THE UPPER TRIBUNAL	Appeal No. CE 618 2011  
ADMINISTRATIVE APPEALS CHAMBER

CJ v SSWP (ESA)

Heard on 23 05 2012 in London
Duncan Wall of Durham Welfare Rights for the appellant 
Stephen Cooper, solicitor, instructed by the Solicitor of DWP for the Secretary of State 

DECISION

The appeal is allowed. For the reasons below, the decision of the First-tier tribunal is set aside. 
I refer the appeal to a new tribunal to decide the appeal again in accordance with the directions set out below. 

REASONS FOR DECISION

1	This appeal is about the meaning of “in-patient” in regulation 25 of the Employment and Support Allowance Regulations 2008 (the Regulations). There is no definition of the term in the Regulations or in the empowering legislation. Permission was granted to consider the arguments of Mr Wall that the appellant (J) was an in-patient in respect of certain hospital treatment while it is contended for the Secretary of State that he was not. The need for consideration is emphasised because Mr Wall was able to point out to me at the hearing that the public views expressed for the Secretary of State on the matter are inconsistent.
 
2	The appeal involves a minor semantic issue. Should the term be “in-patient”, “inpatient” or “in patient”? All are used. A website search suggests that “inpatient” is slowly replacing “in-patient” in standard usage. Mr Cooper submitted that all are different versions of the same word. I agree. The version in the Regulations is “in-patient” and is used here.

The facts
3	The facts, so far as decided, are not in dispute. J had an operation on his right knee in May or June 2008 to deal with a snapped right knee ligament. He went into hospital for the operation and left hospital having had the operation on the same day. On 14 01 2010 it was decided for the Secretary of State that he no longer met the criteria in the Regulations for being treated as having limited capability for work. So his entitlement to employment and support allowance was stopped. He appealed against this because the surgeon who had operated on his knee had not discharged him from hospital care and had told him he was not to return to work. There is medical evidence that J was still being affected by his knee problems at the date of the decision. 

4	The appeal went to an oral hearing by the First-tier Tribunal. At the hearing Mr Wall, representing J, argued that J was still recovering from the treatment on his knee and so was entitled to be treated as having limited capability for work. This was based on regulation 25 of the Regulations. The tribunal ruled against the appellant. J now appeals both against the interpretation of that regulation and the way the tribunal handled it.
 
The law
5	Regulation 25 of the Regulations provides for hospital inpatients and those recovering from hospital inpatient treatment to be treated as having limited capability for work. The full text is in the appendix. Regulation 25 is in Part 5 of the Regulations, dealing with limited capability for work. Regulation 19 of the Regulations provides that whether someone’s capability for work is limited is to be decided in accordance with the regulations in that Part. The order of the regulations that follow is somewhat disjunctive. 

6	There is no clear structure to Part 5 of the Regulations.  Regulation 20 provides for certain claimants to be treated as of limited capability for work. Regulations 21 and 23 then turn to the general procedure for operating regulation 19, with regulation 22 supporting regulation 21 and regulation 24 supporting regulations 22 and 23. The regulations then revert to the exceptions with regulation 25 dealing with hospital in-patients and regulation 26 with certain forms of regular treatment otherwise than as an in-patient. Regulations 27 and 28 then deal with the separate linked issues of deeming claimants to be of limited capability in respect of individual days and with night workers. Regulation 29 reverts again to the exceptions to deal with what are termed exceptional circumstances. Regulation 30 is in effect a general transitional provision while decisions about capability are taken. Regulation 31 has been revoked. Regulation 32 deals with cases where individuals are to be treated as not having limited capability for work, to which an extra provision is added by regulation 32A. Finally, regulation 33 again reverts to the exceptions to deal with further cases where someone is treated as having limited capability for work if the specific conditions are met.

7	So regulation 25 is to be read with regulations 20, 26, 29 and 33 as providing the exceptions to the general rule in regulation 19. In my view it is important in interpreting regulation 25 to take into account that this is one of the exceptions and not a stand-alone provision. I have, for convenience, appended the text of the exceptions to this decision. 
No other of the Regulations uses the term “in-patient” but more than one may overlap with regulation 25 in the sense that they will or may apply to claimants receiving a form of hospital treatment. They all provide that claimants within their terms are to be treated as having limited capability for work. 

8	I have also appended regulation 27. It provides that someone who is assessed (or could be assessed) as having limited capability for work during any part of a day is treated as being incapable throughout the day.  That may therefore also overlap with regulation 25. It is not a deeming provision.

