Appeal from decision of social security appeal tribunal on a question of law decision of the social security commissioner

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Commissioner's File: CIB 1588/99
Mr Commissioner Howell QC
5 January 2000





Claim for: Incapacity Benefit
Appeal Tribunal: Bournemouth SSAT
Tribunal date: 9 November 1998


1. This appeal by the claimant is dismissed, as in my judgment there was no error of law in the decision of the tribunal given on 9 November 1998, confirming that of an adjudication officer that from 10 June 1998 she no longer counted as incapable of work for the purposes of national insurance credits or income support.

2. I held an oral hearing of this appeal which had been directed at the request of the claimant. David Ward of the Bournemouth Citizens' Advice Bureau appeared on her behalf and Jeremy Heath of the solicitor's office, Department of Social Security, appeared for the Secretary of State.

3. The claimant is a lady now aged 43 who suffers from a group of symptoms now generally called "chronic fatigue syndrome" and also from bouts of migraine which affect her every month. According to a medical report from her own GP dated 12 March 1998 at pages 60-62 a diagnosis of myalgic encephalitis or encephalomyelitis had been made in 1990, and the claimant's evidence was that she had been thought to have this condition since 1981 after suffering a viral infection: see pages 12, 64. Although the more recent medical evidence is less categoric about whether this specific diagnosis is or remains the correct one for her general condition (pages 84, 126B-C), no doubt has at any stage been cast on the evidence that she is a perfectly genuine sufferer from a condition or group of symptoms involving feelings of extreme fatigue and muscular pain and weakness, the combination of which and her migraine can at times make things very difficult for her.

4. The task for the tribunal which heard her appeal on 9 November 1998 was however not to determine which medical diagnosis was the most exactly appropriate to her particular group of symptoms or to engage in debate about the exact clinical nature of ME or CFS: it was simply to determine whether it had been shown that the conditions under which she had been previously determined to count as "incapable of work" for benefit purposes had ceased to apply, and if so whether as matters stood at the date of the adjudication officer's decision on 10 June 1998 and under the regulations then in force she qualified as incapable of work or not.

5. There is no doubt that the answer to the first part of this question was affirmative and that the adjudication officer on 10 June 1998 and the tribunal were right in carrying out a reappraisal of the claimant's capacity. The history of the case was that the claimant had been found incapable for a continuous period from March 1990 under the regulations then in force; and following the changeover to the system of assessing incapacity for work with the introduction of incapacity benefit from 13 April 1995, her case was in due course considered again (for the first time) in September 1996.

6. On that occasion, she underwent an assessment under the "all work test" in accordance with the Social Security (Incapacity for Work) (General) Regulations 1995 SI No 311 and failed to score the required number of points to count as "incapable of work" in that way. However she was certified by a departmental doctor, and found by an adjudication officer, to fall within the provisions then in force in reg. 27 for "exceptional circumstances" so as to be still treated as incapable of work on the ground that as a result of her chronic fatigue syndrome there would be a substantial risk to her physical or mental health if she were found capable: see pages 57, 59.

7. That remained the position on a continuing basis until reg. 27 itself was substantially amended from 6 January 1997 by 1996 SI No. 3207, so as to restrict the "exceptional circumstances" within reg 27 to certain life-threatening conditions or imminent surgical cases only. Following that the claimant's case was in due course re-appraised (for the second time) in the spring of 1998. On this occasion it was again determined that the application of the "all work test" table failed to produce the required point score for the claimant to count as incapable of work in that way. But now she did not qualify to be treated as incapable by reason of "exceptional circumstances" under reg 27 (as altered) either. The alteration to reg 27 was plainly a material change affecting the basis on which she had previously been found incapable, so it was quite correct for both the adjudication officer and the tribunal to carry out a fresh appraisal of whether she met the conditions for counting as incapable of work under the legislation as it stood in 1998.

8. The tribunal conducted what was obviously a careful and thorough consideration of this question with the assistance of a medical assessor, at a full hearing on 9 November 1998 when the claimant was present and represented. The detailed reasons for holding that she did not meet the conditions for incapacity as at 10 June 1998 are set out in the statement which forms part of the combined record of the tribunal's decision and proceedings at pages 127-136 of the appeal file. The decision noted in particular on page 133 that the provision for "exceptional circumstances" under reg. 27 as in force before 1997 had been the only reason why she had been treated as incapable of work on the first re-appraisal; that the provision had since been made more restrictive so that it no longer applied to her; and that on neither occasion had she been found to attain anywhere near the required number of points to count as incapable of work under the all work test itself.

9. Although the chairman who constituted the tribunal was prepared to accept that there were some fluctuations in the claimant's condition he determined after considering the various assessments that the medical assessment of the claimant's abilities was to be preferred. That resulted in no point score on the physical descriptor table, as compared with the claimant's own assessment of her claimed disablement awarding herself a score of no less than 84 points: see the comparative score sheet dated 2 June 1998 at page 8. The chairman commented that in some key respects he was unable to accept the claimant's own subjective evidence as in his view she was prone to exaggeration.

