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R(IB) 1/08

Mr J Mesher
Commissioner

3 April 2008
CIB/2619/2007

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 On the basis of that evidence the decision awarding incapacity credits was superseded and a decision given that the claimant did not score enough points to satisfy the personal capability assessment (PCA) and was not incapable of work.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 OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant’s appeal to the Commissioner is allowed. The decision of the Norwich appeal tribunal dated 21 November 2006 is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraphs 27 and 28 below (Social Security Act 1998, section 14(8)(b)).

2. There was an oral hearing of the appeal to the Commissioner, at the request of the claimant’s representative, Mr Jon Burke of the Julian Housing Support Trust Ltd. Mr Burke attended and the Secretary of State was represented by Ms Sarah Wise of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to both representatives for helpful and focused submissions.

The main issue

3. The main issue of law is the interpretation of regulation 10(2)(e)(viii) of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311) (the 1995 Regulations), as substituted with effect from 6 January 1997, under which a person subject to the personal capability assessment (PCA) is to be treated as incapable of work on any day in respect of which circumstances including the following apply:

“(e) that he is suffering from any of the following conditions, and there exists medical evidence that he is suffering from any of them –

…

(viii) a severe mental illness, involving the presence of mental disease, which severely and adversely affects a person’s mood or behaviour, and which severely restricts his social functioning, or his awareness of his immediate environment.”

The background

4. The claimant claimed incapacity benefit on the basis of mental disorder on 19 October 1994. Because she did not satisfy the contribution conditions, benefit was not awarded, but she was accepted as qualifying for incapacity credits. I do not know whether at some point she was treated as passing the all work test or the PCA or had either of those tests actually applied to her, but from 5 February 2004 she was accepted as within one of the “exempt categories” treated as incapable of work under the PCA. Her GP had signed a questionnaire on 10 December 2003 giving the diagnosis of bipolar disorder type II and the date of onset of 1996. She was stated to be stable on medication (lithium carbonate and carbamazepine). The claimant was required to complete an IB50 questionnaire. After considering both documents a medical adviser gave the opinion that the claimant fell into the exempt category of severe mental illness, but suggested that her functional incapacity would be expected to improve significantly in 18 months.

5. On 25 October 2005 the claimant signed a further IB50 questionnaire. In relation to physical activities, she ticked a number of problems with activities in which she easily got tired. She briefly described the effect of her mental health problems, more briefly than in December 2003. She said that she needed to take life at her own pace, that her communication was affected, that she could not always make sense of her world and her place in it and that she had difficulty with her emotions and recognising the responses of others.

6. The claimant was examined by an examining medical practitioner (EMP) on 23 January 2006. He or she recorded the diagnosis of bipolar disorder and the medication taken (including lithium carbonate and tegretol retard). The EMP’s opinion was that the claimant had no problem with any physical activity and that only three point-scoring mental health descriptors applied (mental stress a factor in stopping work (2), gets irritated by things that would not previously have bothered her (1) and prefers to be alone for six or more hours a day (1)). The EMP considered that her condition was well stabilised with minimal remaining disability. That opinion seems to have been based on the claimant’s description of a typical day, her responses to questions (including her plans to take an Open University course on alternative medicine) and the absence of hospital checks on her lithium levels. On the question whether the claimant’s mental condition prevented her from undertaking leisure activities previously enjoyed, the EMP answered no and noted that she gardened, read and walked along the beach. On the question about whether she was scared or anxious that work would bring back or worsen her illness, the EMP answered no and noted her plans for the Open University course. The EMP also ticked that there would be no substantial risk to the mental or physical health of any person if the claimant were found capable of work (and no to the other questions arising under regulation 27 of the 1995 Regulations), merely noting “no evidence for NFD [non-functional descriptors]”.

7. On that evidence, a decision-maker on 2 February 2006 superseded the decision of 25 November 1994 on the ground that the Secretary of State had received medical evidence following an examination by an approved doctor (Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991), regulation 6(2)(g)), and gave the decision that the claimant was not entitled to incapacity credits from and including 2 February 2006, because she did not score enough points to satisfy the PCA and was not incapable of work.

8. The claimant appealed, saying that she had not improved and that the EMP had not properly explored her condition and that any additional stress in her life would aggravate her condition. She put in further information, including a detailed statement of her views on the mental health descriptors. Mr Burke put in a written submission on her behalf suggesting that the claimant qualified for many mental health descriptors and also that she should be treated as incapable of work under regulation 27 of the 1995 Regulations because there would be a substantial risk to her health if she were found capable of work as the stability of her serious mental illness was jeopardised by stress. But his first submission was that she fell within the exempt category in regulation 10(2)(e)(viii) of the 1995 Regulations. Mr Burke referred to the Department for Work and Pensions’ guidance in the Incapacity Benefit Handbook for Approved Doctors (the Handbook) as including within the category of severe mental illness cases where claimants were on long-term medication with anti-psychotic preparations, including depot neuroleptic or mood modifying drugs or equivalent modern oral medication. What paragraph 2.2.3.1 of the 2000 Handbook, as copied at page 118 of the papers, actually says is set out in paragraph 13 below.

