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DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against the decision of the Middlesbrough Appeal Tribunal given on 21st September 2006. By its decision the tribunal dismissed the claimant’s appeal against the decision of the decision maker made on 26th June 2006 that the claimant was not incapable of work. The appeal is not supported by the Secretary of State.
2. For the reasons given below, I have concluded that the decision of the tribunal was erroneous in point of law as respects certain of the descriptors relevant to whether the claimant is capable of work. In the light of the material before me, I am able to substitute my own decision in relation to those descriptors and do so under the provisions of section 14(8)(a) of the Social Security Act 1998. That, however, does not alter the overall outcome of the claimant’s appeal, since it does not lead to her being found to be incapable of work. I therefore allow the appeal but substitute my own decision to the same effect as that of the tribunal.
3. This appeal arises as follows. Very sadly, the claimant’s daughter died at the age of 28 in 2000. The claimant continued to work thereafter but suffered reactive depression and by 9th July 2001 was no longer able to work. She received statutory sick pay until 11th January 2002 and then claimed incapacity benefit. Under sections 171B(3) and 171C of the Social Security Contributions and Benefits Act 1992, the question whether or not the claimant was incapable of work was then to be determined in accordance with a personal capability assessment. The claimant was awarded incapacity benefit from 12th January 2002 pending assessment. She was then assessed on 8th May 2002 and found to be incapable of work.
4. On 17th June 2004 the claimant attended a medical examiner for a further personal capability assessment. On that occasion the examination was not completed because the doctor formed the view that the claimant had a severe mental health problem and was exempt from assessment. She went on, however, to advise the Secretary of State that the claimant’s condition would be expected to improve significantly in 18 months. I comment in passing that the fact that the assessment was not completed means that there is no evidence in the papers before me of the evidence relating to any previous assessment of the effect of the claimant’s mental health problems.
5. On 22nd December 2005 the claimant’s G.P. was sent a form asking for further information. He completed the form on 10th January 2006, stating that he had last seen the claimant on 16th November 2005. She had been suffering from recurrent anxiety and depression since 2000. It had recently improved but her recent visit resulted from a further episode of depression and he had again prescribed Fluoxetine. The claimant had had a carpal tunnel operation in August 2005 which had improved her carpal tunnel syndrome. Attached
to the report was a computer printout from which it appeared that the claimant’s depression in November 2005 resulted from family problems and in particular her sister’s illness.
6. The claimant herself was then asked to fill in an incapacity questionnaire, which she did on 20th January 2006. For the purposes of this appeal it is relevant to note that she described herself as receiving treatment for anxiety and depression “as and when necessary” and explained that she had recently had an anxiety attack after placing her mother in residential care and watching her sister’s health deteriorate. She also said that she had problems with her right hand as a result of carpal tunnel syndrome.
7. The claimant then underwent a further personal capability assessment on 9th June 2006. The doctor applied both the physical and the mental descriptors set out in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995, S.I. 1995 No. 311. The doctor concluded that the claimant did not satisfy any of the physical descriptors but that:
(1) mental stress was a factor in making her stop work;
(2) she frequently felt scared or panicky for no obvious reason; and
(3) she was scared or anxious that work would bring back or worsen her condition.
Those descriptors gave the claimants points of 2, 2 and 1 respectively. By way of summary, the doctor stated:
“There is no evidence of any significant cognitive impairment. The customer’s mental health condition causes mild functional impairment. Seems to be managing quite well with all her routines.”
8. The assessment report was considered by the decision maker on 26th June 2006 and the doctor’s view was accepted. The result was that the claimant scored 5 points on the mental assessment and none on the physical assessment. In order to be found incapable of work, the claimant had to score 10 points by reference to mental descriptors alone or 15 points by reference to physical descriptors alone or mental and physical descriptors taken together: regulation 25 of the Incapacity for Work Regulations. The claimant clearly failed to satisfy that requirement and was determined not to be incapable of work. That decision was notified to her by letter dated 28th June 2006.
