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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 Case No: CIB/5011/2001

1. The appeal is dismissed.

2. This is an appeal with leave given by me from the decision of an appeal tribunal dated 27.9.01. The Secretary of State submits that this might be a case suitable for decision under section 14(7) of the 1998 Act. On looking more closely at the decision, it now seems to me that criticism of it is misplaced.

3. The grounds for appealing (71) are that the tribunal overlooked the medical report at p54 and also the GP’s sick note. A claimant has to produce a sick note in order to claim incapacity benefit under the provisions of regulation 6(1)(a) of the General Regulations in any event. Usually nothing very significant turns on the sick note: the acid test is whether a claimant satisfies the PCA i.e. whether he is awarded a sufficient number of points. In my view nothing turns on the sick note.

4. The consultant’s report of 29.8.01 at p54 notes that he had last seen the claimant in the previous December and that he had not been followed up since. The consultant stated:-

“Apparently since I last saw him his symptoms have got worse and he now has a full blown L5 sciatica running down to his big toe on the right. He has SLR on the right to 45°, he has a cross response at 60° on the left, he has weakness of EHL on the right.”

Whether that was the result of an examination or is based on information volunteered by the claimant is not clear, although I suspect some form of examination must have taken place. The consultant then notes the MRI undertaken almost a year previously, which showed disc degeneration with a prolapse, and he then opined that the claimant should be considered for surgery.

As to this the tribunal commented:-

“[The claimant] submitted a letter from a consultant orthopaedic surgeon [the report at p54] who confirmed a diagnosis of sciatica with disc degeneration in the spine but the consultant did not give any indication of [the claimant’s] physical function and ability.”

Neither did he, and this report does not, therefore, significantly assist the claimant.

5. On the PCA, the descriptors claimed by the claimant were:-

“Sitting (b) – 15 points, bending and kneeling (b) 15 points, standing (e) 7 points, stairs (a) 15 points.”

He also claimed for walking (f) but that carries no points.

(i) On examination the EMP awarded no points.

(ii) The tribunal awarded the following points:-

Sitting (c) – 7 points, and standing (f) 3 points.

(iii) What they said was as follows:


“In evidence to the tribunal [the claimant] could not say how long he is able to sit but he drives a car and goes fishing when he is able to sit on his bait box and lie on a blanket ‘for a few hours’. In the hearing he sat for 35 minutes without apparent discomfort then rose easily. However, he did say that he was uncomfortable and that his leg was numb. The tribunal accepted he could not sit comfortably for more than 30 minutes without having to move.”

That seems to me to be a perfectly adequate explanation for their findings.


As to this the tribunal stated that the claimant had said to them that he was able to stand for longer than 10 minutes before having to move around, and therefore it was quite appropriate for them to award 3 points.

Bending and kneeling, stairs

The tribunal said:-

“[The claimant] told the tribunal that he is able to bend/kneel to pick something off the floor and that he is able to use the stairs without difficulty.”

That I think speaks for itself.

6. I therefore conclude that the tribunal were in no error of law and the appeal is therefore dismissed.

(Signed) J M Henty

(Date) 8 May 2002