The appeal tribunal’s decision

9. The claimant attended the hearing on 21 November 2006 with Mr Burke and gave detailed evidence. This included that she did 1½ hours cleaning a fortnight for Julian Housing Trust, and felt that she could do three hours a week, but could not cope with a 9 to 5 working day. She would ideally like to have some form of part-time self-employment. She also talked about the problems of stress and changes in routine.

10. The appeal tribunal disallowed the appeal. In relation to regulation 10(2)(e)(viii) it said this:

“We explained that we didn’t consider on the basis of the evidence before us that [the claimant] was automatically exempted simply on the basis of her diagnosis and medication. When considering whether she is exempt we have to consider whether she fulfils the definition after stabilisation on medication.

The strong evidence is that she has, following a psychotic breakdown and a lengthy period of rehabilitation in her case attained a good stability on her Lithium Carbonate. Her levels no longer need to be monitored and she does not have a CPN and is successfully maintained by her GP. We do not consider from all the evidence that we have in front of us that her mood and behaviour are now severely and adversely affected or that her social function is severely restricted. We do not therefore consider she falls into an exempt category on this basis.”

Having gone through all the evidence on the additional mental health descriptors put forward, the appeal tribunal found that the claimant qualified for one only (unable to cope with changes in daily routine), not enough to reach the threshold of 10 points for mental health descriptors alone. On leisure activities (CPe) it said this:

“[I]t is suggested that [the claimant] used to enjoy dancing and drama but now lacks the energy to carry out these activities. We note that [the claimant] is able to pursue other interests now such as gardening and poetry. We consider her interests may well have changed over the years but she is still able to maintain leisure activities as she did prior to her breakdown.”

It also concluded that she should be able to take up work without significant jeopardy to her health.

The appeal to the Commissioner

11. The claimant now appeals against the appeal tribunal’s decision with my leave. Mr Burke had submitted that the appeal tribunal had misinterpreted descriptor CTe, in that it had accepted that the claimant could no longer undertake the more rigorous (and I would add, socially interactive) activities previously enjoyed, yet did not award the point. On descriptor CPf (scared or anxious that work would bring back or worsen the claimant’s illness), Mr Burke had submitted that work should mean work of at least 16 hours a week and that the appeal tribunal had failed to enquire how much work the claimant could manage. But the main ground was that on regulation 10(2)(e)(viii) the appeal tribunal had failed to have regard to the decision of Mr Deputy Commissioner White in CIB/3328/1998, in which he held that he could refer to the Handbook for guidance, especially as the drafting of head (viii) left a lot to be desired. It was submitted that assessing a claimant when medicated was to misunderstand the purpose of the exemption in regulation 10 and that the Handbook indicated that the receipt of long-term anti-psychotic medication showed the existence of severe mental illness. I granted leave because of the nature of the points raised, although noting that decision CIB/3328/1998 had not specifically been relied on before the appeal tribunal.

12. The appeal was supported on behalf of the Secretary of State in the submission dated 20 September 2007. It was submitted that the appeal tribunal had adopted a wrong approach by deeming that stabilisation on medication was relevant and that the Commissioner should substitute a decision that the claimant was suffering from a severe mental illness under regulation 10(2)(e)(viii) and continued to be treated as incapable of work from 2 February 2006. Mr Burke naturally agreed. However, I found the assertion in the submission about the relevance of stabilisation on medication no more convincing than the appeal tribunal’s assertion to the contrary and granted Mr Burke’s request for an oral hearing in the event that I did not feel able to substitute a decision in the claimant’s favour. I also said this:

“In addition, I am not sure that Commissioner’s decision CIB/3328/1998 takes the claimant’s case much further forward. Mr Deputy Commissioner White there criticised the drafting of regulation 10(2)(e)(viii) and indicated that the commentary in [the Handbook] was helpful in some respects. But, by referring to what the Handbook says about what could be regarded as continuing psychiatric care that a person who satisfies the criteria of regulation 10(2)(e)(viii) was said to be very likely to require, he fell a long way short, it seems to me, of endorsing an approach that long-term medication with anti-psychotic preparations was enough in itself to show satisfaction of those criteria. Indeed, it seems to me that the Handbook in paragraph 2.2.3.1 points to a need to consider the detailed manifestations of a mental disease and the resulting care needs when dealing with individual cases. Factors mentioned in paragraph 2.2.3.1.1 would be relevant. I note the reference there to the possibility of exemption for finite periods in cases of bipolar affective disorder in young adults, many of whom were said to return to work in remission. If such remission would be likely to include a situation of stabilisation on medication, does the commentary throw any light on the proper meaning of regulation 10(2)(e)(viii)?”

13. Paragraph 2.2.3.1 of the Handbook, as attached to the submission of 20 September 2007, contains the following after setting out regulation 10(2)(e)(viii):

“For the purpose of advising whether the claimant’s condition meets these criteria it will be necessary to consider the detailed manifestations of the disease and the care needs which arise. As a general rule, claimants living outside of hospital who meet the legislative criteria are very likely to require ongoing psychiatric care.

