Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C20/02-03(IB) (20 May 2003)

 


Decision No: C20/02-03(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 18 April 2002 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the Department, with the leave of the legally qualified member of the Tribunal, against the decision of the Appeal Tribunal whereby it was held, allowing the claimant's appeal from the decision maker's decision, that the claimant was entitled to Incapacity Benefit from and including 23 October 2001.
2. The claimant became unfit for work on 5 March 2001 and he claimed Incapacity Benefit by reason of nervous disability and Huntington's Disease. Later doctor's statements received in support of the claim referred to nervous debility, anxiety and depression. The Personal Capability Assessment applied from 5 March 2001. Accordingly a report was received from the claimant's General Practitioner relating to the claimant's mental health. Then on 21 May 2001 a medical officer of the Department gave his opinion that the claimant was not in an exempt category in relation to the Personal Capability Assessment. Therefore, in order to determine capacity for work, the claimant was requested to complete a questionnaire giving details of how his illness affected his disability to perform various activities. This form was completed on 4 June 2001 and returned along with a statement from the claimant's doctor. A medical officer of the Department then examined the claimant on 16 August 2001. The Department then considered all the available evidence and decided that the claimant scored four points and was not incapable of work in accordance with the Personal Capability Assessment. A decision awarding Incapacity Benefit was therefore superseded on 23 October 2001 as it had been decided that the claimant was not incapable of work and therefore not entitled to Incapacity Benefit from and including 23 October 2001. The claimant then appealed and his appeal was received in the Department on 8 November 2001. In the circumstances the decision of 23 October 2001 was looked at again on receipt of this appeal but on 12 November 2001 it was decided that the decision should stand.
3. The case came before a Tribunal on a "paper hearing" on 5 February 2002. However the case was adjourned to allow the claimant an opportunity to attend an oral hearing to give evidence in relation to his medical condition. From the wording of the relevant record of proceedings and the reasons for the adjournment it appears that this might not have been the first attempt to have this case dealt with but the papers before me do not disclose details of any previous hearing. However, in any event the matter again came before a Tribunal on 18 April 2002.
4. From the record of these proceedings relating to the hearing of 18 April 2002 it is clear that the claimant did not attend and the Tribunal concluded that it would be unlikely in the circumstances if he would ever attend a Tribunal.
5. The Tribunal, which consisted of a legally qualified member and a medical member, allowed the claimant's appeal and directed that the claimant was entitled to Incapacity Benefit from and including 23 October 2001, with an appropriate offset for any Jobseekers Allowance paid from and including 23 October 2001.
6. The Tribunal gave the following reasons for its decision: -

"The appellant has Huntingtons disease and there appears to be no dispute about this. The Tribunal consulted a medical dictionary regarding the definition of his disease and his definition would indicated the word 'terminal' combined with the medical opinion of the tribunal doctor convinced the tribunal that the claimant is suffering from a life threatening disease in relation to which there is medical evidence that his disease is uncontrollable.

The appellant should therefore be treated as incapable of work under paragraph 27(1)(2) of the Social Security (Incapacity for Work) (Centralised) (sic) Regulations (Northern Ireland) 1995 and therefore be entitled to payment of incapacity benefit."

7. The Department sought leave of the legally qualified member to appeal to a Commissioner and, as stated at the first paragraph herein, leave was granted on 23 October 2002.
8. A hearing of this appeal was arranged at which the Department was represented by Mr Fletcher of the Decision Making and Appeals Unit. The claimant, who has taken no active part in these proceedings, was neither present nor represented.
9. The Department's appeal is based on two grounds, namely –

(i) that the Tribunal has erred in law by failing to carry out the Personal Capability Assessment before considering the appropriateness of regulation 27, and,

(ii) that the Tribunal has erred in law by finding that the claimant was suffering from a life threatening condition that was uncontrollable, or uncontrolled, in circumstances where there was no medical evidence of the prescribed nature to substantiate this finding.

10. The Department's first ground of appeal raises the issue of whether it was necessary for the Tribunal to carry out a Personal Capability Assessment before deciding that the claimant could be treated as incapable of work under regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.
11. It is helpful, in my view, to examine the statutory basis surrounding the decision maker's and the Tribunal's powers to decide whether or not the claimant could be treated as incapable of work. Section 167D(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is in the following terms: -

"167D – (1) Regulations may provide that a person shall be treated as capable of work, or as incapable of work, in such cases or circumstances as may be prescribed."

It is clear that this legislation empowers the making of regulations to treat a person as incapable of work whatever the reality of the situation might be. As Mr Fletcher has described it, it provides for situations of "deemed incapacity".

12. The relevant regulations are set out in the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 and in particular regulation 27(1) and (2) are pertinent. Regulation 27 is in the following terms: -

"(1) A person who is not incapable of work in accordance with the personal capability assessment test shall be treated as incapable of work if any of the circumstances set out in paragraph (2) apply to him.

