IN THE UPPER TRIBUNAL	Appeal No.  CIB/245/2009
ADMINISTRATIVE APPEALS CHAMBER

1.	This is an appeal by the Claimant, brought with my permission, against a decision of an appeal tribunal sitting at Burnley on 17 September 2008. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier tribunal. I refer the new tribunal to, in particular, paragraph 10 below. The Secretary of State must comply with my Direction in paragraph 11 below. 

2.	The Claimant is a man now aged 56. He was in receipt of incapacity benefit down to a date in February 2008, apparently (p.70) on the basis of a shoulder condition. He was examined by an examining doctor on 6 February 2008, and the doctor considered that he did not score sufficient points under the personal capability assessment, and a decision was made shortly thereafter superseding and removing the Claimant’s award of incapacity benefit. 

3.	The Claimant made a fresh claim for incapacity benefit on 17 April 2008, by reason of a relapse in a condition of depression. He says that he has had recurrent episodes of this for some 20 years. The Claimant states that this claim was supported by medical certificates from his doctor, although copies of those were not before the Tribunal. 

4.	According to the Secretary of State’s written submission to the Tribunal: “as it [i.e. the new claim] was within 6 months of his previous disallowance payment on his claim was deferred pending a personal capability assessment. This took place on 2 June 2008 at which time he was found capable of work.” What took place on 2 June 2008 was a further interview and examination by an examining doctor, who considered that the Claimant scored 0 physical and 2 mental health points. A decision disallowing the new claim was made on 4 June 2008, and it was an appeal against that decision which was before the Tribunal. The Claimant made clear in a letter to the Tribunal (pp. 43-4), and in oral evidence, that the basis of his appeal was that, owing to an increase in his anti-depressant medication, he had significantly improved again by 2 June 2008, so that his condition on that date was not a reliable guide to what it had been from 17 April 2008. 

5.	The Tribunal dismissed the appeal, finding that the Claimant had not established that he was entitled to any additional mental health points in respect of the period between 17 April and 4 June 2008. The crux of the Tribunal’s reasoning was in the following passages:

“Although the Tribunal are quite prepared to accept that the appellant’s condition does fluctuate from time to time, it is clear that this can be, and is, dealt with by an increase in medication and that this is effective. 

No evidence was produced from the Appellant’s G.P to confirm his condition in April and although the appellant’s oral evidence to the tribunal and his statement at page 16 of the appeal bundle stated that he had been suffering from a deeper depression between March and April which involved suicidal thoughts, the tribunal did not accept that he had established that he was entitled to any additional points during that period.” 

6.	The Secretary of State submits that the Tribunal erred in law in that it “failed to make sufficient findings of fact and to explain precisely why they were unable to award any additional mental health descriptor points.” The Tribunal attached considerable significance to the fact that there was no supporting evidence from the GP before the Tribunal. On balance I consider that in all the circumstances the Secretary of State should have put before the Tribunal the Med 3 or Med 4 certificates which had apparently been signed by the Claimant’s GP, and that there was a breach of natural justice in this respect, requiring the Tribunal’s decision to be set aside. 

7.	When granting permission to appeal I raised the question whether the Tribunal’s decision was also erroneous in law in considering only whether, in respect of the period 17 April to 4 June 2008, the personal capability assessment was actually satisfied (i.e. whether the Claimant scored sufficient points) and in not also considering whether the Claimant was entitled to be treated as incapable of work under reg. 28 of the Social Security (Incapacity for Work)(General) Regulations 1995 in respect of that period. The Secretary of State submits that reg. 28 is irrelevant because by the time of the Claimant’s appeal the Claimant had actually been assessed as not being incapable of work in respect of the relevant period, and no question could therefore arise as to whether he was entitled to be treated as incapable of work “until such time as he has been assessed” (see the wording of reg. 28). 

8.	I am not sure that the Secretary of State is right about that. I think that the Claimant may have been entitled to succeed if either he satisfied the reg. 28 conditions, or if he actually satisfied (or was entitled on other grounds (e.g. those in reg. 27) to be treated as satisfying) the personal capability assessment. The most relevant Commissioner’s decision is perhaps that of Mr Commissioner Jacobs in CIB/1959 and 2198/1997. He there held that reg. 28 did not apply on the facts of that case because it applies only until the claimant has been “assessed”, and on the facts of that case “the claimant was immediately assessed”. That depended on his view (see para. 28 of that decision) that “assess” refers to “the preliminary stage of gathering the evidence on which the adjudication officer’s determination is based.” I am not sure about that. I doubt whether any “assessment” took place in the present case until the decision maker’s decision on 4 June 2008. Mr Commissioner Jacobs also said in that decision (para. 30) that the claimant there could not satisfy the condition in reg. 28(2)(b)(ii) that “a disease or bodily or mental disablement which he was suffering from at the time of [the previous] determination has significantly worsened”, because “a claimant’s disablement has significantly worsened only if it is proved to have worsened to the extent that it is fair to assume that the claimant would satisfy the all work test if subjected to it.” Again, I am not sure about that. I doubt whether  the question of “significant worsening” requires that a judgment be made as to whether the personal capability assessment might be satisfied. 

9.	These are in my judgment points of wider importance (and potentially very considerable importance) which it would be unwise to attempt to decide without full argument, which I have certainly not had. I think that it would be wrong to seek further submissions at this stage, given that a fairly short period is involved, and that reg. 28 may turn out to be irrelevant in any event. 

10.	If the new tribunal decides that the Claimant did actually satisfy the personal capability assessment during the relevant period (by reason of scoring sufficient points), it will allow the Claimant’s appeal on that basis, and reg. 28 will be irrelevant. If the new tribunal decides that the Claimant did not score sufficient points, it should consider whether (during the relevant period) he satisfied “old” reg 27(b) (by reason of a substantial risk to his health were he to be found capable of work). If it decides that he did not then I direct the new tribunal to dismiss the Claimant’s appeal. However, in that event I direct it also to make findings as to whether (i) the Claimant’s mental health condition had significantly worsened since about 6 February 2008 and (ii) certificates of incapacity for work had been supplied by his GP in respect of the relevant period. Those findings would enable the Claimant, if he wishes, to appeal to the Upper Tribunal against the new tribunal’s dismissal of his appeal, and to argue that reg. 28 should have been applied. The matters of principle under reg. 28 could then be determined after full argument. 

11.	I DIRECT that the Secretary of State shall within 21 days from the date of issue of this decision send to the Tribunals Service (First tier) at Liverpool copies of any medical certificates issued by the Claimant’s GP in respect of the period from 17 April 2008 to 4 June 2008. 

12.	The Claimant should be aware that if he wishes any additional medical evidence (and in particular a more detailed report from his GP) to be before the new tribunal, it is for him to obtain it. 

Charles Turnbull
Judge of the Upper Tribunal
I July 2009