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DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Burnley appeal tribunal, held on 24th July 2002 under reference U/40/123/2002/00393, is not erroneous in point of law.
The appeal to the Commissioner
2. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with my leave. The Secretary of State does not support the appeal.
The history of the case
3. This case concerns the claimant’s capacity for work under the personal capability assessment.
4. The claimant became incapable of work and entitled to incapacity benefit from and including 4th May 2001. In late 2001 and early 2002, his capacity for work was assessed by self-assessment questionnaire, followed by medical examination and report. On the basis of the examining doctor’s report, the Secretary of State’s decision-maker scored the claimant at nil on the personal capability assessment. That was not sufficient to satisfy the assessment. So, the decision-maker decided that the claimant was no longer entitled to incapacity benefit from and including 13th March 2002. The claimant appealed against that decision, but the tribunal confirmed the decision.
5. The issue raised on the appeal is the appropriate treatment of evidence of illness behaviour or a psychosomatic condition.
6. There was evidence from a Consultant Orthopaedic Surgeon that the claimant had ‘developed chronic illness behaviour’ and that his symptoms ‘are those of a chronic pain syndrome.’ Later in the report the Surgeon states that ‘the symptoms are psychosomatic condition.’
7. Nonetheless, the tribunal did not accept the claimant’s statement of his symptoms as given in evidence or as contained and supported by the Surgeon’s report. It referred to the clinical findings and observations of the examining doctor. It also referred to its own observations of the claimant’s apparently varying walking ability.
8. Did the tribunal go wrong in law in its treatment of the evidence of illness behaviour?
9. I granted leave on the ground that the tribunal may not have explained adequately how it dealt with the Surgeon’s evidence and specifically that it may not have accepted illness behaviour as a genuine physical disability. I suggested that the Secretary of State might wish to obtain medical advice and this has been included in the Secretary of State’s observations on the appeal.
10. The Secretary of State’s medical advice, which I accept, is in summary this. Abnormal illness behaviour is one of a number of terms used to describe symptoms which are caused by the influence of psychological makeup and social environment on the perception of the disabling effects of a medical condition. This phenomenon is reflected by more modern approaches to treatment, which address the psychosocial as well as the medical factors. The symptoms are subjective in the sense that they depend on an experience of pain or fatigue. In order to distinguish between claimants who genuinely experience a particular disability from those who merely claim to do so, it is helpful to consider the history of their daily activity and unobtrusive observations. This can identify consistency or inconsistency.
11. In this case, the examining doctor detected resistance on examination and exaggeration of response to the testing of the reflexes. The claimant was also observed to walk normally and to be able to stand erect, albeit briefly. The claimant’s performance on examination and the observations recorded by the doctor are not consistent with a genuine experience of illness behaviour. This was confirmed by the tribunal, who observed the claimant to walk differently at the beginning and end of the hearing. All of this was in conflict with the Surgeon’s evidence, which accepted that the claimant was genuinely experiencing the symptoms he exhibited. In view of the actual observations of the examining doctor and the tribunal, the Surgeon’s opinion could obviously not be accepted.
12. So, despite my initial impression granting leave, I am satisfied that the tribunal did not misunderstand the nature of illness behaviour and that it explained its decision adequately, indeed clearly.
13. This decision is referred to by the claimant’s representative in his grounds of appeal. It is a decision of a deputy Commissioner and contains much of value. However, it also contains some passages which have not commanded the support of the full-time Commissioners. It is those passages that the representative relies on in support of the appeal. I do not need to decide whether or not the deputy Commissioner was correct, because I am satisfied that the tribunal did not go wrong in law, even if the law is as stated in that decision. The claimant’s response on examination and the observations made of him showed that he was not genuinely experiencing his symptoms. He was, therefore, not disabled, even as defined by this decision.
14. The grounds of appeal also criticise the tribunal for not dealing with the mental disabilities section of the personal capability assessment. However, that section only applies if there is ‘some specific mental illness or disablement’: see regulation 25(3)(b) of the Social Security (Incapacity for Work) (General) Regulations 1995. The only possibly relevant diagnosis was the illness behaviour, which the tribunal rejected. So, there was no basis for carrying on an assessment under that section.
The claimant’s observations on the appeal
15. In response to the Secretary of State’s observations, the claimant’s representative has sent to me a copy of an examining doctor’s report dated 13th February 2003, in which the doctor wrote:
‘Almost certainly a level of abnormal illness behaviour but in my view there is no deliberate attempt to deceive and genuinely feels he has this level of disability.’
16. I make three comments on that evidence.
17. First, that report was not before the tribunal. Indeed, it was not written until over 6 months later. So, the tribunal could not have taken it into account. It cannot, therefore, be used to show that the tribunal went wrong in law. See the decision of the Commissioner in R(S) 1/88, paragraph 3.
18. Second, looking at the doctor’s precise words, they say only that the claimant did not intend to deceive and that he felt he had the disability. That does not mean that he actually is as disabled as he believes. It is consistent with him nonetheless being more capable than he realises. So, this passage may not be supportive as it appears at first sight.
19. Third, if the doctor intended to go further than I have just suggested, the opinion conflicted with the actual findings and observations of the examining doctor whose report was before the tribunal and with the tribunal’s own observations of the claimant’s behaviour. So, even if the report were to be taken into account, it would not undermine the tribunal’s reasoning.
20. I dismiss the appeal.
Signed on original Edward Jacobs
13th March 2003