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Incapacity benefit case law summaries

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A FULLER SUMMARY OF EACH DECISION IS USUALLY AVAILABLE BY SEARCHING FOR THE DECISION NUMBER ON THIS WEBSITE.

Back to case law summaries.

1. Introduction
2. General
3. Physical Disabilities - Activities and Descriptors

3.1 Walking
3.2 Walking up and down stairs
3.3 Sitting
3.4 Standing
3.5 Getting up from a chair (Rising from sitting)
3.6 Bending and kneeling
3.7 Using your hands (Manual dexterity)
3.8 Lifting and carrying by use of the upper body and arms
3.9 Hearing
3.10 Seeing (Vision)
3.11 Continence
3.12 Remaining conscious without having epileptic or similar seizures during waking moments

4. Mental Disablement - Activities and Descriptors

4.1 Completion of tasks
4.1.1 Cannot answer the telephone and reliably take a message
4.1.2 Cannot concentrate to read a magazine article or follow a radio or television programme  
4.1.3 Agitation confusion or forgetfulness

4.2 Daily living
4.2.1 Needs alcohol before mid-day
4.2.2 Frequently distressed at some time of day due to fluctuation of mood

4.3 Coping with pressure
4.3.1 Stress was a factor in giving up work
4.3.2 Frequently feels scared or panicky for no obvious reason
4.3.3 Frequently finds there are so many things to do that gives up due to fatigue, apathy or disinterest.

4.4 Interaction with other people
4.4.1 Cannot look after him/herself without help from others?
4.4.2 Gets upset by ordinary events and it results in disruptive behavioural problems

5. Exceptional Circumstances
6. Exemptions
7. Other

7.1 Additional treatment 
7.2 Aids and Adaptations

7.3 Burden of proof
7.4 Credits only IB
7.5 Dialysis
7.6 Electronic IB85
7.7 Evidence
7.8 IB50
7.9 income support and IB
7.10 Invalidity benefit transitional cases
7.11 Med 4  
7.12 Overseas examinations
7.13 Pain
7.14 Permitted and other work
7.15 Reasonable regularity
7.16 Reciprocal agreements
7.17 Risk
7.18 Work setting
7.19 Youth IB

1. Introduction

This is a regularly updated digest of summaries of past case law and commissioners decisions related to adjudication issues. You can search this web page in internet explorer by selecting "Find" from the "Edit" menu

Should you need to get hold of a copy of any of the decisions described in this pack please see our Factsheet F19 - finding the law.

You may also wish to download the other digests of case law on our website at www.disabilityrightsuk.org.

Since 3 November 2008 social security commissioners' decisions are known as decisions of the Upper Tribunal (Administrative Appeals Chamber). Commissioners are now also known as judges. There is also a new numbering system.

When an appeal is first lodged with the Upper Tribunal in England and Wales it is given a reference number in the form CDLA/234/2010, where: ‘C' indicates the decision is unreported; the initials following indicate the benefit claimed (in this case disability living allowance); the first set of numbers is a specific reference for the case and 2010 is the year that the appeal was lodged. The decision will keep this reference unless it is published on the Tribunals Service website or is reported.

If a decision is thought to be of importance it is published on the Tribunals Service website. The decision then acquires a reference such as for example KS v Secretary of State for Work and Pensions (JSA) [2009] UKUT 122 (AAC)

  • KS v Secretary of State for Work and Pensions (JSA) are the parties to the appeal (KS is the initials of the person who claimed the benefit)
  • JSA indicates the benefit claimed (in this case, jobseeker's allowance)
  • [2009] UKUT indicates a decision published on the website in 2009 and made by the UK Upper Tribunal
  • 122 is the reference number
  • (AAC) indicated that it is the Administrative Appeals Chamber.

Decisions published on the website carry no more legal weight than any other decision.

If a decision goes on to be reported, an additional reference is added. In this instance it becomes KS v Secretary of State for Work and Pensions (JSA) [2009] UKUT 122 (AAC) [2010] AACR 3. The reference [2010] AACR 3 indicates it was the third decision reported in the Administrative Appeals Chamber Reports of 2010. The first time the decision is referred to it should be cited in full. Thereafter, abbreviations for the parties and benefit can be used, eg KS v SSWP (JSA).

2. General

arising out of mental disablement

R(IB)2/98 (formerly CIB/14202/1996) restates that you can only score points in the mental disabilities test, if your difficulty results from mental disablement (not mere matters of mood).

CIB/5804/1997 states that there are four questions that may have to be answered by an examining doctor in the application of the mental disabilities section of the pca.

  1. Does the claimant have a specific mental illness or disablement? This involves a clinical opinion by the examining doctor. …
  2. Does the claimant’s evidence report manifestations that fall within any of the descriptors? This does not involve a clinical opinion.
  3. Does the doctor accept the claimant’s evidence? Again, this does not involve a clinical opinion.
  4. If the doctor accepts the claimant’s evidence, a question of causation arises (see CIB/14202/1996, paragraph 6). The question is: are the manifestations reported by the claimant and accepted by the doctor a result of the claimant’s mental illness or disablement? For example, does the claimant not care about her appearance and living conditions because she is depressed or because she is an untidy and slovenly person? This may involve a clinical opinion.’

The application of the mental disabilities section of the personal capability assessment essentially involves issues of credibility and consistency. Are the symptoms described by the claimant a reliable account of the effects of the claimant’s mental disablement? As part of that question, the medical adviser and the tribunal have to take account of whether the symptoms described are consistent with the diagnosed mental conditions. See also CIB/3785/2007 and CIB/3063/1999, which restate these questions.

bodily disablement

CIB/5435/2002 discusses meaning of bodily disablement - " it refers to the function that is affected rather than to the source of that condition."

change of circumstance

CIB/14516/1996 states that the point at which personal capability assessment first applies constitutes a change of circumstances.

Compulsive behavioural problems

CIB/16365/1996: Compulsive behavioural problems are 'a specific mental disablement'.

correct approach to pca test

CIB/5361/1997*(48/98) states that..

“the only valid way to conduct an assessment of a person's physical disability score in accordance with this mandatory requirement of the regulations must therefore be to work down from the top of each section of the table and stop as soon as one comes to a descriptor that applies to him.”

See also CIB/483/2001* (77/01).

daily test

CSIB/17/1996 states that the personal capability assessment must be satisfied on a day by day basis. See also CSIB/459/1997.

disablement and pca descriptors

CSIB/44/1997 states that in order to satisfy a descriptor the test must be satisfied by reason of some specific disease or bodily or mental disablement.

dizziness

CIB/4828/1999* (63/01) states that physical symptoms, in this case dizziness, arising out of mental illness or disablement may constitute bodily disablement.

everyday living

In CIB/1458719/1996 the ability to perform an activity is not subject to the requirements and pressures of employment. It is decided with reference to the normal needs of everyday living at home.

findings of fact

CIB/15693/1996 states that where mental health is an issue, findings of fact should assess each descriptor.

illiteracy

CSIB/26/1996 states that this does not count towards satisfying any of the mental health descriptors.

migraine

In CIB/3589/2004 the effects of migraine [or any other illness or disablement] may be considered in any relevant activity. See also CIB/13161/1996 and CIB/13508/1996.

CIB/3671/2006 states that, apart from those descriptors which include the wording "sometimes", the effect of migraines should be considered in relation to whether the claimant can perform a descriptor with reasonable regularity. Migraines which arise out of a physical cause should not be considered as part of the mental health test but may be relevant where they arise from mental disablement e.g. as a result of anxiety.

multiple allergies

CIB/4406/2000* (62/01) states that you can satisfy the pca test if the allergies make everyday environments unsuitable unless they are specially adapted.

obesity

CIB/1387/2000 states that obesity is a bodily disablement which may give rise to points in a pca test.

physical test functional approach

R(IB)2/03 states

"The scores attached to each disability, when added together, indicate the extent of the claimant’s physical capacity for work. It is, therefore, to be expected that each of the activities will concentrate on different parts of the anatomy so as to isolate, as far as possible, the claimant’s ability in respect of each."

reg 28 IW General Regs - claimant's condition worsens within six months of being found capable of work

CIB/1031/2000* (25/01) states that the date from which a condition has to have worsened is that of the decision maker's decision, not when an appeal tribunal confirmed this decision. If reg 28 does not apply there should not be an automatic refusal - "the claim has to be considered by applying the detailed provisions of on capacity for work".

scoring points across activities

R(IB)3/98 states that regulations do not permit a limitation on a claimant scoring points for both vision and difficulties walking up and down stairs resulting from defective vision.

side effects of medication

C10/00-01(IB)* (15/01) states that the side effects of medication do not constitute mental disablement. There must be some underlying mental impairment. The claimant had no mental health diagnosis and was on diazepam which caused drowsiness and impaired judgement.

