Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2002] NISSCSC C33/02-03(IB) (1 July 2003)

 


Decision No: C33/02-03(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 INCAPACITY BENEFIT
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 22 March 2002 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, leave having been granted by myself, against a Tribunal's decision dated 22 March 2002 which disallowed the claimant's appeal against a Departmental Decision dated 12 October 2000. That Departmental Decision was to the effect that an earlier decision dated 12 May 2000 which awarded Incapacity Benefit to the claimant was to be superseded because there had been a relevant change of circumstances. This change was stated to be that the claimant had worked from 17 July 2000 and the work was not in an exempt category. As a result the claimant was treated as capable of work from 16 July 2000 to 23 September 2000 inclusive and was not entitled to Incapacity Benefit for that period. My decision is given in the final paragraph.
2. The background facts of the case are that the claimant had been in receipt of incapacity benefits on the grounds of Incapacity for Work from 6 June 1994 as a result of partial disability and poor eyesight. Later medical certificates referred to painful abdominal hernia. On 22 September 2000 the claimant was interviewed by an officer from the Department and stated at interview that he was registered blind and suffered from depression. He stated at interview that since the beginning of July 2000 he had gone with his brother some two to three days per week to a housing estate in Omagh where his brother was carrying out work on an improvement scheme. He stated that he worked as a labourer at that site digging holes, etc. and did not receive any money for the work. He stated that each day he worked from 8.30am to 5pm. He stated that he had been advised by his social worker to do this work as therapeutic for his illness and assumed that Incapacity Benefit Branch had sanctioned it. He stated that he had continued this work until Wednesday 20 September 2000. The claimant signed the record of the interview as being accurate. The Department then superseded the award of Incapacity Benefit. The claimant appealed to the Tribunal. The grounds of appeal were that he disagreed with the decision and believed that all information relating to it had not been taken into account by the Department.
3. The Tribunal, which held two hearings, consisted solely of a Legally Qualified Panel Member (LQPM) who was the same on both occasions. The first hearing took place on 27 September 2001 and was adjourned in order that certain things could be done. These were (1) that Dr M…, the claimant's psychiatrist, could be contacted and asked about the proper date of a letter dated 12 January 2000 and that the claimant's social worker, Mrs N…, could also be asked about this matter; (2) that the officer who interviewed the claimant on 22 September 2000 could attend the hearing. (In connection with this the Tribunal noted "Tribunal feel it is important to establish nature and content of interview, given appellant's history of depression."); (3) that a Presenting Officer could attend. The Tribunal resumed on 27 March 2002 and the interviewing officer did not attend.
4. The Tribunal decision recorded the conclusion that the claimant did do some labouring work for his brother. The Tribunal reasoned that, despite the argument that the claimant's impaired eyesight did not allow him to carry out this work and that there would be "problems" in connection with him so doing, it could not ignore the statement taken by the Department's officer on 22 September 2000. The Tribunal concluded that the claimant was thinking and understanding clearly and precisely what was going on at that interview and that it had no reason to suspect that his admission that he worked as a labourer was incorrect or that either he or the officer somehow invented or made-up the phrase in the interview statement that he worked as a labourer "digging holes etc." The Tribunal decided further that that work was not work undertaken on the advice of a doctor, Dr M… having discussed work "in an office type environment" as being helpful to the claimant's recovery. The Tribunal therefore concluded that the work undertaken did not fall in an exempt category from 16 July 2000 to 23 September 2000.
5. On the question of the date of Dr M… letter, the Tribunal found this to be irrelevant given its findings on the nature of the work undertaken by the claimant. The Tribunal did, however, express its belief that the letter from Dr M…, despite his response of 28 November 2001 should read 15 January 2001. The Tribunal stated that it believed that this was a typographical error and that the letter was written directly in response to the request from Mrs N…, the claimant's social worker, for information in reply to an Incapacity Benefit Branch letter of 5 January 2001. The Tribunal expressed the view that Incapacity Benefit Branch did not appear to have received such a letter a full year before or the correspondence in question might have been more defined as a result.
6. As regards Dr M…'s letter, the date at the top of that letter was 12 January 2000. The letter was date stamped 15 January 2001 by S… L… Health and Social Care Trust (for whom Mrs N… worked) and was then apparently forwarded to Incapacity Benefit Branch to whom it was addressed. The dating of this letter could have been important as the claimant was relying on it as indicating that he had been advised to do some therapeutic work by a medical practitioner. On enquiries having been made following the adjournment decision Dr M… did reply (letter of 28 November 2001) to the Appeals Service confirming that the letter was sent by him to Incapacity Benefit Branch in January 2000. The Tribunal, however, recorded that despite this response of 28 November 2001, it believed that Dr M…'s letter should have been dated in January 2001 and believed that the date at the top of the letter was a typographical error and that the letter was written directly in response to a request from Mrs N… for information in reply to Incapacity Benefit's Branch letter of 5 January 2001.
7. The claimant appealed to me. His grounds of appeal were:

