Just came across this forum on the BBC Ouch! website which is discussing how a person suffering from Bipolar is fighting an employment dispute with her employer…
The link is here: http://www.bbc.co.uk/dna/mbouch/F2322273?thread=5097747
Bipolar at work
Messages 1 – 19 of 19
Message 1 – posted by karmaboyblue (U11052790) , Feb 13, 2008
I am now going to try to cut a very long story short, but there is still going to be a lot to read!!! i appologise if it takes me a while to get to the meat of the matter,
I am 30 now and i was diagnosed with manic depression when i was about 15. Took Lithium till i was 19. Up until last year i always looked at that part of my life as a “phase that i went through”
after going through i terrible depressive episode in late december i was in a bad state. At the same time I was getting diciplined at work for persistant lateness and absence..
In January i saw those stephen fry programs with my girlfriend and we looked at each other in shock and for the first time i admitted i was ill. I went to the doctor the next day and an appointment was made to see consulant in July.
i made the decision to be open and upfront with my employers.
i told them everything and they seemed very helpful
I gave them permission to see my medical records etc.
they said they would get back to me with paperwork to fill etc.
In march, they still hadn’t got back to me. Through this time i was working as normal.
a couple of incidents occured in the middle of march
1) i was accused of verbally abusing my manager
2) i was accused of talking to a customer in an inappropriate manner
3) someone emailed my manager saying they thought i was lying about “having depression”.
I was called into an “emergancy” fact-finding meeting nearly two weeks after these incidents were supposed to happen.
i was very distressed and shocked , and instead of answering their questions, i sad with my head in my hands crying…
Eventually i calmed down and i was handed a piece of paper saying i was suspended on fully pay – i was told this was pending access to my medical records.
I cooporated with all their requests etc.
and in July i saw consultant and he precribed me on small doses of lithium (which are now increased to 800g a day – seem to be right level)
was invited to a diciplinary meeting day after i saw consultant
accused of 1) and 2) (above) and also for acting bizarrely in the factfinding meeting.
I wasn’t member of union, so i went to a solicitor who did free first interviews, you know, for a bit of advice etc…
i was all over the place when i saw him and he told me not to go to meeting as i was unfit to defend myself, i got doctor to confirm and was signed off sick july 5-november 5th
They stopped my sick pay in september saying i was not entitled to because of my live written warning.
I wrote grievence letter under instruction from my solicitor
had meeting and they came to conclusion in october, they ignored all the points i made and also changed the story about my sick pay,
they now said in the letter they sent me that the reason my sickpay was stopped was because after 6 months – company sick pay expires.
I was mad, and phoned up and tryed to point out the error in the conclusions and i reapeatly told him that I’d only been off sick since july and between march and july i was supended ect ….
he kept answering my questions like a politition and i lost my rag and unfortunately for me i told him to eff off
a letter came in the post a week or so later saying i was suspended on full pay (again)
i had grievence appeal metting on 16th january and am still awaiting outcome
I just received a letter today inviting me to a disciplinary on monday.
for reasons 1) and 2) and me swearing at manager.
even though i filled out the consent forms , they have not requested my medical records for my consultant.
their consultant says after taking to me for barely 20 minutes that incident 1) and 2) have nothing to do my my untreated condition
and has said he think that the third incident is the result of my personality and not bipolar,
I know that that 3rd incident has mucked up any chances of getting anywhere in a tribuneral (my solicitor has told me so)
I know i am going to be dismissed, as they have a rent-a-expert who has given them the green light to do so.
o man. i don’t even know what my point is now.
I know i’m going to struggle to get another job straight away, as my reference is going to be less than good reading.
is there any good organisation that help you get back to work.
I got a mortgage to pay , bills to pay, a girlfrien who is probably more stressed out than me.
Anyone who has read this to the end, thank you.