This care may include:

• Sheltered residential facilities where the person receives regular medical or nursing care.

• Day care at least once a week in a centre where qualified nursing care is available.

• Care at home with intervention, at least one day a week, by a qualified mental health care worker, or

• Long term medication with anti-psychotic medications including depot neuroleptic or mood modifying drugs or equivalent modern oral medication.”

14. Paragraph 2.2.3.1.1, under the heading “Social functioning and Risk to others”, contains the following:

“Whilst this guidance describes a general approach it is important for all Medical Advisers to remember that each case must be considered on the individual circumstances.

In general chronic schizophrenia and long established bipolar affective disorder should cause little difficulty when it comes to an Exemption. Exemption for finite periods may be advised in acute short term psychoses, including those related to drug abuse, as well as bipolar affective disorder in young adults, many of whom return to work in remission.”

Additional mental health descriptors

15. At the oral hearing Ms Wise for the Secretary of State resiled from the written submission of 20 September 2007, but accepted that the two additional mental health descriptors argued for by Mr Burke should have been awarded. In particular, she accepted that the question of whether the claimant was scared or anxious that work would bring back or worsen an illness was essentially subjective and that the appeal tribunal had failed to say what it made of the claimant’s evidence of the effect of stress on her and the very limited amount of work she felt able to contemplate. However, as Mr Burke accepted, the additional two points would have still left the claimant only on seven points, insufficient to pass the PCA. Thus, if the appeal tribunal’s only error of law had been in relation to those two additional descriptors, that would not have justified setting its decision aside. Some other error of law has to be shown.

Regulation 10(2)(e)(viii) of the 1995 Regulations

16. In relation to the exemption under regulation 10 of the 1995 Regulations, Mr Burke developed a subtler argument at the oral hearing. First, he was inclined not to press the submission that the effect of medication was not relevant. I think that that must be right. As a matter of general approach, one would expect a claimant’s capacity to work to be judged according to the practical reality as it is from time to time. That can include the beneficial effects of medicines and other treatments that it is reasonable for a person to accept, subject of course to the any adverse effects of the treatment. That was the approach of Mr Commissioner Rowland in decision CIB/16182/1996 to the taking of painkillers before doing the tests carried out by an EMP. It was also the approach of Mrs Commissioner Brown in the reported Northern Ireland decision R 2/00 (IB) to the question of whether a person has no voluntary control of bladder or bowels if medication enables the person to exercise control by will. She disagreed with an earlier decision that the effect of medication was to be disregarded. I have not found any decisions particularly directed to regulation 10, but in my judgment, in so far as the definition of any of the exempted categories depends on the effects of the medical condition on the claimant, that effect must be judged after taking into account the effects, both beneficial and adverse, of medication or other medical treatment that it is reasonable for the claimant to accept.

17. Mr Burke made two important practical points about bipolar affective disorder in particular: that what doctors describe as stabilisation on medication may well not mean that symptoms have disappeared, but only that they have lessened in severity and/or occur at longer intervals, and that lithium treatment that is successful in stabilisation may still leave a person flat and with residual loss of social and other functioning. He also stressed that, especially for bipolar disorder among mental conditions, what a claimant says apparently quite plausibly about his or her abilities or plans may in fact be totally unrealistic. I entirely accept the validity of those points when it comes to the eliciting and evaluation of evidence. But the appeal tribunal of 21 November 2006 cannot be said in its general evaluation of the evidence to have ignored those factors in a way that undermines the reasonableness of its judgment. It was entitled to consider the degree of stabilisation attained on medication and did not take that into account in any improper way.

18. Mr Burke’s main argument then focused on the way in which the current form of regulation 10(2)(e)(viii) had got into the 1995 Regulations by amendment with effect from 6 January 1997, an amendment found to have been valid by Mr Commissioner May QC in decision CSIB/169/2005.

19. As described in that helpful decision, before 6 January 1997 head (viii) was simply in terms of “severe mental illness” and the existence of a condition within sub-paragraph (e) had to be certified by a doctor approved by the Secretary of State. A similar condition in regulation 27 was struck down as ultra vires by the High Court in R v Secretary of State for Social Security, ex parte Moule, 12 September 1996. It was therefore considered that the amending regulations which became, in relation to regulation 27 the subject of Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623, [2003] ICR 405, also reported as R(IB) 3/03, should also amend regulation 10(2)(e) to remove the need for certification by an approved doctor. The DWP’s proposal submitted to the Social Security Advisory Committee described that as a slight amendment and labelled it neutral. The proposal included the following, primarily about regulation 27:

“The provisions have been re-drafted, along with the similar provision in regulation 10(2)(e), to restore the policy intention in the light of the Court’s decision [in Moule]. The new provision is more precisely defined to reflect the fact that it must be interpreted and applied by lay adjudicating authorities. Although they will still be required to consider the opinion of the Benefits Agency doctor they will also be able to take into account other medical evidence which the claimant may produce.”

