Mentally ill or mentally well?

 

Judith Hodson, of Rochdale Council Advice Service, provides a summary of social security commissioners' decisions regarding mental health and incapacity.

Note: this article includes some decisions of the Northern Ireland Commissioners - identified by the placing of the letters identifying the benefit always being in brackets after the numbers - e.g. C53/98(IB), R1/00(IB). These decisions are not binding in Great Britain but are persuasive.

The mental disabilities descriptors of the personal capability assessment (PCA) can only apply to a claimant if her/his difficulties arise from some specific mental illness or disablement (C53/98(IB)), and not from mere matters of mood, or a mere disinclination for the society of one's fellow human beings on certain occasions or a mere disinclination to do certain tasks or to go to work on a certain day (R(IB) 2/98). Nor a more than the usual distaste for household chores or getting up in the morning, or burning a greater number of saucepans than usual or forgetting the shopping because s/he has not made a list (CIB/5913/99).

Specifically, stress (CIB/4718/03), alcoholism (as long as it is an uncontrollable physical addiction - CSIB/287/03) and obsessive compulsive disorder (CIB/16365/96) are mental illnesses, whereas the side effects of medication for a physical condition (C10/00-01(IB)), illiteracy (CSIB/26/96) and hypertension (CIB/14516/96) are not. Chronic fatigue syndrome (ME) may or may not qualify under the mental disabilities descriptors depending on whether the individual's condition is entirely physical, entirely mental, or both (CIB/6244/97). Physical symptoms that arise from a mental illness may give rise to incapacity under the physical disabilities descriptors as a person's condition is often the result of the complex interaction of physical and mental factors (CIB/4828/99) and the emphasis is on the effect of the disablement rather than the cause (CIB/5435/02). For example, abnormal illness behaviour (CIB/4841/02), chronic pain syndrome (CIB/5435/02) and Waddell's signs (inappropriate physical responses to examination that should not produce such responses - CIB/2767/04) may not be deliberate misrepresentation of disablement but the result of the claimant's mental reaction not within her/his conscious control (CI/1756/02).

The Incapacity for Work Questionnaire (IB50) does not provide any opportunity for the claimant to deal with the individual mental disabilities descriptors on a point by point basis (CIB/15693/96), therefore the medical assessor has to establish rapport, take a history and make judgements in applying the mental health assessment (CSIB/69/03).

The assessment of the application of the mental disabilities descriptors is not capable of being 'objective' in the same sense as the results of a physical examination (CIB/1679/98). The medical assessor's discussion of the effect of the claimant's condition on daily life and ability to cope, without directly asking about the mental disabilities descriptors as a mere checklist, is a proper and usual approach (CIB/2061/01), but 10 minutes is not sufficient to take this history and apply the mental disabilities descriptors (CSIB/69/03). The electronic compilation of these medical reports with automated selection of phrases from the 'description of a typical day' into the individual boxes for the descriptors, and the exclusion of some evidence relevant for different descriptors is criticised (CIB/664/05), and it does not follow that the evaluation of individual mental disabilities descriptors, prepared in part by using this underlying computer programme, is automatically adequate (CIB/1522/05). There are four questions that may have to be answered by the medical assessor in the application of the mental disabilities descriptors: does the claimant have a specific mental illness (involving a clinical opinion); does the claimant's evidence fall within any of the descriptors (not involving a clinical opinion); does the doctor accept the claimant's evidence (not involving a clinical opinion); if the claimant's evidence is accepted what is the causation (maybe involving a clinical opinion) (CIB/5804/97).

Claimants can be exempt from the PCA if they have a severe mental illness.1 Reg 10 (2)(e)(viii) Social Security (Incapacity for Work)(General) Regs 1995. The change to the definition of severe mental impairment in reg 10 from Jan 1997 was found not to be ultra vires (i.e., not invalid), following Howker - CSIB/169/05. Severe mental health problems are characterised by the presence of mental illness so adversely affecting the person's mood or social or environmental awareness that continued psychiatric care is essential. This may be evidenced by: sheltered residential facilities; day care at least once a week; care at home with intervention at least one day a week by a qualified mental care worker; or long-term medication with anti-psychotic preparations, this list being illustrative rather than exhaustive (CIB/3328/98).

