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Mr P L Howell QC
Incapacity for work – deemed incapacity – claim for period starting within six months of previous adverse decision – whether days within that period after expiry of six months to be treated as days of incapacity
The claimant made a claim for incapacity benefit for a period starting three months before her actual date of claim. Her claim was refused on the ground that the first five days of that period were within six months of an earlier decision finding her capable of work and that therefore she could not be treated as incapable of work pending assessment under regulation 28 of the Social Security (Incapacity for Work) (General) Regulations. On appeal she argued that she had developed a new disease or disablement or her previous condition had significantly worsened since the earlier decision, and that therefore she was entitled to be treated as incapable by virtue of regulation 28(2)(b)(i) or (ii). The tribunal confirmed the Secretary of State’s decision, finding on the evidence that there had been no new disease or disablement or worsening of an existing condition. The claimant appealed to the Commissioner.
Held, allowing the appeal, that:
1. the findings of the tribunal on the medical evidence that there was no new condition or worsening of an existing one were findings it was open to it to reach and there was no ground for not accepting them;
2. the question of whether a person is incapable of work falls to be determined in respect of each day of claimed incapacity within the period of claim; the six-month period in regulation 28(2)(b) must therefore be run back from each such day in the period covered by the relevant claim;
3. the date to be measured back to is that of a (still valid) determination of the Secretary of State on the claimant's capacity for work at some earlier time, not a tribunal decision confirming it on appeal;
4. while days which fall within six months of such a determination cannot be treated as days of incapacity (unless a fresh disease or disablement or significant worsening of an existing one is shown), such days may nevertheless be days of incapacity and this question must be addressed by carrying out the personal capability assessment.
The Commissioner substituted his own decision that so long as prescribed medical evidence had been submitted the claimant was entitled to be treated as incapable of work for the period following the fifth day of her period of claim pending a personal capability assessment, and the case was remitted to the Secretary of State to redetermine the question of the claimant’s entitlement.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This claimant’s appeal is allowed, as the decision of the Haverfordwest appeal tribunal sitting on 10 April 2003 addressed only part of the problem to which the appeal before it gave rise. The decision is conceded by the Secretary of State to have been erroneous in law and I set it aside. In exercise of the power in section 14(8)(a) Social Security Act 1998 I give instead the decision I am satisfied the tribunal should have given on the undisputed facts and the material before it.
2. The appeal was against a decision of the Secretary of State given on 6 September 2002, refusing in its entirety a claim made by the claimant on 23 August 2002 in which she sought to obtain incapacity benefit from the earliest possible starting date for an award under that claim, 23 May 2002. My substituted decision in respect of that claim is that:
2.1 for days of claimed incapacity under that claim down to and including 28 May 2002, the claimant was not entitled to be treated under regulation 28 Social Security (Incapacity for Work) (General) Regulations 1995 SI No. 311 as incapable of work pending a personal capability assessment, since:
2.1.a those days fell within six months of a previous determination given on 28 November 2001 that she was capable of work, and
2.1.b on the tribunal’s findings she was not shown to be suffering from some fresh disease or disablement, or a significant worsening of an existing disease or disablement, since the date of that determination; but
2.2 for days of claimed incapacity under that claim supported by prescribed medical evidence in accordance with regulation 28 from and after 29 May 2002 and until the carrying out of a personal capability assessment, the claimant was entitled to be treated as incapable of work under that regulation; and
2.3 the case is remitted to the Secretary of State to redetermine the question of the claimant’s entitlement under that claim accordingly, after the carrying out of a personal capability assessment so far as still required and material.
3. The claimant is a lady now aged 48, who has had to take early retirement from her job as a home carer with the Carmarthenshire County Council as a result of numerous longstanding medical problems, which the various doctors she has consulted have found it difficult to identify and to treat. For the purposes of incapacity benefit, her original incapacity to continue with her own job is accepted as dating from 30 July 2000, and the tribunal recorded that after becoming unfit for work she first claimed and received incapacity benefit from 17 March 2001. There ensued a questionnaire and a medical examination for the personal capability assessment under that claim, and she was found “capable of work” by a decision of the Secretary of State on 28 November 2001 which had the effect of terminating her entitlement from that date, as confirmed by a previous tribunal sitting at Llanelli (pages 89 to 91).
4. The present appeal is concerned with the way the regulations should have been applied to the further claim she made for incapacity benefit on 23 August 2002 at pages 7 to 42, which was refused by a departmental decision on 6 September 2002 noted at pages 92 to 93. The sole ground for the refusal was that the start of the period from which she was understood to be claiming under regulation 19(1) Social Security (Claims and Payments) Regulations 1987 SI No 1968 (three months before the date of the claim itself: 20, or more accurately 23 May 2002) fell within six months of the previous disallowance on 28 November 2001. That was understood to prevent her being treated as incapable of work under regulation 28 of the incapacity regulations, the medical evidence she submitted not being considered to show she had developed a new disease or disablement, or that her previous condition had significantly worsened, since the previous finding that she was capable of work. That was also considered sufficient reason to reject the entire claim. The claimant appealed to the tribunal on the ground that her existing disease or disablement had indeed worsened significantly and she now had a diagnosis of polyarthritis to add to the previous medical certificates which had referred to “untypical” chest and neck pains, but the tribunal found against her on the facts on that issue and confirmed the rejection of the claim in its entirety.
