You are here
>
Home
> Search decisions database
Decision Summary Information
Back to Results
|
Search Again
|
Most Recent Decisions
Neutral Citation Number:
Reported Number:
R(IB)4/04
File Number:
CIB 2873 2003
Appellant:
Respondent:
Judge/Commissioner:
Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:
10/03/2004
Date Added:
24/03/2004
Main Category:
Incapacity benefits
Main Subcategory:
activity 13: continence
Secondary Category:
Secondary Subcategory:
Notes:
Practice - judicial precedent - obiter dicta of Northern Ireland superior courts Incapacity - personal capability assessment - activity 13: continence - whether person wearing an ileostomy bag has "no voluntary control over bowels" The claimant suffered from Crohn's disease. He had an operation (ileostomy) to create an opening from his intestines through his abdomen to divert the flow of faecal waste into an externally fitted bag. Although a person would have no control over the flow of waste from his body into the bag after an ileostomy or a colostomy, it was possible to lead an otherwise normal life if the bag was efficient and the person had complete control over emptying it. The claimant emptied his bag every two hours and replaced it every second day. He completed a personal capability assessment questionnaire on 14 August 2002. On 27 January 2003, he was examined by a departmental doctor who awarded 3 points for the bending and kneeling descriptor but chose the descriptor "No problem with continence" in relation to the continence descriptor. On 13 February 2003, the original decision awarding incapacity benefit was superseded and benefit stopped as the claimant only had an aggregate score of 3 points. The tribunal dismissed the claimant's appeal on 14 May 2003. The claimant sought leave to appeal to the Commissioner on the ground that the tribunal had erred in the way that it had treated the continence descriptor. Leave to appeal was granted by the District Chairman. It was argued on behalf of the claimant that it was incumbent on the Commissioners to follow the obiter dicta of the Northern Ireland Court of Appeal in Perry v. Adjudication Officer (reported as an appendix to R 8/99 (IB)) which considered the same point in the context of an identical statutory provision and concluded that a person fitted with a colostomy bag necessarily falls within descriptor 13 because he has no voluntary control over his bladder. Held, allowing the appeal, that: 1. the extent to which obiter dicta should be followed depends on the circumstances in which the legal comment was made. As the Northern Ireland Court of Appeal in Perry had the benefit of full argument and made it clear that it was giving guidance on a potentially controversial point to prevent further unnecessary adjudications, its comments, albeit obiter, were hardly less persuasive upon Commissioners than the ratio of a Northern Ireland Court of Appeal decision. A Commissioner or a Tribunal of Commissioners should follow such dicta unless there were quite exceptional circumstances to the contrary (paragraph 30); 2. An ileostomy bag played no part in assisting a person's control over the urge to expel waste from his body. Ileostomy and colostomy bags and incontinence pads mitigated the consequences of incontinence but did not affect a person's capacity to perform the activity in issue (paragraph 36). A person wearing an ileostomy or colostomy bag falls within descriptor 13(a) (paragraph 37); 3. CIB/14210/1996 which concluded that a claimant who had his bladder removed and had a urostomy bag could not satisfy descriptors 13(b), (f) or (g) because he had no bladder to control, was wrongly decided. There was no rational basis for distinguishing between a case where the claimant has no bowel or bladder and where a claimant had a malfunctioning bladder or bowel. The Tribunal set aside the decision of the appeal tribunal and substituted their own decision that the claimant was entitled to 15 points under descriptor 13(a).
Decision(s) to Download:
R(IB) 4_04 bv.doc
Download
Adobe Reader
|