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DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. I allow the claimant’s appeal. I set aside the decision of the Wakefield appeal tribunal dated 6 July 2006 and I refer the case to a differently constituted appeal tribunal for determination.
2. On 16 January 2006, the Secretary of State superseded the claimant’s award of incapacity benefit and credits on the ground that he could no longer be treated as incapable of work because he had scored only one point on a personal capability assessment. The claimant appealed. The tribunal found he scored seven points in respect of the physical descriptors and two in respect of the mental descriptors but that was still not enough and his appeal was dismissed. He now appeals against the tribunal’s decision with my leave and the support of the Secretary of State.
3. An appeal to a Commissioner lies only on a point of law. The question of law that arises in this case is whether that the tribunal failed adequately to consider whether descriptors 13(d) and (e) in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 (S.I. 1995/311) were satisfied because the claimant “[l]oses control of [his] bowels once a week” or “[l]oses control of [his] bowels occasionally”. If those descriptors had been found to apply, a further 15 or 9 points respectively would have been awarded and, in either case, the claimant’s appeal would have been allowed.
4. The tribunal found –
“He has had irritable bowel syndrome for 10-15 years but is able to get to the toilet provided he has 2 minutes warning.
The claimant, however, had appealed to the tribunal on the ground that he lost control of his bowels once or twice a month. This is consistent with what he had said in the questionnaire he had completed in October 2005. There he had said –
“Over the last few months I have lost control of my bowel and bladder quite a few times which means I have to wash and change my clothing and underwear. I have also lost control of both bowel and bladder when I have been out which is very embarrassing.”
He is recorded as having told the examining medical officer on 3 January 2006 that bowel incontinence started a few months ago and had been unchanging for a few months. The doctor found there to be “no problem with continence”, having recorded that the claimant had stated that “daily living is not affected”, that his view was that “he has occasional faecal urgency but no true incontinence” that he had not carried out an abdominal examination but “the history regarding symptoms, investigation and treatment does not support a diagnosis of bowel and bladder incontinence”. It was that view that was adopted by the Secretary of State.
5. I quite accept that, if a claimant merely feels an urgent desire to go to the toilet and is able to control his bowels for long enough to get there, he is not entitled to any points under activity 13 in the Schedule. However, if he is not always able to get to the toilet in time, it seems to me he “loses control” on those occasions when he fails. I do not know whether the examining medical officer found that the claimant never lost control in that sense or whether his reference to there being “no true incontinence” meant that he considered that incontinence required there to be a complete loss of control, which would appear to be inconsistent with the legislation permitting points to be awarded for occasional loss of control. Applying a purposive construction to this legislation, as one must, it is clear that an occasional partial loss of control is sufficient to meet the terms of descriptor 13(e) unless the extent of the loss of control can be said to be de minimis in its effects.
6. In any event, the tribunal erred in not making any finding as to whether the claimant did occasionally lose control. To say that he was able to get to the toilet if he had sufficient warning does not amount to a finding as to whether or not he did always receive such a warning. The claimant’s written evidence was clearly to the effect that, occasionally, he did not and the tribunal had to decide whether or not to accept that evidence. I accept that the chairman’s note of the claimant’s oral evidence can be read as implying that he did always get to the toilet in time but, given the written evidence, I doubt that is what the claimant meant and, given the way the tribunal recorded its finding, I doubt that it is exactly what he said.
7. Accordingly, I allow this appeal. All issues, including the effects of the claimant’s heart condition, will be at large before the tribunal to whom this case is now referred.
(signed on the original) MARK ROWLAND
31 May 2007