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CIB 664 2005
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1 I dismiss the appeal by the claimant (Mrs E). For the reasons below, the only error of law in the tribunal’s statement of reasons does not affect its decision. I confirm it.
2 Mrs E appeals with my permission against the decision of the Bolton appeal tribunal on 11 November 2004 under reference U 06 122 2004 01574.
The claim and appeal
3 Mrs E was incapable of work for some years because of stress and depression. This was confirmed by a personal capability assessment. Mrs E filled in a standard questionnaire in February 2004. She stated physical limitations with her vision and that she had diverticular disease and mental health problems. She was seen by an approved doctor, Dr A, in June 2004. Dr A confirmed the diagnoses and that she had no significant physical limitations. Dr A identified four relevant mental health descriptors: that mental stress stopped her working, that she frequently felt scared for no obvious reason, that she was anxious about returning to work, and that she became irritated at things. This counted as 6 points on the test scale. It was decided that she was not incapable of work. Mrs E appealed. Her representative put eight other mental health descriptors specifically in issue and provided evidence in support.
4 The tribunal held an oral hearing at which Mrs E was present and represented. The tribunal accepted that Mrs E had one further mental health limitation: that she was prevented by her condition from undertaking leisure activities previously enjoyed. This increased the count to 7 points. This was still less than the required 10 points and the appeal was dismissed.
Grounds of appeal
5 The grounds of appeal include a lengthy analysis of the evidence relating to four other descriptors. It was contended that the tribunal had taken decisions on those descriptors without evidence, against the evidence, or by reference to irrelevant issues.
The grounds of appeal also allege an error of law with regard to descriptor OPb.
Descriptors OPb and OPd
6 Descriptor OPb is “Does he or she get so upset by ordinary events that it results in disruptive behavioural problems?” The only documented evidence on this before the tribunal was the IB85. This recorded “No history of injury to property or persons” and the opinion that this descriptor did not apply. Descriptor OPd is “Does he or she get irritated by things that would not have bothered him or her before becoming ill?” The IB85 records “has developed a short temper, and this leads to verbal outbursts of anger most days.” The opinion is that this descriptor applies.
7 The tribunal accepted Mrs E’s evidence of verbal outbursts. It considered descriptor OPb and commented “We accepted that these verbal outbursts were a reaction to ordinary events but verbal outbursts do not amount to disruptive behaviour. To satisfy the descriptor, the disruptive behaviour must be characterised by physical aggression”. The tribunal accepted that descriptor OPd applied without comment.
8 Mrs E’s representative contended that this was an error of law because it ignored Commissioner’s decision CSIB 1521 2001. Commissioner Parker decided:
“the claimant’s conduct has to be extreme enough to affect the fabric of life around him, whether at home or in the wider community. This must be inherent in the fact that two points are awarded rather than simply one, as for “irritated” in 18(d).
In her view, this would include the shouting and arguing, but without any physical violence, demonstrated by that claimant. It could also include sobbing and emotional displays such that OPb was satisfied but not OPd. The Commissioner also emphasised, following Commissioner Mitchell’s reasoning in CSIB 13 1996, that the same behaviour should be reviewed under all relevant heads, and that this was not double counting.
9 I agree with both aspects of that decision, and adopt it here. I add an additional reason for doing so. Both descriptors OPb and OPd are in the grouping entitled “Interaction with other people”. Each limitation must be shown to arise from “some specific mental illness or disablement” (Social Security (Incapacity for Work)(General) Regulations 1995, regulation 25(3)(b)). An individual may be in breach of the criminal law of England and Wales (and I assume also elsewhere in the United Kingdom) by interacting with other persons by verbal abuse or threats such that the other person has good reason to react, or take exception, to it. Those criminal offences do not require proof of injury to the person affected. It would be odd if the test of unacceptable interaction with others for incapacity for work caused by illness or disablement were to demand a more adverse level of the effects of the interaction on others than that for criminal liability for the individual’s behaviour interacting with others.
10 The tribunal erred in law in requiring physical aggression. It took too narrow a view of “disruptive behavioural problems” as Commissioner Parker makes clear. However, this ground of appeal by itself does not assist Mrs E. Even if I were to add two additional points to her “score”, she would still not have a total of 10 points. I must therefore consider the other grounds of appeal. Before doing so, I also consider how the electronic IB85 handled this point of law.