(i) That the Tribunal had not given sufficient reasons as to why it did not accept Mrs N…'s explanation or Dr M…'s confirmation as to when the letter dated 12 January 2000 was actually written and received. (The reference to Mrs N…'s explanation is that Mrs N… had forwarded a letter dated 15 October 2001 in which she stated that she had received an enquiry from Incapacity Benefit Branch dated 5 January 2001. In response to this she had contacted Dr M… requesting that he forward a copy of the letter of 12 January 2000. The copy letter was received by her on 15 January 2001 (incoming mail to her department was date stamped and received by the administrative staff). She stated that she had sent the copy letter and the covering letter to Incapacity Benefit Branch on 16 January 2001).

8. The claimant's grounds continued that the Tribunal's conclusion in this respect was particularly surprising in view of the fact that if Dr M…'s letter had been accepted and adopted as being written on 12 January 2000 and sent to Incapacity Benefit's branch in January 2000, as Dr M… personally confirmed in his letter of 28 November 2001, it was arguable that the Tribunal might have reached a different conclusion, that is, that the claimant had been engaged in work approved by the Department and with its full knowledge and consent.
9. The claimant stated that he therefore respectively submitted that the Tribunal had erred in law in that it had given insufficient reasons for the decision reached.
10. The Department made observations on the application for leave by letter dated 18 November 2002 in which it opposed the application. It submitted that the date when Dr M… signed the letter was irrelevant to the Tribunal decision as the Tribunal decided the case on a more fundamental point. Regulation 17 of the Social Security (Incapacity for Work)(General Regulations) (Northern Ireland) 1995 as in force at the relevant time, prescribed the categories of work which could be accepted as exempt. It was obvious that the claimant was seeking to have the work carried out for his brother accepted as exempt under regulation 17(1)(a)(i) which prescribed that work could be treated as exempt if it was:

"work undertaken on the advice of a doctor which –

(i) helps to improve, or to prevent or delay deterioration in, the disease or bodily or mental disablement which causes that person's incapacity for work;".

(I am in agreement that this was the only category of exempt work which was in issue in the case). The Department submitted that Dr M… had considered that work "in an office type environment" would be helpful to the claimant's recovery. However, the Department submitted, it was clear that the Tribunal accepted the claimant's own evidence in the statement that the work in which he had been engaged was of a very different nature, i.e. labouring for his brother, digging holes, etc. The Department further submitted that there was no evidence that work as a labourer was undertaken on the advice of a doctor or that such work would help to improve, or to prevent or delay deterioration in, the disease or bodily or mental disablement which caused the claimant's Incapacity for Work. The Department further submitted that the Tribunal's conclusion that the work did not fall within an exempt category was sustainable and therefore submitted that the Tribunal's decision was not erroneous in law.

11. Further observations were made by letter from the claimant dated 18 December 2002 which made further representations as to the interview and which in that respect did not constitute any indication of an error of law on the Tribunal's part. The letter contained further comment that at the hearing on 27 September 2001 the claimant's representative had indicated why it was considered that it would be helpful that the interviewing officer be present as it was thought that there may have been inadequacies in the interview. The claimant submitted that the Tribunal's adjournment decision would indicate that the Tribunal accepted that the attendance of the presenting officer was necessary in order for the case to proceed.
12. As regards the hearing of 22 March 2002 the claimant submitted that the Tribunal had given insufficient reasons as to why it no longer considered that it was necessary that the Department's interviewing officer attend. He submitted further that the Tribunal had the right to accept or reject evidence but had to give sufficient reasons as to why it favoured one set of evidence as opposed to the contrary. In particular the claimant submitted that the Tribunal should have given reasons why it did not accept the claimant's statement that he had, when interviewed by the Department, made inaccurate statements and also that he would be physically incapable of carrying out work as a labourer in light of his eyesight problems. He submitted that the Tribunal had not investigated these matters adequately.
13. I granted leave to appeal. I did so on the grounds that arguable issues appeared to me to arise as to:

i. whether there was a breach of the Tribunal's inquisitorial role in not exploring the precise nature of the tasks which the claimant performed for his brother and;

ii. whether the Tribunal was perverse in not accepting that Dr M…'s letter was posted in January 2000 and if so whether this could have affected the Tribunal's other conclusions.

