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1. This appeal, brought with my leave, succeeds. The decision of the tribunal on 23 3 04 was erroneous in law, and I set it aside. I remit the appeal to a differently-constituted tribunal for rehearing.
2. The reason why I do this is the absence of the earlier all work test/personal capability assessment documentation which the Secretary of State (page 107) originally denied was available, but which his officer on this appeal has obtained. I am grateful to her, and agree that this is a matter on which the claimant is entitled to have the views of another tribunal. It was not the fault of the earlier tribunal, there had already been an adjournment for the documents to be obtained, and there was an assurance that they were not available. My opinion of that assurance (which extended to three tests and two intervening scrutinies) is probably best not printed.
3. The rehearing tribunal will be able to judge for itself the earlier IB50s and IB85s. The claimant’s memory of how long the earlier examinations lasted seems to be defective, as only one of them was significantly longer than the latest one (30 minutes rather than 23 minutes). The same doctor who conducted the latest examination also conducted the previous one.
4. The tribunal will conduct its own investigation and make its own findings of fact, which it will adequately explain. There was no evidence before the decision maker of any mental health problem (nor for that matter of any relevant ongoing physical problem). Evidence has been given of a post-decision mental health consultation and prescription, and the claimant told the previous tribunal that he thought he might have been suffering from anxiety/depression for a long time. However, none of the earlier examining doctors noted any mental health condition, and the claimant did not go near his GP from 9 10 00 to 17 7 03 (not 29 5 03 as I said in giving leave to appeal).
5. I am asked to comment on “Waddell’s signs” - “inappropriate” physical responses to examination that should not produce such responses, such as expressions of pain on axial loading or on simulated spinal rotation. The representative quotes Mr Commissioner Jacobs in CI/1756/2002, who in paragraph 8 opined that these are not signs of deliberate misrepresentation of disablement but are the result of a mental reaction not within the claimant’s conscious control. That may well often be so. But the learned commissioner in his next paragraph envisages that such signs may also stem from a claimant’s deliberate invention or misrepresentation, and so, it seems to me, they may. And a claimant, not necessarily from deliberate wickedness, may consider that to show pain whatever takes place during a formal examination must help his or her case. The rehearing tribunal must make up its own mind in the light of all the evidence what is to be taken from the presence of Waddell’s signs, and explain its finding.
6. I am also asked to rule on what is to be taken into account by a tribunal applying regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 SI 1995 No 311. This, now restored as a result of recent Court of Appeal authority, provides that a person who does not pass the personal capability assessment (PCA) may be treated as incapable of work if
he suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work..
Obviously there must be identified “some specific disease or bodily or mental disablement” which causes the substantial risk to be posed. The representative wishes me to abide by the ruling of Mr Commissioner Rowland in CIB/3519/2002. Mr Rowland is probably right in his paragraph 7 about the meaning of “substantial”; but his invocation of the other paragraphs of regulation 27 as guides to interpretation suggests that the interpretation should be rather narrow. Under the original as well as the amended form, the other paragraphs refer to more or less factual medical questions – presence of life-threatening or severe uncontrolled or uncontrollable disease, need for an identified major medical procedure within a short time.
7. The representative also wishes to bring into account the kind of job the claimant might be qualified to do, and Mr Deputy Commissioner Paines in CIB/2320/2003 and Mr Commissioner Jacobs in CIB/24/2004 indeed appear to enjoin this. Having carried out a PCA excluding any consideration of particular jobs, they then throw open the field under regulation 27(b) to a consideration of what jobs the claimant could reasonably be expected to do having regard (as in a jobseekers agreement) to his health, qualifications, skills and experience.
8. This of course places an evidential burden on the claimant, who is seeking to show that despite failing the PCA he should nonetheless not be asked to look for work. Evidence (in the present case, further evidence) about all the elements to be taken into account must be provided, together with full details about the alleged muscular spasms, what precipitates them, and how they might pose a substantial risk to the claimant’s or anyone else’s health. Why should it matter, in terms of the substantial risk of which the subparagraph speaks, if the claimant sometimes cannot sit down? It is not for tribunals to speculate on these things, it is for claimants to prove them on the balance of probabilities.
9. Finally, the representative urges that I must also direct the rehearing tribunal to take into account whatever the claimant says did actually happen to him on being found capable of work, not only what the decision maker might reasonably have thought would happen. I reject this submission. The rule is that events occurring after the date of the decision appealed against are not taken into account (s12(8)(b)), and I see no reason to depart from this. Large numbers of claimants argue that their health, physical or mental, has suffered through being found capable of work. But if the assertion is true, it must form the basis for a fresh claim.
10. The rehearing tribunal will note that the examining doctor on this occasion found neither mental nor physical disablement. The tribunal conceded “sometimes” problems with rising from a chair and bending/kneeling, but no more.
11. If this is still a live issue, I hold that the Secretary of State was perfectly entitled to supersede under regulation 6(2)(g).
(signed on original) Christine Fellner
13 December 2004