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Neutral Citation Number:
Reported Number:	R(IB)8/04
File Number:	CIB 3956 2003
Appellant:
Respondent:
Judge/Commissioner:	Judge P. L. Howell Q.C.
Date Of Decision:	11/06/2004
Date Added:	06/07/2004
Main Category:	Incapacity benefits
Main Subcategory:	incapable of work
Secondary Category:
Secondary Subcategory:
Notes:	Incapacity for work - deemed incapacity - claim for period starting within six months of previous adverse decision - whether days within that period after expiry of six months to be treated as days of incapacity The claimant made a claim for incapacity benefit for a period starting three months before her actual date of claim. Her claim was refused on the ground that the first five days of that period were within six months of an earlier decision finding her capable of work and that therefore she could not be treated as incapable of work pending assessment under regulation 28 of the Social Security (Incapacity for Work) (General) Regulations. On appeal she argued that she had developed a new disease or disablement or her previous condition had significantly worsened since the earlier decision, and that therefore she was entitled to be treated as incapable by virtue of regulation 28(2)(b)(i) or (ii). The tribunal confirmed the Secretary of State's decision, finding on the evidence that there had been no new disease or disablement or worsening of an existing condition. The claimant appealed to the Commissioner. Held, allowing the appeal, that: 1. the findings of the tribunal on the medical evidence that there was no new condition or worsening of an existing one were findings it was open to it to reach and there was no ground for not accepting them; 2. the question of whether a person is incapable of work falls to be determined in respect of each day of claimed incapacity within the period of claim; the six-month period in regulation 28(2)(b) must therefore be run back from each such day in the period covered by the relevant claim; 3. the date to be measured back to is that of a (still valid) determination of the Secretary of State on the claimant's capacity for work at some earlier time, not a tribunal decision confirming it on appeal; 4. while days which fall within six months of such a determination cannot be treated as days of incapacity (unless a fresh disease or disablement or significant worsening of an existing one is shown), such days may nevertheless be days of incapacity and this question must be addressed by carrying out the personal capability assessment. The Commissioner substituted his own decision that so long as prescribed medical evidence had been submitted the claimant was entitled to be treated as incapable of work for the period following the fifth day of her period of claim pending a personal capability assessment, and the case was remitted to the Secretary of State to redetermine the question of the claimant's entitlement.
Decision(s) to Download:	R(IB) 8_04 bv.doc