14. The Department made observations on the appeal by letter dated 26 January 2003. It submitted that the Tribunal had strong evidence by way of a signed statement that the claimant had in fact worked "as a labourer digging holes etc" for two to three days per week from 8.30am to 5pm at the relevant times. As regards the contradictory evidence on this point from the claimant's brother this evidence had only been produced at the appeal hearing and consequently it had to be critically assessed. An allegation which was advanced at the outset of any fact finding exercise would generally carry more weight than one which came at the last (in this connection the Department referred to decision C4/96(IB)).
15. The Department submitted that it was somewhat unusual, the claimant having been in attendance at the hearing, that he was not asked to give direct evidence to the Tribunal. As regards my first ground for granting leave the Department submitted that any further questioning as to the precise nature of the work carried out would have been unlikely to obtain any evidence of crucial significance. The claimant was present at the hearing and could have volunteered a statement if he disagreed with the stance taken by his representative or wished to contradict or enlarge on the evidence from his brothers. He did not do so and it seemed likely, in the Department's submission, that any oral evidence from the claimant would have simply mirrored his brother's statement dated 26 September 2001.
16. The Tribunal had made a clear finding that the claimant understood clearly and precisely what was going on at the Departmental interview and there appeared to be no perversity in this. The Tribunal had clearly found that the claimant did very different work than that mentioned by his brother or approved by Dr M… It was implicit in the decision that the brother's evidence was rejected. In those circumstances there was no breach of the Tribunal's inquisitorial role and no inadequacy of its findings of fact.
17. As regards the date of Dr M…s letter, the Department submitted that the Tribunal's conclusion on this did appear to be against the weight of the evidence but that the conclusion did not influence or affect the overall decision. The Department submitted that the Tribunal's view of the date of Dr M…'s letter was irrelevant, given the decision made on the nature of the work undertaken by the claimant.
18. Further comments were made on the Department's observations by letter dated 26 February 2003 from the claimant. The claimant submitted that the Tribunal should have had evidence as to the circumstances under which the Department's interview took place and that the evidence from the Department in this respect had to be as critically assessed as had the claimant's. He submitted that all the circumstances of his case had to be weighed in deciding what evidence was to be accepted.
19. The claimant submitted that the Tribunal should have further exercised its inquisitorial role in relation to the nature of the work done. In the light of the limitations which the claimant had it was imperative for the Tribunal to have made more precise findings. The claimant also reiterated the points already made in relation to Dr M…'s letter.
20. I held an oral hearing of the case which the claimant attended and at which he was represented by Mr D... The Department was represented by Mr Toner of the Decision Making and Appeals Unit. Mr D… submitted that the date of the letter from Dr M… was crucial and that the Tribunal had been perverse in not accepting his explanation. He submitted that this had affected the Tribunal's decision. Mr D… stated that he recalled telling the first Tribunal hearing that the first social worker had told Mrs N… that Incapacity Benefit Branch had lost papers and that he had been told at that hearing (correctly in his view) that this was hearsay evidence. In his view had the papers been received correctly when they were sent a decision might have been made which might have been different. He was at a loss to understand why the Tribunal considered at the first hearing that the issue of the letter was important and at the second hearing that it was not. He considered that there was a link between the Tribunal's non-acceptance of the date of postage of Dr M…'s letter and the level of exploration and the Tribunal's views on the admissions made at the interview. He did not think that the two issues could be separated and submitted that the contrary evidence had not been given proper weight.
21. Mr Toner also submitted that the date stamp did seem to have initially played a big part in the Tribunal's thinking, however, the Tribunal had clearly accepted the claimant's own written statement as to the type of work he was doing and that being so it was not work approved of by Dr M… Mr Toner therefore submitted that exploring the matter further could not have produced any answers. He continued to submit that the Tribunal's decision was correct.
