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Neutral Citation Number:
Reported Number:	R(IB)1/08
File Number:	CIB 2619 2007
Appellant:
Respondent:
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	03/04/2008
Date Added:	28/04/2008
Main Category:	Incapacity benefits
Main Subcategory:	exemptions from test
Secondary Category:
Secondary Subcategory:
Notes:	Incapacity for work – exemptions from personal capability assessment – severe mental illness stabilised by medication A claim made in 1994 had been disallowed because the claimant did not satisfy the contribution conditions although she was accepted as qualifying for incapacity credits. On 10 December 2003 the claimant’s GP signed a questionnaire giving a diagnosis of bipolar disorder type II, date of onset 1996, and stating that she was stable on medication. The claimant completed an IB50 questionnaire and a medical adviser gave the opinion that she fell into an exempt category of mental illness (but with the suggestion that her functional capacity would be expected to improve significantly within 18 months). Accordingly, from 5 February 2004 the claimant was treated as incapable of work under regulation 10(2)(e)(viii) of the Social Security (Incapacity for Work) (General) Regulations 1995 (severe mental illness having severe mental effects) (“the regulation 10 exemption”). On 25 October 2005 the claimant completed a further IB50 questionnaire and was subsequently examined by an examining medical practitioner (EMP) who recorded the diagnosis of bipolar disorder and the current medication taken and expressed the opinion that the claimant had no problem with any physical activity and that only three point-scoring mental health descriptors applied. The EMP considered that her condition was well stabilised with minimal remaining disability and ticked that there would be no substantial risk to the mental or physical health of any person if she were found capable of work and answered “no” to the other questions arising under regulation 27 of the 1995 regulations. On the basis of that evidence the decision awarding incapacity credits was superseded and a decision given that the claimant did not score enough points to satisfy the personal capability assessment (PCA) and was not incapable of work. The claimant appealed and the tribunal dismissed the appeal on the basis that the claimant was not automatically exempted on the basis of her diagnosis and medication and that she no longer fell into an exempt category under the regulation 10 exemption. The tribunal further concluded that the claimant satisfied only one additional mental health descriptor. The Commissioner gave leave to appeal on the grounds submitted on behalf of the claimant, namely (i) that the tribunal had misinterpreted a further potentially applicable descriptor and (ii) that the tribunal had failed to have regard to CIB/3328/1998 (regarding recourse to the Incapacity Benefit Handbook for Approved Doctors) (the Commissioner noting that whilst that Handbook had been referred to before the tribunal, CIB/3328/1998 had not then been specifically relied on). Held, allowing the appeal and remitting the case to differently constituted tribunal for re-hearing, that: 1. the tribunal had erred by not adequately considering two additional descriptors (although that in itself would not have justified allowing the appeal (paragraph 15); 2. a claimant’s capacity for work should be judged according to the practical reality from time to time, including the beneficial effect of medicines and other treatments that it is reasonable for a person to accept, subject to any adverse effects of the treatment (paragraphs 16 and 17); 3. the argument that the interpretation of the regulation 10 exemption was affected by the way in which the 1997 amendment which introduced it was put to the Social Security Advisory Committee should be rejected because the conclusion in Commissioner’s decision CSIB/169/2005 that that amendment was valid under Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623, [2003] ICR 405, also reported as R(IB) 3/03, did not imply that it was neutral in effect and to be interpreted in line with the previous form of regulation 10(2)(e)(viii) and the guidance given to doctors; and in any event that guidance did not suggest that a diagnosis of bi-polar disorder or long-term lithium medication was conclusive in itself (paragraphs 18 to 25); 4. leaving aside that stabilisation is different from freedom from symptoms, the tribunal had erred in its consideration of regulation 27 of the 1995 regulations by failing to consider whether that stabilisation was likely to survive the stresses of work of the sort that the claimant might be required to look for under the jobseeker’s allowance regime (paragraph 26); In addition, the Commissioner commented on what Commissioner’s decision CIB/3328/1998 stands for.
Decision(s) to Download:	R(IB) 1-08 bv.doc