The tribunal’s decision
9	The tribunal dealt with the regulation 25 argument as follows:

“[9] ... [The appellant’s treatment] was undertaken as a day case and he was not an “in-patient” at any time. 

[10]	The representative raised an argument that the matter was covered by regulation 25 of ... the Regulations... This matter was considered during a short adjournment after which the Tribunal Judge ruled against the appellant on this issue on two grounds. First, Regulation 25 clearly and unequivocally refers to treatment as an “in-patient” and not as an “out-patient” or “day-patient”; had that been the intention of the Legislature, then it would have been simple to include such in the Regulations. Secondly, on the balance of probabilities, some eight months after the procedure, it was improbable that this could be a “day of recovery” and it was not found to be such.”

Possibly because this was dealt with by adjournment, there is no further discussion of that point in the statement of reasons. Nor is there any detail explaining why the tribunal took the view it did on the facts. For example, there is no finding or indication whether the appellant was admitted to hospital for his treatment or whether he occupied a bed while being treated. I am puzzled why this involved an adjournment and return to that below.

10	The First-tier Tribunal judge to whom application for permission to appeal was made clearly gave it thought before rejecting it. That judge noted that there was no definition of the term, adding that Commissioner’s jurisprudence on the issue is not recent and does not appear to be of particular relevance. The judge then cited Wikipedia and the Oxford Advanced Learner’s Dictionary as indicating that an inpatient is someone who stays at the hospital. Permission was refused because no argument about this could vitiate the tribunal’s decision. I disagreed with that view and granted permission. However, both parties rightly referred to those views in argument.
 
The submissions of the parties
11	Mr Wall argued that a definition of “in-patient” as requiring an overnight stay (so excluding day patients) was too restrictive. There have been major changes in medical practice since the term was first used in benefit rules. Many people were now dealt with as day cases that used to be kept in for a number of nights. The surgical procedures carried out on day patients were often as invasive as that carried out on patients who were given overnight stays. So they would cause the same need for a period of recovery. Further, in some cases the time of discharge was related not to the treatment itself but to the rate or assumed rate of initial recovery from that procedure or the availability of supervised recovery elsewhere. Regulation 25 only gave the benefit of recovery time to those who were “in-patients”. It was inequitable not to include appropriate day patients within the scope of that rule. Regulation 25 should be interpreted to cover such cases, and an overnight stay should not be a requirement.
 
12	Mr Wall supported that argument by reference to paragraph 42044 of the Decision Maker’s Guide (the DMG) issued by the Secretary of State:

“A hospital in-patient includes a claimant who is admitted to hospital for a single day for example to have day surgery which doesn’t need to involve an overnight stay.
The distinction is with attending an out-patient clinic which would not be regarded as being an in-patient.”

13	Mr Cooper submitted that “in-patient” should include only those who had overnight stays in hospital together, he suggested, with those who when they arrived at hospital expected to have an overnight stay even if, in the event, they did not have a full overnight stay. It did not include day care patients or out-patients. He agreed that there was no clear legislative definition of the term but was instructed that this was the generally understood definition for departmental purposes. He accepted that the passage in the DMG took another, wider view. However, he relied on his instructions in submitting that the DMG was too wide. At the same time he accepted that there were cases that should be included where an overnight stay was the agreed approach to a claimant’s care but that this had to be stopped for some reason before the stay had occurred.  He agreed that there was limited assistance in the authorities and submitted that Wikipedia should not be relied on in the same way as a dictionary as the source of a particular entry was unknown. I readily agree with that last point.  

14	It was common ground that there is no statutory definition of “in-patient” nor has the term ever been given an authoritative general definition by hospital administrators or medical authorities. The term was central to the former Social Security (Hospital In-Patients) Regulations 1975 (SI 1975 No 555, now revoked) (the In-patient Regulations). It was not defined there, save as noted below. It has appeared in other social security contexts, but again without definition. 

R(I) 27/59 
15	Reverting to regulation 25 of the Regulations, the guidance in the DMG quoted above refers to R(I) 27/59. In that case the appellant was a colliery repairer who had suffered a foot injury. He was receiving daily care at a rehabilitation centre. Section 16 of the National Insurance (Industrial Injuries) Act 1946 made provision for someone receiving “approved hospital treatment”. That was defined by section 34(2) of that Act as treatment received “as an in-patient”. The factual twist in that case was that the rehabilitation centre only dealt with in-patients. However, there was a waiting list for its services. The practice therefore grew up of asking those who lived near the centre if they would sleep at home but attend during the day, the centre paying travelling expenses and otherwise treating them as in-patients when they were at the centre. It was argued for the appellant that he should be treated as an in-patient.