22. I do consider that the Tribunal's decision as to the date of Dr M…'s letter was contrary to the weight of the evidence. I do consider that this was an error of law. However, the issue of whether or not it was an error of consequence, in other words whether it rendered the decision in error of law, is a different matter. The Tribunal has accepted, as it was quite entitled to do, the claimant's statement in the Departmental interview as to the nature of the work which he undertook. It has indicated, as again in my view it was quite entitled to do, that it considered that the claimant understood what was going on at that interview. The claimant, if he was contending that the interview was not properly conducted or that he did not understand what was going on at the interview had the burden of so proving. There was no obligation on the Tribunal to accept his evidence and then put to the Department to prove the contrary. The claimant had made a signed statement. (There has been no dispute that the statement did not correctly record what was said). If he considered that that statement did not reflect the true situation, or that he was not aware of what he was signing, it was up to him to prove that. It was not up to the Department to prove the contrary. The Tribunal was of course free to accept his evidence without corroboration or to reject it (which in the event it did). That being so I do not consider that the Tribunal was in error in proceeding without the attendance of the interviewing officer. The Tribunal rejected the claimant's evidence that he did not know what was going on at the interview and it was quite entitled to do so.
23. I consider that the claimant who was represented at the resumed hearing could, if he considered the attendance of the officer essential, have raised the issue and I do not accept that there was no opportunity to do so. It is quite obvious from the record of proceedings that the claimant and his representative were given adequate opportunity to present their case. There is a specific record that no one had anything further to add and this indicates quite clearly that the parties were given a full opportunity to present their case.
24. I do consider that the Tribunal has set out clearly why it does not accept that the claimant did not know what was going on at the interview. It was entitled to this view. The contention that the claimant had admitted to something he did not do was clearly rejected. This the Tribunal was entitled to do and its reasons for doing so are clearly set out. That being so it is quite obvious why the Tribunal would not consider the attendance of the officer to be necessary. If it did not believe the claimant's evidence that he did not know what was going on at the interview, and it obviously did not, the officer did not need to attend to disprove the claimant's contentions.
25. Mr D… has indicated that he was taken by surprise by the non-attendance of the officer at the resumed hearing. I do accept this. It does not appear that this matter was raised at the resumed hearing. At the resumed hearing Mr D… was, of course, quite free to have raised the matter himself. It was quite apparent at hearing that the officer had not attended and quite apparent also that Mr D… was given an adequate opportunity at hearing to present his case. Should the Tribunal have raised the matter and given Mr D… an express opportunity to seek a further adjournment to have the officer attend? I think it should. The Tribunal had previously expressed the view that the attendance of the officer was important. It is quite apparent from the final decision that it had resiled from that view. The reasons why it did so are clear (it did not believe the claimant's evidence about the interview) and that is a matter for the Tribunal. However, I think the Tribunal erred in not raising the matter expressly at hearing and affording Mr D… an opportunity to make representation on the non-attendance. He had a reasonable expectation that the interviewing officer would attend. I set the decision aside as in error of law for that reason alone and remit the matter to a new Tribunal for re-hearing and re-determination.
26. The claimant is contending that his eyesight would not have permitted him to do the work which he stated he had done. He will now have the opportunity, should he so wish, to produce medical and other evidence as to his eyesight problems such as precise figures of measurement of vision. The claimant states that he has now been registered blind and the measurements of vision on which this registration was based may therefore be available. Some medical interpretation of these figures may also be helpful. It is a matter for the claimant as to what evidence he wishes to produce. It is, however, important to note that there is a difference in it being foolhardy to do certain work and it being actually impossible to do it. It is a matter for the Tribunal to decide whether the work was actually done.
27. The Tribunal should make clear findings of fact as to the work which was carried out and whether or not it was work in the relevant exempt category. It should also clearly indicate its views on the reliability of evidence. It is quite open to the Tribunal, and I would wish to reiterate this, to reject all or part of any evidence as being incredible and it does not, as a general or legal rule, have to go any further than this. It is also a matter for the Tribunal to give such weight as it sees fit to any evidence. In assessing the evidence the Tribunal is quite entitled to take into account the stage at which certain evidence was offered. If the claimant wishes to have the interviewing officer attend he may raise this matter but it is a matter for the Tribunal whether or not it considers such attendance to be necessary.
28. Mr Toner mentioned a possible issue that Dr M…'s letter did not amount to advising the claimant to undertake the work mentioned in it. The claimant should be aware that there may be an issue raised at hearing as to this matter.
29. The appeal is allowed and the matter remitted to a differently constituted Appeal Tribunal for rehearing.

(Signed): M F Brown

COMMISSIONER

1 July 2003