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Neutral Citation Number:
Reported Number: R(IB)2/99
File Number: CIB 14534 1996
Appellant:
Respondent:
Judge/Commissioner: Three-Judge Panel / Tribunal of Commissioners
Date Of Decision: 15/06/1999
Date Added: 21/06/2002
Main Category: Incapacity benefits
Main Subcategory: awt/pca: general
Secondary Category:
Secondary Subcategory:
Notes: All work test – variable and intermittent conditions – whether the all work test must literally be satisfied on each day of a period of incapacity The claimant suffered from post-viral syndrome. A Benefits Agency Medical Service doctor assessed her ability to carry out the activities relevant to the all work test and in respect of the physical descriptors his assessment was such that the adjudication officer decided that the claimant scored no points, but the doctor stated in respect of many of the activities that the claimant got tired easily. The adjudication officer reviewed her award of incapacity benefit and decided that she was no longer entitled to it. The claimant appealed, saying that her condition fluctuated wildly. The tribunal considered whether the claimant could carry out the activities in the all work test regularly and repeatedly and said that they had not relied on a snapshot of her circumstances. They accepted the doctor’s findings and dismissed the claimant’s appeal. She appealed and her case was heard by a Tribunal of Commissioners. Held, allowing the appeal, that: 1. although incapacity benefit was a daily benefit, it was not necessary for the all work test literally to be satisfied in respect of each day of a period of incapacity (paragraph 13); 2. in those cases where relevant descriptors were expressed in terms that the claimant “cannot”, rather than “sometimes cannot”, perform an activity, one should not stray too far from an arithmetical approach that considered what the claimant’s abilities were most of the time during what was claimed to be a period of incapacity, but the frequency of “bad” days, the length of periods of “bad” days and intervening periods, the severity of the claimant’s disablement on both “good” and “bad” days and the unpredictability of “bad” days were all relevant when considering whether a claimant could be treated as satisfying the all work test on those days when it was literally satisfied but also other intervening days (paragraph 15); 3. the tribunal had not erred in their approach to the variability of the claimant’s condition (paragraph 20); 4. it was unclear whether the doctor’s assessment took account of the claimant’s fatigue or whether his comment that the claimant got tired easily was intended to qualify an assessment that did not take account of the fatigue and therefore the tribunal’s decision was erroneous in point of law because, in accepting his findings, they either misdirected themselves as to the relevance of the claimant’s tiredness or else they inadequately explained their decision (paragraph 21). The Tribunal of Commissioners referred the case to a differently constituted tribunal.
Decision(s) to Download: IB2_99.doc IB2_99.doc