The minutes of the SSAC meeting at which it was agreed that the proposed amendments did not need to be referred to it contained the following:

“3.2 Members noted that the IB amending regulations included a definition of ‘severe mental illness’ in the list of severe conditions conferring automatic exemption from the all work test (AWT). Dr Sawney explained that this definition, which had been developed following wide consultation with interested groups such as the Royal College of Psychiatrists, was currently contained in guidance. The need to prescribe the definition in regulations arose from a recent High Court decision that regulations could not make the opinion of the BAMS doctor binding on the Adjudication Officer (AO), and reflected the fact that the provision would now need to be interpreted and applied by lay adjudicating authorities.”

20. Mr Commissioner May held that the SSAC had not been misled in relation to the amendment to regulation 10(2)(e)(viii) as it had been in relation to regulation 27, as found in Howker. It had all the information required to make up its own mind on the effect of the proposed amendment, so that there was no breach of duty by the Secretary of State and the amendment was not ultra vires.

21. Mr Burke submitted that, as the validity of the January 1997 amendment to regulation 10(2)(e)(viii) depended on its being neutral in effect, the apparently restrictive conditions in the new form about severe and adverse effects on mood or behaviour and severe restrictions on social functioning or awareness of the immediate environment should not be interpreted so as to give the provision any narrower scope than the provision in terms simply of severe mental illness, or at least that provision subject to the guidance given at the time. The new form of words could not be given a completely literal interpretation. For instance, as Mr Deputy Commissioner White had shown in CIB/3328/1998, the reference to the presence of a mental disease appeared to add nothing to the definition. The apparently restrictive conditions could also be given a purposive interpretation. Thus, he said, as bipolar affective disorder would in both the ordinary and specialised medical use of language be recognised as a severe mental illness merely by its diagnosis, the claimant here should have been accepted as falling within regulation 10(2)(e)(viii). Alternatively, since no doubt the pre-January 1997 guidance would have referred to the same indicators of the existence of severe mental illness, the claimant’s long-term medication with lithium, an anti-psychotic and mood-modifying drug, was sufficient to show that she was suffering from a severe mental illness.

22. That submission does not work, for two fundamental reasons. The first is that a Tribunal of Commissioners in decision R(IB) 2/07 has now confirmed that the true test of invalidity laid down by the Court of Appeal in Howker was not merely whether the label “neutral” applied to a proposed amendment by the DWP was accurate, but whether the overall effect of all the material placed before the SSAC was misleading and whether there was a real possibility that if the SSAC had been aware of the amendment’s true effect it would have required a reference to be made. That is in substance the test applied by Mr Commissioner May in CSIB/169/2005. I agree with him that the SSAC was not misled about the effect of the proposed amendment to regulation 10(2)(e)(viii). Its decision not to require a reference was based on its own evaluation of the effect of the proposed amendment and not on the neutral label. It does not matter if that label was not entirely accurate. Accordingly, there is no basis for Mr Burke’s proposition that the current form of regulation 10(2)(e)(viii) should be interpreted so as not to be more restrictive than the previous form.

23. The second reason why the submission does not work is that, even if there were some requirement to interpret the current form of regulation 10(2)(e)(viii) in accordance with the guidance given before January 1997, that would not help the claimant. I do not have evidence of the precise form of that guidance, but I am prepared to assume that it was in terms of severity being judged by adverse effects on mood or behaviour and on social functioning or awareness of the immediate environment and included something like paragraph 2.2.3.1 of the current Handbook, set out in paragraph 13 above. I cannot read that guidance as suggesting that a claimant falls within regulation 10(2)(e)(viii) merely because of either the diagnosis of bipolar affective disorder or long-term lithium medication. I can refer back to the reasoning sketched in when I granted the oral hearing (paragraph 12 above). In addition, all that the guidance does is to suggest that, subject to consideration in each particular case of the detailed manifestations of the illness, if a claimant is going to satisfy the criteria in regulation 10(2)(e)(viii) there is likely to be one or other of the forms of ongoing psychiatric care mentioned. It does not say that everyone receiving one or other of those forms of ongoing psychiatric care is likely to satisfy the criteria or to be suffering from a severe mental illness. That is a logically different proposition.

24. I find nothing in decision CIB/3328/1998 to the contrary. The primary issue there was that the appeal tribunal had taken the view that a mental disease meant something resulting from trauma, degenerative brain disease, epilepsy or something similar and did not cover a personality disorder. It was in that context that Mr Deputy Commissioner White had to consider whether the use of the phrase “mental disease” added such a restriction and what “mental illness” meant. He decided, rightly in my view, that those phrases bore their ordinary meaning, not the restricted meaning given by the appeal tribunal. He went no further than saying that the indicators suggested in the guidance were useful in properly categorising a claimant’s mental health problems, which is very different from a proposition that any one indicator is conclusive. Then, in substituting a decision that the claimant there, who suffered from a recurrent depressive disorder complicated by obsessive symptoms, was not suffering from a severe mental illness, he had regard to her evidence of her daily life and to the medical intervention in her case. Thus, the Deputy Commissioner was plainly not operating on an approach that required simply the categorisation of whatever diagnosis it was that the claimant had, but on the approach that a claimant had to come within the prescribed conditions. The severity of the illness and of the effects on mood, behaviour, social functioning etc was to be calibrated according to the particular effects on the particular claimant at the particular time. Again, I agree.

