Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C10/97(IB) (15 January 1998)

 


Decision No: C10/97(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

INCAPACITY BENEFIT

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Belfast Social Security Appeal Tribunal

dated 20 December 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal that claimant was to be treated as capable of work from and including 2 November 1996. This was because he failed without good cause to attend or submit to a medical examination on 1 November 1996.
2. That Tribunal made the following findings of fact:-

"1. Panel accept that for the 1st medical examination arranged

for 25 October 1996 that he did not attend but his brother

phoned in to say appellant unable to attend (Tab 2 confirms

this).

2. In relation to second medical appointment on 1 November 1996

panel find that appellant did not attend and do not accept

that the Medical Referee Service was informed either prior

to or on 1 November 1996 that appellant could not attend.

3. Panel do not accept appellant's letter of explanation at

Tab 4 as showing good cause for failure to attend."

and gave reasons for its decision as:-

"The Medical Referee Service have to be very careful when people

ring in to say someone cannot attend a medical appointment.

If someone had rang in to say appellant would or could not attend

on 1 November 1996 there would have been a note to that effect on

record.

As no such note exists, panel are not prepared to accept appellant

has shown good cause for failure to attend for medical on

1 November 1996."

3. The law relating to "good cause" is to be found in regulation 9 of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995 which reads:-

"9. The matters which are to be taken into account in determining

whether a person has good cause under regulation 7 or 8 shall

include -

(a) whether he was outside Northern Ireland at the relevant

time;

(b) his state of health at the relevant time; and

(c) the nature of any disability from which he suffers."

4. I arranged an oral hearing at which the claimant was present but was not represented and the Adjudication Officer was represented by Mr McAvoy. At the hearing it became clear that claimant was confusing the letter which he got about the second medical with the letter about the first medical, and when he said that his brother telephoned in he was referring to the first medical of 25 October. He says he did not get the letter in connection with the second medical of 1 November and consequently all the evidence about no phone call in connection with the second appointment did not apply because he did not know of the examination.
5. I have considered what was accepted by the Tribunal as evidence. It is difficult if not impossible to know where the information was received to warrant the findings of fact made by the Tribunal in relation to the Medical Referee Service and its practices as there was no Presenting Officer present nor is this information in the papers. There was no evidence on that point given to the Tribunal.
6. I sought evidence on the point and discovered that the whole sending of appointments for medical examinations is very lacks because there is no record kept of the letter, there is no record kept of when it was posted and one would have thought that in view of the fact that regulation 8(3) of the Incapacity for Work Regulations requires at least 7 days notice before the date of an appointment that at least some record would be kept of when the letter was posted. There is a note on a form IB86 which says "letter required - sent 25.10 PD".
7. In view of the fact that a person can lose benefit by not receiving a letter of appointment one would have thought that a better record would have been kept of the sending of such a letter as otherwise it is impossible to prove it was sent on a particular date or at all.
8. The Tribunal only considered whether or not claimant's brother had telephoned to cancel the appointment. It did not consider his state of health or the nature of his disability and consequently erred in law.
9. I have considered all that has been said and I have read all the papers. It is quite clear that the Tribunal erred in not considering claimant's state of health as required by the regulation. The papers recorded that when his brother rang to say he was unable to keep the first appointment the record of the telephone conversation set out the reason as "very ill last few days". As far as the reasons for the Tribunal's decision relating to the Medical Referee Service being very careful when people ring in it is not clear who gave that evidence.
10. In any event I am satisfied that the Tribunal erred in law. I allow the appeal and set aside the decision of the Tribunal. This is a case which is to be referred back to be reheard by a differently constituted Social Security Appeal Tribunal, that Tribunal shall have regard to the relevant Regulations.

(Signed): C C G McNally

COMMISSIONER

15 January 1998