EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Carloway Lord Bonomy	[2010] CSIH 26 XA107/08 OPINION OF THE COURT delivered by LORD CARLOWAY in the application for leave to appeal by D McF Applicant against SECRETARY OF STATE FOR WORK AND PENSIONS Respondent _______

Applicant: Caskie; Drummond Miller

Respondent: Collins; Office of the Solicitor to the Advocate General

12 February 2010

(1) Facts

[1] The applicant was found qualified to receive National Insurance (Incapacity) Credits (NICs) in terms of a decision of the respondent dated 18 August 1981. In 2006, her continued entitlement to receive the NICs fell to be re-considered. The test for entitlement is whether an applicant is capable or incapable of work in terms of sub-section 171A(1) of the Social Security Contributions and Benefits Act 1992 (c 4). Capability is assessed under sub-section 171C in accordance with a "personal capability assessment" (PCA). The nature of such an assessment is set out in the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995 No 331). In particular, in terms of regulation 24, a PCA is:

"an assessment of the extent to which a person who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in the Schedule [to the Regulations], or is incapable by reason of such disease or bodily or mental disablement of performing those activities".

[2] The Schedule is divided into two parts (I and II). The first deals with physical disabilities and the second with mental disabilities. Each contains a list of activities, such as walking, standing or sitting (in the case of physical matters) in column (1). In column (2), against the name of the activity, there are a number of "descriptors", describing the extent to which the claimant can perform the activity. In the final column (3) there are fixed numbers of points (from 0 to 15) allocated to each descriptor. In terms of regulation 25, if a claimant scores at least 15 points under Part I (physical), or 10 points under Part II (mental), or 15 points in a combination of Parts I and II, he will be deemed incapable of work and thereby qualify for NICs. Regulation 25 also provides (sub-regulation 25(3)) that it is a prerequisite of allocating any points that the descriptor arises from a "specific bodily disease or disablement" or "some specific mental illness or disablement".

[3] As part of the re-assessment process, the applicant completed a questionnaire dated 23 October 2006. In this, she claimed to fit a number of the descriptors in Part I of the Schedule. But in answer to the questions: "Have you been treated for anxiety, depression or mental illness? Or do you think you have a mental health problem?"; she ticked the box marked "No". The respondent obtained a medical opinion on the applicant's claim. This opinion followed an examination and expressed a view on whether the doctor agreed or disagreed with the applicant's selection of a particular descriptor. It also stated that, "Based on the medical evidence on file, the history obtained and my assessment today, there was no evidence of any mental health problem".

[4] The respondent re-assessed the applicant's qualification in light of the medical opinion. The applicant scored only 9 points on Part I (descriptor 13(e), continence) and none under Part II. Accordingly, on 9 January 2007, the respondent determined that, as a result of a change of circumstances (Social Security Act 1998 (c 14) section 10; Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991), the applicant no longer qualified for NICs.

[5] The applicant appealed to a Tribunal. At the subsequent hearing, the applicant requested that the Tribunal: (i) re-assess the position in relation to the physical descriptors; and (ii) take into account mental descriptors. In relation to her physical condition, the applicant sought fifteen points for her incontinence on the basis of no control over her bowels (descriptor 13(a)). But the Tribunal did not accept the applicant's description of the frequency of her incontinence (up to 30-40 times a day), as there was no pathology to support that description. The Tribunal preferred the opinion of the examining doctor that the applicant lost control of her bowels only "occasionally". The Tribunal therefore confirmed the 9 points allocated.

[6] In support of her submission on mental descriptors, the applicant lodged letters from her general medical practitioners at the Maryhill Health Centre. The first of these (dated 2 April 2007) recorded that, in relation to one of the mental health descriptors regarding coping with pressure, the applicant "continues to become extremely anxious and upset with regard to the chronicity of her medical problems and this obviously affects her ability to cope day to day". The second (dated 20 April 2007) stated that the applicant "is obviously finding her symptoms extremely demoralising...[S]he remains extremely unhappy". Based upon this material, the applicant requested a score of one point under Part II descriptor 16(c) ("is frequently distressed at some time of the day due to fluctuation of mood"). She also requested a total of six further points for a variety of descriptors under the activity "Coping with pressure", ranging from 17(b) ("Frequently feels scared or panicky for no obvious reason") to 17(f) ("Is scared or anxious that work would bring back or worsen his illness"). Finally, two more points were applied for under 18(d) ("Gets irritated by things that would not have bothered him before he became ill").

[7] The Tribunal had noted that no mental health assessment had been carried out. Although, by the time of the hearing, the applicant was on a prescribed course of anti-depressants, there had been no evidence of any mental health problems when she had been examined prior to the decision in January 2007. The applicant had not been taking any medication for mental health problems at that time. The Tribunal considered the contents of the GP letters but held, in relation to 16(c), that the applicant's distress was: "as a direct result of her physical condition and not related to a mental condition". On 17(b), the Tribunal noted that the applicant's last panic attack had occurred two years previously and there had been no description of an attack occurring for no obvious reason. In relation to the remaining matters, the Tribunal reasoned that:

"All the appellant's problems are related to her problems of continence and although the appellant's representative asked the tribunal to consider all the mental descriptors in relation to coping with pressure, the appellant's pressure is all as a result of her physical problem and not her mental problem and so no points were awarded in respect of any descriptors...".

The Tribunal refused the appeal and confirmed the decision of the respondent on 25 July 2007.