A claimant with mental health problems can also be treated as incapable of work if exceptional circumstances apply - e.g., if there would be a substantial risk to the physical or mental health of any person if s/he were found capable of work.2 Reg 27(b) Social Security (Incapacity for Work) (General) Regs 1995. This could relate to apprehension due to the prospect of having to look for work (CSIB/33/04), or to a claimant with anxiety, depression and irritable bowel syndrome (CSIB/223/05).

Unable to answer the phone and reliably take a message, either in writing or verbally (CSIB/36/96). This equates only to the quality of the message and not whether a telephone is installed (CIB/215/02), or picking up the telephone (CSIB/491/00), or making a call (CIB/748/02). It can be apathy preventing picking up the phone when it rings as long as the apathy results from some specific mental disablement (CSIB/53/03).

If the claimant's condition and abilities are variable an inability to normally carry out the task as and when called upon to do so should be considered (CSIB/53/03), with an overall view of how often the claimant can and cannot perform the activity, although not as a purely arithmetical approach (CIB/5336/02).

An inability to concentrate either to read or to follow a radio programme (CIB/15063/96, CSIB/26/96). Not whether the claimant watches a lot of television or how many days it takes to finish reading a book, but the ability to read an article or watch a programme in one continuous session (C55/99-00(IB)).

The undertaking of leisure activities does not necessitate enjoyment but the taking on of the activity, it is not necessary for the claimant to be able to undertake the activities alone, or at a particular venue, or in a particular manner (C29/01-02(IB)).

This does not need to be every day (R(IB) 2/99).

Not where the claimant is able to watch television a great deal, or watch a full length film, or read (CIB/2008/97).

A need for alcohol is more than a desire for alcohol and there must be an element of necessity or compulsion (R1/00(IB), CIB/748/02); although the claimant might like a drink before midday, if they are able to resist the temptation to have one, there is no need for it (CIB/17254/96).

Where the claimant is a recovering alcoholic or is managing to stay off alcohol for a reasonable time, or where mental stress is associated with abstinence, other mental disabilities descriptors can be appropriate (C23/02-03(IB), R1/00(IB)). Where the alcoholism is variable or intermittent the condition should be considered over a reasonable period of time in order to decide whether the claimant has reasonable control over their alcoholism during the relevant period (C23/02-03(IB)). Abuse of alcohol in order to obtain benefit would not be a functional limitation arising from a specific disablement (R1/00(IB)).

The definition of distress is much troubled, upset, afflicted (R4/02(IB)). It is not enough that mood should fluctuate, there must be distress as a result (R4/02(IB)), and the distress must occur during daytime hours to be taken into account, as distress which occurs at night has a different significance (CIB/1754/02). The frequency of the mood change is important, rather than the significance or quality (CSIB/2/96), or duration or severity (CIB/1754/02). There are varying views on the level of frequency; change of mood once per day is not considered to be frequent (CSIB/2/96), or could or could not be considered to be frequent depending on the other circumstances such as duration (R4/02(IB)); distress should occur a substantial or significant number of times during the day (CSIB/2/96), or be frequent over a period of days irrespective of whether these are more or less often than once per day (CIB/1754/02); distress should be frequent with habitual recurrence at short intervals, but not necessarily every single day (R1/02(IB)).

Sleep problems must interfere with daytime activities (CSIB/53/03), but may prevent daytime activities completely, or activities may be possible at certain times of the day, or be possible but only intermittently or very slowly (CIB/5336/02). The sleep problems must be caused by a mental disability and not due to pain (C53/98(IB)).

Stress must have a causative role and not be mental stress caused after losing a job and having difficulty finding another (CIB/2008/97), or being laid off temporary work (C29/01-02(IB). However, stress need only be a factor and need not be the sole factor (CIB/213/99, CIB/4192/04) and a temporary interruption of work can be ignored (CIB/7510/99). Work should not be restricted to paid work, or the last paid employment, as the care of children, or being a housewife, or a member of a closed religious order (CIB/4781/99), or attempting to do voluntary work (CIB/3764/01) can be considered.