25. Accordingly, in the present case I am satisfied that the appeal tribunal did not interpret regulation 10(2)(e)(viii) of the 1995 Regulations wrongly in deciding that the claimant did not fall within it. That was a conclusion that it was entitled to reach on its evaluation of the evidence within the area of reasonable judgment allowed to appeal tribunals. Ms Wise submitted that the appeal tribunal erred in law by not setting out its approach to the interpretation of regulation 10(2)(e)(viii). It was not necessary for the appeal tribunal to go further than saying that it rejected the contention for the claimant that she was automatically exempted on the basis of her diagnosis and medication and that it was considering the position after stabilisation on medication. At that stage the more detailed arguments I have been considering had not been made and decision CIB/3328/1998 had not specifically been relied on.

Regulation 27 of the 1995 Regulations

26. Ms Wise for the Secretary of State accepted at the oral hearing that the appeal tribunal’s stated reasons on regulation 27 of the 1995 Regulations and the test of substantial risk to the mental or physical health of any person if the claimant were found capable of work were inadequate. I agree. In the light of the oral evidence from the claimant about the very limited amount of work she actually did and what she thought she would be capable of, plus the appeal tribunal’s acceptance that she was unable to cope with changes in daily routine and her evidence of the effects of stress on her, something more than what was in essence a statement of a conclusion was needed. Apart from a reference to its findings on the mental health descriptors, all that the appeal tribunal mentioned was that the claimant was well stabilised on

medication. That did not grapple with the crucial question, leaving aside that stabilisation is different from freedom from symptoms, of 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. And I have already accepted that the appeal tribunal went wrong on descriptor CPf (scared or anxious that work would bring back or worsen illness). There was an error of law on an issue that could have led to an overall decision in the claimant’s favour.

The Commissioner’s decision on the appeal and directions

27. For those reasons, the appeal tribunal’s decision is set aside as erroneous in point of law. A decision on the claimant’s appeal against the decision of 2 February 2006 should plainly be made by a body before which the claimant has had the opportunity to attend to give evidence and to answer questions in person and which has the expertise and experience of the members of an appeal in incapacity for work cases. That appeal is referred to a differently constituted appeal tribunal for determination in accordance with the following directions. There must be a complete rehearing on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunal of 21 November 2006.

28. The new appeal tribunal must apply the interpretation of regulation 10(2)(e)(viii) of the 1995 Regulations set out above. Within that constraint, it must give full consideration to the case that is and can be made for the claimant on that exemption, on all the mental health descriptors and on regulation 27 of the 1995 Regulations, bearing in mind that it cannot take account of circumstances obtaining after 2 February 2006. Since Commissioner’s decision CIB/143/2007, raising issues about the point in the process at which an appeal tribunal should deal with regulation 27, is under appeal to the Court of Appeal (in the name of Charlton), it may be safer for the new appeal tribunal, if the Court of Appeal has not decided the appeal before the rehearing, to ensure that it deals fully with regulation 10(2)(e)(viii) and with whether the claimant scores enough points to satisfy the PCA before dealing with regulation 27. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new appeal tribunal. The decision on the facts in this case remains open.

Issue No. 8 [Dec 2008]

Issue No. 8 [Dec 2008]

(-6000)

Issue No. 8 [Dec 2008]

Implications for discrimination by insurers against mental health problem

(Article from Equilibrium website) http://www.bipolar-foundation.org/index.aspx?o=1354

This case revolves around the increasing and incontrovertible evidence from various areas of research that bipolar disorder is not ‘merely’ a ‘psychological disorder
It has reluctantly been accepted by individuals suffering from bipolar disorder (manic-depressive illness) and other mental health disorders that they face problems with regard to insurance of all types. Life insurance, personal income insurance and motor insurance are all affected by history of pre-existing ill health of any type but some policies specifically exclude cover for the de-novo development of ‘mental illness’ during the term of the policy, treating it differently from ‘physical disorders”, as well as imposing larger premiums or imposing other limitations on people with known mental health problems.

A court ruling on this issue in the US which is of considerable significance in this area has not been picked up at all by the popular media or the professional literature either within or outside of the US. Although not of direct legal impact outside of the US, we believe this case raises important issues about the way both employers and insurers deal with claims arising from the development of mental health problems. It also raises more general issues regarding differential stigma of ‘mental’ versus ‘physical’ ill health. This case revolves around the increasing and incontrovertible evidence from various areas of research that bipolar disorder is not ‘merely’ a ‘psychological disorder’.