9. The claimant appealed against the decision by notice of appeal dated 4th July 2006. She referred to her physical problems with her right hand and the disruption it caused to her sleep. She then continued:
“Consequently I feel tired during the day and therefore only do household tasks when I feel competent enough to do them and complete them.
I take medication for anxiety and depression in agreement with the doctor, as and when I need it during stressful situations that occur and have again become stressed and weepy at your reply to my medical assessment.
The day I went for my assessment I feel I appeared calm, confident and in control. However, this does not display the inner turmoil I feel when dealing with situations like these. I feel nervous, anxious and nauseous.”
The decision was reconsidered on 27th July 2006 but was not changed and the appeal proceeded.
10. In connection with the appeal the claimant was represented by the local authority welfare rights unit. Her representative obtained from her G.P. an opinion dated 30th August 2006 “for the period from 26th June 2006” on a number of mental and physical descriptors. For the purposes of the present appeal it should be noted that he expressed the view that:
(1) the claimant was frequently distressed at some time of the day due to fluctuation of mood;
(2) sleep problems interfered with the claimant’s daytime activities;
(3) the claimant sometimes avoided carrying out routine activities because she was convinced they would prove too tiring or stressful;
(4) the claimant was unable to cope with changes in daily routines;
(5) the claimant frequently found that there were so many things to do that she gave up because of fatigue, apathy or disinterest;
(6) the claimant became irritated by things that would not have bothered her before she became ill.
He described her as suffering from anxiety when out of her comfort zone.
11. The claimant’s representative put before the tribunal a written submission in which it was contended that the various descriptors set out in paragraph 10 applied in addition to those found by the decision maker to apply. Each such descriptor carries 1 point. On that basis the claimant would score 11 points by reference to mental descriptors and would satisfy the personal capability assessment test. It was also contended that the claimant’s carpal tunnel syndrome meant that she was unable to turn a sink tap or the control knobs on a cooker with one hand, although she could with the other. If so, she would be entitled to a further 6 points.
12. The claimant gave oral evidence at the hearing on 21st September 2006. She said that she had an agreement with her G.P. that she would take medication for anxiety and depression when she was desperately low. She had taken the tablets in November and December 2005 but not since then. She said that she still had a disturbed sleep pattern and would go to sleep on the couch during the day. She had panic attacks most days and was scared for no reason. She said that she gets up between 8.30 and 10.00 a.m., makes breakfast, tries to do a tidy round, if she wants to has a shower. She takes things at her own pace. Some days she cannot be bothered getting up. She does housework if she can be bothered. She watches TV, listens to music and reads books if her concentration is OK. She makes a meal, or her husband may
help if he is in. She answers the door after checking who it is and only answers the phone after leaving it to be collected by the answerphone. She used to do dressmaking as a hobby but no longer does. Her sister rings twice a day to make sure she is OK and her husband rings. She does not make any phone calls. She drives occasionally. As to driving, the claimant explained that her mother lives in Newcastle and she drives to see her. It takes 1½ hours and she might need to stop if she has an attack of feeling she does not want to be driving. She tries to visit her mother once a week but since June 2006 has only managed once a fortnight. She has terrible mood swings and does not feel calm as stated in the examining doctor’s report. She does go out with family and friends.
13. The claimant gave brief evidence about her physical difficulties as a result of carpal tunnel syndrome. She can write with her right hand (she is right-handed) but cannot tie a shoelace. She uses her left hand rather than her right to pick things up.
14. The tribunal, having considered the evidence, found that the claimant suffered from sleep problems which interfered with her daytime activities and awarded her 1 point in that respect. Otherwise it accepted the decision maker’s assessment both for mental and physical descriptors. The tribunal’s statement of reasons as respects the only physical descriptor in issue goes through the evidence carefully and fully and gives clear reasons for accepting the medical examiner’s opinion. Understandably, it does not form part of the claimant’s grounds of appeal and I need say no more about the physical descriptors.