I just needed to get things off my chest a bit,
take care
Message 2 – posted by WirralBagpuss (U1819612) , Feb 13, 2008
Sorry to hear of this. First off sack the solitictor and get someone else, or better still a specialist disability rights lawyer. Your solicitior should never have put you in the postion as he/she put it has messed up your employment tribunal chances. I’d have a quiet word with the law Society about that, as it may be misconduct on the part of the solicitor ! Thats why i also think you should get a second opinion. At the very least talk to the advisors at the Disabilty Rights Commission
www.equalityhumanrig…
Clearly as i dont know the nature of the griveances or disciplinaries in question i cannot offer you specific advice on your indvidual case. however dont ignore the chance to go to an employment tribunal. Use every legal means at your disposal to put up a fight till the last drop of legal avenue has been used.
Hope this advice for what it’s worth helps and that things do sort themselves out. Best of luck
This is a reply to this message
Message 3 – posted by karmaboyblue (U11052790) , Feb 13, 2008
thanks for your advice,
I just got a call from my solicitor and my employers want to offer me a payoff and terminate my contract. i am considering it, as long as i get what i want as far as how they word my references and obviously they offer me a fair payoff
I’d Love to take things further, take them to the cleaners and all that
but i just want to get a new job
and enjoy my new life on medication.
This is a reply to this message
Message 4 – posted by majorconelius (U5289798) , Feb 14, 2008
I do not know what job your in, but think hard before giving up your rights, the problem if you work in a highly qualified job, companies will check on your CV, and the word of mouth is taken as fact not your CV, because large companies know people demand before being dismissed a good CV or covering letter.
This depends on your job of course working in Tesco or Asda thats not very likely, but I think your in a very qualified position, and I’ve seen as a Union Rep the word of mouth making it very hard for people to find another job.
You do have legal rights under the DDA to keep your job and it might well be worth fighting for, only you know this..
This is a reply to this message
Message 5 – posted by Emma-host (U2375749) , Feb 14, 2008
Hello karmaboyblue, and welcome to the Ouch site and message boards.
I’m not an expert, and have never been in your situation, so don’t feel I can offer any advice. A good suggestion so far has been to call the Equality and Human Rights Commission to see what advice they can give you about your rights and legal position in this case.
There are a number of organisations who claim to help disabled people into work, and these are easily searchable. Your Job Centre can also provide someone called a DEA, disability employment advisor, someone correct me if I haven’t got this quite right. This person should help you with your job search.
Best of luck.
Emma
This is a reply to this message
Message 6 – posted by karmaboyblue (U11052790) , Feb 14, 2008
To keep going is what i definately want to do, the fact that they want to terminate, tells me they are worried about the case.
They are a very big company and if i was high up the “food chain” i would definately carry on.
However i’ve been working there for 4 years at the bottom of the ladder without medication etc, all my working life i’ve struggled in jobs and not progressed and got the sack from half of them.
I’m on medication now and am receiving professional help, i think i will finally be able to build a career.
Do I try to take the big corporation on, that would seem to be the most noble thing to do. I don’t want to let the incompetant managers get away with their, well – incompetance!!
But I don’t feel very noble right now, I just want my girlfriend to be happy again. She has had a more stressful year than me, she’s had to put up with me and the situation. Once this is all over i’ll be able to repair the damage in our relationship.
i’m still really unsure what to do, toss a coin maybe?
This is a reply to this message
Message 7 – posted by Sociable (U6743562) , Feb 14, 2008
Welcome to Ouch karmaboyblue.
Just to follow up on Emma’s excellent suggestion to check out the exact legal position, and what options there are now available to help resolve issues like this, here is the link to the main EHRC Disability Helpline details:
www.equalityhumanrig…
Good luck whichever route you end up taking and please keep us updated and ask as many questions as you need along the way as we all love to help if and when we can even if it is only to provide moral suport and encouragement.