10.The claimant's appeal against that decision was founded on the written grounds set out on her behalf by Mr Ward at pages 137-138 and developed by him in the oral argument before me. To some extent the points in this kind of appeal are inevitably inter-connected but Mr Ward's argument helpfully separated them out into three main heads: first that insufficient account had been taken in the medical assessment of the variability of this claimant's condition and indeed of ME generally, with the result that as the tribunal had largely relied on the assessment this flaw carried into the decision itself and invalidated it; second that the tribunal's rejection of the claimant's own evidence about her disabilities was inadequately specified or reasoned, and to some extent unjustified given that it was wrong for any tribunal to start from the premise that ME was not an entirely genuine and disabling medical condition; and third that the tribunal's own observation of the claimant sitting up and taking part in the hearing itself for more than half an hour had been wrongly taken into account as a reason for rejecting her other evidence about the extent of her disablement, as it was inevitably based on a snapshot view and not on a balanced assessment over a period of time as assessments for the all work test are required to be. On this last point reliance was placed on the Northern Ireland Commissioner's decision in case C1/95(IB) which has since been followed by the Commissioners in Great Britain in many other cases, accepting that there is an implied requirement of "reasonable regularity" built into the relevant descriptors in the scoring table for the all work test.

11.I have however concluded that despite these arguments the submissions of Mr Heath for the Secretary of State are to be preferred and that no material error of law has been shown in the decision of the tribunal. In the first place the question of the variability of the claimant's condition was specifically referred to in the examining doctor's report at page 105 and also in the tribunal's decision at pages 134-135, which has to be read in the context of the claimant's own evidence and the contentions on her behalf about the fluctuations in her condition recorded on page 129. Mr Ward referred me to the general evidence on the nature of ME/CFS provided by the ME Association at pages 126E-126I, which was among the papers before the tribunal and makes the point that the disease is a naturally fluctuating one, as well as one that can potentially involve a severe degree of disablement. Such material is of general help in understanding the nature of ME but its usefulness in assessing a particular case is limited because it is also beyond dispute, from the evidence in this and the many other cases on this kind of condition which have come before the Commissioners, that the groups of conditions or symptoms now generally known together as "chronic fatigue syndrome" are extremely variable in their actual effects between the individuals unfortunate enough to suffer from them. The question to be resolved in each case is whether the effect for the particular individual concerned, taking into account the degree of fluctuation or variability in symptoms shown to be present for him or her, does or does not give rise to the degree of functional impairment needed to score the necessary points on the descriptor table that now has to be applied.

12.I agree with the submission made by Mr Heath in this case that the question of variability of symptoms having been specifically dealt with in the medical evidence and specifically addressed by the chairman, he was entitled to take the view that for the reasons he gave (and accepting that there was some degree of fluctuation, but not so extreme as the claimant herself had asserted) her actual functional abilities were not so badly restricted as regards the listed physical activities as to warrant the award of points. The way the tribunal approached the task of assessment appears to me entirely consistent with the guidance on the questions of reasonable regularity and fluctuating conditions given in case C1/95(IB) and the more recent decision of the tribunal of Commissioners in case CIB 14534/96, R(IB)2/99.

13.I similarly reject the second head of the argument, as it seems to me there is no ground whatever for any suggestion that the tribunal in this case started off with any preconception against this particular claimant or against fatigue syndrome sufferers generally. Para 4 of the decision on page 132 makes absolutely clear that the tribunal's consideration was focused not on any preconceptions or on the precise medical label to be attached to what is accepted there as being the "same underlying condition" revealed in the medical reports, but on its practical effects for this particular claimant in terms of the incapacity benefit conditions and the all work test: which neither the general material from the ME Association nor the consultant physician's report included in the claimant's evidence at pages 126K-L directly addressed at all.

14.Since this was the issue the tribunal had to decide it was of course entirely correct to concentrate exclusively on it; and I do not think there is any substance in the criticism that it was an error of law not to have placed greater weight on the subjective evidence of the claimant herself as to the extent of her own physical abilities. That was a matter of fact and degree for the tribunal to decide after consideration of all the evidence, and the reasons for not accepting the claimant's own assessment of an extremely high level of disability are made quite apparent in the decision itself.

15.The third ground of appeal, that the tribunal had wrongly placed reliance on a snapshot view and the impressions given by the claimant at the hearing itself, involves elements of both the previous points and must in my view be rejected for the same reasons. The tribunal was in my judgment fully entitled to take into account its own ocular observation of the claimant at the hearing as a relevant factor in assessing the weight to be given to the more scientifically-produced medical reports and her own detailed verbal evidence about the difficulties from which she suffered. I do not find any ground for thinking that a snapshot impression here was allowed to exclude proper consideration of all the evidence in a balanced way, or caused the tribunal to make other than a balanced and reasonable assessment in accordance with the principles explained in the Commissioners' decisions cited above.

16.In summary therefore the criticisms made of this tribunal's decision appear to me to relate only to matters of facts and degree which were within the competence of the tribunal to decide, and as the reasons for the conclusions reached are in my view stated entirely adequately in what appears to me a most carefully considered and well recorded decision, I am not persuaded that there was any error of law here at all.

17.For those reasons, the claimant's appeal is dismissed.


P L Howell
5 January 2000

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