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THE SOCIAL SECURITY COMMISSIONERS
Commissioner’s Case No: CSIB/880/03
SOCIAL SECURITY ACT 1998
APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW
COMMISSIONER: L T PARKER
Appellant: Respondent: Secretary of State
Tribunal: Edinburgh Tribunal Case No:
DECISION OF SOCIAL SECURITY COMMISSIONER
1. The decision of the Edinburgh appeal tribunal (the tribunal) held on 13 November 2003 is wrong in law. I set it aside and refer the case to a differently constituted tribunal for determination.
Errors of law
Activity 13: Continence
2. The tribunal found:-
“There was no evidence of true incontinence which is total lack of bladder control at all times. The appellant confirmed that this is not the case. She can and does attend the toilet normally and does ensure that she goes before going out…. She has had a recommendation from her doctor to have a gynaecological referral in respect of her loss of control which occurs when she coughs or laughs….. She wears pads which are supplied to her….. Her description was of a stress incontinence about which she could take reasonable precautions … No points were awarded for incontinence.”
3. Although it seems clear that the appellant has voluntary control of her bladder, as it does not appear to be submitted that the claimant cannot to any extent control a degree of urgency until she reaches a lavatory, the tribunal has not properly considered whether she “loses control of” her bladder. Dribbling and leaking, unless completely trivial, can satisfy descriptor 13(f) provided there is such an episode “at least once a month”.
4. That she can take reasonable precautions by using incontinence pads does not affect the matter. Regulation 25(2) of the Social Security (Incapacity for Work)(General) Regulations 1995 provides that the extent of a person’s incapacity to perform any activity shall be assessed having regard to any aid or appliance which he normally wears or uses. However, it has been held in several cases that this provision cannot be used in a manner which essentially alters the nature of the activity under assessment.
5. “Continence” means having the ability to control evacuation of the bowels or bladder. That is why “voluntary control” refers to what a claimant can do by exercise of the will to assert control. Regulation 25(2) encompasses an aid or appliance which affects the extent of a person’s capacity to perform the activity in issue, for example, the use of a calliper in walking. An incontinence pad assists the claimant in coping with or mitigating the effect of a loss of control but it does not assist the normal control of the bladder’s evacuation, which is what is being tested.
Inadequate consideration of the evidence
6. The tribunal found:-
“Although she described her condition as depression, there is no diagnosis of that.”
7. In a report dated 11 February 2003, the general practitioner (GP) diagnosed “anxiety + depression – long-standing”. On a MED 4 dated 28 January 2003, the GP diagnosed “anxiety”, but this time without adding “depression”. That the GP has been inconsistent may be a reason for the tribunal not accepting that the appellant has “depression”; however, it has approached the matter incorrectly in stating that there has been no such diagnosis.
8. Similarly, the tribunal makes a common error when it states:-
“There was no evidence to sustain the representative’s submissions on the appellant’s concentration, her appearance, or her tendency to get upset”.
9. This is not the case as there was the appellant’s own direct evidence on these matters. What the tribunal means is that it does not accept the accuracy of this evidence, having weighed it.
10. Analysis of the evidence is the tribunal’s exclusive function, provided there is no improper approach. The claimant’s own account of her difficulties is sufficient, but not determinative, evidence with respect to the accurate content of that evidence. A tribunal is entitled to accept it without corroboration. But it is not bound so to do and even if there is no contrary evidence, it may draw adverse inferences as appropriate. For example, it may give weight to the point that there is only the claimant’s own evidence on an issue where support might be expected. This is not requiring corroboration as a matter of law (which would be wrong) but taking the lack of corroboration into account as relevant when assessing the quality of the evidence.
11. For the above errors of law, the tribunal decision must be set aside. However, I do not accept the submission made that the tribunal was also wrong in law in concluding that the two GP reports contradicted one another. As the representative has already pointed out in a different context, there is a diagnosis of depression in the report dated 1 February 2003. That does not appear in the MED 4 of 28 January 2003. In the earlier report, the doctor remarks that the combination of the claimant’s conditions “make work impossible” whereas in the later one it is stated that, albeit chronic, such conditions are “currently reasonably well-controlled”. The former statement does not follow irresistibly from the latter.
12. The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal and the determination of the claimant’s case on the merits is entirely for them. Although the claimant has been successful in her appeal limited to issues of law, the decision on the facts in her case remains open.
L T PARKER
Date: 11 February 2004