" specific" disablement

CS/007/1982 defines “specific” disablement as “the kind known to medical science and identified by appropriate terminology”.

3. Physical Disabilities - Activities and Descriptors

3.1 Walking

discomfort whilst walking

CM/267/1993 states that a claimant can be in severe discomfort whilst walking.

distance

CIB/3013/1997 states that a tribunal must decide the distance at which severe discomfort begins. Any distance walked with severe discomfort should be ignored.

lack of appearance of discomfort

CM/166/1988 states that just because a claimant does not appear to be in discomfort does not mean that he or she was not. "Pain can be born in stoic silence".

severe discomfort test

CSIB/60/1996 states that DLA case law has no direct bearing on incapacity adjudication in relation to definitions of "severe discomfort”. 

3.2 Walking up and down stairs

manner of walking

R(IB)1/99 (CIB/15804/1996) states that the test is satisfied if the claimant is unable to go up or down stairs without needing, at some stage at least, to move one step at a time. Their does not necessarily have to be a problem when going both up and downstairs.

type of stairs

CIB/13161/1996 states that the test assumes stairs of a normal size, width and grip. See also CIB/13508/1996. If combined with sensory activities see R(IB)3/98 – (formerly CSIB/13/1996) Sensory activities are not self-contained, e.g. a claimant can score points under ‘Vision’ activity, and also under ‘Walking up and down stairs’ where walking ability is impaired due to visual disability.

3.3 Sitting

designated type of chair

CIB/5654/1997 reaffirms the rules about the designated type of chair – “the tribunal should ignore any use that the claimant may make of a special cushion.

CSIB/12/1996 asks tribunals to show how their deduction was made when using evidence of sitting in a chair other than a designated chair (which may not only be different but more comfortable than a designated chair). CIB/15663/96 considers that a DSS doctor's observations about someone sitting in a non-designated chair are valid because the doctor is familiar with the test and (presumably) can make allowances in his or her observation but see also CSIB/324/97 para 14 for a counter view.

howker - sitting amendment not ultra vires

CIB/3397/2004, following the Howker decision (see the "Exceptional Circumstances" section) states that the amendment to the "sitting" descriptor was not ultra vires as it only seeks to clarify the law prior to the amendment. This is the decision that the DWP now follows. See also CIB/1205/2005, CSIB/169/2005 and CSIB/148/2005.

need to carry out other activities

CSIB/38/1996 states that sitting itself must cause the lack of comfort (not, for example, the fact that the claimant needs to go to the toilet frequently. However, if the act of sitting causes someone to need to go to the toilet it is relevant.

observation by approved doctor

CIB/15430/1996 confirms that the approved doctor is allowed to have regard to the claimant's demeanor for the purpose of expressing an opinion on whether the claimant can sit for longer periods - that the claimant could sit for longer than 30 minutes although the actual interview only lasted 20 minutes.

3.4 Standing

aids

CIB/1244/1997 states that you should consider aids to standing, such as wearing a corset but should also consider whether such an aid can or should be worn all day.

standing still

R(IB)6/04 (CIB/3814/2001) states that the test allows for some movement. The standing activity does not require someone to stand stock still.

3.5 Getting up from a chair (Rising from sitting)

crutches

In CIB/614/1998 the use of crutches is not considered to fall under reg 25(2) Incapacity for Work General Regs (use of prosthesis). See CIB/5654/1997 in the “Sitting “ section. The test is the ability to rise to an upright position using arms and shoulders without having to hold onto something so even if it is an aid or appliance such as a crutch it still means that there is a need to hold onto something.

fear of harm

In CI/01-02(IB)(T) * (97/01) a decision of a Northern Ireland tribunal of commissioners the test is not satisfied if the claimant has a genuine fear of doing harm (i.e. falling) to some part of the body which makes him or her unwilling to rise without holding onto something. Must be an actual inability to rise without the need to hold onto something.

holding onto something

R(IB)2/03 states that if a claimant can only rise by using a seat (or other part of the chair) this counts as “holding onto something”.

type of chair

CIB/3499/2008 [2009] UKUT 26 (AAC) reaffirms that the test should be applied to the type of chair specified in the test - upright, with a back but no arms.

3.6 Bending and kneeling

assistance

In CIB/4300/2003 the tribunal failed to consider the assistance required to carry out the activity, namely the use of one hand. Follows CSIB/12/1996 below.

bending

CIB/15262/1996 states that the test is the ability to "bend to touch the knees" not "bend the knees to touch them". It is also a test of touching both knees, not just one.

bending or kneeling

R(IB)3/02 (CIB/7347/1999) states that you cannot satisfy the test if you can reach the floor by bending but not by kneeling or vice versa, even if you cannot do both. Agrees with CIB/3809/97. Bending at the waist to pick up something might satisfy the test. Formerly CIB/898/1997 took the opposite view.

discomfort

In CIB/14587/1996 the claimant could bend and kneel but suffered neck and back pain when doing so. Tribunal has to consider discomfort and reasonable frequency.

howker - bending and kneeling amendment not ultra vires

In CSIB/169/2005, following the arguments outlined in his own decision (CSIB/148/2005) Commissioner May declares the amended wording for activity 6 (bending and kneeling) not to be ultra vires in the light of the Howker decision.

risk

CSIB/12/1996 sates that if there is a real risk associated with these activities then it may be legitimate to say that they are unable to bend for the purpose of the descriptor. If assistance is required to carry out the activity then the claimant should score 15.

squatting

In R(IB)2/02 (CIB/228/1999) squatting, which is considered to consist of bending of the knee only, is classified as fitting the bending and kneeling descriptor.

3.7 Using your hands (Manual dexterity)

cannot use a pen and pencil

In CIB/13161/1996 and CIB/13508/1996 this means physically unable to use a pen or pencil to write in a normal manner.

howker - manual dexterity amendment not ultra vires

CIB/3649/2004 states that changes made to activity 7 (manual dexterity) were clarifications and not ultra vires.

one handed or ambidextrous

R(IB)1/98 (CIB/16237/1996) states that if a person is right-handed (for example) and has lost the use of that hand for writing, they will score 15 points, unless they have developed a compensating skill with their left hand to a reasonable standard. A person who is ambidextrous will not satisfy the pca test so long as they have sufficient use of one hand.

tying a bow in laces or string

CIB/1690/2007 states that the ability to tie a bow in laces or string involves the use of the wrist.

writing

CIB/1446/1997 states that writing must be considered in the light of reasonable regularity. In this case, the claimant had to rest for an hour after writing for ten minutes. It is relevant to consider the use of a pen or pencil for normal daily activities e.g. making a shopping list, signing for a registered letter, writing greetings cards, cheques or occasional business letters. CIB/16963/1996* states that writing involves more than the ability to scrawl a few words. The claimant must be able to attain a certain standard, write clearly and at a reasonable speed. The writing must be of a reasonable length, sufficient for normal everyday purposes. See also R(IB)1/98.

3.8 and carrying by use of the upper body and arms

breathlessness

CIB/2916/2004 states that breathlessness is a factor in lifting and carrying.

frequency

CIB/15430/1996 says that the test for this activity says nothing about frequency. Need to consider reasonable regularity (see reasonable regularity section).

gripping

CIB/14308/1996 states that lifting and carrying involves power grip. In this case, the claimant could carry a carton of milk if it was placed in a carrier bag but not on its own. The test was whether the actual milk carton could be carried, not the weight of a milk carton (besides someone else would have to put the milk carton in and out of the bag).

howker - lifting and carrying amendment not ultra vires

CIB/2821/2004 states, with reference to Howker, that the amendment to the text of the activity of 'lifting and carrying' made from 6.1.97 was not ultra vires as it did not bring about any alteration in the law. See also CIB/3397/2004 and CSIB/169/2005.

movement from one place to another

R(IB)5/03 (CIB/5207/2001) states that carrying does not connote a degree of movement from one place to another. CIB/2916/2004 considers that someone must be able to carry out the activity "for long enough to be able to perform a function recognisable as carrying even if, as implied by R(IB)5/03, no very substantial distance would be involved." CIB/483/2001* (77/01) goes further, stating that simply handling something is not carrying it.

pain or discomfort

CIB/5065/1997 states that you must consider whether these activities can be taken without unreasonable pain or discomfort or causing fatigue or breathlessness.

type of kettle

CSIB/38/1996* (23/97) say that the use of a kettle refers to a normal kettle, not a specially adapted one.

unspecified objects

CSIB/33/1996 states that the ability to carry an unspecified bag is not enough. Evidence must show that the weight is 2.5 kg.

use of hands

R(IB)4/03 (CIB/727/1998) states that the ability to use hands is integral to the activity of lifting and carrying. Tribunals and decision maker not prevented from awarding points for this activity as well as “manual dexterity”.