15. The tribunal clearly gave equal care to the various mental descriptors which the claimant contended were satisfied. The claimant contends, however, that in relation to each descriptor which was found not to be satisfied, the tribunal either made inadequate findings of fact or gave unclear reasons or both. I will therefore deal with what the tribunal said later in this decision.
16. Leave to appeal against the tribunal’s decision was refused by the chairman but was granted by Mr. Commissioner Leveson on 22nd January 2007. His reasons were that the grounds of appeal were arguable and the reasoning of the tribunal seemed to make unwarranted assumptions about the nature of the evidence from the G.P.
17. In his submission on the appeal the Secretary of State summarised the claimant’s grounds as being essentially that the tribunal did not give sufficient explanation for preferring the examining practitioner’s opinions and evidence to that of the claimant’s G.P. The submission drew attention to two Commissioners’ decisions relevant to the point. In CIB/724/2005 the Commissioner expressed the view that the tribunal was entitled to take into account the lack of clinical examination by the G.P. and the fact that the forms he had ticked gave no indication of the reasoning which led to his conclusions, in contrast to the report of the medical examiner. In CIB/3706/97 the Commissioner commented that as the tribunal had in general preferred the evidence of the examining medical practitioner it was not surprising if it consequentially accepted the evidence of the claimant and his G.P. so far as it coincided but not otherwise. (That comment was made in relation to a submission that the tribunal had been picking and choosing the evidence from the claimant and his G.P. which it was prepared to accept.) The Secretary of State in this case also made the point that on all occasions on which
there was a difference of opinion the tribunal took into account its own questioning of the claimant.
18. The claimant’s representative made observations in reply stressing the independence of the G.P.’s evidence, as shown by his having made changes to the form as respects the physical descriptors and having answered adversely to the claimant’s case as respects some of the mental descriptors. She repeated that the tribunal had failed to provide sufficient findings of fact as to why they preferred evidence by the examining medical practitioner.
19. I turn now to consider the various descriptors contended to be satisfied.
Frequently distressed at some time of the day due to fluctuation of mood (descriptor 16(c))
20. The tribunal observed that the medical adviser had found the descriptor not satisfied on the basis that the claimant was not depressed on examination, there were no ideas of self harm and the claimant was not anxious on examination. The claimant’s evidence of mood swings and not feeling calm was acknowledged, but the tribunal said there was no evidence from her that she was distressed at some time of the day due to fluctuation of mood. The G.P.’s evidence was noted but the medical adviser’s opinion was preferred as it was based upon observations of and discussions with the claimant by a medical adviser and was a professional and unbiased opinion based upon those observations and clinical findings.
21. The grounds of appeal make reference to the G.P.’s evidence and point out that the tribunal did not ask what caused or triggered the mood swings and how often they occurred. The point is also made that the tribunal accepted the evidence of the claimant and the G.P. about sleep problems but rejected it as respects fluctuating moods.
22. The examining doctor’s report records (p.63) that the claimant said that every day the following symptoms occurred and were usually troublesome: low mood, tearfulness, anxiety, panic attacks and irritability. The format of the report, while allowing the doctor to state evidence in support of a conclusion, does not provide for reasons why evidence adverse to the conclusion was rejected, so it is not possible to see why the doctor did not regard the evidence just mentioned as of relevance, or, if it was regarded as relevant, why it was nevertheless outweighed by the other evidence referred to (which is not in itself particularly persuasive in relation to a question about fluctuation of moods). The tribunal does not appear to have taken that into account. Further, I do not understand why the tribunal said that there was no evidence from the appellant that she was distressed at some time of the day due to fluctuation of mood, having earlier recorded her evidence about mood swings. The tribunal may well have felt inhibited about pursuing this directly with the claimant, given the stress that is laid on not using mental health descriptors as a check list (see p.7 of the bundle) and so I do not find an error of law in that respect. In my view, however, the tribunal did fail to give adequate reasons for rejecting the evidence of the G.P. and apparently ignoring that of the claimant, and instead preferring the evidence of the examining doctor.