16	The Commissioner dealt with this argument briefly:  

“[12] ...I feel no doubt that the phrase “as an in-patient” ... refers to a person’s status as an in-patient and not to the nature of the treatment he is receiving. “In-patients” and “out-patients” are well understood classes having a sharp distinction, and if the Act had intended to create a third class, of persons who were receiving in-patient treatment but were not in fact in-patients, I think some quite different form of words would be used to make that intention clear...

[13] ... I think the word “in-patient” is not itself defined in the [National Insurance] legislation and it must therefore be given what I take to be its ordinary English meaning of a patient who occupies a bed in a hospital as distinguished from a patient who comes daily or from time to time to be treated or attended to...

[14] It is clearly necessary to give the same meaning to “in-patient” both in Industrial Injuries and in National Insurance legislation ...”

The Commissioner completed the analysis by pointing out that for certain benefit purposes there were disadvantages in being regarded as an in-patient rather than an out-patient. 

Guidance and commentary
17	By 2008, the DMG had reported this as follows:

“18034	“In-patient” is not defined and should be given its ordinary meaning of a patient who occupies a bed in a hospital ... rather than an out-patient who attends hospital daily or from time to time for treatment or to be attended to.”

There is no cross-reference to 42044 cited above. The commentary in the standard reference work on the Regulations (Bonner et al, Social Security Legislation, 2011/12, Vol III at paragraph 9.59) offers no assistance on the term beyond a reference to regulation 12 of the Social Security (Incapacity for Work) Regulations. That does not help. A glance back to that regulation in the equivalent edition in 2000 (Bonner et al, Social Security Legislation 2000, Vol II at para 7.75) shows no comment on the term save for a reference to the In-Patient Regulations where someone is in hospital for more than six weeks. 

18	The commentary on the In-Patient Regulations (in Bonner et al, Social Security Legislation 2000 at paragraph 2.66) starts by noting that “The circumstances in which a person is to be regarded as an in-patient has given rise to difficulties of interpretation”. A discussion of Commissioners’ decisions follows, showing that Commissioners did not agree on how to interpret the term. But the regulations were rendered irrelevant to cases such as that of the appellant by an amendment in 1999 adding a paragraph (2A) to regulation 2 (interpretation). This made clear that the day of admission did not count as a day as an in-patient while the day of discharge did. (That endorsed a Commissioner’s decision, R(IS 8/96). This was in a context where the regulations applied only to those in hospital for six weeks (regulation 5) or 52 weeks (regulation 6). So it was clearly relevant to deal with what could be regarded as double counting on admission and discharge. Applying that logically here, the test becomes admission, because without admission there can be no discharge. This would seem to apply even if discharge is on the same day as admission. In any event, those regulations are revoked. I agree that the Commissioners’ decisions on those regulations do not assist.  

19	Being treated as an in-patient is also relevant to disability living allowance and attendance allowance. See for example regulations 12A to 12C of the Social Security (Disability Living Allowance) Regulations 1991 (hospitalisation, exemption and adjustments). Again, this is for long term cases only as the regulations are relevant only after 28 days. And again there is no definition, jurisprudence or commentary on the meaning of “in-patient”. 

Conclusions
20	“In-patient” is repeatedly used in social security legislation, but there are no clear distinctions in the legislation, in case law or in authoritative medical usage between “in-patients” and any other kind of patient. It is a matter of common usage rather than formal definition. Only one point is clear from regulation 25. The treatment must be by a hospital or similar institution. Someone treated by surgical intervention or otherwise at a general practice surgery or by community nurses is not included in any event. (They may be within the scope of other regulations.)

21	Both parties accepted that the line between those who receive hospital treatment as an in-patient and those who receive it otherwise is not as clear as it was in the 1950s. Early discharge is now a major part of hospital treatment .In England the Department of Health has issued a guide, Day surgery: operational guide to deal with this. That defines day surgery as:
“Day surgery is the admission of selected patients to hospital for a planned surgical procedure, returning home on the same day. "True day surgery" patients are day case patients who require full operating theatre facilities and/or a general anaesthetic, and any day cases not included as outpatient or endoscopy.”  
The focus here is on admission to the hospital as compared with attendance at it. I add “in England” because this is a devolved issue. The approach elsewhere may be different. And regulation 154 of the Regulations takes in those cases where treatment is abroad. Account must also be taken of private hospital treatment. There is no basis for a consistent national hospital practice on the status of “in-patient” throughout the United Kingdom.  