3.9 Hearing

busy street

CIB/590/1998* (1/99) states that people who can only hear a conversation in a busy street with difficulty should score 8 points for their reduced ability to hear because they cannot hear someone talking in a normal voice in a busy street. See also CIB/837/2011 [2011] UKUT 434 (AAC) which considers the practical aspects of interpreting CIB/590/1998.

lip reading

CIB/2177/2008 [2008] UKUT 39 (AAC) states that lip reading is not hearing.

use of a hearing aid

CIB/1741/1997 states that it is relevant to the test to ascertain for how often and for how long the claimant can make use of a hearing aid before suffering discomfort.

3.10 Seeing (Vision)

ability to recognise a friend across a street or room

CIB/1323/2007 states that the test requires the claimant to be able to identify a friend who is "alone on the other side of the room or road."

artificial light

CIB/2584/2002 states..

"if it is shown that the claimant cannot meet the visual descriptors in bright artificial light, then the fact that she can meet them in natural daylight conditions is in my view not enough of itself to allow her limitations to be ignored".

See also CIB/2952/2004 which considers fluorescent light.

sustained reading

CIB/2354/2001 says the test is the ability to read 16 point print not a test of sustained reading. In some cases concerning sight it is good practice for English and Welsh tribunals to ascertain as whether the claimant is registered as blind with the local authority. See also C12/00-01(IB) which states that the test is not the ability to carry out sustained reading but the ability to distinguish visual features - in this case claimant had to shake his head to clear his vision every few seconds in order to read.

3.11 Continence

colostomy or ileostomy bag

Perry v AO, 20th October 1999 (Northern Ireland) states that someone with a colostomy bag has “no voluntary control over their bowels”. A colostomy bag is not a prosthesis it is a receptacle. This decision reverses C/2/98 (IB)*. See also CIB/2873/2003, which also discusses the relevance of Northern Irish case law, such as Perry, to English decision making and cites R(SB)1/90 as guidance. See also C/11/96 (IB).

fact and degree

CIB/1098/1997 takes the view that incontinence is “the inability to retain the contents of the bladder until conditions are proper for urination”. Whether the descriptor applies is a matter of fact and degree. Case concerned someone who had urine leakage whenever they coughed or sneezed.

failure to follow a diet

CSIB/889/1999* (69/00) states that you cannot normally score points due to failure to stick to a diet which prevents incontinence (in this case the person had Coeliac Disease and did not stick to a gluten free diet). However tribunals should always consider whether it was reasonable to fail to follow the diet.

incontinence pads

CSIB/74/1996 states that these are irrelevant when considering lack of voluntary control as they do only help the claimant to cope with his or her condition. They do not aid voluntary control. See also CSIB/880/2003.

loses control

CIB/14332/1996* (38/97) considers situations where a person does not mess themselves if they rush immediately to a toilet. The wording 'loses control of bowels' is considered to be different terminology for 'no voluntary control of bowels'. See also CSIB/101/1996* (93/97).

CIB/3339/2006 held that where a claimant isn't always able to get to the toilet in time he or she "loses control" on those occasions when they fail.

medication

CIB/14750/1996 states that the wording of the regulations may be wide enough to include bodily disablement caused by medication e.g. medication causing incontinence. See also C/72/99 (IB)* (Northern Ireland – starred 14/00).

no voluntary control

CSIB/38/1996* (23/97) states that there is ‘no voluntary control’ only if there is some degree of urgency which the exercise of will cannot postpone, otherwise than de minimus (to a negligible degree). See also CIB/3519/2002 and CIB/1005/2004.

Note that in CSIB/85/1996 the commissioner held that the term 'no voluntary control' was inappropriate if the claimant could exercise control until reaching the lavatory.

passage of time

CIB/2597/1999 states that where a decision refers to a passage of time - "at least once a month" - and a greater period of time has passed without the specified problem, then this is a relevant change of circumstance, allowing the decision to be superseded by the decision-maker.

stress incontinence

C/70/98 (IB)* (Northern Ireland – starred 60/99) states that stress incontinence is not seen as a situation where someone has an urgent need to urinate (see CIB/14332/96*). The problem was seen as “dribbling and leaking” and does not constitute “no voluntary control of the bladder”

3.12 Remaining conscious without having epileptic or similar seizures during waking moments

altered consciousness

R(IB)2/07 (CSIB/803/2005 and CSIB/8188/2005), a decision, made by a tribunal of commissioners, states that this is “when he or she is no longer properly aware of his surroundings or his condition so as to be incapable of any deliberate act. This follows the approach taken in C13/96(IB). The view taken in CSIB/14/96 was considered wrongly decided.

epileptic or similar seizures

R(IB)2/07 (CSIB/803/2005 and CSIB/8188/2005), a decision, made by a tribunal of commissioners, gives the following definitions:

  • Seizures – these are “involuntary, overwhelming and sudden”
  • Similar seizures – are to be construed “by reference to the similarity of the effects of the seizures to epileptic seizures, including the degree of suddenness of the loss or alteration of consciousness but without consideration of whether the seizures are characterised by the discharge of cerebral neurones – this is the “layman's” approach adopted by CIB/13739/1996, CIB/16122/1996 (“similar” seizures are similar in effect to epileptic fits, not necessarily similar in cause), CIB/17021/1996 (“similar” can mean similar in cause or effect e.g. hypoglycaemic episodes), CIB/3721/1997, CIB/2104/1998, CIB/4598/2002, CSIB/196/2003 and CIB/1714/2003. The more technical approach taken in C30/98(IB) is rejected.

evidence

CSIB/597/1997* (50/98) stated that a tribunal was wrong to accept an approved doctor opinion that the claimant had only had one fit in the last 6 months which was counter to the claimant’s own evidence. The frequency of fits is a matter of fact not opinion.

howker - definition of seizure and altered consciousness amendment not ultra vires

R(IB)2/07 (CSIB/803/2005 and CSIB/8188/2005) is a decision, made by a tribunal of commissioners, which states that the wording of Activity 14 as amended since 6th January 1997 (SI 1996/3207 – see Howker v. Secretary of State for Social Security) is not ultra vires and that the opposing view expressed in R(IB)3/04 is superseded.

The wording of Activity 14 is now “Remaining conscious without having epileptic or similar seizures during waking moments” rather than the old “Remaining conscious other than for normal periods of sleep”.

In reaching this decision the commissioners had to decide whether the DWP misled the Social Security Advisory Committee when introducing the proposed SI 1996/3207. They concluded that although the amendment to Activity 14 was not neutral in effect the intention was clear from both the amendment itself and the original commentary.

migraine

In CIB/4598/2002 it was decided that migraine in relation to epileptic or similar seizures and altered consciousness did not constitute altered consciousness.

passage of time

CIB/2597/1999 states that where a decision refers to a passage of time - "at least once a month" - and a greater period of time has passed without the specified problem, then this is a relevant change of circumstance, allowing the decision to be superseded by the decision-maker.

stress related seizures

CIB/1612/2009 [2009[ UKUT 229 (AAC) states that activity 14 applies to stress related seizures because the seizure itself is physical in origin.

vertigo

CIB/13739/1996 states that severe attacks of vertigo may count as episodes of altered consciousness where the surroundings suddenly and without warning spin around so that the sufferer loses perception of their environment or if they lose their balance and fall over. Discussion as to whether “having epileptic or similar seizures” means similar in cause or effect. Commissioner’s view was that “similar” meant similar in effect. In CIB/15231/1996* (26/98) the tribunal were held to be incorrect in assuming that symptoms of vertigo were incapable of satisfying the test as they did not fully investigate the meaning of the word consciousness. See R(IB)2/07.

4. Mental Disablement - Activities and Descriptors

4.1 Completion of tasks (CT)

4.1.1 Cannot answer the telephone and reliably take a message

ability to make calls

CIB/215/2002 says that the test refers to ability to answer phone, not make calls. Installation of a phone does not alone indicate the ability to answer it and take messages.

apathy

CSIB/53/2003 states that apathy can be a factor provided it arises from some specific mental illness.

not a mathematical test

CIB/5336/2002 states that you must take an overall view, rather than apply a mathematical test, if a claimant sometimes can and sometimes cannot answer the phone. In this case the claimant sometimes unplugged the phone because she "could not deal with it".

taking a message

In CSIB/36/1996 the test is satisfied if a person cannot reliably take a message in writing or verbally. In CSIB/491/2000 the term "reliably" refers to the quality of the message not the act of picking up the telephone and answering it. See also CIB/748/2002 which discusses this in relation to alcoholism and anxiety.