[8] The applicant appealed to the Social Security Commissioner. On 13 February 2008, he dismissed the appeal on the basis that there was no error of law in the Tribunal's decision. The basis of the appeal had been that the Tribunal had: (1) failed to give adequate reasons for dismissing the GP letters describing frequency of incontinence; and (2) failed adequately to assess the applicant's mental health. But the Commissioner held that the Tribunal had been entitled to reject the applicant's version of incontinence. As an expert body, the Tribunal had been entitled to reach their decision, giving as a reason the lack of pathology justifying incontinence above the occasional. No issue is now taken with the Tribunal's decision on physical descriptors.

[9] In relation to mental health, the Commissioner noted a decision from the Chief Commissioner (CIB/4053/2003) that:

"...in relation to mental health descriptors, the extent to which someone has an incapacity to perform the activities is only relevant where that incapacity results from a specific mental illness or disablement (Regulation 25(3)(b) of the 1995 Regulations). Therefore, before any mental health descriptor points can be achieved the claimant must show that at the relevant date he has a specific mental illness or disablement".

The Tribunal had found that there was no such illness or disablement. The Commissioner determined that they had correctly distinguished between what is a physical or mental disablement and what is an understandable reaction to a chronic physical problem. Although the applicant had relied on decision CIB/4828/1999, to the effect that a mental symptom arising from a physical illness may nevertheless be a mental disablement, that, the Commissioner reasoned, was not the point. No such mental illness or disablement had been found to exist. Leave to appeal was refused by the Commissioner on 2 June 2008 on the basis that no error of law on his part had been demonstrated (1998 Act (supra), section 13).

[10] The current application for leave to appeal from this Court proceeded on the basis that both the Tribunal and the Commissioner had erred in law in concluding that, because any mental problems which the applicant suffered from had stemmed from her physical condition, she was thereby not entitled to any mental health descriptor points. It was maintained that both the Tribunal and the Commissioner had asked the wrong question; notably whether the applicant had any mental health problems independent of her physical problems instead of whether she had any mental health problems for any reason. Reference was made to the annotations to Regulation 25 by David Bonner in Sweet & Maxwell's Social Security Legislation 2009/10 (para 8.146) and to anxiety being a recognised form of mental disablement in decision CIB/4718/2003. Although there had been no psychiatric evidence presented, the decision was one for the Tribunal to take. This Tribunal had failed to explain why they had not classified the applicant's descriptor as arising from a mental illness or disablement. If the applicant's condition were covered by a descriptor, then it could be inferred by a Tribunal that the descriptor arose from a mental illness or disablement.

[11] Although the respondent was not called upon in oral argument, the Court noted that it was his position that no error of law was apparent. In order to secure mental heath descriptor points, some specific and recognised mental illness or disablement had to be present (sub-regulation 25(3); CIB/4053/2003; CIB/0026/2004; and CDLA/0944/2001). That had to be demonstrated at the time when the original decision had been made by the respondent (1998 Act, sub-section 12(8)). The material available as at 9 January 2007 contained no evidence that the applicant was suffering from any specific mental illness or disablement. By the time of the Tribunal hearing, the appellant had commenced anti-depressant medication, but that was an irrelevant consideration.

[12] The Court agrees that no arguable error of law is evident from the decisions of the Commissioner or the Tribunal. Accordingly leave to appeal must be refused. The Tribunal were obliged to consider the circumstances as at the date of the original decision in January 2007 (1998 Act, ss 12(8)). At that time, there was no evidence whatsoever that the applicant had any mental health problems. She completed a questionnaire that she had none. The medical opinion at the time, based upon the records then available, the history obtained and the doctor's own assessment, was that there was no evidence that she had any mental health problems. It is true that subsequent developments may have thrown light on the position and indicated that, contrary to what had then been thought, the applicant had all along been suffering from a mental illness or disablement. But there was no such information here. There was no psychiatric assessment, either from a specialist or from the GP, even at the time of the Tribunal hearing. All that the GP letters had described were unhappiness, anxiety, upset and distress; all of which are emotions suffered by most of the population from time to time. They are not, in the absence of medical diagnosis, mental illnesses or disablements. In these circumstances, standing the terms of sub-regulation 25(3), there could be no allocation of mental health descriptor points because there was no proof of any specific mental illness or disablement.

[13] What the Tribunal did was reach a determination of fact upon the basis of the material available to demonstrate the position as at the date of the respondent's decision. The Commissioner held that there was no error of law in that determination. The Court is bound to agree. In particular, the Tribunal did not hold that, because the applicant's problems stemmed from her physical condition, she could not obtain any mental health points. They held that she had no mental illness or disablement at all. There is no arguable ground of appeal and leave to appeal must be refused (sub-sections 15(1) and (2) of the 1998 Act; or rather (now) sub-section 13(1)-(5) of the Tribunals, Courts and Enforcement Act 2007 (c.15)).

[14] The Court should add that, at the outset of the hearing on the Summar Roll, the respondent sought to present an elaborate argument based on the applicability from 3 November 2008 of Rule of Court 41.59, which restricts the grant of leave to cases where there arises an important point of principle or practice or where there is some other compelling reason to hear the appeal (cf the test in Hoseini v Secretary of State for the Home Department 2005 SLT 550). This would have involved references to several decisions of the English Court of Appeal under equivalent court rules. In light of the Court's decision on the absence of an error of law, the Court did not require to hear this argument. This application was appointed to be heard on the Summar Roll, in accordance with the then current practice, some months ago. There was no notice, or at least no adequate notice, in the answers to the application that the respondent was to present an argument along the lines ultimately intimated. If that is intended in the future, respondents must make it clear in their answers so that the matter can be allocated, at an early stage in the process, a hearing of suitable duration on the Single Bills or Summar Roll as the Court deems appropriate.