23. It further seems to me that the evidence is sufficient to show that the claimant does in fact satisfy the descriptor. What she said to the tribunal seems to me to be consistent, if stronger, than what she is recorded as having said to the examining doctor. I accept the
submission made by the claimant’s representative that the G.P. has not simply ticked every box presented to him but can be seen to have considered his answers. He has had much more opportunity than the examining doctor to assess how far the claimant’s mood is likely to fluctuate and cause her distress and I bear in mind the difficulties with the examining doctor’s opinion to which I have referred. In those circumstances, I award the claimant 1 point in respect of this descriptor.
Avoids carrying out routine activities because he is convinced they will prove too tiring or stressful (17(c))
24. Again the tribunal relied on the medical adviser’s opinion. On this occasion, however, the opinion was based on statements made by the claimant that she usually likes to make meals, she usually prefers to keep busy, she can usually easily vacuum, clean windows, clean the bathroom, wash dishes and do housework, that she drove to the examination, that she goes shopping for bread and milk most days and that chats to friends and family on the telephone most days. The tribunal also took account of the claimant’s own oral evidence, as summarised above and stated that there was no evidence that the claimant did not carry out routine activities because they were too stressful; rather it was simply the case that on some occasions she could not be bothered to do so.
25. The grounds of appeal are that the tribunal failed to give any sufficient reasons why it preferred the evidence of the examining doctor and failed to ask why the claimant could not be bothered. Attention was also drawn to the claimant’s evidence as respects driving to Newcastle.
26. This particular descriptor was recently considered by Mr. Commissioner Williams in CIB/1374/2006. The Commissioner said that it clearly requires (a) a finding whether the claimant avoids carrying out routine activities and (b) a finding whether (if he does so) that is because he is convinced that they will prove too tiring or stressful. That decision was given on 5th July 2006 and evidently was not before the tribunal. If it had been, no doubt the tribunal would have made more explicit findings on (a) and (b) as identified by the Commissioner, as would have been helpful. As it is, however, the tribunal referred to what was cumulatively a fairly substantial body of evidence from the claimant herself that she usually managed a considerable number of routine tasks and indeed preferred to keep busy. The claimant did not dissent from what she was recorded as having said to the examining doctor on this aspect of the case, except as to the number of times she went to the supermarket. The evidence of the examining doctor which the tribunal preferred was therefore very largely, albeit indirectly, the evidence of the claimant, although clearly the doctor had formed an opinion on the basis of that evidence which the tribunal took into account. This is not, as might have been thought, an example of preferring the evidence of the medical adviser to the evidence of the claimant and her G.P.; it is rather a case in which the G.P.’s view was largely contrary to the claimant’s own evidence of what she did. In fact she usually undertook, rather than avoided, routine activities. No elaborate reasoning for accepting the medical adviser’s view was required.
27. It is of course true that the tribunal also accepted the claimant’s own evidence that sometimes she could not be bothered to do the housework. In CIB/1374/2006 it was said
that the tribunal should have considered why, on the evidence, the claimant chose to do nothing. Was he convinced that the activities would prove too tiring or stressful? Here the claimant herself volunteered the explanation for her inactivity on such limited occasions as she was inactive, namely, that she could not be bothered. This appears to me to imply apathy or lack of interest rather than a conviction that the routine activities in question will prove too tiring or stressful. As to the claimant’s driving to Newcastle, the evidence was clearly that the claimant regularly undertook a fairly considerable drive, even if sometimes she had to stop en route.
28. Having regard to the above, in my view it was not an error of law for the tribunal not to pursue this descriptor further. In this connection I note that the claimant’s written submission to the tribunal spoke of it becoming “obsessive to keep busy because [the claimant] does not like to sit and think”, and stated, “she can get everything ready to start chores and cleaning and is too exhausted to do them.” If I had found an error of law on the part of the tribunal, I would nevertheless have reached the same conclusion on the evidence.