4.1.2 Cannot concentrate to read a magazine article or follow a radio or television programme

either task

CSIB/26/1996: If a person cannot concentrate sufficiently to do either task the descriptor will be satisfied.

howker - paragraph 15(c) amendments not ultra vires

CSIB/279/2005 states that the revised wording was not ultra vires because it "added an extra hurdle for the decision maker (DM) rather than being adverse to the claimant." The original wording of this descriptor was "cannot concentrate to read a magazine article or follow a radio programme".

4.1.3 Agitation confusion or forgetfulness has resulted in potentially dangerous accidents in the three months before the day in respect to which it falls to be determined whether (the claimant) is incapable of work for the purposes of entitlement to any benefit, allowance or advantage.

self harm

CSIB/307/2009 states that deliberate self harm cannot be considered in relation to this test even if it is unpremeditated.

4.2 Daily living (DL)

4.2.1 Needs alcohol before mid-day

no longer drinking

R1/00(IB) (C/1/98(IB)) states that the descriptor does not apply to an alcoholic who is no longer drinking. Need is more than the desire to have a drink. See also CIB/17254/1996 and CIB/748/2002.

4.2.2 Frequently distressed at some time of day due to fluctuation of mood

meaning of frequent

In CIB/1754/2002 frequent can mean once a day if there is a regular pattern of distress over a number of days. Test applies to day-time hours, not night-time. CSIB/2/1996 opposes this view and states that "frequent" means a substantial or significant number of times during the day. See also Northern Ireland decision C/25/01-02(IB).

4.2.3 Sleep problems interfere with daytime activities

interference

CIB/5336/2002 states that that interference should be viewed more widely than as something that simply prevented the claimant from undertaking daytime activities, but could also include situations where daytime activities were only possible at certain times of the day, or were possible but only very intermittently or very slowly.

CIB/23/2009 states that the EMP’s finding that the claimant adjusts daytime activities to fit in with sleeping pattern was “tantamount to an interference" with the activities of the claimant and meant that the test was satisfied.

CIB/1595/2010 [2010] UKUT 433 (AAC) discusses CIB/23/2009 and finds that the wording “adjusted her daytime activities to fit in with her sleeping pattern” alone was insufficient to establish that the test was satisfied. It may in fact be be a standard phrase in an electronic 85 (in which case it should be removed). CIB/1595/2010 follows CIB/5336/2002 which states that this descriptor is "a question of fact and degree, turning on the proper use of language" and goes on to state that without further evidence, the phrase “adjusts daytime activities to fit in with sleeping pattern” is not conclusive.

4.3 Coping with pressure (CP)

4.3.1 Stress was a factor in giving up work

causative factor

CIB/2008/1997 states that stress must be a causative factor in giving up work to satisfy the descriptor.

college courses

CIB/1361/2008 states that giving up an academic college course does not count as giving up work. The decision is more circumspect about vocational courses which have work placements, stating that "it must ultimately be a question of fact as to whether a course with such a vocational element amounts to work”.

dismissal

CIB/4192/2004 states that this descriptor can still be satisfied if the claimant was dismissed from work.

voluntary work

CIB/3764/2001 states that work can include voluntary work.

4.3.2 Frequently feels scared or panicky for no obvious reason

point of comparison

CSIB/451/2001 says that the test should focus on the normal response of someone in straightforward circumstances.

4.3.3 Frequently finds there are so many things to do that gives up due to fatigue, apathy or disinterest

overload

CIB/2008/1997 refers to a condition of “overload” of actual (or perceived) tasks rather than lethargy or lack of motivation.

4.4 Interaction with other people (OP)

4.4.1 Cannot look after him/herself without help from others?

help from others

In CSIB/495/2008 [2008] UKUT 29 (AAC) the claimant argued that her counselling and prescription of anti-depressants constituted "help from others". The Upper Tribunal Judge found that the counselling and the repeat prescriptions enable her to maintain an acceptable level of self-care and therefore do not constitute direct assistance from another person. The counselling provided was also too remote to satisfy the descriptor.

immediate aspects of self care

CIB/5336/2002 states that the test is concerned with "the immediate aspects of self care" such as eating or maintaining personal hygiene. It does not apply to more remote aspects such as shopping or handling finances. See also CIB/4196/1997.

4.4.2 Gets upset by ordinary events and it results in disruptive behavioural problems.

physical aggression

CIB/664/2005 states that physical aggression is not a necessary factor when considering the descriptor "Does he or she get so upset by ordinary events that it results in disruptive behavioural problems?"

upset or alarm

CSIB/2/1996 states that disruptive behavioural problems are considered those which upset or alarm people in some way.

5. Exceptional Circumstances

amendments made are ultra vires

Howker v. Secretary of State for Social Security (2002) (R(IB)3/03) states that the amended reg 27 of Social Security (Incapacity for Work) (General) Regulations 1995, following Moule (see below), was ultra vires in relation to certain parts of the exceptional circumstances rules. 

R(IB)3/04 questions the lawfulness of other amendments to Social Security (Incapacity for Work) (General) Regulations 1995 that were not "neutral" in effect. As a result several amended descriptors have been declared unlawful in subsequent commissioner's decisions. R(IB)7/05 and CIB/844/2003 suggests the approach to be adopted - a representative relying on Howker should identify the amended provision (descriptor). If the amendment is not found to be neutral then it is ultra vires.

R(IB)5/05 confirms that the Secretary of State's incorrect application of the personal capability assessment, as amended by the regulations considered in Howker, can be corrected by a tribunal.

Note also C13/03-04(IB)(T), a  decision by a tribunal of commissioners, which held that a tribunal was wrong to apply changes made in Great Britain (England, Scotland and Wales) to Northern Ireland (NI) which has its own jurisdiction.  

consideration of pca first

CSIB/146/2004 restates that tribunals cannot choose to ignore consideration of the personal capability assessment when assessing whether the exceptional circumstances test is satisfied because one is dependent on the other. Disagrees with CIB/601/1997. R(IB)2/09 states that, whilst decision makers are bound to consider the pca test before the exceptional circumstances test, tribunals are not.

duty to consider other exceptional circumstances

In CSIB/719/2006 the claimant claimed that she suffered from a severe uncontrolled or uncontrollable disease and also argued that the tribunal should have gone on to consider whether she “suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if [s]he were found capable of work." The commissioner concluded that a reasonable tribunal, given the evidence in front of it, should have gone on to consider whether other exceptional circumstances applied.

major surgical or other therapeutic procedure within three months

CIB/1381/2008 states that tribunals should not use hindsight when deciding this issue as the current wording of the regulation does not allow it (CIB/5978/1997 should not be followed as it refers to an earlier wording of this regulation). Whether an operation/procedure is likely to occur within three months is a matter to be decided on informed opinion at the relevant time. The opinion of an appropriate medical practitioner that an operation/procedure is required is sufficient to meet the test even if the approved doctor disagrees with this.

meaning of uncontrolled

CIB/4546/2001 states that a life threatening disease is not uncontrolled if hospital therapeutic procedures can be used to control a condition. CIB/155/2004 suggests that the threshold for control is whether the level of control fails to remove the threat to the claimant's life.

right to appeal

R v Secretary of State ex parte Moule (1996) successfully challenged the fact that exceptional circumstances decisions had no right of appeal, as they were decisions made by a doctor rather than a decision maker. The law was amended to make decisions the responsibility of the decision maker, with a right of appeal against that decision, but in the process other amendments were made that were subsequently overturned in Howker v. Secretary of State for Social Security.

rubber and latex allergies

CIB/256/2009 [2010] UKUT 127 (AAC) states that these can come under the exceptional circumstances rules (regulation 27(b) - substantial risk to the mental or physical health of any person if [s]he were found capable of work). This decision was upheld by the Court of Appeal as Secretary of State for Work and Pensions v Cattrell [2011] EWCA Civ 572 (29 March 2011). Guidance has also been issued (DMG Memo 22/11).

type of work

Charlton v secretary of state for work and pensions (R(IB)2/09) considers situations where " there would be a substantial risk to the mental or physical health of any person if he were found capable of work" and states that the purpose of the regulation [27(b)] is to assess risk at work.

In order to determine whether there is any health risk at work or in the workplace it is necessary to make some assessment of the type of work for which the claimant is suitable. The extent to which it is necessary for a decision-maker to particularise the nature of the work a claimant might undertake is likely to depend upon the claimant's background, experience and the type of disease or disablement in question.

No greater identification of the type of work is necessary other than that which is dictated by the need to assess risk arising from work or the workplace. The decision finds the approach taken in CIB/26/2004 and CSIB/33/2004 to be wrong and that the correct approach was held to have been identified by Deputy Commissioner Paines in CIB/360/2007 where the tribunal failed to give adequate reasons as to why the exceptional circumstances test was not met. This decision discusses how a tribunal might consider the type of work which will cause a risk to the claimant or others.

