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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/3868/2001

1. This appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the Chesterfield tribunal made on 25th May 2001. I substitute my own decision. This is to the effect that from and including 22nd February 2001 the claimant continues to be incapable of work and accordingly (subject to the satisfaction of other conditions of entitlement) entitled to incapacity benefit.

2. In this case the claimant’s capacity to work depends on the application of the Personal Capability Assessment (PCA). This is defined in regulation 24 of the Social Security (Incapacity for Work) (General) Regulations 1995. The rules for satisfying the assessment are set out in regulations 25 and 26. The PCA itself is set out in the schedule to those regulations. The claimant’s capacity for work in this case depends on whether he has scored at least 15 points for physical descriptors in the assessment. There is no evidence that mental descriptors are relevant or that the claimant is exempt from the PCA or comes within one of the exceptions. Other details of the relevant law have been referred to and summarised in the original submission to the tribunal from the Secretary of State.

3. I accept and adopt the findings made by the tribunal in relation to the claimant’s ability to hear. I make my own findings in relation to his ability walk up and down the stairs. I confine my comments below to the procedural history of the case, to the evidence relating use of the stairs, and to the error made by the tribunal. It is not necessary for me to comment on whether any other descriptor does or does not apply.

4. The claimant was born on 22nd March 1941. So far as concerns the present appeal he was certified as incapable of work with effect from 18th November 1998 because of ischaemic heart disease and angina of effort. In due course an award of incapacity benefit was made.

5. On 4th October 2000 the claimant returned form IB50, an incapacity for work questionnaire. He indicated, among other matters, that he could not walk up and down the stairs without stopping and taking a rest. This would be descriptor 2(c), which carries 7 points.

6. On 18th February 2001 the claimant was examined by Dr Hunt on behalf of the Benefits Agency. He was of the opinion that none of the physical descriptors applied which would carry points. He made no specific comment on problems with the stairs, other than to tick a box to indicate that in his opinion there were none.

7. On 22nd February 2001 the Secretary of State accepted the opinion of Dr Hunt and decided that the claimant was not incapable of work, and therefore was no longer entitled to incapacity benefit as from that date. On 7th March 2001 the claimant appealed to the tribunal against that decision.

8. On 3rd May 2001 the claimant’s GP wrote:

“This is to confirm that [the claimant] has angina which causes limitations on his abilities.
In particular he can only walk 100 yards without having to stop because of pain and on climbing a usual flight of stairs he has to have assistance by handrails and has to stop on one occasion, particularly after meals”.

9. The tribunal met to consider the matter on 25th May 2001 and confirmed the decision of the Secretary of State. On 13th September 2001 a District Chairman of the tribunal refused to give the claimant leave to appeal to the Social Security Commissioner. He now appeals by my leave granted on 4th December 2001. The Secretary of State opposes the appeal and supports the decision of the tribunal.

10. The tribunal allocated 8 points in respect of hearing difficulties and 3 points in respect of walking difficulties. Although on these matters it did not accept the evidence from Dr Hunt it nevertheless recorded that in other respects it preferred his clinical findings, opinion and report because he had examined the claimant thoroughly and his opinion:

“ … was very likely to be the more objective, being based on the clinical findings of a doctor who was disinterest in the outcome of the claim.”

11. It was irrational and prejudiced of the tribunal to make this statement about Dr Hunt and to disregard the evidence of the GP. This is particularly the case because the GP was very specific about the question of climbing stairs and Dr Hunt said nothing more in this regard than ticking the box on the report form. In this respect the decision of the tribunal was made in error and must be set aside.

12. It is expedient that I substitute my own decision. The evidence of the GP in relation to the stairs is specific and is consistent with the medical history and diagnosis. There is no reason to disbelieve it. Accordingly I find that in addition to the hearing descriptor carrying points which the tribunal accepted, descriptor 2(c) also applies. This carries 7 points and replaces the score of 3 points in respect of walking. When added to the 8 points for hearing, this brings the total to the threshold score of 15 points, with the effect indicated in paragraph 1 above.

H. Levenson

18th February 2002