The Case: Fitts v. Fannie Mae[1]
The ruling by the United States District Court for the District of Columbia involves an employee of a major mortgage company who developed bipolar disorder and whose employee disability insurance provider stopped paying disability benefits after 24 months on the grounds of bipolar disorder being a ‘mental illness’. The policy provided cover until the age of 65 for physical disability. Ms. Fitts had worked for the company for 13 years before she was first diagnosed with bipolar disorder in 1995. The employee- Ms. Jane Fitts, successfully brought a case against both the employer and the insurer arguing that bipolar disorder did not clearly fall in the category “mental, emotional or nervous diseases or disorders of any type”. The court awarded “prejudgment interest on all sums due her and the costs of this action “.

Three pieces of evidence were presented to back this argument, and two expert witnesses, including Miss. Fitts’ own psychiatrist, provided evidence:
1. Ms. Fitts’ father and brother showed symptoms of the disorder and so a hereditary predisposition coupled with having the disorder showed the genetic nature of the disorder, which must therefore have a physical basis.
2. Brain scans of Ms. Fitts showed excessive age-controlled atrophy of the left parietal lobe and abnormal wave activity on the left side of the brain.
3. Ms. Fitts suffered from physical symptoms such as headaches, chest pains, and insomnia that were ascribed to bipolar disorder.

Prof. Frederick T. Goodwin from the George Washington School of Medicine stated: “bipolar disorder is a physical illness because it is a neurobiological disorder that affects the physical and chemical structure of the brain”. He supported the claims listed above, also making the point that susceptibility to pharmacological therapy suggest a physical cause. Ms.Fitts’ psychiatrist maintained that while the clinical features of the disorder are mainly behavioural and emotional, they are due to physical changes in the brain.

Ms.Fitts’ psychiatrist maintained that while the clinical features of the disorder are mainly behavioural and emotional, they are due to physical changes in the brain.
The defence team argued that bipolar disorder clearly falls within the “mental illness” category because previous judgments had ruled it to be such on the manifestation of the symptoms and because it appears in DSM-IV.
This case was an appeal on a previous judgement against Ms. Fitts’s claim. The first filing of the suit focussed on violation of the Americans with Disabilities Act (ADA) and the District of Columbia Human Rights Act (DCHRA), and breached certain contractual and common law duties. This court dismissed all of Ms. Fitts’ claims except her Employment Retirement Income Security Act (ERISA) claim. ERISA requires all policies to be written in unambiguous language and given that bipolar disorder did not clearly fall within the definition of mental illness in the insurance policy, the court was bound by the doctrine of contra preferentem, which has been applied as federal common law to ERISA. The doctrine states that in ambiguous definitions the ruling should be against the drafter of the contract.

Other cases
Another case ongoing in North America illustrates the unfortunate consequences of stigmatisation of bipolar disorder leading to an understandable reluctance by those affected to openly disclose to employers a history of pre-existing mental illness. The Canadian insurers of the television series The Dead Zone filed a suit against star Anthony Michael Hall to recoup more than $612,000 for failure to disclose he suffered from bipolar disorder, AP reports. The suit claimed production of the series, shot in Vancouver, was halted from May to August 2001 when Hall was treated for “bipolar affective disorder depression with psychotic features” for which the production company submitted a claim and received money. The case is waiting to be heard at The Supreme Court of British Columbia. (Source: Vancouver Sun)

In a case in New York, which does not have parity legislation, a court ruled that a disability insurance policy is not discriminatory because it provided only 24 months of cover for disability due to unipolar depression, rather than cover to the age of 65 years as it would have done for disability due to physical injury. The appellant, a Charlene Polon, continued to suffer with unipolar depression and has not been able to claim disability allowance under her policy from 1996. The case was made under the Insurance Law, and the court ruled that the law only protected from discrimination “with regard to her eligibility for and access to insurance” and not within the terms of the policy[2]. This case demonstrates that many instances of discrimination continue to occur and that even the covering statutes are unclear

For the rest of the article, follow this link:http://www.bipolar-foundation.org/index.aspx?o=1354

For those of you who don’t know, a Shared Residency Order under the Children’s Act, is one where the children legally have a home with both their parents ie one with their mum and another one with their dad. They are not in a situation where one parent has sole residency and the other has contact rights, which has historically been the case with the majority of divorcing couples. (Typically the mum has had sole residency with the father having contact rights).

(I appreciate that many of you who read this article are in a worse financial position than I am in. I appreciate that many people both here in England and abroad live in similar circumstances and much, much worse. I am very fortunate to have a brother and his wife, who are kind enough and who have a spare bedroom, to put me up for this length of time. At least I’m not having to live in a refuge, or in a shelter……).

Please bear in mind that the reason I am writing this article is to illustrate the inequity in our particular financial circumstances. It is the inequity that I wish to highlight. I also wish to set out for you the legislation and to show how it is being applied to my case as an example).

