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DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(b) of the Social Security Act 1998. It is:
I SET ASIDE the decision of the Middlesbrough appeal tribunal, held on 28 September 2004 under reference U/44/228/2004/06405, because it is erroneous in point of law.
I REMIT the case to a differently constituted appeal tribunal and DIRECT as follows.
The appeal tribunal must investigate and determine the claimant’s capacity for work on and from 29 March 2004. In doing so:
The appeal tribunal must not take account of circumstances that were not obtaining at that time: see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.
The appeal tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration.
Error of law:
2. Both the claimant and the Secretary of State have expressed the view that the decision of the appeal tribunal was erroneous in law. That allows me to deal with the error briefly.
3. I am satisfied that the decision of the appeal tribunal was erroneous in law for this reason:
There was evidence that the claimant had given up leisure activities for physical reasons, but also that he had done so for mental reasons. The tribunal preferred the former evidence, but did not refer to the latter evidence or explain why it rejected it.
That is sufficient to justify setting aside the tribunal’s decision. I do not need to refer to any other error that the tribunal may have made.
4. This scores a claimant 2 points if
‘Mental stress was a factor in making him stop work.’
5. The evidence was that the claimant had been dismissed for poor timekeeping, which he attributed to stress. The Secretary of State and the tribunal both scored him 2 points for satisfying this descriptor. In my grant of leave, I raised the issue whether that was correct. I asked whether the decision to stop work had to come from the claimant. The Secretary of State, in a short paragraph, has submitted that the decision must be the claimant’s. The claimant’s representative, in an even shorter submission, disagrees.
6. Having considered the matter, I have decided that the claimant can still satisfy this descriptor even if the immediate cause of him stopping work is that he was dismissed. My reasons are these.
7. If the descriptor is read with the emphasis on ‘making him stop’, it appears that the decision must be that of the claimant. However, that is only part of the descriptor. Read as a whole, the descriptor does not so clearly require that the initiative must come from the claimant. The immediate cause of the claimant may have been dismissal. In that sense, the dismissal was what made the claimant stop work. However, the mental stress need only be a factor. If the stress was a cause of the dismissal, it can fairly be said that it was also a factor in making the claimant stop work. The precise mechanism by which a particular effect is produced seems irrelevant.
8. I am comforted in this conclusion by these thoughts. First, any other interpretation would produce anomalous outcomes turning on the chance of who took the initiative in terminating the employment. Second, the emphasis in the personal capability assessment must be on the impact of the mental condition on the claimant’s capacity for work.
9. I make the following comments for the claimant’s information.
10. I have directed a rehearing rather than substitute my own decision for two reasons.
• The error on which I have set aside the tribunal’s decision would not alone have affected the outcome of the appeal. However, I am satisfied that there is a reasonable prospect of the claimant satisfying the personal capability assessment on other grounds mentioned in the application for leave, in my grant of leave, and in the Secretary of State’ observations.
• Given that, the investigation into the facts is better undertaken and the evidence better assessed by appropriately experienced panel members.
11. At the rehearing, the appeal tribunal must follow the directions I have given. Otherwise:
• The rehearing will not be limited to the grounds on which I have set aside the tribunal’s decision. The tribunal will consider all aspects of the case, both fact and law, entirely afresh.
• The tribunal will not be limited to the evidence and submissions before the tribunal at the previous hearing. It will decide the case on the basis of the relevant evidence and submissions made at the rehearing.
• The tribunal must come to its own conclusions on issues of both fact and law that it considers. Neither my decision itself nor anything I have written in it is an indication of the likely outcome of the rehearing. Nor will the tribunal be bound by any conclusions of fact or law reached by the tribunal in the decision that I have set aside.
Signed on original
on 15 February 2005 Edward Jacobs