The electronic IB85
11 As in all electronic IB85 reports, Dr A triggered the inclusion of a variety of phrases under “Description of a Typical Day” in Box 7. The tribunal strongly criticised this list and found that some of it was factually incorrect. Some points, the tribunal commented dryly, are to be noted “with some amusement”. I am afraid I have less of a sense of humour than the tribunal. I do not find it in any way amusing that a formal report of this kind contains the following statements:
Usually sits to watch TV for 1 hour(s) for about two hours before having to move
Usually can do light gardening for 1 minutes.
If that is evidence of anything, it is of Dr A’s inattention to what he or she was doing. Nor do I find it amusing that the absurd statement about watching television is repeated word for word in five other places in the report without any of them being corrected. The tribunal was fully justified in rejecting this report as unreliable. Mrs E was fully justified in having no confidence in it.
12 Having seen a number of these reports, it is clear to me that there is an automated selective carry forward of phrases from Box 7 to the individual boxes for mental health descriptors. For example, the absurd comment about watching television turns up in identical wording in boxes 34, 37, 39, 47 and 49 (although I am not sure of its relevance to some of those descriptors). But it does not turn up in boxes 33 or 36 where it might, if properly observed, be relevant.
13 That point becomes an issue of law when the treatment of descriptors OPb and OPd are considered. I have set out Dr A’s report on these descriptors. The comment on verbal aggression was not mentioned under OPb. If that is because the computer programme excluded its carry forward to OPb, while not doing so for OPd, then it may be that the programmer erred in law in programming the exclusion of consideration of evidence relevant to OPb, so causing users potentially also to err in law.
14 I drew these concerns to the attention of the Secretary of State and invited a detailed explanation of this aspect of the IB85 programme. I received a full reply, in part from the Principal Medical Adviser, and I am grateful for that.
Guidance to approved doctors
15 I was given copies of an Atos Origin report on Computerised production of IB Reports and a Schlumberger Training and Development Unit LiMA v2 Technical Manual MED-S2/IB~0019(e) Version: 1Final (“the Manual”). Both these reports contain detailed copyright claims and the statement that the information contained in them is confidential. As far as the Technical Manual is concerned, that is in my view wrong in principle. The published guidance to approved doctors from the Department for Work and Pensions is in The Incapacity Benefit Handbook for Approved Doctors (“the Handbook”) most recently issued in 2004 (see www.dwp.gov.uk/medical/guides_detailed.asp).
16 The Manual explains how an approved doctor is to produce an electronic IB85. But it goes beyond that to advise how an approved doctor should consider the claimant’s IB50 and other evidence, and also how the doctor should handle and present the evidence. It contains “Tips” such as “say what the claimant CAN do”, such as “can walk 400 metres” rather than “cannot walk 800 metres” (page 22). By contrast, the Handbook advises on the completion of “the Typical Day) as follows: “Avoid making statements such as “can only walk 50 metres, as this may well be taken as fact by the Decision Maker or the Appeal Tribunal. Better would be “says he only walks 50 metres” then give an example of what the claimant actually does”: paragraph 22.214.171.124.
17 The Manual contains some explanation of how LiMA works. For example, it states in another “Tip” that “LiMA is programmed to give more weight to observed behaviour than to either the history or the examination” (page 26). In other words, the programme preselects evidence seen by informal observation in preference to that which the claimant tells the doctor or the doctor’s own clinical findings. That may explain the formal submission to the tribunal by the Secretary of State that Dr A’s report was preferred to other evidence “because their opinion was reached following a clinical examination of Mrs E, talking to her and observing her throughout the assessment” although it seems that the order of those phrases is wrong.
18 The Manual states at paragraph 6.3:
“LiMA will try to automatically answer and justify the mental health assessment questions for use using the information recorded in the history and examination sections. For many of the questions you simply have to check that you agree with LiMA’s conclusion and with the evidence that has been used to justify the descriptor’s choice.”
It then states what happens in those cases where LiMA cannot automatically answer. It advises:
“By clicking on “Yes” and “No” in turn you will be able to view and weigh the evidence that is available to support each answer. You should leave the answer displaying the most convincing evidence visible.
Ideally, the evidence that LiMA automatically enters into the justification box for each question will be sufficient to fully justify the answer. However, you may occasionally wish to add an additional standard phrase from the selection provided to the left of each justification box. It is also possible to enter text manually by typing it into the grey preview box.” (Italics mine).