"The degree of detail in which those consequences will need to be thought through will depend on the circumstances of the case; while I agree with Mr Jacobs that this involves considering the types of work that the claimant might be required to do, I do not consider that it will necessarily involve a thought experiment conducted in such detail as imagining the terms of future hypothetical negotiations between the claimant and a Jobcentre, or testing the degree of risk to health by reference to specific detailed job descriptions. A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant's background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b).

Regulation 27(b) requires one to start by identifying a disease or disablement; the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial. For example, in my decision in CIB/1695/2005, which concerned a claimant suffering from epilepsy, I considered that the requirements of regulation 27(b) were not satisfied because - while one could readily imagine types of work that the claimant could not safely perform, such as work involving driving or the operation of heavy machinery - there was an adequate range of work that the claimant could do in which there would not be a substantial risk to health from his suffering a seizure in the workplace."

See also CIB/2907/2008 [2009] UKUT 101 (AAC) and CIB/1219/2010 [2010] UKUT 408 (AAC). CSIB/580/2011 [2012] UKUT 30 (AAC) examines this issue in relation to heroin addiction.

CIB/736/2009 [2010] UKUT 5 (AAC) states that regulation 27(b) does not apply if a claimant can undertake work for a 'reasonable number of hours' (suach as part time work) without substantial risk to his or her mental or physical health. It is up to the tribunal to decide what constitutes a 'reasonable number of hours. The primary factor when determining this is the existence of a real possibility of obtaining work for that reduced number of hours or pattern of work.

6. Exemptions

decisions on exemption

CIB/4033/2003 states that it is the decision-maker's responsibility to determine exemption, not the medical authority's.

CIS/3529/2008 states that decisions on exemption can be decided by a one person panel.

howker - Severe mental illness amendment not ultra vires

CSIB/169/2005 states:

"I am satisfied that the Committee had before it all the information that it required in relation to that specific regulation to make up its own mind on the effect of the proposed amendment and what action to take on it."

severe mental illness test

In R(IB)1/08 it was argued, using the guidance contained within incapacity benefit handbook for approved doctors that the fact that the claimant was on certain anti-psychotic drugs was sufficient for her to be considered exempt from the test. the commissioner agreed that a tribunal should take into account the effect of the medication when making its decision.

7. Other

7.1 Additional treatment 

CIB/1222/2008 [2010] UKUT 20 (AAC) states that where a tribunal makes an inference about the severity of a condition because of the absence of additional treatment it should indicate in the statement of reasons the treatment it expects the claimant to be receiving.

7.2 Aids and Adaptations

effect on activity

CIB/5654/1997 states that the use of a prosthesis may not be relevant if it “essentially alters the nature of an activity”. See also CIB/614/1998 in the “Getting up From a Chair” section.

7.3 Burden of proof

claim stage

R(S)/13/54 & R(S)13/52 restates that at the beginning of the claim, the claimant must prove incapacity (i.e. by claiming and providing a medical certificate).

deemed incapacity

CIB/16092/1996 states that until the claimant has had their first personal capability assessment they are "deemed" to be incapable of work but there has been no "decision" that they are incapable so there are no grounds for revision or supersession.

reviews

R(S)/3/90 restates that at the review stage, it's the decision-maker who must show that the claimant is not entitled.

7.4 Credits only IB

requirement to furnish information

CIB/1599/2005 states that in incapacity credit cases a supersession for change of circumstances can only take effect from the date of the superseding decision rather than from the date of change of circumstances, if earlier. This is because Reg 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations1999 does not require credits only claimants to furnish information. In addition regulation 32 of the Social Security (Claims and Payments) Regulations 1987 also does not require the claimant to furnish information because it refers to payments of benefit rather than the award of credits.

7.5 Dialysis

treatment of days when no dialysis

In CIB/2397/2002 the Commissioner considered whether a claimant undergoing haemodialysis should be treated as incapable of work on the days when they were not undergoing dialysis. Regulation 13 of the Social Security (Incapacity for Work) (General) Regulations 1995 ensures that someone receiving regular weekly haemodialysis or peritoneal dialysis for chronic renal failure is treated as incapable of work on any day on which they are undergoing the dialysis.

With respect to the other days the decision follows R(IB)2/99. In R(IB)2/99 the Tribunal of Commissioners did not consider that the all work test 'must be literally satisfied in relation to each day' but that a broad view should be taken and that there were some cases where a claimant could properly be regarded as incapable of work both on the days when the pca test was clearly satisfied and on the other days in between those days.

7.6 Electronic IB85

amendments made by another doctor

CIB/1248/2009 [2009] UKUT 127 (AAC) concerns a case where an IB85 medical report had subsequently been amended and signed by another doctor. The tribunal should have adjourned to obtain a full explanation of what had occurred, as a challenge had been made to the status of the report.

no requirement for signature

R(IB)7/05 (CIB/3743/2004) states that tribunals are not bound by strict rules of evidence (for reference see R(U)5/77 and CDLA/2014/2004) so section 7 of the Electronic Communications Act 2000 does not apply. CIB/3984/2004 assumes that section 7(1) of the Act does apply and states that electronic 85s must be properly certified in the event of the evidence being challenged.

reliability as evidence

CIB/476/2005 highlights the pitfalls of electronic evidence. The claimant should have been awarded 15 points for the descriptor of sitting but this was wrongly entered, possibly due to programming error/limitations. In addition to this, statements could be automatically (and wrongly) repeated throughout the document unless the doctor overrode this instruction.

CIB/511/2005 also criticised the automated nature of reporting (including the use of standard phrases) and the increased risk of accidental discrepancies or mistakes remaining undetected in the final report. See also CIB/1522/2005 which looks at the internal consistency of findings when the doctor overrode the evidence that the computer programme suggested for each descriptor. See also R(IB)2/09, CIB/1248/2009 [2009] UKUT 127 (AAC) and CIB/946/2009 [2009] UKUT 144 (AAC).

CIB/664/2005 has similar criticisms and suggests that, where the electronic 85 is used, a full picture of the guidance to approved doctors can only be obtained by reading the guidance manual.

CIB/3950/2007 places a duty on the tribunal to investigate automated and unsubstantiated phrases (in this case "other available evidence").

CIB/1006/2008 found a report to have erred because the clock built into the electronic 85 had misreported the times of an examination, seing this as evidence of other potential errors.

7.7 Evidence

approved disability analysts

CIB/1006/2008 uses this as the new term for approved doctors

CDLA/2466/2007 discusses how the evidence of Disability Analysts - doctors and health care professionals undertaking assessments for state benefits - should be treated.

approved doctor chaperon

CIB/2011/2001 says that the approved doctor is entitled to have a chaperon (providing confidentiality is maintained) with them when carrying out an examination in the claimant’s own home. See also CIB/2654/1999.

approved doctor evidence

In CIB/16065/1996 the tribunal was wrong to pay particular regard (at the expense of other evidence) to the medical report on the grounds that it was prepared by a person of expert standing who has no financial interest in the outcome of the appeal. CIB/14722/1996 also stressed that a tribunal should not adopt the findings of the approved doctor unless they are satisfied, after considering all the medical evidence, that his or her findings are an accurate reflection of the evidence.

CIB/911/1997 stated that a tribunal should give a full explanation of why the approved doctor's report was preferred to that of the GP. See also CIB/4981/1997 and CIB/3908/2001.

approved doctor reporting

In CIB/908/2003 failure to delete an item on a form was considered an oversight, not an error in law.

claimant's evidence

R(SB)33/85 states that there is no rule in law that states that a claimant's evidence must be corroborated with other evidence (e.g. medical evidence).
When an adjudicating authority rejects the evidence of the claimant it must identify the grounds for rejection. See also CSIB/459/1997.

C32/00-01(IB)* (108/01) a decision of a Northern Ireland tribunal of commissioners states that there is no universal obligation for a tribunal to explain its reasons for doubting the credibility of a claimant's statement.

In CIB/2631/2009 [2010] UKUT 290 (AAC) the tribunal erred in failing to make reference to the oral evidence provided by the claimant.

conflicting evidence

R(S)/4/56 states that, where there is conflicting opinion, the decision maker must decide on the balance of probabilities which is correct. See also R(S)4/60, and CIB/14722/1996, a decision by a tribunal of commissioners.

CIB/4981/1997 states that tribunals should make their own findings of fact rather than choose between the opinions of two doctors. See also CIB/3868/2001, CIB/407/1998 and CIB/1149/1998.

CIB/16401/1996 states that where there is a difference of opinion between an approved doctor and a claimant the tribunal must consider all evidence.