Unable to cope with changes in daily routine (17(d))
29. In relation to this descriptor the tribunal began by noting that the opinion of the medical adviser was that the claimant did not satisfy the descriptor because she was not anxious on examination, she had normal concentration and she had no significant lifestyle restrictions resulting from her mental health problems. Having recorded that the claimant’s G.P. was of the opposite opinion, the tribunal considered the evidence of a varying daily routine on the basis of what the claimant had told the tribunal: that is, that sometimes she went to Newcastle, sometimes she went to the supermarket, sometimes she went out and socialised with friends, she chose whether to have a shower when she got up, she took things at her own pace and sometimes she did not bother to get up. The tribunal concluded that there was nothing to suggest that the claimant had a rigid routine from which she could not change and overall, considering the details of the claimant’s daily life as described both to the tribunal and to the examining doctor, the claimant did not satisfy the descriptor.
30. In her grounds of appeal the claimant contends that the tribunal chose the evidence of the examining doctor over the evidence of the G.P. and that the tribunal failed to take into account that what the claimant described was her daily routine; she was used to doing different things on different days and it was routine for her. If she were given something different to do, she would be unable to cope. I assume that the claimant intended to raise in relation to this descriptor as well as the others the issue whether the tribunal had given adequate reasons for its preference of the examining doctor’s evidence.
31. In my view there is force in the point made on behalf of the claimant that a daily routine may have some variable elements if there is overall a broadly settled and regular pattern. In particular, it does not seem to me that a regular trip, such as the claimant’s trip to Newcastle, which is not made every day necessarily amounts to a change in daily routine for this purpose if it is nevertheless something done regularly. The descriptor is not, in my view, directed to day-to-day variations determined by the claimant in a pattern which she has herself established. Although with some hesitation, I have concluded that the tribunal erred in law in
considering the descriptor on the footing that it contemplated a rigid routine which the claimant herself could not change. I therefore set aside the tribunal’s decision in this respect.
32. On the footing that the descriptor itself is not so rigid, I consider that the evidence is very finely balanced. Clearly the claimant can accommodate some variety in her daily routine. The examining doctor thought that the claimant did not satisfy the descriptor, and I have set out in paragraph 29 above the reasons given as expressed by the tribunal. The G.P. thought that she did, but gave no reasons. Nothing in the claimant’s evidence illuminates what sort of change in routine would be beyond her capacity to cope with. At the end of the day I note that the examining doctor relied also on the claimant’s having attended the examination centre alone. That was clearly a significant departure from the claimant’s daily routine, not chosen by her and for a purpose of importance to her. The report records the claimant as having stated that she was only mildly stressed because of having to come to the examination centre and that is evidently how she appeared to the doctor. I note that she says that in fact she was much more anxious than she appeared. Even allowing for that, however, it seems that she coped well with this change in routine. In all the circumstances, I conclude that the claimant does not satisfy this descriptor.
Frequently finds that there are so many things to do that she gives up because of fatigue, apathy or disinterest (17(e))
33. As with descriptor 17(c) (avoids carrying out routine activities) the tribunal relied heavily on the claimant’s own account of how she spends her time, both to the medical adviser and to the tribunal itself. The tribunal concluded that the claimant “was able to carry out a full range of tasks across the day”. It noted her evidence that sometimes she could not be bothered to do housework but found that “there was no suggestion that the [claimant] felt this way frequently”. The tribunal reminded itself of the G.P.’s opinion that the descriptor was satisfied, but, faced with the conflict with the opinion of the medical adviser, reached its own conclusion on the basis of the claimant’s evidence, as already indicated.
34. The grounds of appeal also note the conflict between the G.P.’s view and the view of the examining doctor and I shall again assume that it is contended that there was a failure to give adequate reasons for the preference of the examining doctor’s view. Additionally it is contended that the tribunal failed to identify why the claimant could not be bothered to do housework on some days and the frequency of that occurrence. It is pointed out that the claimant said she did not make phone calls, that both her sister and her husband rang her and that in the first instance she left the call to be collected by the answerphone.