22	It is also important to have in mind, as Mr Wall emphasised, that the significance of defining “in-patient” lies not so much in the specific day or days in hospital but in the days of recovery. For that reason, the provision should in my view be seen in its context with the other exceptions to the need for a capability for work assessment. As the appendix shows, other forms of medical treatment are specifically identified as giving rise to a potential need for days of recovery. This includes treatment by way of: chemotherapy; radiotherapy; kidney dialysis; blood purification; and intravenous or other non-oral or assisted feeding or drinking. Separately there are exemptions for: the terminally ill; those with uncontrollable or uncontrolled medical conditions that are life-threatening; pregnant women, and those whose medical condition is such that exposure to work would create a substantial risk to health. It is plain from this that the intention is that regulation 25 should apply only to those with medical conditions requiring hospital treatment such that there can be assumed to be a serious limitation on capability for work during, and resulting from, that treatment without the need to test capability specifically.    

23	Two tests emerge from this discussion as those used for identifying who is receiving hospital treatment as an “in-patient”:
	-	Was the individual admitted to hospital? 
	-	Did the individual occupy a bed at the hospital (“occupying” in my view 			implying that brief periods of bed use for examinations or the like are 			ignored)? 
In cases of doubt guidance is available by reference to the importance of days of recovery and to the other medical exemptions (such as dialysis or chemotherapy).   

24	In practice, the two tests will often be two ways of looking at the same thing, one being the administrative process while the other reflects the kind of treatment given. Neither requires any specific time period nor any need for the admission or occupation to be for a minimum period involving “overnight” (which is itself problematical because, for example, it   can be meaningless for accident and emergency admissions). Neither R(I) 27/59 nor the guidance or commentaries refer to the occupation of a bed overnight as a relevant test in the context of short hospital treatments. There is in my view no basis for reading into the regulations a rule requiring a minimum 24 hour admission, so “day-patients” are not excluded by the regulation. But it does not follow that they are all included. It depends why they are at the hospital. In my view, despite Mr Cooper’s comments and instructions, the DMG paragraph cited above is good general guidance.  

25	On that basis, the factual issues here are: whether J was admitted to hospital or attended (whether he was described as a day-patient or an out-patient) without admission; and whether the treatment on his knee required more than transient occupation of a bed (for example, for the performance of the operation and if general anaesthetic was administered for recovery before discharge). If he was both admitted and was given a bed to occupy for a period then he was in my view an in-patient for the purposes of regulation 25. If he was not admitted and was not given a bed for any period, then he was not. More generally, there will inevitably be borderline cases where, for example, it was expected that there would only be a short stay but complications caused it to be extended, or where an overnight stay was expected but did not happen, or where a bed was occupied but no one got round to admitting the patient. In practice, the question of importance is whether any subsequent day is needed as a day of recovery from the treatment. That may depend on the kind of anaesthetic or other drugs used as well as the short term effect of any surgical intervention or other treatment. 

26	Those are clearly questions of fact. I cannot tell from the tribunal decision or the evidence or submissions in this case whether J was admitted and did occupy a bed. The decision of the tribunal must be set aside so that the facts can be established. 

Consideration by the tribunal
27	These issues are plainly issues of fact. I do not understand why the tribunal adjourned to deal with them. It was suggested to me that the tribunal judge decided about the application of regulation 25 without any input from the doctor. If that was so, it is wrong in principle. The decision is one for the tribunal as a whole. I do not need to have that clarified. But I record that if the judge did decide the matter alone then this would also be a ground to set the decision aside.
   
Decision
28	I set aside the decision. Bearing in mind rule 2 of the Tribunal Procedure Rules, the most effective way of dealing with the case is for the appellant now to produce evidence on the factual questions raised, and for that to be put to a new tribunal to consider, in particular, the issue of any recovery period. It may of course be that the decision maker acting for the Secretary of State can review the decision in the light of the new evidence and reach a decision acceptable to the appellant before a further hearing is necessary. I leave that to the parties.  

Appendix: Exceptions from assessment of limited capability for work for ESA

Certain claimants to be treated as having limited capability for work
20	 A claimant is to be treated as having limited capability for work if—
(a)the claimant is terminally ill;
(b)the claimant is—
(i)receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy, or is 	likely to receive such treatment within 6 months after the date of determination under this sub-	paragraph; or
(ii)recovering from that treatment and the Secretary of State is satisfied the claimant should be treated as having limited capability for work;
(c)the claimant is—
(i)excluded or abstains from work, or from work of such a kind, pursuant to a request or notice in writing lawfully made under an enactment; or
(ii)otherwise prevented from working pursuant to an enactment,
by reason of the claimant being a carrier, or having been in contact with a case, of a relevant disease;
(d)in the case of a pregnant woman, there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work;
(e)in the case of a pregnant woman, she—
(i)is within the maternity allowance period; and
(ii)is entitled to a maternity allowance under section 35(1) of the Contributions and Benefits Act;
(f)in the case of a pregnant woman whose expected or actual date of confinement has been certified in accordance with the Medical Evidence Regulations, on any day in the period—
(i)beginning with the first date of the 6th week before the expected week of her confinement or the actual date of her confinement, whichever is earlier; and
(ii)ending on the 14th day after the actual date of her confinement,
if she would have no entitlement to a maternity allowance or statutory maternity pay were she to make a claim in respect of that period.
(g) any of the descriptors at paragraph 15 or 16 of Schedule 3 apply to the claimant.