The following decisions favour one set of evidence over another but could lead a tribunal to err in not considering all evidence. CIB/17257/1996, CIB/8462/1995 and CSIB/324/1997 suggest that tribunals should normally follow the opinion of the approved doctor but such opinions are counteracted by CS/773/1981 and CDLA/3337/1998 which state that a GP will usually be in a better position than an approved doctor to form an accurate medical view, if he or she sees the claimant regularly.

consideration of descriptors

CIB/14664/1995 states that a tribunal does not have to consider all descriptors. It can discount those that make no practical difference to the decision or which there is no evidence to alert the Tribunal to make enquiries. CIB/14442/1996* (43/97) suggests a tribunal should not restrict the scope of their enquiries to the boxes on the IB50 that have been ticked by the claimant.

duty to consider evidence

R(IB)2/06 (CIB/3108/2005) states that a tribunal is not bound to consider evidence if it is not relevant but must give reasons for deciding this. If the tribunal considers that the evidence (in this case X rays) might be relevant but needed someone with greater expertise to interpret it they should consider adjourning the appeal or state reasons for not doing so.

CAF/26/2009 [2009] UKUT 170 (AAC) found that the tribunal had erred in failing to consider the claimant's own evidence, the evidence of a television programme, submitted as a DVD and the evidence from two books provided by the claimant.

failure to attend a medical

R(IB)1/01 (CIB/111/98) states that a claimant cannot “fail to attend” a medical if it has been cancelled. In R(IB)2/01 (formerly CIB/4118/98) it was held that the decision maker must provide evidence that a request to attend a medical was sent to the correct address in cases where this has not been received. If the claimant’s appeal is unsuccessful the decision maker should consider whether the appeal letter can be treated as a new claim.

CIB/1381/2003 discusses the legislation governing the requirement to send documents and the issue of good cause for failure to attend as well as the meaning of the word "send" or "sent" which in some interpretations can mean dispatched or delivered. It also cites R(IB)2/01, CSIB/611/1998, CJSA/3523/2002 and R(CS)1/99. See also CIB/927/2009.

CSIB/721/2004, citing CIB/4512/2002, states that a notification has not been sent if it was not delivered. As a result questions of good cause for non attendance are not reached in the case of non-receipt of a notification.

CIB/2221/2005 acknowledges that medicals may be arranged at short notice. however, it notes that this does not absolve the DWP of the requirement under regulation 8(3) of Social Security (Incapacity for Work) (General) Regulations 1995 to give at least 7 days notice before hand unless the claimant agreed to accept a shorter period of notice.

fraud reports

C49/99-00(DLA)* (37/01) states that it is permissible for a tribunal to consider information provided by Fraud Investigation reports but it may be a breach of natural justice if the claimant is not informed of this when he or she is sent the evidence used for a decision prior to appeal.

indirect questioning at a medical

In CIB/946/2009 [2009] UKUT 144 (AAC) the upper tribunal judge noted that the claimant did not understand that indirect questioning is used in cases involving mental descriptors. The tribunal should have been aware of this as it affected their judgement of his credibility.

GP's evidence

CIB/13038/1996 states that a tribunal cannot discount a GP's report because the GP had only known the claimant for a short time (in this case 6 months) as the GP had the claimant's case records and could form his or her own opinion.

CIB/14442/1996* (43/97) discusses “led” evidence where a GP was asked to give yes/no answers on two descriptors rather than a whole range. It was suggested that the evidence must still be considered as the GP was a professional person who had a free choice as to what answer to give.

length of time of approved doctor's medical

CSIB/69/2003 states that the length of time (10 minutes in this case) is irrelevant. What matters is whether the examination was properly conducted? Cites relevant (obiter) passages from CSIB/450/2003 and CIB/908/2003.

medical knowledge of health care professional

CIB/419/2011[2011] UKUT 385 (AAC) considers the weight to be given to a medical report by an ATOS nurse with no mental health qualifications. In rejecting this submissions, Judge Ovey holds that whether or not the HCP does have specific qualifications in mental health may be relevant to the weight to be attached to a report but that the tribunal’s starting point should be that the HCP has been trained to at least the level regarded as necessary by the Department of Work and Pensions if the HCP is to be competent to carry out a mental health assessment.    

need for a medical

CIB/2312/2002 reaffirms that a medical examination is permissible but not necessary for the personal capability assessment.

new medical opinion

R(S)6/78 states that obtaining a different medical opinion is not a change of circumstance , though it may be evidence of it. R(M)5/86 and CM/431/1991 endorse this view.

CIB/3899/1997 agrees but states that where there is evidence of an actual change of circumstances or a mistake of fact tribunals should look at the earlier decision and the evidence upon which it was based. See also CIB/2338/2000*, CIB/2811/2005, CIB/3667/2000, CIB/1972/2000, CIB/3985/2001, CIB/378/2001, CIB/3061/2009 [2010] UKUT 97 (AAC) and CIB/2734/2009 [2010] UKUT 208 (AAC).

CIB/3179/2000 states it is no longer necessary for a tribunal to compare its findings with a previous assessment to see whether a ground for review was established, but suggests that assessments made two or three years previously may still be relevant as they may shed light on the claimant’s capability at the date of the supersession decision. See also CIB/4232/2007.

In CIB/516/2008 a tribunal erred because it was not informed of a previous IB credits award, won on appeal. As a result it was unable to consider all the evidence available.

oath helping

CDLA/1576/2007 states that "oath helping" - evidence which serves to bolster a the claimant's credibility - is inadmissible in criminal law but is permissible at appeals, which are not bound by the same proceedings.

old medical reports

CIB/946/2009 [2009] UKUT 144 (AAC) concerned a case where a tribunal erred in placing too much importance on the evidence of an old medical report which the claimant had already successfully appealed against. This first error led to a second error as the tribunal ought to have started from the basis that the claimant had an existing award and that it was for the Department to justify its supersession decision by showing that there was a relevant change of circumstances.

The Queen on the application of Nicholas v Upper Tribunal (Administrative Appeals Chamber) the Secretary of state for Work and Pensions [2012] EWHC 2724 (Admin) (26 July 2012) discussed whether a tribunal acted fairly in not adjourning hearing to obtain previous PCA reports of unrepresented claimant. In this case the tribunal did not err but Justice Haddon-Cave does recognise that while this particularly case does not qualify as unfair each case will depend upon its own facts.

oral evidence

CIB/5586/1999* (76/01) states that, when faced with differing medical opinions, a tribunal must listen to oral evidence from the claimant before making up its own mind.

other benefits evidence

CSIB/60/1996 states that DLA case law has no direct bearing on incapacity adjudication in relation to definitions of "severe discomfort”. CIB/1639/2009 [2009] UKUT 208 (AAC) but states that evidence related to other benefits may still be useful.

"The essential questions are whether that evidence is relevant and material. A successful claim or otherwise to one benefit is not determinative in relation to another but, depending upon the quality of that evidence and the weight to be attached to it, it may be persuasive for or against a claimant."

outside time limits

In CIB/4253/2004 a tribunal adjourned a case to allow both parties to provide further evidence. In doing so it directed a 28 day time limit. The claimant provided evidence outside that time and the tribunal was guilty of an error of law because it refused to look at it.

In CIB/62/2008 the tribunal papers were no longer available because of a delay by the claimant in contacting the tribunal clerk. The commissioner decided that, as the destruction of the papers was routine there was a strong presumption that procedures had been properly followed. A claimant would need to provide strong alternative evidence to rebut that presumption.

physical examination during a hearing

CI/01-02(IB)(T)*(97/01) restates that a tribunal is not allowed to make a physical examination during a hearing. However if the claimant offers to show some part of the body as evidence of disablement then the tribunal must either look or else refer claimant to a medical or offer him or her the chance to provide other evidence.

questionnaire evidence

In CIB/2368/2004 the tribunal questioned whether a medical report, in the form of a questionnaire, was genuine and refused the appeal. It erred in failing to put their suspicions to the claimant or her solicitors before making a decision. See also CIB/14442/1996* (43/97).

refusal to attend medical

CIB/849/2001* (112/01) says that a claimant cannot refuse to submit to an approved doctor's examination on the grounds that a non-medically qualified person (i.e. the decision-maker) will see the report. See also CIB/2011/2001.

CIB/3117/2008 discusses a situation where the claimant refused to attend a medical because he was not allowed to tape it. The decision that the tribunal should have made was that the Department should offer the appellant a fresh appointment and at the same time set out in writing the conditions they insist on for tape-recording a medical examination.

role of decision maker

R(S)/1/53 states that a decision maker is not bound to decide exactly the same as any doctor.

taping of medical

CIB/3117/2008 discusses the pros and cons of official policy on recording and suggests other remedies available (eg written notes kept by a third party). The policy states:

"Claimants may request that their interview and assessment by a Medical Services doctor in respect of a benefit claim be recorded either on audio or videotape.

