. if there is a coded ring). In my judgment this descriptor, which is one of a number listed under the activity “completion of tasks,” is concerned with whether the claimant has the mental ability to answer the telephone and take a message reliably. It is not in my judgment satisfied if the disability arises from fear that it may be a particular person calling, because it seems to me that that fear could in practice be allayed by a change of telephone number to an ex-directory number not known by the father. The Claimant would then in practice have the ability to answer the phone whenever she wished, since she would know that it is not the father of the child calling. I do not in binding terms direct the new tribunal so to find, because the Claimant may have some answer to that point which she can put to the new tribunal, but at the moment I see no answer to it. The new tribunal may also need to consider whether her fear of answering the telephone was perfectly justified, or whether it arose from or was substantially exaggerated by her mental state.

7. As to Dr. Morgan’s opinion that “because of her learning disorder she cannot take messages or write them down”, there is nothing in Dr. Morgan’s report which provides any basis for a view that the Claimant would be unable to understand or remember a fairly simple message. He confirms that “her language development was within the normal range.” However, this descriptor does in my judgment apply where a person is by reason of mental disablement unable reliably to write down the message, since that is the normal manner in which a telephone message, which often involves recording the caller’s number, would be taken. In my judgment the Tribunal ought therefore to have considered whether the Claimant could reliably take a message, which it did not. I note, however, that the Claimant gave evidence that she was a security guard from 1995 until 1999 and I would have thought that this might well have involved writing down simple messages and reports. The new tribunal should obviously examine the Claimant’s ability in this respect with some care.

8. As to descriptor 15(d) – “cannot use a telephone book or other directory to find a number” – the Tribunal said: “she only has a problem with long words and numbers beyond 98. We found that she could use a telephone book.” In my judgment the tribunal erred in law in not stating what the nature of the difficulty with numbers beyond 98 was. If it related solely to mathematical calculations, that would obviously not prevent her looking up a number. The fact that she is able to make telephone calls indicates that she must have some reasonable ability to deal with even long numbers. However, The Tribunal should have explored in more detail, in evidence and in its reasons, what her problem with numbers was, and whether it prevented her using a telephone book.

9. I find nothing wrong with the Tribunal’s reasons in relation to the other two descriptors mentioned in the grounds of appeal, but as the new tribunal must reconsider all the descriptors in issue, it is not necessary for me to discuss them further in this decision.

(Signed) Charles Turnbull

(Date) 29 May 2002