In fact, the relevant principles are set out in Section 25 of the Matrimonial Causes Act 1973 which, essentially, reads:-

“25 (1) It shall be the duty of the court in deciding whether to exercise its powers …. to have regard to all the circumstances of the case including the following matters, that is to say –

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

(g) …the value to either of the parties to the marriage of any benefit (for example, a pension) which … (by reason of the divorce) ..that party will lose the chance of acquiring;…”

So, now we know the legal position, I will illustrate each of the points the Judge in the finance proceedings (known as Ancillary Relief proceedings) should have covered in his analysis and judgement of the facts of our particular case. (Note: the finance proceedings are a seperate set of proceedings to the Children’s Act proceedings.The Judge in the Children’s Act proceedings does not look into the finances of the couple but merely the residency issues of the children. The Judge in the finance proceedings only looks at the financial aspects of how the children and the divorcing couple are to be housed and maintained).

Taking each point in s25, I will set out the facts in our case:

>(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

Income:
My ex earns £450,000 per annum; I used to earn well as a City solicitor but gave it up to look after our children. Although I am self employed and starting to gradually work again, I earn very little. There is a huge disparity of income between us.

Earning capacity:
My ex will continue to earn this until his law firm decide not to continue to want his services. He is an equity partner and therefore a joint owner of the business so he can’t technically be “sacked” but he can be “eased out” by the other partners. He is in his late 40s so could still get other employment once he has to leave his current firm.

My earning capacity hinges on 2 factors:
1. I have Bipolar. Not only does this result in huge discrimination by employers (80% of the unemployed have mental health problems despite the fact that 90% of them want to be employed (government statistics), but working whilst managing my Bipolar is a challenge in terms of what job I could hold down succesfully.

2. I am now in my early 40s and have not been employed for 10 years. Although I am a solicitor, I am out of date with the law that I used to practise and so am re-educating myself with the current legislation. Clearly, it will take time to get myself fully back into the market, if indeed I can. I am also a woman and women still only make up 25% of partners in law firms, despite the fact that 60% of all lawyers qualifying are women. Women are still paid less than men for the same work, even trainee lawyers coming out of college are paid more. (Law Society statistics).

The Judge has therefore decided that I can be expected to earn around £18,000 per annum. The reality is that I am earning around £4000 per annum currently.
Financial needs:

We both have the need to finance our children: clothes, food, health care for them. My ex has a more onerous need in that he pays for their private education which is expensive. That is part of why he has been awarded more of his income which is fair enough. Because he has the children during term time, he has also been awarded more due to financing the cost of a full-time live in nanny and a cleaner! (The irony is that if he allowed me to look after them, he wouldn’t need to pay for a nanny or a cleaner!).

Other than that, however, I do not accept that his financial needs for himself should be given priority over mine. He should have the same clothing, food and healthcare allowance as me. Yet, his personal allowance is far greater than mine. This has been justified by saying that he works hard and therefore should be allowed more. Yet this flies in the face of the concept (supposedly embraced by the law) of equality in contribution between a bread winner and a parent who contributes by raising the children and running the home (which I had done for 8 years prior to the divorce).

The Judge has decided that my husband should have a disposable income amounting to between 89% – 92% of his income, whilst I should have between 6% and 11%of his income for only 5 years. Thereafter, he gets to keep his entire income whilst I get nothing.

Why is this fair? Apparently, because he has awarded me 2/3 of the value of the capital of the house. This would have been fine, except that the value of the capital is now not even going to cover my debts.

Property:
We jointly own a house worth millions (it was originally valued at around £3.5 – £4 million but the last offer we had was £2.5 million due to the recession and it still hasn’t sold). It has been on the market for 18 months now. The mortgage is £2.1 million and the costs of the sale will amount to around 1.5% of the value) Once you split the remainder, I am left with around £200,000 out of which I have to pay my legal fees and other debts amounting to £450,000. I therefore have no capital with which to buy a house and will be left with circa £250,00 worth of debt. Given my income position, I will have to declare myself bankrupt as I cannot clear these debts.

As a direct contrast, I do not have a home of my own at all, I have been awarded 6-11% of his annual salary out of which I have to pay £1500 per month on debt repayments. I therefore cannot afford to even rent a home. For the past year, I have had to borrow my boyfriend’s 11 year old car to drive the 120 mile round trip to see the children.

I am living in my brother’s spare bedroom in which the children and I have to live during the 50% of their time with me in the holidays and other times (their time with me amounts to around 200+ days a year). We all have to share a bed even though the children are now 10, 8 and 7. Their clothes are in 2 sets of drawers and a cupboard. Their toys are in toy boxes stacked in our bedroom.

When I go up to see them after school, or in one of their matches or for any other time with them, I have to drive 120 miles round trip (around 4 hours in a car) and they and I have to hang out in the town or in a hotel or in a cafe in order to spend time together. I am often having to stay at friend’s houses during the week when I have multiple visits up there. Not only is it unfair on my friends to continue to put me up, but it is exhausting for both me and the children to not have a home to go to when I see them. Whilst they are with me, we all have to share a bed and our one room has to contain all our worldly things.