This confirms that the approved doctor is offered an opinion by the programme based on the Box 7 findings (with preference given to what the doctor observes informally). It also potentially turns all the statements under Box 7 into findings of primary fact, so preventing a record of what the claimant says if the approved doctor does not agree, in contrast to the approach set out in the Handbook. On this approach, an error in Box 7 may lead to a recurring erroneous suggested opinion in the mental health assessment. An omission can be made good by adding more information. But it is clear from the Manual that this should not normally occur. In other words, when the mental health assessment is being made, the information in the “Typical day” box is assumed initially to cover everything relevant to this test. This appears to apply even to those capabilities that do not involve a “typical day”.
19 If the Manual’s advice is followed, the report seen by the claimant and tribunal is not the evidence considered by the doctor (which is itself a computer generated selection in the first instance) but a selection from that evidence of the “most convincing” case. (The Handbook advises an approved doctor that “you must give a clinical opinion justifying each answer”: paragraph 3.5.3). A tribunal has to consider and weigh all the evidence. It may therefore, in cases such as this, need to reexamine all the evidence about each contested descriptor and make its own findings and conclusions, rather than rely on the evidence that the approved doctor considers “most convincing”. That is precisely what this tribunal did.
20 A full picture of the guidance to approved doctors can only be obtained by reading the guidance in the Manual with the guidance in the Handbook. The Manual does more than tell approved doctors how to work the LiMA computer programme. Both LiMA and the Manual guide approved doctors in presenting their evidence, and take the public guidance in the Handbook further. Only with the benefit of the Manual’s explanation can one gain a full understanding of the way in which boxes 32 to 56 of an electronic IB85 report are presented. The Handbook contains no mention of this. The Manual should therefore be available to all appeal tribunals that wish to consider it and, to ensure “equality of arms”, to all claimants and representatives.
21 In the light of that guidance, it may be that Dr A did consider, and then rejected, the reference to verbal behaviour in assessing descriptor OPb. If so, the erasure removed evidence that showed that Dr A had evaluated all relevant factors when forming his or her opinion. If so, there is no underlying error in the LiMA programme. Instead, the unreliability lies in the fact that the report does not adequately explain the basis on which the doctor formed the opinion stated. I have no means of knowing which of these errors occurred. Had I had to refer this appeal back to another tribunal, I would have directed that the new tribunal should also ignore Dr A’s report. The only alternative would be for me or the tribunal to issue a witness summons against Dr A either to attend to explain the report or to produce a further written explanation. That might happen in other tribunals of which I have direct experience.
22 Mrs E’s appeal reflected her understandable concerns with Dr A’s report. But there is no unfairness to her from the tribunal because it dealt with that aspect of her appeal fully and fairly when it robustly rejected Dr A’s report in so far as it was adverse to Mrs E.
The evidence before the tribunal
23 The task of the tribunal was the judgmental – and never simple – task of weighing all available evidence about Mrs E’s condition at the date of the decision under appeal. The appeal to the Commissioner is based on detailed criticisms of its assessment of the evidence notwithstanding the detailed record of proceedings and statement of reasons.
24 Mrs E’s representative accepted that only mental health descriptors were in issue. Mrs E’s evidence of this in her questionnaire was limited, and there was little other written evidence beyond the IB85. Dr A’s report stated an opinion on each descriptor. But the tribunal expressly agreed with the representative that “the computerised IB85 report is unreliable”. Instead, it considered in detail all the eight mental health descriptors put in issue in the written submission to it in the light of Mrs E’s own evidence. It also noted the general practitioner’s evidence.
25 Save for my comments on the limited specific error of law above, I reject all the representative’s criticisms of the tribunal decision in this case. It took a careful, considered, evidence-based view of each descriptor put in issue after full discussion with the claimant and representative. It made a full record of proceedings and explained in detail what evidence it took into account and how it formed its view on that evidence. Its handling of the evidence is exemplary. It is in stark contrast with the IB85 report.
26 The only error of law made by the tribunal did not affect its decision. I see no point in setting aside a tribunal decision merely to reimpose it in the same terms on the tribunal’s own findings of fact. I therefore dismiss the appeal.
01 August 2005
[Signed on the original on the date shown]