Such a request can only be agreed with the prior consent of the HCP [health care professional, in this case an examining doctor], and then only if stringent safeguards are in place to ensure that the recording is complete, accurate, and that the facility is available for simultaneous copies to be made available to all parties present.

The recording must be made by a professional operator, on equipment of a high standard, properly calibrated by a qualified engineer immediately prior to the recording being made.

The equipment must have facility for reproduction so that all parties can retain a copy of the tape.

The responsibility for meeting the cost of the above requirement rests with the claimant."

tribunal's powers to carry out a physical examination

CIB/2061/2001 states that a tribunal cannot make a physical examination when deciding a personal capability assessment issues but can examine by observation and questioning.

tribunal's powers to gather evidence

In CIB/3788/2008 [2009] UKUT 61 (AAC) the tribunal erred because the chair telephoned the surgery of the claimant's GP to enquire about the authenticity of two pieces of medical evidence. Because the appeal was a paper hearing it further erred in not putting its findings to the appellant.

The tribunal should have taken one of three options:

  1. It could have proceeded with the hearing, decided that the authenticity of the letters had not been established, then considered the rest of the evidence and decided whether or not to allow or dismiss the appeal.
  2. It could have asked the tribunal clerk at the hearing to make a telephone enquiries to the surgery. Depending on the outcome of such an enquiry, the tribunal could then have proceeded either to decide the appeal or to adjourn it for the appellant to comment on the evidence obtained through the clerk.
  3. It could have adjourned the appeal again and made further enquiries, for example instructing a tribunal clerk to write to the surgery. The case would then have been re-listed for a third hearing.

tribunal's powers to reject pca medical report

CIB/1743/2009 [2010] UKUT 386 (AAC) reaffrims that a tribunal has powers to do this under rule 15(2) of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 but Judge Lane suggests that this would be unlikely to happen "except in the most unusual of circumstances".

7.8 IB50

ib50 reminders

R(IB)1/00 (CIB/4961/1997): There must be 4 clear weeks between the sending of the IB50 and the reminder. This excludes the day the first IB50 was sent and the day the reminder was sent. If the reminder is sent out too early, then the DWP decision-maker is not entitled to find someone capable of work for failing to return the form. as there are no grounds to supersede the claimant's award of benefit.

Tribunals need to investigate whether the reminder questionnaire had actually been posted out on the same day as the computer records showed that the accompanying letter had been generated. The burden of proof in such a case is on the decision-maker.

late submitted IB50

CIB/3512/1998* (10/00) discusses the interaction between reg 7(1) and reg 28 (2)(iii) IW General Regs where a claimant failed to submit an IB50 questionnaire on time and was declared capable of work. Reg 28 (2)(iii) applies to the fresh claim and not to any previous period. The late submitted questionnaire could be treated as a new claim or application and if close enough to the previous claim period it is possible that backdating rules may apply.

non receipt of IB50

CSIB/611/1998* (37/99) states that tribunals must consider whether the claimant had good cause for not returning an IB50 (which he had never received). Factors considered were unreliable mail (not relevant in this case) and the claimant’s own testimony. In this case good cause was not established because there was proof that the IB50 was sent and there were no extenuating circumstances.

7.9 Income support and IB

claimant wrongly informed

In CIS/1721/1998 backdating of income support was allowed under reg 19(5)(d) of the Claims and Payments Regulations 1987. The claimant was given information by an officer of DSS(DWP) or Department for Education and Employment which led her to believe she was entitled to IB which implied that as a consequence a claim for income support would not succeed. Reg 4(5) of the same regulations was also relevant because the claimant should have been issued with an income support form. See also CIS/610/1998*(16/99) and CIS/2077/1998.

failure to return IB50

In CIS/2445/2005 a claimant appealed after he had been declared capable of work following the non-return of his IB50. He could not receive income support, because this type of appeal came under Section 171A and not Section 171B or C of the Social Security Contributions and Benefits Act 1992.

7.10 Invalidity benefit transitional cases

superseding a decision

CSIB/501/2003 states that Regulation 6(2)(g) of Social Security and Child Support (Decisions and Appeals) Regulations 1999 cannot be used to supersede transitional award of long term incapacity benefit. The regulation only applies to an actual incapacity benefit decision. Discusses the invalidity benefit transitional rules in detail.

See also CSIB/695/2004. In this case the the tribunal erred in not following the procedure outlined in paragraph 74 of R(IB)2/04 and considering alternative grounds for supersession. Commissioner Parker stated that 6(2)(a) of the Decisions and Appeals Regulations could be used instead. Following this decision DMG guidance has been issued – Memo DMG Vol 1 07/05 and Memo DMG Vol 10 05/05.

See also CIB/912/2007 where a decision to remove IB was based on regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991). This provision allows a decision maker to supersede from the date of the change of circumstance in relation to "an incapacity benefit decision where there has been an incapacity determination" but does not apply where the original decision to be superseded was an invalidity benefit decision. Regulation 7(2)(c)(iii) can be used instead.

7.11 Med 4

requirement for Med 4

R(IB)5/98 (CIB/15325/1996) states that the decision-maker is not obliged to get form Med 4 and can make a decision without it. See also CIB/16402/1996, CIB/17533/1996 and CIB/16690/1996.

7.12 Overseas examinations

correct approach

CIB/4445/2004 considers the correct approach in cases where examinations are made by non UK doctors.

"...a medical examination and report exactly following the form used by approved doctors in the UK for the personal capability assessment is not essential, but the questions that have to be answered remain the same, so whatever medical evidence is used must be sufficiently detailed, specific and comprehensive to yield clear answers on each of the activities and descriptors in issue."

procedure

CIB/2141/2009 [2009] UKUT 273 (AAC) discusses the guidance and forms provided for doctors carrying out pca examinations abroad.

7.13 Pain

activities and pain

CIB/4553/1999* (11/01) states, in relation to the activities of sitting, standing and walking, you cannot score points unless these actions aggravate a condition which causes pain.

comparison with healthy person

CIB/13161/1996 & CIB/13508/1996 states that pain and fatigue and increasing difficulty of performing a given activity on a repeated basis must be taken into account by considering how far a claimant’s normal capabilities are impaired compared with those of a healthy person in normal working order.

medication or other treatment

CIB/13739/1996 states that if symptoms are relieved by treatment it is fair to assess capability with regard to the beneficial effects of the treatment providing side effects do not outweigh these benefits. See also CIB/14817/1996.

CIB/16182/1996 considers pain when carry out a task because the claimant has had to stop taking medication.

7.14 Permitted and other work

calculation of average hours

CIB/4090/1999* (28/00) discusses calculation of earnings. Earnings for a particular week cannot be averaged. CIB/1723/2000* (16/01) states that a claimant should only be considered capable of work for those hours where she exceeded 16 hours. CIB/589/2002 discusses times when someone is at work when they are not considered to be working according to the regulations (in this case a children’s escort on a school bus).

computation of earnings regulations

Secretary Of State for Work And Pensions v Doyle (2006), reported as R(IB)1/06, confirms the use of the Computation of Earnings Regulations as the means whereby incapacity benefit permitted work is calculated. See also CIB/920/2007.

dwp notification of duty to inform permitted work

In CIB/3925/2003 a permitted work period was not recoverable because the DWP flyer/letter issued to claimants explaining the, then new, permitted work system was not specific enough and the claimant could not reasonably be expected to know he had a duty to inform. R(IB)4/05 (CIB/1985/2004) and Hooper v Secretary of State for Work and Pensions (R(IB)4/07) follow this. See also CIB/912/2007.

CIB/3823/2008 [2009] UKUT 120 (AAC) highlighted the inadequacy of the information the DWP supplied to the claimant regarding permitted work, which was out of date.

failure to inform work ceases

CIB/760/2005 states that under the law a claimant who does permitted work lower (£20 limit) is required to give notice of this work to the DWP at any time before he ceases work. This claimant was called in for an interview and stated that he had ceased work the day before he informed the DWP. However the commissioner argued that it could be inferred that he would have continued working had he not been interviewed.