35. In my view, the tribunal, in noting the examining doctor’s reliance on the claimant’s own evidence of her usual activities and her preference for being busy and in finding as a fact that the claimant was able to carry out a full range of tasks, made clear enough the reasons for their preference of the examining doctor’s opinion over the opinion of the G.P. in the absence of any reasons to support the G.P.’s opinion. It seems to me implicit in the tribunal’s acceptance that sometimes the claimant could not be bothered to do housework that it was accepted that the claimant gave up through apathy or lack of interest, or possibly fatigue, because the tribunal went on to consider the issue of frequency. Again it seems possible that
the tribunal was inhibited from pursuing that issue too directly. Given, however, the evidence that the claimant was usually busy and preferred to be so, to which I have already referred, I take the view that the tribunal did not err in law in concluding that on any view there was no suggestion that the claimant did frequently feel she could not be bothered .
Gets irritated by things which would not have bothered her before she got ill (18(d))
36. The tribunal again noted that the medical advisor’s opinion was that the descriptor was not satisfied and that the G.P.’s opinion was that it was. The medical adviser’s opinion was said to be based on his assessment that the claimant has a calm nature and her mental health condition caused mild functional impairment only. There was nothing to substantiate the G.P.’s opinion. The claimant herself denied that she was a calm person. The tribunal preferred the examining doctor’s opinion because it was an opinion of a medical adviser trained in carrying out assessments for the personal capability assessment and was an unbiased opinion based upon observations of the claimant, clinical findings and discussions with the claimant.
36. The ground of appeal is that the tribunal failed to give adequate reasons for why it preferred the opinion of the medical adviser. Attention is drawn to what the claimant said in her appeal notice about her inner turmoil and to her evidence before the tribunal.
37. It is notable that the one respect in which the claimant appears to say that the medical adviser is downright wrong is on this question of being a calm person. She does not seem to have been asked directly whether or not she made the statement, but it seems that the claimant was effectively putting in issue whether what she said was accurately recorded, although the record of proceedings shows that the claimant did not say she was not a calm person but that she did not feel calm. This is not just a matter of the doctor’s assessment. One possible explanation might be that the claimant told the doctor she was calm by nature, meaning when she was well. The question how this discrepancy arose was not pursued at all. I note also that in fact the only evidence relied upon by the examining doctor in support of his conclusion reached on this aspect was that the claimant (as she had apparently said) had a calm nature. Given its potential importance for this descriptor, I have come to the conclusion that the tribunal’s duty to act inquisitorially means that the point should have been explored further and that failure to do so was an error of law. I therefore set aside the tribunal’s decision in this respect also.
38. On the evidence, then, the medical adviser concluded that the descriptor did not apply, but relied on a single statement of uncertain status. The G.P., who has the advantage of having known the claimant for some time, thought it did apply. The point made earlier, that the G.P. exercised judgment in answering the form before him, should be recalled here. The claimant by her written submission to the tribunal asserted that she feels very irritated by sudden noise and distraction. In general the tribunal appears to have accepted the claimant’s oral evidence; there is certainly no finding that she was prone to exaggeration. On this scanty material, I conclude that the claimant’s statements (excluding the possible statement to the examining doctor), supported by the G.P.’s evidence, should be accepted in preference the doctor’s opinion, based on one somewhat disputed statement. I therefore award the claimant 1 point in respect of this descriptor.
39. The result of my decision is that the claimant has scored 2 extra points. With the extra point awarded by the tribunal itself, that gives her a total of 8 points. By the operation of regulation 26 of the Incapacity for Work Regulations that would be treated as a score of 9 points if added to points in respect of physical descriptors. It remains, however, a score of 8 points for the purposes of a score determined by reference to mental descriptors alone and, as is obvious, falls short of the required score of 10 points.
40. For the reasons I have given I allow the appeal and set aside the decision of the tribunal. I substitute my own decision to the same effect as the decision of the tribunal and the decision maker. With effect from 26th June 2006 the claimant was not incapable of work and accordingly ceased to be entitled to incapacity benefit.
(signed on the original) E. Ovey
16th May 2007