This is a reply to this message
Message 8 – posted by mabel_piratesmol (U3147115) , Feb 14, 2008
Hello Karmaboyblue. Just caught up with your story. Poor you & a for your Gfriend for being so supportive dispite her own problems.
I agree with PP and would strongly urge you to get a specialist solicitor who will stick up for you. Knowing that you were not fit to speak for yourself, your previous solicitor should have instructed your employer to only speak to him and not to harrass you…or else
I agree, your employers probably know their case against you may be dodgy. However, I wouldn’t commit myself to anything without proper legal advice.
As for help finding a job…you might like to take the opportunity to think about what sort of job you’d really like to do & maybe go back to college/train for something? Let’s hope that it doesn’t come to that, but I can help guide you through the benefits ‘maze’ if necessary.
This is a reply to this message
Message 9 – posted by tigerwarriorprincess (U9292809) , Feb 14, 2008
Your situation sounds something like one I have posted about recently – an ex-employer who couldn’t seem to apply the DDA.. a large ex-employer.. etc etc.. I’m not the best one to offer advice, as I ended up leaving my job with a pay-off instead of making my mental health worse by constant fighting, ie taking them to an industrial tribunal, which apparently I could have done.
Just wanted to wish you well, with whatever action you take – make sure your Health Comes First. No job is worth sacrificing it for.
This is a reply to this message
Message 10 – posted by mabel_piratesmol (U3147115) , Feb 14, 2008
Looks like I may have the same fight on my hands TWP
This is a reply to this message
Message 11 – posted by karmaboyblue (U11052790) , Feb 14, 2008
I’d like to thank everyone for their support, i wish i’d stumbled upon ouch last year!!
i agree, my solicitor could of done a lot better for me. However, what’s done is done.
I’ve decided after much thought, advice and reading that if i can come up what i feel is the right settlement for me , then i’ll do it.
I’d so love to take things further, but i want my life back!!
If … (oops, nearly gave the name of the company there) don’t agree to my terms, then i will take my chances.
as far as college is concerned, it is necessary for me to gain some qualification, as i have none at all. (except for some worthless nvq in I.T.) At the moment i am sharpening my skills on www.open.ac.uk/openl… I will be pursuing a balance between quality and cheap education.
I need to find something i’m passionate about, rather than working in a call centre for a big bank. I need to work because me and my babe got a mortgae etc to pay..
anybody know anywhere i can find a job where one can be creative, treated well, and with out the need of formal qualifications?
As far as benefits are concerned, i hope very much not to have to go down that route. I’m as well as I have ever been in my adult life and i’d feel like a fraud if i did.
This is a reply to this message
Message 12 – posted by mabel_piratesmol (U3147115) , Feb 14, 2008
Well done Karma – good luck with the Open University (OU). I’m currently in year 3 of a BA in Health & Social Care. I should be studyng now, but stopped for coffee break 1 hour ago
I can understand how you feel about just walking away.
On the subject of benefits:
1. There is no shame in claiming benefits – you’ve paid your Nat Insurance so now is the time to claim on that insurance. If someone wrote off your car, you’d claim wouldn’t you?
2. It’s not just the money – you need to keep your Nat Ins record up to date.
3. By claiming you’re keeping all those Jobcentre ‘bunnies’ off the dole
Please don’t delay claiming JSA or IB. You wouldn’t believe how many letters I get from people who delayed claiming because they thought they’d get a job quickly and are horrified that we can’t backdate the claim.
Good luck
Are you & Gfriend doing anything special tonight?
Sorry TWP
This is a reply to this message
Message 13 – posted by Limpette (U3941389) , Feb 14, 2008
Hello karmaboyblue – belated welcome. I’d have been to this thread earlier but I’m having to ration my Ouch time at the mo to balance stuff.
Do I try to take the big corporation on, that would seem to be the most noble thing to do. I don’t want to let the incompetant managers get away with their, well – incompetance!!
