Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C10/03-04(IB) (4 November 2003)

 


Decision No: C10/03-04(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 5 August 2002 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, with the leave of a Commissioner, against the decision of an Appeal Tribunal. The Tribunal had disallowed the claimant's appeal against a decision to the effect that the claimant was not incapable of work in accordance with the personal capability assessment from and including 30 January 2002 and is not entitled to credits on the basis of ongoing incapacity for work.
2. The claimant became unfit for work by reason of chest pains, angina, high blood pressure and white blood cell abnormality and claimed incapacity benefit (IB) from 8 February 1999. The personal capability assessment applied from 8 February 1999. The claimant was not entitled to IB as he did not satisfy the contribution conditions for the receipt of that benefit. Instead he was awarded a national insurance contribution credit for each complete week that he was incapable of work. In order to determine capacity for work the claimant was requested to complete the usual questionnaire giving details of how his illness affected his ability to perform various activities. This was completed by the claimant. In addition a report was received from the claimant's General Practitioner. A Medical Officer of the Department also examined the claimant. The Department then considered all the available evidence and decided that the claimant scored 8 points under the personal capability assessment. Accordingly the Department determined that the claimant was not incapable of work in accordance with the personal capability assessment from and including 30 January 2002 and was not entitled to credits on the basis of ongoing incapacity for work. The claimant then appealed. The decision of 30 January 2002 was looked at again on receipt of the appeal but on 11 March 2002 it was decided that the decision should stand.
3. The Tribunal rejected the claimant's appeal. Although the claimant scored 11 points under the personal capability assessment, this was still below the relevant 15 point threshold in this case.
4. The claimant sought the leave of the Legally Qualified Member to appeal to a Commissioner. However, leave was refused on 13 November 2002.
5. The claimant then sought the leave of a Commissioner to appeal. Various grounds were set out, none of which are relevant in light of the circumstances which have arisen in this case. Leave was granted on the following grounds: -

"It is arguable that the decision was wrong in law, because the relevant form IB85 may not have been a reliable basis for the Department to supersede its decision of 31 January 2002, as the form has been modified by the use of correction fluid (contrary to the policies of the Social Security Agency and Medical Support Services)."

6. Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.
7. The relevant issue in this case is encapsulated in a letter dated 23 June 2003 from Mr Fletcher of the Decision Making and Appeals Unit of the Department. The relevant portion of the letter states as follows: -

"The Department asked for and received an extension in the time for making observations in this case as I considered that it was necessary to obtain the original case papers before making any comment on the merits of the appeal. Among other things, I was concerned about the lines that appear in box 63 of the photocopy of form IB85 – tab 4 of the tribunal appeal papers refers.

Having received those papers, I would draw the Commissioner's attention to the original form IB85 (now enclosed). The Commissioner will note that correction fluid has been used on pages 1, 5 (bottom of page), 7 (box 10) and 24 (box 63) of the form. The use of correction fluid to correct, amend or alter a report runs contrary to the policies of the Social Security Agency and Medical Support Services. This matter has been brought to the attention of the management of Incapacity Benefits Branch and Dr McV... of Medical Support Services.

While it has not been possible to establish where this breach occurred, (Dr McV... for example has advised that Dr G…, the author of the report, has left Northern Ireland), I am assured that this is very much a one-off incident and that staff have been reminded against the use of correction fluid.

There is no indication in the reasons for the tribunal decision that it was aware that correction fluid had been used on the report. If it had known, it should have at least investigated the propriety of those alterations. As it did not do so, I submit that there has been an inadvertent breach of the rules of natural justice and that the tribunal's decision is erroneous in law.

In the circumstances, the Department would concede that the IB85 is not a reliable basis upon which to substantiate its' (sic) decision dated 31 January 2002. Since there is little realistic prospect of resolving this matter, I would therefore respectfully ask the Commissioner to allow the appeal."

8. The amendments by correction fluid appear to be substantial and it is impossible to know what the doctor has originally written in his report.
9. Mrs Gunning of the DMAU, in the absence of Mr Fletcher on holiday, wrote another relevant letter dated 27 June 2003 which clearly sets out the Departmental view of this case. The relevant portion of the letter is in the following terms: -

"As the Department concedes that the IB85 is not a reliable basis upon which to supersede the decision of 31 January 2002 and as a new tribunal would have to consider [the claimant's] condition as at that date I respectfully suggest that there would be little purpose in remitting the case back to a different tribunal. I suggest that the appeal should be allowed and benefit awarded. The Department may then make arrangements for [the claimant] to be examined by another MSS doctor with a view to considering supersession from a current date."

10. The claimant, by a letter received on 30 June 2003 at the Commissioners' Office, has made it clear that he welcomes any decision to set aside the Tribunal's decision, although he also made it clear that he was very keen that the Department pays him the relevant benefits as soon as possible.
11. A most unfortunate situation has arisen in this case. However, it is relatively clear that there has been a breach of the rules of natural justice. Accordingly I hold that the Tribunal's decision is erroneous in law. However I hope that the Department will take immediate steps to ensure that medical reports are not amended in the future by correction fluid, or at all, as it is essential that the original report remains in existence for examination as and when required.
12. Mrs Gunning has explained that there would be little purpose in remitting the case back to a different Tribunal. I consider that she is right in this submission. There is a possibility that the claimant will be in receipt of benefit to which he should not be entitled but this has arisen because of a breach of the normal procedures in relation to the medical report. Therefore, with some reluctance I set aside the decision of the Tribunal and, in accordance with the provisions of Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998, I give the decision which the Tribunal ought to have given, namely, that the claimant is incapable of work from and including 30 January 2002 and, accordingly, is entitled to credits from that date. This decision does not reflect adversely on the Tribunal which was not in a position to know that there had been deletions by correction fluid to the medical report. However, it is also relevant that the Department may, as Mrs Gunning has suggested, make arrangements for the claimant to be examined by another MSS doctor with the view to considering supersession from a current date. Nevertheless this is entirely a matter for the Department and is not a matter for a Commissioner hearing an appeal from the Tribunal's decision.

(signed): John A H Martin QC

Chief Commissioner

4 November 2003