Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2008] NISSCSC C11_07_08(IB) (14 March 2008)

Decision No: C11/07-08(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
INCAPACITY BENEFIT
Application by the claimant for leave to appeal and appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 1 December 2006
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. Leave to appeal is granted and, with the consent of the parties, I treat the application as an appeal.
2. The appeal is allowed as the decision of the tribunal dated 1 December 2006 is erroneous in law. The appeal is remitted to a completely different tribunal for a rehearing.
REASONS
3. The decision terminating benefit was made on 4 August 2006. The claimant appealed on 25 August. The claim was revised but not changed on 18 September 2006 pursuant to regulation 4(A) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999. The issue of the jurisdiction of the tribunal is touched upon on CIS/642/2006 at paragraph 30. There are two ways in which a decision of an officer of the Department under Article 9 of the Social Security (Northern Ireland) Order 1998 may be altered. The first is by revision as provided in Article 10 of the Order and regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999. Regulation 3(1) provides that the Department may carry out a revision, or an application may be made for a revision, within one month of the date of the decision sought to be revised. There are no other conditions to be satisfied. Regulation 3(2) provides that the officer considering such an application may request additional evidence from the claimant including, for example, more recent evidence about his or her medical condition. When considering revision, he may change his opinion about the weight of the evidence in the claim, and, or, take into account any additional evidence provided. The purpose of the power to revise is to provide a flexible method of changing decisions promptly when additional evidence is produced.

Regulation 3(4A) enables an officer to revise a decision at any time before an appeal is determined. Where the decision is revised in favour of the appellant, the appeal lapses - regulation 30(1) of the Decisions and Appeals Regulations. If it does not lapse, then the appeal continues against the decision as revised - regulation 30(3). In CIS/624/2006 at paragraph 30, the Commissioner comments that the appeal may only be brought against the decision as revised. Thus, when an officer makes a decision under regulation 3(4A), it may be a revision decision refusing to change the decision under appeal, or it may change the decision under appeal in a way which is not advantageous to the appellant. In both circumstances, the appeal continues against the decision appealed and revised, revision including a refusal to revise.

In this appeal, the officer carried out a revision on 18 September 2006 and the appellant had provided additional medical evidence about her mental state as she was entitled to do. I assume the officer took the additional evidence into account. He refused to revise the refusal of benefit. The appeal therefore continued following the refusal to revise. In my view the tribunal could take into account all the evidence available to the officer when he refused to revise.

The second way in which a decision can be changed by an officer is by superseding the decision under Article 11 of the 1999 Social Security Order and regulations 6 to 8 of the Decision and Appeals Regulations. It is necessary for the claimant to establish a change of circumstances, ignorance of a material fact or an error of law in the original decision. If the decision is altered, there are complex rules as to when the new decision takes effect. It will usually take effect from the date of the application by the claimant. Although the Department has not made it clear in this appeal that the decision of 18 September was a revision decision, there is no indication in the papers that it was a supersession decision.

4. The tribunal expressly limited itself to considering the evidence up to the date of the decision on 4 August 2006. An important element in the appellant's case was that she suffered a relapse immediately after she received that decision and before the revision was carried out on 18 September. However, it is clear that the tribunal was entitled to take into account all the evidence available up to the date of the revision and its failure to do so was an error of law.
5. The parties have argued that the reasons for the decision are inadequate as they are very brief. It is not necessary for me to determine the issue in this appeal. However, it appears that the tribunal accepted the findings of the Departmental medical examiner that the claimant's condition was in remission and that her symptoms were controlled by her medication during the period under consideration. That reasoning is clear and may be an adequate reason for the decision in many cases. An argument is also raised about the competency of the appellant to give evidence. There is no evidence to support this assertion. On the contrary, the available evidence is that the appellant is very articulate and well educated and has a good insight into her medical condition.

(signed): C MacLynn

Deputy Commissioner

14 March 2008