Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C69/98(IB) (9 November 1998)

 


Decision No: C69/98(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

Application by the claimant for leave to appeal

and appeal to the Social Security Commissioner

on a question of law from the decision of the

Cookstown Social Security Appeal Tribunal

dated 11 March 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against a decision dated 11 March 1998 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Cookstown. I held an oral hearing of the application at which the claimant attended and at which she was represented by Mr O'N.... The Adjudication Officer was represented by Mr Toner.
2. I grant leave to appeal and with the consent of both parties treat the application as an appeal and proceed to determine any question arising on the application as though it were a question arising on an appeal.
3. My decision is that the decision of the Tribunal is erroneous in point of law and is set aside. The matter is remitted for rehearing by a differently constituted Appeal Tribunal.
4. The Tribunal was dealing with the claimant's appeal against a decision of an Adjudication Officer. In the Adjudication Officer's submission to the Tribunal he had stated that the Adjudication Officer's decision which was to disallow Incapacity Benefit from 11 December 1997 on the grounds of failure to attend a medical examination, should be corrected to a disallowance from 5 November 1997. The Tribunal effectively disallowed the appeal against the decision as corrected and treated the claimant as capable of work and therefore not entitled to the relevant benefit from 5 November 1997.

The law in relation to this matter is contained in Regulations 8 and 9 of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995. These Regulations provide:-

"8.-(1) Where a question arises as to whether a person is capable

of work, he may be called by or on behalf of a doctor approved by

the Department to attend for a medical examination.

(2) Subject to paragraph (3) where a person fails without

good cause to attend for or submit himself to such an examination,

he shall be treated as capable of work.

(3) A person shall not be treated as capable of work under

paragraph (2) unless written notice of the time and place for the

examination was sent to him at least 7 days beforehand, or unless

he agreed to accept a shorter period of notice.

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

whether a person has good cause under regulation 7 or 8 (failure

to provide information or attend a medical examination) 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."

The list at Regulation 9 of factors to be taken into account is not exhaustive.

5. My only reason for setting aside the Tribunal decision is that it seems to me that the Tribunal has confined itself to the claimant's state of health in deciding whether or not she had shown good cause for failure to attend a medical examination on 4 November 1997. At hearing the issue was raised that the claimant had requested a domiciliary visit and that her husband had written, prior to the medical, requesting this visit. The actual record of proceedings at the Tribunal hearing in relation to this matter clearly indicates that the claimant had been in touch with the Department in relation to this and had been asked to get a letter from her doctor. There was also clear evidence that it was departmental practice that before a domiciliary visit would be carried out the General Practitioner would have to confirm that such was required. The issue of whether or not the claimant had been left with the impression that a domiciliary visit was to be arranged was not fully explored by the Tribunal. It appears to me quite clear that, if a claimant was left with the impression that a domiciliary visit was to be arranged or that she did not need to attend a medical because same was under consideration, (at least in circumstances where claimant had previously had a domiciliary medical examination), this could be a factor which might (not necessarily would) constitute good cause for not attending a medical examination.
6. I would not wish to state that in every case where a domiciliary visit is requested and even where there has been no reply to this request, good cause would be established but I do think that the issue, in the circumstances of this case where the matter had obviously been pursued and there had been a previous domiciliary visit, was one which the Tribunal should have explored. I consider that the Tribunal was in breach of its inquisitorial duty in not exploring the matter but confining itself to the medical evidence as to Mrs McW...'s fitness to attend a medical examination.
7. I do not consider that this is a case where I can give the decision which the Tribunal should have given. I therefore remit the matter to a differently constituted Tribunal which should consider inter alia the correspondence between Mrs McW... and her representatives and the Department of Health and Social Services in relation to the domiciliary visit and the impression created by same and should determine whether or not the claimant had good cause for failing to attend the medical examination.

(Signed): M.F.Brown

COMMISSIONER

9 November 1998