This is not a sustainable situation.

(d) the age of estrong>(c) the standard of living enjoyed by the family before the breakdown of the marriage;

This legislation states that, in awarding maintenance, the Judge should give consideration to the fact that each spouse had been used to a certain standard of living during the marriage and, if finances allow, this standard should be continuing: in other words, one party should not be placed in a position of severed financial contrast to the others. The children should not be expected to have to cope with living with a parent who is substantially poorer than the other one ie go from a luxurious home to a poor home. Yet this is exactly what has happened.

Prior to divorce, we led a luxurious lifestyle, travelling to several destinations a year, eating out, going to the theatre, holding many parties etc, etc. We were extremely fortunate.

Now, it is very different for me. I am constantly worrying about my food bill, I very rarely eat out, I have been on one holiday in almost 2 years (and that was because a friend lent me her holiday home). Yet for him, his luxurious lifestyle has barely been touched.

My husband continues to live in this house with a full time live in nanny, our 7 double bedroom, (4 with ensuites), 5 reception rooms, 1/2 acre of land, has a full time live in nanny (who even works on weekends), a cleaner, a brand new BMW X5, a new Golf for the nanny and still happily affords to live a luxurious lifestyle, regularly eating out at nice restaurants, travelling and being a member of 2 sports clubs.

Section 25 (d) the age of each party to the marriage and the duration of the marriage;

We are both in our 40s – he is 6 years older than me. The Judge therefore accepted that he may have less time to earn money than I do. However, the fact is that in his time left, he will earn vastly more than I do therefore this is a skewed concept. If he continues to earn £450,000 for say 5 years, he will have earnt £2.7 million. In contrast, the Judge claimed that I should be able to earn £18,000 pa. If I can work til the same age as my husband stops working, then I can be expected to earn for another 12 years at £18,000 pa. This amounts to £216,000. With my maintenance award (which only lasts for 4 years from April), I will have received £406,000 in the next 12 years ie £33,833 pa.

This is an outright unjust and extraordinarily inequitable situation that I am in. I simply cannot understand how the Judge has allowed this situation to happen.

Duration of the marriage

This is relevant because the longer the parties are married, the more likely it is that they have jointly built a life together and therefore it is going to be harder for each of them to maintain themselves on their own.

We were married for 10 years, together for 13 years. Apparently, this is considered to be a “medium” length marriage.

s 25 (e) any physical or mental disability of either of the parties to the marriage;

I have a mental disability ie Bipolar. He has no disability. This immediately puts me at a severe disadvantage in terms of my ability to earn a good level of income. His ability is unencumbered.

Section 25 (f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family

My husband’s contribution is clear ie he was the main breadwinner funding our home’s mortgage and bills and lifestyle. I worked throughout most of my marriage on a part-time basis and so earnt very little. I spent the majority of my time being pregnant, giving birth (3 children in 3 years) then looking after our son who has a severe physical disability (ie Type 1 diabetes) which he got age 2. This meant that I could not work full time as he needs 24/7 care.

I also spent a huge amount of time on building our house which was a £1.3 million project. We increased the size of our house from 4000 sq ft to 7000 sq ft.

I therefore consider my contribution to our family as equal in value to his.

(g) …the value to either of the parties to the marriage of any benefit (for example, a pension) which … (by reason of the divorce) ..that party will lose the chance of acquiring;…” </strong>

This is essentially a pension in our case. I have forfeited the chance of acquiring a pension as I have not been working full time during our marriage. My husband, in contrast, was able to put aside money for 2 pensions albeit that they are not substantial. He will continue to be able to provide for his pension, whereas my ability to do so will be extremely limited.

The Judgement and award:

The Judge heard all the arguments over a 5 day hearing. This is the award he came up with ie a maintenance award and a capital award:

1. Maintenance award:

I am to received 6.7% of his gross salary for 3 years and 11% for 2 years.

Out of this maintenance, I have to support the 3 children when they are with me as well as look after myself.

Typically, any spouse is awarded around 40% -50% of their ex’s income.

Capital:

Usually, the capital is split 50:50 depending on the needs of the children whose welfare is the court’s main concern. The main issue in any finance proceedings is that the children are to be provided with a home. This is why, historically, where the children have lived with their mum, the woman stays in the home and the husband has to move out and buy/rent another home for himself. This is not the legal situation we have: ours is a Shared Residency with both of us legally obliged to provide a home for the children.

We jointly own the home, but I have been awarded 2/3 of the value to ensure that I can provide a home for the children as I won’t be able to do this out of my income whereas my ex could provide a home out of his income position.

Conclusion:

The children and I am now in a position which is unsustainable and hugely inequitable. It is not fair on either them or I to be expected to live in a vastly inferior way to him and I am not going to tolerate it. I have tried to negotiate with him but he says it’s not his problem but mine. I have asked him to come to mediation but he refuses to do so. I have tolerated this for almost 2 years. I can no longer tolerate it and am not prepared to.

Unfortunately, more fireworks will ensue……