"In this case, the claimant had a pattern of activity, albeit one that was to an extent irregular and unpredictable…..The pattern was ongoing at the time of the interview and statement of 23 June 2004. It was brought to an end as a result of that interview. As a consequence, the claimant last carried out any work on the day before the interview. But the pattern of activity was ongoing and, for the purpose of the definition in regulation 17(1E) [Social security (Incapacity for Work)(General) Regulations 1995] the claimant only ceased to undertake work within that pattern following the interview."

fifty two week period

CIB/1682/2010 [2011] UKUT 9 (AAC) states that 52 weeks permitted work refers to an unbroken period of 52 weeks beginning on the first day on which work is done.

found to be capable on the grounds of work done

CIB/589/2002 states that Reg 16(1) of the SS (Incapacity for Work)(General) Regs does not necessarily apply to subsequent periods where such work is not done - "Unless and until entitlement to benefit is reviewed on other grounds, the claimant continues to be entitled to incapacity benefit during such periods as regulation 16(1) does not operate." See also CIB/5170/1999 (para 15) and CIB/1723/2000* (16/01) and CIB/3507/2002.

lodgers

R(IB)1/03 (CSIB/877/2001) states that services provided to lodgers in return for money counts as work.

national minimum wage

R(IB)7/03 (CIB/1650/2002) discusses, in some detail, whether wife’s earnings should be subject to notional income because she is paid an hourly rate below the national minimum wage. Concludes that only the actual amount paid counts. This decision needs to be read carefully.

negligible work

CIB/5298/1997 gives guidance for tribunal on the consideration of whether work is negligible in relation to reg 16 Incapacity for Work General regulations. States that the rules may have to be considered on a week by week basis. See also CIB/3507/2002.

notification of earnings

CIB/1599/2005 discussed the problem of notification of earnings of less than £20 per week where "in such circumstances the required notice need only be given "at any time before the person ceases to undertake the work".

old therapeutic work rules

(note: therapeutic work was replaced by permitted work in April 2002)

CIB/2679/2003 says that work done on the advice of a psychologist or physiotherapist is not work done on the advice of a doctor unless they fit the definition in reg 2(1) Social Security (Incapacity for Work) (General) Regulations 1995. Also any advice given by a doctor a long time before the work was undertaken would be insufficient to satisfy the rules.

CSIB/608/1997 States that therapeutic work must be taken on the advice of a doctor before being done. Cannot obtain permission afterwards. See also C9/00-01(IB)*, C36/00-01(IB)* (joint starred 68/01) and CIB/1749/1997.

supported permitted work

CIB/1682/2010 [2011] UKUT 9 (AAC) discusses the type of organisation that can provide support in such cases.

“39. The regulation …. simply refers to a public or local authority or voluntary organisation engaged in the provision or procurement of work for persons who have disabilities. I do not think that necessarily justifies a requirement that the organisation be wholly engaged in this way, but the wording of the regulation does suggests that the organisation’s main purpose must be the provision or procurement of work for persons who have disabilities.”

welfare to work beneficiary - notification of work

CIB/1886/2003 & CIS/1887/2003 states that notifying work before actually starting it amounts to satisfying the requirements for notification if the DWP subsequently fails to send out the standard report form normally used.

7.15 Reasonable regularity

chronic fatigue syndrome – variation of condition

CIB/6244/1997* (73/98) sets down three issues the tribunal should consider - variability, the impact on the claimant’s ability to perform actions repeatedly and the fatigue associated with the condition. Need to ascertain whether condition is wholly/partly mental or physical to ensure the appropriate parts of the test are applied.

Need to look at both Variable and intermittent conditions when determining the test. Some cases will involve characteristics of both conditions. of these

  • Variable conditions are those whose symptoms vary from time to time with possible symptom free periods. Tribunals should consider descriptors that state “sometimes” and those that say “cannot”.
  • Intermittent - Intermittent conditions are conditions which give rise to discreet attacks followed by periods of complete remission. Tribunals should consider days in which claimant was incapable of work and whether they constitute a period or linked period of incapacity.

Also discusses claimant’s capacity for work during particular times of the day, fractions of the day being ignored in determining incapacity for work.

CSIB/459/1997 states that a claimant qualifies if they normally satisfy the pca most of the time. For sporadic conditions where the pca is passed in linked periods of incapacity for work, each period should be assessed. See also CSIB/684/1997.

meaning of "cannot"

CSIB/17/1996 says that "cannot" doesn’t mean that a person couldn’t ever do the activity even with a supreme effort on an isolated occasion. It applies if a person cannot normally do it as and when called upon to do so.

meaning of "sometimes"

R(IB)2/99 (Tribunal of Commissioners for three appeals heard together - CIB/14534/1996, CIB/13466/1996 and CIB/944/1997); discusses the meaning of sometimes (generally where “sometimes cannot” is used rather than “cannot” in descriptors) and reasonable regularity. Considers that examining incapacity over a period of a number of days is a reasonable approach. How frequency is established will vary from case to case.

See C1/95/IB and C17/01-02(IB)(T) (which concerned a claimant who had variable walking problems before and after regular treatment for callused feet). See also CIB/2620/2000 where the claimant only suffered from their condition once a month and was deemed to be incapable of work during this time only.

See also CIB/2397/2002 in the "Dialysis " section,  where the claimant was incapable for three days due to haemodialysis but could satisfy the other days due to tiredness.

pca not a snapshot

CIB/15231/1996 states that the personal capability assessment is not a snapshot. An overall view of incapacity is allowed.

repetition of an activity

CIB/14587/1996* (65/97) states that if a person can’t repeat the exercise within a reasonable time, they should be regarded as unable to do it. If performing an activity causes too much discomfort, the claimant should be regarded as incapable of doing it. See also CIB/712/2006.

CIB/16949/1996 states that the ability to perform a task on isolated occasions or only with undue exertion or risk to health is irrelevant as is the ability to perform a task continuously. The question is whether the claimant can do the task with reasonable regularity.

CSIB/17/1996 states that there is an overall requirement of reasonableness to the question of what a person is or is not capable of doing and this may include consideration of their ability to perform activities most of the time. Reasonable regularity should be considered. Agrees with C1/95/IB that ability to perform activities with reasonable regularity must be considered.

variation during the day

CIB/14969/1996 states that where incapacity varies during the day it is treated as existing throughout the day (under reg 15 SS(IW) Regs). See also CIB/6244/1997* (73/98) and CIB/16677/1996.

CIB/399/2003 concerns a case where someone has a condition (asthma) that might fluctuate during the day. Favours the approach of CIB/6244/1997 but not convinced by the argument of CIB/243/1998 in which it was considered that an asthma sufferer could be capable of work the same day after he or she had an attack. Also follows R(IB)2/99.

7.16 Reciprocal agreements

jamaica

Campbell v. Secretary of State for Work and Pensions states that there is no right of appeal against a decision on incapacity for work where the claimant might be entitled to benefits under the Social Security (Jamaica) Order 1997. This was not held to contravene Article 6 of the Human Rights Convention. This case was an appeal against the decision made in CIB/3645/2002.

germany

R(IB)1/02 (CIB/4243/1999) discusses eligibility under EC law for a person living in Germany to receive incapacity benefit. For EC purposes short term IB is classed as a sickness benefit (which can therefore possibly be used to help someone satisfy the 364 day qualifying period for long term IB) and long term IB as an invalidity benefit.

usa

CIB/3586/1999* (15/00) concerned a claimant who was refused IB because they were abroad. Tribunal should have considered reciprocal agreements with the USA.

7.17 Risk

fear of harm

CSIB/12/1996 states that if there is a real risk which would deter a reasonable person from doing an activity, then it is legitimate to say they cannot do the activity.

multiple allergies

CIB/4406/2000* (62/01) states that someone can satisfy the test where he or she has multiple allergies that make everyday environments unsuitable for them unless they are specially adapted.

7.18 Work setting

normal environment

CIB/4406/2000 reaffirms that it is the normal environment rather than the work environment that counts. In this case the claimant was held to be incapable of work because he was severely allergic to perfume and had to avoid supermarkets, buses and other everyday places.

pca is an every day activity test

CIB/13161/1996 & CIB/13508/1996 states that there is no warrant in the regulations for a separate consideration of whether the claimant could or could not perform the activity in some imaginary working context such as a factory if this means that some additional test is to be imported. See also CIB/14587/1996* (65/97), CIB/2620/2000, CIB/1265/2002, CSIB/17/1996 and C1/95/IB, a decision of the Northern Ireland Commissioners.

7.19 Youth IB

not a separate benefit

CIB/1410/2005 states that a claim for youth IB does not constitute a separate claim. It simply has a separate set of conditions. For those claiming youth IB who seek to benefit from the under 25 provision there is no definition of full time education. Consideration of this is therefore a matter of fact. The decision also discusses definitions of vocational and work based training - which does not apply in this case.

ordinary residence rules don't apply

In Lucy Stewart v Secretary of State for Work and Pensions (ECJ Case C-503/09) - [2012] AACR8 - it was held that short-term incapacity benefit in youth was an invalidity benefit for the purposes of EEC Regulation 1408/71, and that accordingly the award of the benefit could not be subject to tests of ordinary residence, past presence or actual presence.

Last updated: 5 December 2012

Authors: Ken Butler, Martin Inch and Keith Venables