Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C11/03-04(IB) (21 October 2004)

 


Decision No: C11/03-04(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 12 March 2003 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant with the leave of a legally qualified panel member against the decision of the appeal tribunal sitting at Belfast on 12 March 2003 ("the appeal tribunal"). For the reasons which I give that decision is erroneous in point of law. Accordingly I allow the appeal and set aside the decision of the appeal tribunal.
2. This is an appeal where it is appropriate that I should give the decision which I consider the tribunal should have given. My decision is that the claimant has established that, for the purposes of regulation 8 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, he had good cause for failing to attend a medical examination by an approved doctor on 7 March 2002.
3. The claimant appeals against a decision dated 27 March 2002, that he is to be treated as capable of work from and including 8 March 2002, because he failed without good cause to attend or submit to a medical examination on 7 March 2002, as required by a written notice sent at least seven days beforehand. As a consequence, the claimant ceased to be entitled to incapacity credits.
4. That decision was given in reliance on regulation 8 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 which provides as follows:

"(1) Where it falls to be determined 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."

5. The words "without good cause" should be noted. The claimant accepts that he failed to attend for a medical examination on 7 March 2002, but asserts that he had good cause for not doing so.
6. He appealed the decision of 27 March 2002. I shall come to his grounds of appeal and the matters he relies upon as constituting good cause in a moment. The matter first came before a tribunal which sat in Belfast on 15 August 2002. On that occasion the appeal was dismissed. However, on 19 November 2002, the chairman of the tribunal which had sat on 15 August 2002, set the decision aside because it was accepted that the claimant had been unable to attend through circumstances beyond his control and had not received notification of the hearing. The appeal was reheard by a differently constituted tribunal on 12 March 2003. Once again the claimant was not present and once again the appeal was dismissed.
7. His grounds of appeal were originally set out in a letter which was undated but which reads as follows:

"I am writing in order to have an appeal on my income support arranged as I was told had to be done to get a payment as an appointment for a medical was set up and I did not receive any correspondent about this so obviously could not attend as I was unaware of it. Could another appointment be made at your earliest for everyones convenience. Many thanks."

8. Later, these grounds were set out in greater detail in a submission lodged by his representative:

"The Department's case against [the claimant] is that notification was sent to him on 19 February 2002 asking him to attend a medical examination on 7 March 2002. [The claimant] maintains that he did not receive any correspondence from Incapacity Benefits Branch. If he had he would have attended the examination as it was in his interests to do so. [He] informs me that he lived continuously at [No 10d] from January 2002 until 31 May 2002 (the date he was remanded to custody). [His] flat was one of four (10a – 10d) which was accessed by a communal door. This door was locked and residents had a key for access. There was no slot in this door for posting mail. Nor was there a letterbox on the front door of his flat. [The claimant] believes that the postal delivery worker had a key to open the communal door, as it was the habit to find post deposited inside the communal access door. Residents of the flats then sifted through the post to find their own mail. This system was not satisfactorily and [the claimant] had problems with British Telecom about a bill they sent which he never received."

9. I should perhaps say that his representative's submission put forward a number of other grounds including the submission that the Department had failed to prove that it had ever sent notification of the appointment to the claimant.
10. The reasons which the appeal tribunal gave for dismissing the appeal were as follows:

"The claimant's case, as stated in his appeal letter, and in the submission prepared on his behalf, is that he failed to attend for medical examination because he did not receive the appointment letter. If this were established to the Tribunal's satisfaction it would amount to good cause since clearly the Department must show that the claimant was advised of the date and time of the appointment. The Tribunal considers that this must be shown on the balance of probabilities. It is not required that notification of the appointment must be proved beyond reasonable doubt.

On that basis the Tribunal considers that notification was sent and received. The Tribunal accepts the endorsement at "Part 2 – Examination Details" of Form FPR1 (Tab 2) as evidence that the appointment letter was duly sent. Form IB86 is similar evidence that a letter of enquiry was also sent. No reply was made to either. In each case the Tribunal considers that, once posting has been established, the letter will, on the balance of probabilities be delivered. There is insufficient evidence to undermine this view of the normal course of post. There is no suggestion of any complaint being raised with the Post Office nor is there any corroborative evidence of the suggestion that, at sometime, whether around the relevant time or otherwise there had been a problem with a telephone bill.

The claimant's case is that he did not receive the appointment letter. The Tribunal finds against him on that point. Accordingly good cause has not been shown."