'Obvious' is as an ordinary English word which has to be applied rather than interpreted (CIB/4251/97), it means easy to see or understand. A substantial amount of fear is required, as a scared person is a person filled with fear or alarm and the fear or panic should be outside the normal range of reaction that a human being would have, tantamount to being irrational (C47/97(IB)). It should be considered in the light of the identifiable physical event which prompts the panicky feelings (e.g., crowds, closed spaces, fear of an assault, dealing with officials - CSIB/2/96, CIB/4251/97, CIB/7510/99), or exposure to deaf people or discussions of child abuse (CIB/1679/98), and whether these would provide an obvious explanation for the fear or panic to an observer who is unaware of the claimant's mental condition (CIB/4404/02), or whether a reasonable person would expect to be frightened or panicky (CIB/1679/98). The emphasis is on what is normal and the normal response of someone in straightforward circumstances (CSIB/451/01), and the extent to which the claimant's condition impairs their normal capacity to perform the activity as compared with a person of normal capabilities in full working order (CIB/13161/96 and CIB/13508/96, C47/97(IB)). The feelings should occur 'quite frequently' (CIB/1679/98).

Not mere worry about interruptions to routine. Can be an inability to adjust to a change in daily routine after a reasonable period of time (C5/02-03(IB)).

Disinterest is defined as indifference or lack of interest (C55/99-00(IB)). It addresses the overload of actual or perceived tasks, rather than lethargy or not feeling pressed or motivated to do anything (CIB/2008/97).

Immediate aspects of self care, like eating and maintaining an appropriate level of personal hygiene, not more remote aspects such as assistance with family finances, paying bills, going shopping, or going to the Post Office unaccompanied (CIB/4196/97, CIB/3764/01, CIB/5336/02).

Disruptive means bursting or breaking asunder, not necessarily indicating a forcible severance or physical violence, but the conduct has to be extreme enough to affect the fabric of life (CSIB/1521/01), or to upset or alarm people (CSIB/2/96). Physical aggression is not necessary; it can be verbal abuse and threats (CIB/664/05), or sobbing and emotional displays (CSIB/1521/01).

The ability to communicate must be impaired, not the desire to do so (C79/98(IB)), and not just worrying or hiding feelings or mere reluctance (CIB/2008/97).

Being irritated by events that are not ordinary, and may be shown by sulking or becoming merely peevish, although annoyance must be demonstrated (CSIB/1521/01).

Going quiet and withdrawn and withdrawing from company (R4/02(IB))

The mental disabilities descriptors should be considered over a period of a number of days rather than each day in isolation (R(IB) 2/99), and there is a requirement for reasonableness in addressing whether the claimant can perform the various activities most of the time (C1/95(IB)). A decision should be made on each relevant descriptor (CIB/1679/98), even where the findings at the start of the IB85 are agreed by the tribunal (CIB/1522/05). While the mental disabilities descriptors are not mutually exclusive they are not meant to cover exactly the same situation otherwise there is no point in their existing separately (R4/02(IB)), consequently the exact terms of each descriptor and activity are crucial (CSIB/1521/01). However, there is no bar to double counting of these descriptors (R(IB) 3/98, CSIB/1521/01) as they are not mutually exclusive, and evidence relevant to one may also be relevant to another (CIB/4251/97) - e.g., 18(b) with 16(c) and 18(d) (CSIB/1521/01); 17(e) with 15(b) (CSIB/53/03); and 16(a) with 18(a) and 16(a) with 16(d) (CSIB/451/01).

Appeal tribunals are not qualified to make a diagnosis and should hesitate in doing so, especially in relation to mental health (C53/98(IB)). Whether the mental disabilities descriptors should be addressed at an appeal if not already mentioned is disputed; not unless they have been raised before hand and there is some medical or similar evidence (R(IB) 2/98, CIB/6244/97), or can be if evidence is provided by a claimant with mental health problems at an oral hearing, even when raised for the first time (CIB/13565/96), or an adjournment can be considered to allow medical evidence to be obtained (CIB/16677/96). There is no prerequisite for the medical assessor to have dealt with the mental disabilities descriptors and if there is sufficient evidence all the descriptors should be considered by the tribunal (CIB/14908/96), and the claimant given the opportunity of dealing with those descriptors (CIB/15693/96). However, where the claimant's evidence is inconsistent with the medical evidence and self-contradictory it can be discounted (CSIB/160/00). In many cases medical evidence is rightly rejected because it does not illuminate the test criteria, and a doctor's clinical expertise is not always relevant in regard to the mental disabilities descriptors but more to causation (CIB/5804/97, CIB/2643/99). The tribunal should be wary of accepting that mental health issues are not in dispute where there is no professional representation (C12/01-02(IB)), but can accept that only certain mental disabilities descriptors apply when these are put forward by a representative (CSIB/160/00).

Judith Hodson is a Mental Health Advice Worker at Rochdale Council Advice Service.

Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.