Hospital in-patients
25	(1) A claimant is to be treated as having limited capability for work on any day on which
that claimant is undergoing medical or other treatment as an in-patient in a hospital or similar
institution, or which is a day of recovery from that treatment.
(1A) the circumstances in which a claimant is to be regarded as undergoing treatment falling within paragraph (1) include where the claimant is attending a residential programme for the treatment of drug or alcohol addiction.
(2) For the purposes of this regulation, “day of recovery” means a day on which a claimant is
recovering from treatment as an in-patient in a hospital or equivalent under paragraph (1) and the
Secretary of State is satisfied that the claimant should be treated as having limited capability for
work on that day.

Claimants receiving certain regular treatment
26	(1) Subject to paragraph (2), a claimant receiving—
(a) regular weekly treatment by way of haemodialysis for chronic renal failure;
(b) treatment by way of plasmapheresis or by way of radiotherapy; or
(c) regular weekly treatment by way of total parenteral nutrition for gross impairment of
enteric function,
is to be treated as having limited capability for work during any week in which that claimant is
engaged in that treatment or has a day of recovery from that treatment.
(2) In the first week during which a claimant receives the treatment referred to in paragraph (1),
that claimant is only to be treated as having limited capability for work during that week if, in that
week the claimant undergoes no fewer than—
(a) two days of treatment;
(b) two days of recovery from any of the forms of treatment listed in paragraph (1)(a) to (c); or
(c) one day of treatment and one day of recovery from that treatment,
but the days of treatment or recovery from that treatment or both need not be consecutive.
(3) For the purpose of this regulation “day of recovery” means a day on which a claimant is
recovering from any of the forms of treatment listed in paragraph (1)(a) to (c) and the Secretary of
State is satisfied that the claimant should be treated as having limited capability for work on that
day.

Claimant to be treated as having limited capability for work throughout a day
27. A claimant who at the commencement of any day has, or thereafter develops, limited
capability for work as determined in accordance with the limited capability for work assessment is
to be treated as having limited capability for work throughout that day.

Exceptional circumstances
29.—(1) A claimant who does not have limited capability for work as determined in accordance
with the limited capability for work assessment is to be treated as having limited capability for
work if paragraph (2) applies to the claimant.
(2) This paragraph applies if—
(a) the claimant is suffering from a life threatening disease in relation to which—
(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a
recognised therapeutic procedure; and
(ii) in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be
controlled by a recognised therapeutic procedure; or
(b) the claimant suffers from some specific disease or bodily or mental disablement and, by
reasons of such disease or disablement, there would be a substantial risk to the mental or
physical health of any person if the claimant were found not to have limited capability for
work.

Additional circumstances where claimants are to be treated as having limited capability for
work
33.—(1) For the purposes of paragraph 4(1)(d)(ii) of Schedule 1 to the Act, a claimant is to be
treated as having limited capability for work on any day in respect of which that claimant is
entitled to statutory sick pay.
(2) For the purposes of an income-related allowance, a claimant is to be treated as having
limited capability for work where—
(a) that claimant is not a qualifying young person;
(b) that claimant is receiving education; and
(c) paragraph 6(1)(g) of Schedule 1 to the Act does not apply in accordance with regulation
18.

Directions for new hearing

A	The new hearing will be at an oral hearing. 

B	The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

C	The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal. 

D	The appellant and representative are to provide the tribunal (with a copy to the Secretary of State) with any documentary evidence and/or a short submission about whether the appellant was admitted to hospital for the treatment on his knee in 2008, and the extent to which he occupied a bed during the operation on his knee. The appellant and representative are also to provide any further evidence about days of recovery from that operation. That and any further submission that the appellant and representative wish to make to the tribunal are to be sent to the tribunal within one month of the issue of this decision. 

These directions are subject to any later direction by a tribunal judge. 

David Williams
Upper Tribunal Judge
12 06 2012

[Signed on the original on the date stated]