11. I allow the appeal because in my judgment that reasoning fails to deal with a major issue raised by the claimant. The thrust of the appeal tribunal's reasoning is that it accepts that notification of the appointment was sent to the claimant and that "once posting had been established, the letter will, on the balance of probabilities be delivered". However, the claimant made the point that mail was not delivered direct to his flat but to a communal point where it was left for the various occupiers of the building to go through and remove letters addressed to them. That is a not uncommon situation. All the mail for everyone in a block of flats or similar building is left on a hall table, windowsill or even on the floor. Where this is so, there is always the possibility that a letter addressed to a particular person may be removed by one of the other occupants of the building before the addressee has a chance to find it. There are all sorts of reasons why someone may remove mail addressed to another. One sometimes sees it said that official looking envelopes have been stolen in the hope that they may contain a cheque or giro that can be cashed.
12. The reasons given for the decision do not consider this possibility. They simply assume that once the notification had been delivered by the Post Office, that was an end of the matter. Such an approach misses the claimant's point that incoming mail was not secure. The appeal tribunal thereby erred. I therefore set aside the decision below.
13. A more difficult point is what to do next. The submissions made on the appeal to a Commissioner have contained a good deal of argument as to whether the Department can, or cannot, establish that it sent notification of the appointment. Much of this is evidence which was not before the appeal tribunal. Consequently, that body cannot be criticised for not taking it into account. Having set aside the decision below, I can have regard to such evidence. However, given the view which I have ultimately formed of the matter, I do not think it is necessary for me to analyse the new evidence and the submission which has been made about it.
14. Instead, I am going to assume in favour of the Department and against the claimant, that notification of the appointment on 7 March 2002, was posted in good time to him. I further assume that the notification arrived at the building which contained his flat. However, given the situation described by him, it is not beyond belief that the letter was taken, either deliberately or by mistake, by someone else who lived in the building.
15. Social security expenditure is a major part of the national budget. Further, money is not unlimited and the more money that is used in paying benefits the less there is available for all the other highly desirable matters such as schools, hospitals, good roads, the fire brigade and other services. It is therefore important that applications for benefits are scrutinised with some care. That is a function in which the tribunals play an important role. A robust and searching attitude on the part of the tribunals is to be applauded. However, it is possible to become over cynical and over sceptical.
16. Common sense dictates that the initial approach to evidence must be that a person is at least trying to tell the truth. The opposite view – that all evidence is automatically suspect – would lead to serious difficulties. Not least that most evidence would require corroboration. This is clearly not the law and there would be many cases where corroboration would be impossible. In the course of his submissions the claimant's representative put the matter neatly:

"… Regarding corroboration of a claimant's evidence, it has been the subject of many appeals to the Commissioners and there are two main principles that I can identify. Firstly, a claimant's evidence does not have to be corroborated in order for a tribunal to accept it, and equally, just because there is no contrary evidence, does not mean that a tribunal must accept a claimant's uncorroborated evidence. In either situation, however, I submit that the tribunal would still have to give reasons for accepting or rejecting the evidence, and the fact that it is uncorroborated is not a valid reason for rejecting it."

I agree. The form and extent of the reasons will depend on the circumstances. Normally brief reasons will suffice. Indeed there will be some cases where the reasons why a particular piece of evidence was rejected will be all too obvious from the circumstances and little or no explanation will be needed. Further, although the basic approach should be as stated at the beginning of this paragraph there will be many cases where it is obvious that a person's evidence is unreliable or where a tribunal is required to decide between differing testimonies. The latter is usually referred to as a conflict of evidence. Where there is such a conflict, a tribunal is required to resolve that conflict one way or the other. How it does so is a matter for the tribunal but it may involve accepting one person's evidence and rejecting that of another. Cases where a person's evidence can be considered unreliable – there being no or very little conflicting evidence – include cases where the claim is obviously exaggerated or where a tribunal has had the advantage of seeing and hearing someone give evidence and, as a result, has become convinced that the evidence is not acceptable in its entirety.

17. However, where there is no obvious reason for disbelieving what a person says and that person has not appeared at the hearing, a tribunal cannot reject uncontradicted evidence without indicating why. Defences based on missing letters are common place. In appropriate circumstances, such excuses are rightly rejected in a robust manner. It will usually be appropriate to reject such an excuse where it extends to a number of letters or is coupled with other suspicious circumstances. All the more so if the non-receipt of mail is selective and it is only certain letters which are not received.
18. However, this case concerns the non receipt of a single letter in plausible circumstances. That is, the communal delivery of mail and the possibility that someone went through the mail before the claimant did. I perceive no reason why his testimony should be rejected in such circumstances. Putting it another way, I cannot see how an effective challenge to what he says can be mounted.
19. If what the claimant says is accepted, he has established good cause in accordance with regulation 8(2). It follows that his appeal succeeds. I set aside the decision of the appeal tribunal and give the decision which I do in paragraph 2 above.

(Signed)

J P Powell

Deputy Commissioner

21 October 2004