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DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The claimant's appeal to the Commissioner is allowed. The decision of the Leeds appeal tribunal dated 14 January 2004 is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraph 16 below (Social Security Act 1998, section 14(8)(b)).
2. The claimant had been accepted as incapable of work from 12 June 2001 and entitled to incapacity benefit from 11 January 2002. In July 2002 he was found, after examination by an examining medical practitioner (EMP) to fall within the provisions on exceptional circumstances, as he was due to have a prostate operation. The operation was in fact carried out in May 2003, when he was in hospital from 14 to 17 May.
3. The claimant completed an IB50 questionnaire on 22 May 2003. He only ticked two of the physical descriptors as having any problems. One was walking, where he said that he could not walk more than about 400 metres without stopping, because of shortness of breath (he had been diagnosed with chronic obstructive pulmonary disease). The other was coping with toilet needs, where he ticked that he lost control of his bladder occasionally and wrote:
"If I need a toilet, I must go then because I cannot hold my water at all."
4. He was referred for examination by an EMP on 24 July 2003, who agreed with the boxes ticked by the claimant. He was recorded as having said that he had had the prostate operation eight weeks ago and that his symptoms had not improved, and that he needed to be near a toilet all day as he needed to go every 20 or 30 minutes, with continued dribbling and urge to pass water. The EMP wrote "occasional accidents with bladder control, but not significant incontinence" and that the "claimed loss of bladder control does not amount to true functional incontinence".
5. The decision was then given on 12 August 2003, on supersession of a decision of 5 April 2002, that the claimant was not entitled to incapacity benefit or incapacity credits from and including 12 August 2003 as he only scored three points on the personal capability assessment (PCA) and was not incapable of work. The claimant appealed, writing that his condition had not improved since the last assessment and that after the operation he was "left with a slight incontinence problem". Later a letter dated 29 October 2003 to his employers from a doctor at Occupational Medical Services Ltd and a letter dated 5 December 2003 from his GP were put forward. The letter of 29 October 2003 described the claimant's prostatic symptoms as severe and said that the problems of urinary frequency, urgency and hesitancy had not improved after the operation. The letter from the GP stated that, after the prostate removal, the consultant urologist recorded that the claimant was "still suffering from quite severe obstructive symptoms". The letter continued:
"[The claimant] still has to pass urine every 45 minutes. He gets up during the night to pass urine on at least 6 occasions. He has to stand at the toilet for quite some time before the urine starts to flow; the flow of urine is quite poor and often dribbles; after urination the dribbling sometimes continues uncontrollably so that there is incontinence of urine."
6. The claimant attended the hearing on 14 January 2004 with his representative, Mr West of Harehills and Chapeltown Law Centre. According to the chairman's record of proceedings, Mr West argued, before the claimant gave evidence, that the claimant had no voluntary control of the bladder, from "urgency", the need to get to the toilet when he got the feeling, and from dribbling afterwards. He referred to what was said by Mr Commissioner Walker QC in paragraph 8 of decision CSIB/38/1996, as quoted in Vol I of Bonner, Social Security Legislation 2003:
"[T]he proper starting point is to determine whether the frequency of visits are simply anticipatory or as a matter of precaution, or whether they proceed upon some indication of urgency. It is only if there is some degree of urgency which the exercise of will cannot postpone, otherwise perhaps than de minimis, that the new tribunal will be entitled to conclude that this claimant has no `voluntary control' over his bladder."
The claimant's evidence included the statement that when he got the urge he had to go and that he wet himself. He also said that he only passed a small amount of urine each time, that there was a slow dribble and that he would stand for ages after passing urine (two or three minutes) and that it dribbled for ages afterwards.
7. The appeal tribunal disallowed the appeal and said that it confirmed the decision that the claimant did not fulfil the PCA, although it awarded additional points for standing and rising from sitting (because of back pain) bringing the total to nine. It awarded no points for the activity of continence. It described the claimant's evidence on this as follows:
"He does not wear pads but has a plastic sheet on his bed. When he gets the urge to go to the toilet he has to go and sometimes wets himself but not a lot. He complains of a `slow dribble'. He has to go to the toilet up to 20 times per day including 7 times at night. This affects his sleep."
The appeal tribunal's reasons for awarding no points were as follows:
"The Appellant, on the evidence before the Tribunal, including his own oral evidence, can control his bladder to the extent that he knows when he has to go to the toilet. Whilst the frequency of his visits to the toilet must be a nuisance such frequency (20 times per day) is less than once an hour. In all the circumstances the Tribunal did not accept that the Appellant has no control of his bladder."
8. The claimant now appeals with my leave. The grounds put forward on his behalf were that the appeal tribunal had given an inadequate explanation of why it did not accept that he had no voluntary control of the bladder, as his evidence had been that he only avoided wetting himself by going immediately and his case came within the statement in CSIB/38/1996. When granting leave I suggested that the appeal tribunal had not explained why that decision, specifically relied on by Mr West, did not help the claimant.
9. The representative of the Secretary of State, in the submission dated 6 May 2004, did not support the claimant's appeal. It was accepted that the appeal tribunal had erred in failing to explain why CSIB/38/1996 did not help the claimant, but submitted that as it had reached the only decision which an appeal tribunal, properly instructed as to the law, could have made, the appeal to the Commissioner should be dismissed. It was said that there was no evidence to support a claim that the claimant had no voluntary control of his bladder or that he was faced with such an urge that he would wet himself if he did not immediately have access to a toilet. If that was the case, greater measures would have been taken to mitigate the effect of the condition. In his reply dated 28 May 2004, Mr West disagreed and pointed to elements of the claimant's evidence to the effect that he could not hold his water at all.