(2) The circumstances are that –

(a) he is suffering from a severe life threatening disease in relation to which –

(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure, and

(ii) in the case of a disease which is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure;

(b) he suffers from a previously undiagnosed potentially life threatening condition which has been discovered during the course of a medical examination carried out for the purposes of the personal capability assessment by a doctor approved by the Department;

(c) there exists medical evidence that he requires a major surgical operation or other major therapeutic procedure and it is likely that that operation or procedure will be carried out within three months of the date of a medical examination carried out for the purposes of the personal capability assessment."

Regulation 27(1) provides that a person who does not satisfy the Personal Capability Assessment shall be treated as incapable of work in prescribed circumstances. Mr Fletcher has submitted that this pre-condition must be addressed before the circumstances prescribed by regulation 27(2) are considered. I agree with Mr Fletcher's submission on this point.

13. As Mr Fletcher pointed out it may be appropriate in certain circumstances for a Tribunal to deal with the assessment in a fairly cursory manner – as suggested by Mr Deputy Commissioner Jacobs in Great Britain decision CIB248/1997. However Mr Fletcher has submitted that this approach was not appropriate in the claimant's case.
14. The reason that Mr Fletcher gave for this submission was that it was far from clear from the evidence presented that one of the heads prescribed within regulation 27(2) was satisfied and, in any event, there was a clear challenge to the decision maker's decision on the Personal Capability Assessment.
15. At this stage it is appropriate to set out what the Personal Capability Assessment is. Under the provisions of part III of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 sets out circumstances were the claimant is entitled to Incapacity Benefit by measuring prescribed activities using descriptors which, when given the relevant numerical score in value, have to reach a total of 15 points for physical disability descriptors, 15 for combined physical and mental disability descriptors or 10 for mental disability descriptors.
16. In this case it was possible that the claimant, through his contentions of mental health problems, might have satisfied the Assessment and, in such circumstances, a Tribunal must deal with this possibility before considering whether regulation 27 is applicable or not. In addition there was a clear challenge in the documents, which were produced by the claimant and considered by the Tribunal at the "paper hearing", to the Tribunal's decision on the Personal Capability Assessment.
17. In such circumstances it is necessary for a Tribunal to consider specifically the possible applicability of the Personal Capability Assessment before considering the exceptional circumstances set out in regulation 27. As the Tribunal failed so to do, I conclude that it erred in law.
18. In relation to the Department's second ground of appeal – that the Tribunal erred in law by finding that the claimant was suffering from a life threatening condition that was uncontrollable or uncontrolled as there was no medical evidence of the prescribed nature to substantiate this finding – it is appropriate to refer to the relevant definition of "medical evidence". The relevant part of regulation 2(1) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 states that: -




" "medical evidence" means –

(a) evidence from a doctor approved by the Department;

(b) evidence (if any) from any other doctor or a hospital or similar institution,

or such part of such evidence as constitutes the most reliable evidence available in the circumstances;"

Also it is relevant that Mrs Commissioner Brown in decision R4/01(IB) at paragraph 16 has made clear that: -

"The evidence must relate to the claimant himself, it is not constituted by extracts from medical text books unless the doctor relates them to the claimant."

19. Mr Fletcher has pointed out that the medical evidence presented in this case includes two Med 3 medical certificates, and a Med 4 certificate and an IB85 report, none of which diagnosed active Huntington's disease while the IB113 (DLS) of 17 May 2001, from the claimant's medical practitioner, mentions "early Huntington's". This reference is preceded by two question marks which clearly suggests that there is a mere possibility that the claimant is displaying early symptoms of the disease. In addition the claimant advised the examining medical practitioner on 16 August 2001 that, while he carried the gene associated with the disease and that this may lead to him developing symptoms in later life, no such symptoms or physical disabilities were being experienced at present. In these circumstances the examining medical practitioner specifically stated that none of the exceptional circumstances prescribed by regulation 27 applied.
20. In my view it seems that the Tribunal has anticipated what may or may not happen in the future rather than deciding the case from the facts that were known to it. In particular it has relied on evidence from a medical dictionary which was not directly referable to the facts of the present case. In this case the Tribunal was wrong in law to apply regulation 27(2) – and in the circumstances it appears to have been applying regulation 27(2)(a)(i) – as in order for a person to be deemed incapable of work there must be "medical evidence" that "a severe life threatening disease" from which the relevant person is suffering is "uncontrollable, or uncontrolled, by a recognised therapeutic procedure". As there was no such medical evidence before the Tribunal of the nature prescribed by regulation 27(2)(a)(i), the Tribunal's decision to treat the claimant as incapable of work is erroneous in law and Mr Fletcher's submission to that effect I find to be correct.
21. In the circumstances I allow the Department's appeal, set aside the decision of the Tribunal and refer the matter to a freshly constituted Tribunal for a rehearing. At this rehearing the Tribunal will obviously be concerned with medical evidence relating to the claimant but, by reason of the terms of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, the Tribunal will only be entitled to take into account the relevant circumstances that applied at the date of the decision under appeal, namely 23 October 2001, although some relevant evidence relating to those circumstances may well have come into existence in documentary or other form after that date.

(Signed): J A H MARTIN QC

CHIEF COMMISSIONER

(Dated): 20 MAY 2003