5. Regulation 28, which was thus regarded in both the Secretary of State’s decision and that of the tribunal as the sole and sufficient reason for rejecting the claim, provides so far as material as follows:
“Conditions for treating a person as incapable of work until the personal capability assessment is carried out
28. (1) Where the question of whether a person is capable or incapable of work falls to be determined in accordance with the personal capability assessment that person shall, if the conditions set out in paragraph (2) are met, be treated as incapable of work in accordance with the personal capability assessment until such time as he has been assessed …
(2) The conditions are –
(a) that the person provides evidence of his incapacity for work in accordance with the Social Security (Medical Evidence) Regulations 1976 (which prescribe the form of a doctor’s statement or other evidence required in each case); and
(b) that it has not within the preceding 6 months been determined, in relation to his entitlement to any benefit, allowance or advantage which is dependent on him being incapable of work, that the person is capable of work, … unless –
(i) he is suffering from some specific disease or bodily or mental disablement which he was not suffering from at the time of that determination; or
(ii) a disease or bodily or mental disablement which he was suffering from at the time of that determination has significantly worsened; …”
6. The tribunal on 10 April 2003 consisted of a legal chairman and medically qualified member. They considered all the evidence including numerous medical reports on the claimant’s condition covering the periods of both her first and second claims and found as a matter of fact that her medical problems, which were longstanding, did not include a new condition or complaint that had not existed at the time of the previous determination on 28 November 2001, so that regulation 28(2)(b)(i) did not assist her; nor did they accept that there had been a significant worsening in her existing condition over what they referred to as the relatively short period from the end of November 2001 to 20 or 23 May 2002, so as to bring her within regulation 28(2)(b)(ii).
7. Those findings on the evidence and material before the tribunal were plainly ones it was open to it to reach as a matter of fact and medical judgment, and I can see no ground for not accepting them. On that basis, the question in this appeal is whether the tribunal correctly applied the provisions of regulation 28, and whether it was correct in upholding the Secretary of State’s decision on the basis that if the claimant could not get within the protection of that regulation so as to be treated as incapable of work from the very beginning of the period for which she was seeking benefit, that had to be the end of the entire claim.
8. The way in which regulation 28 works is not in my judgment open to any real doubt and can be summarised as follows: cf. the decisions already given by other Commissioners in cases CIB/1031/2000 and CIB/3106/2003.
8.1 The regulation has to be applied in the context of the primary legislation on incapacity benefit, which expressly requires that each day for which benefit is to be successfully claimed must be identified as a “day of incapacity for work”: see sections 30A-30C Social Security Contributions and Benefits Act 1992, and CIB/13161/1996. (This remains so even though in applying the medical criteria for what is now the personal capability assessment, a reasonable average of a person’s condition over a period may be taken to apply to all days within that period, rather than a separate “snapshot view” for each day in relation to which the question of incapacity has to be determined: R(IB) 2/99.)
8.2 It follows that in regulation 28 the phrase “Where the question of whether a person is capable or incapable of work falls to be determined” refers to the need to make a determination in respect of each day of claimed incapacity in the period covered by the relevant claim, it being common ground in the present case that the personal capability assessment is the test that applies as regards the whole of the period covered by the claim which was made on 23 August 2002 and determined by the Secretary of State on 6 September 2002.
8.3 The six-month period in regulation 28(2)(b) must thus be run back from each such day in the period covered by the current claim, to see if the claimant qualifies to be treated as incapable of work under regulation 28 for that day.
8.4 The date to be measured back to is that of a (still valid) determination of the Secretary of State on the claimant's capacity for work at some earlier time, not a tribunal decision confirming it on appeal: cf. sections 8(2), 12(8)(b) Social Security Act 1998.
8.5 Days of claimed incapacity under the new claim which fall within six months of such a determination cannot be treated as days of incapacity for work under regulation 28(1) pending a personal capability assessment, even though supported by prescribed medical evidence, unless a fresh disease or disablement or significant deterioration of an existing one is also shown.
8.6 But such days may nevertheless be days of incapacity on the normal medical criteria for the personal capability assessment, and in order to determine the claim properly this question must be addressed by carrying out the assessment.
8.7 In a case where, as here, a claim is made for a period that started within six months from a previous adverse determination but the claim is not determined until after expiry of the six months, the further determination must also take that change into account; so that days of claimed incapacity within the period of the new claim supported by prescribed medical evidence and falling outside the six months are entitled to the protection of regulation 28(1) (even though earlier days were not) until such time as a personal capability assessment has actually been carried out or for some other reason that protection ceases to apply.
9 Applying the principles just summarised, it is clear that the tribunal’s decision of 10 April 2003 and the Secretary of State’s determination of 6 September 2002 which it confirmed were both defective, in that they regarded the fact that a few days at the beginning of the claim period had been within six months of the previous adverse determination as necessarily fatal to the whole claim. Consequently they erred in failing to consider the two further relevant questions of (1) whether the claimant was in fact incapable of work, applying the normal medical assessment criteria, for the days that fell within the six months period; and (2) whether she qualified to be treated as so incapable under regulation 28(1) for the days after the six months had expired.
10. In those circumstances I substitute the decision set out above, the practical effect of which is that provided the prescribed medical evidence has been furnished the claimant is likely to qualify for benefit for all but the first five days of her second claim; I understand she was in any case accepted later as qualifying from 22 July 2003.