10. I find that the state of the evidence was not such that there was only one conclusion open to the appeal tribunal. The evidence from the claimant was not entirely consistent, but he had certainly given evidence that suggested qualification for the descriptor "no voluntary control over bladder". On the other hand, the evidence given did not point clearly to a conclusion in his favour. Many of the crucial questions had not been asked. In those circumstances, my conclusion is that there was a failure of explanation by the appeal tribunal and that that failure justifies the setting aside of its decision.
11. I do not propose to carry out an analysis of all the Commissioners' decisions referred to in the Secretary of State's submission or of any other helpful decisions (I mention in particular the reported Northern Ireland decision of Mrs Commissioner Brown in R 2/00 (IB)), but draw out a few of the more important points.
12. I agree with Mr Commissioner May QC in CSIB/85/1996, CSIB/625/1997 and CSIB/692/2002 that there is an important difference between "no voluntary control of the bladder" and "loses control of the bladder", in that the first imports no voluntary control at all and the second imports some control that is lost. As Mrs Commissioner Brown said in paragraph 15 of R 2/00 (IB):
"The phrase `no voluntary control' appears to me to contemplate, though not necessarily exclusively, situations where a person either has no mental awareness of a need to empty the bladder or bowel and thus no control over it by will or choice or has such awareness but has no ability to control that need by exercise of the will."
13. I also agree with Mr Commissioner May that such an approach is not inconsistent with Mr Commissioner Walker's statement in CSIB/38/1996, set out in paragraph 6 above. There is room in the concept of "no voluntary control" for a person only to be able to resist, by the exercise of the will, the muscular reflex to empty the bladder for a very short time indeed. I consider that Mr Commissioner Walker's reference to de minimis was intended to cover time as well as the degree of leakage. But the time must be very short indeed, in the context of "no voluntary control", and it must be remembered that cases like CIB/14332/1996, CIB/1995/2002 and CIB/2200/2003 were about when a person loses control of bowels or bladder. Moreover, too much must not be read into Mr Commissioner Walker's statement. He had set aside an appeal tribunal's decision that a claimant had no voluntary control over the bladder because there was not evidence to support that conclusion, merely evidence of frequency. Then in paragraph 8 he was merely setting out, for the guidance of a new appeal tribunal, a starting point in the proper consideration of the descriptor, not an exhaustive set of conditions. There would not only have to be evidence of an inability to postpone by exercise of the will the operation of the muscular reflex, but that inability would have to exist at all times and on all occasions, subject to trivial exceptions, before it could be concluded that a person had "no" voluntary control.
14. It follows from the above that the fact that a claimant, or even an EMP, ticks a box labelled "occasionally loses control" is not inconsistent with the true situation being "no voluntary control". Such answers may be given on an assumption that only actual wetting or soiling counts for that purpose, whereas that is not the case. And if a person can only postpone the muscular reflex for a very short time, with occasional failures, that can be consistent with "no voluntary control". In the present case, the claimant's evidence to the effect that, if he needed a toilet, he had to go because he could not hold his water at all (if accepted) would go part of the way to establishing his case. But questions needed to be asked about just how quickly he needed to get to a toilet and about how often and in what circumstances he was able to do so without an accident. Those questions needed to include what happened during the night when the claimant woke needing to empty his bladder. Possibly questions should also have been asked about the claimant's ability to terminate the stream of urine by the exercise of will (another element of voluntary control), but there was evidence from the GP of a failure of voluntary control to that extent. And express consideration needed to be given to the consistency of the claimant's evidence as above with the normal effects of prostate problems and of hesitancy (see the GP's evidence that the claimant has to stand at the toilet for quite some time before urine started to flow), but that is a matter where medical expertise and experience would be needed for a proper evaluation to be made. Finally, the consistency with measures taken to mitigate the effects of the claimed absence of voluntary control was a relevant factor.
15. In my judgment, the appeal tribunal, not having asked those further questions and dealt with all those other matters, did not adequately explain why it rejected the claimant's case on "no voluntary control of the bladder". The reliance on the claimant's knowing when he had to go to the toilet was, on the approach set out above, not a conclusive answer against the claimant. The appeal tribunal did not make it clear whether or not it was accepting that the claimant lost control of his bladder at least once a month, rather than occasionally, but that is not a reason on its own for overturning the decision, as the additional three points would still have left the claimant below the necessary 15.
16. For those reasons, I set aside the appeal tribunal's decision of 14 January 2004 as erroneous in point of law and refer the claimant's appeal against the decision of 12 August 2003 to a differently constituted appeal tribunal for determination in accordance with the following directions. There must be a complete rehearing of the appeal on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunal of 14 January 2004. I do not need to give any directions of law about the meaning of any of the descriptors in the PCA apart from descriptor 13. In relation to descriptor 13, I direct the new appeal tribunal to apply the approach set out above, particularly in paragraph 11 to 14. As this is a supersession case, the onus of proving, if a ground of supersession exists (as it does in the receipt of the EMP's report), that the claimant is not incapable of work lies on the Secretary of State. The evaluation of all the evidence put forward will be entirely a matter for the judgment of the members of the new appeal tribunal. The decision on the facts in this case is still open.
(Signed) J Mesher
Date: 6 July 2004