Quoted from this message
As someone whose MH prob and disability were caused by work, I had to make a similar decision. It seemed to me that the person who’d been wronged was the one who not only had to struggle with their MH, fight hard to get back into the workplace and keep their end up once there but, also struggle with the stresses of bringing their case. For some people, that just costs too much. And, as twp says, your health comes first.
I read on and saw that you’ll do what you feel is right for you. Good luck!
This is a reply to this message
Message 14 – posted by tigerwarriorprincess (U9292809) , Feb 14, 2008
Are you & Gfriend doing anything special tonight?
Sorry TWP
Quoted from this message
Someone’s obviously been reading Vaughan’s Valentine thread which I wasn’t going to dignify by posting on it (she said..)
This is a reply to this message
Message 15 – posted by mabel_piratesmol (U3147115) , Feb 14, 2008
Yup – ‘fraid so!
I noticed that you couldn’t resist though
Or are you just a soppy old romantic at heart?
I MUST do some Open Uni & salvage something from today.
This is a reply to this message
Message 16 – posted by tigerwarriorprincess (U9292809) , Feb 14, 2008
Or are you just a soppy old romantic at heart?
Quoted from this message
*snorts*
and pfffft
and
As If!
This is a reply to this message
Message 17 – posted by karmaboyblue (U11052790) , Feb 14, 2008
Me and my girlfriend will, probably go out for a few drinks. Valentines Day is all a bit too much of a commercial rip-off for me.
Our valentines day was couple of days ago,
we been going out for six years and two days now.
How she puts up with with me , i’ll never know!!
We went to a lovely indian restarant called nights of india (in manchester), and got drunk in a few bars afterwards, Outstanding food, brilliant night….
This is a reply to this message
Message 18 – posted by petjessie123 (U11331555) , Mar 26, 2008
Hi Karmaboyblue,
I totally know how you feel I have just walked out of a Job stupid I know but I have had a lot of time off and some silly moo I work with was telling people I was just skiving etc I pulled her up on it and she reported me!
Then the follwing week someone had a go at me so I walked now feel gutted I done that just married as well,I have started a new job but only manged a day!
Went to gp who has given me Quetiapine and increased my fluroxitine to 60mg
I have only been told I have panic attacks and deppresion I’m wondering if I may have Bipolar as my mood is up and down like a yoyo
This is a reply to this message
Message 19 – posted by MacBigJeff (U11293152) , Mar 27, 2008
Hi karmaboyblue
since i have become ill i have not worked except voluntary work. Whenever i disclose my illnesses on forms i get no response from jobs i apply for and met with people being scared of me because of my illness or even hostile. Its very frustrating to be seen as an illness and not a person.
A study carried out for the government found out that 70 percent of employers would not even take someone on for an interview let alone a job if they disclosed a past or present mental health illness.
I think most peoples reaction is like when Eddie izzard did a stand up show where he was talking about makeup on a man and walking into a newsagents to by a paper. Its as if the general public have no information on how to react. hes very funny explaining how he deals with it and how other people deal with him basically wearing women’s cloths and makeup. Although obviously different to disability it still evokes in some a hostile reaction to stunned silence.
On Stephen fry. i have been a fan of his work for some time and when he announced to the world about his condition and that he would be making a program about mental illness i watched with much believe that he was spreading the word about mental health in a way that no one to my mind has done before. It was a brilliant program and highlighted a great deal.
I wish you well in you life with this misunderstood illness
I haven’t yet had time to precis this piece of case law to make it more digestible, so I’m posting up the raw version in case you wish to read it as it is. It’s a case regarding a woman with Bipolar and her claim for Incapacity Benefit.
http://74.125.77.132/search?q=cache:1kVBC6xgo3EJ:www.osscsc.gov.uk/judgmentfiles/j2408/R(IB)%25201-08%2520ws.doc+cases+on+bipolar&hl=en&ct=clnk&cd=229&gl=uk
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]
