Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2009] NISSCSC C12_08_09(IB) (09 June 2009)

Decision No: C12/08-09(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 25 September 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. 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.
2. The decision of the appeal tribunal dated 25 September 2007 is in error of law. The error of law identified will be explained in more detail below.
3. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
4. I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.
5. My decision is that the decision-maker, on 15 June 2007, had grounds to supersede the decision dated 28 September 2006 awarding entitlement to incapacity benefit (IB) credits from and including 8 May 2006. The appellant is not entitled to IB credits from and including 15 June 2007.
6. Accordingly, although the appeal to the Social Security Commissioner succeeds, the practical outcome for the appellant, in terms of her entitlement to IB is the same as that determined by the appeal tribunal.

Background

7. On 15 June 2007, a decision-maker of the Department decided to supersede an earlier decision of the Department dated 28 September 2006 which had awarded entitlement to IB credits from and including 8 May 2006. The decision-maker, on 15 June 2007, also decided that the appellant was not entitled to IB credits from and including 15 June 2007.
8. An appeal against the decision dated 15 June 2007 was received in the Department on 19 June 2007.
9. The appeal tribunal hearing took place on 25 September 2007.
10. The appeal tribunal disallowed the appeal and confirmed the decision dated 15 June 2007. The appellant attended the appeal tribunal and was unrepresented. A presenting officer was present.
11. On 10 January 2008 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service.
12. On 16 January 2008, the application for leave to appeal was refused by the legally qualified panel member.

Proceedings before the Social Security Commissioner

13. On 14 February 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.
14. On 15 April 2008 observations were sought from Decision Making Services (DMS) and these were received on 13 May 2008. DMS opposed the application.
15. Observations were shared with the appellant on 20 May 2008.
16. On 9 October 2008, further observations were sought from the DMS, on the following issue on the extent to which the appeal tribunal's conclusions, as set out in the statement of reasons for the appeal tribunal's decision, satisfied the 'reasonable regularity' test set out in the decision of the then Chief Social Security Commissioner in R1/96 (IB) (C1/95 (IB)) and as applied in subsequent decisions of the Social Security Commissioners in both Northern Ireland and Great Britain. Further, observations were sought on the extent to which the appeal tribunal had adapted and applied the 'broad view' test set out in Moyna v Secretary of State for Work & Pensions ([2003] 4 All ER 162).
17. Further observations were received from DMS on 27 October 2008, and these were shared with the appellant on 10 November 2008.
18. I granted leave to appeal on 25 February 2009. In granting leave to appeal I gave as the reason that an arguable issue arose as to the extent to which the appeal tribunal identified the correct ground for superseding an earlier decision of the Department.

Errors of law

19. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.
20. In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

"(i) making perverse or irrational findings on a matter or matters that were material to the outcome ('material matters');

(ii) failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v) making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word 'material' (or 'immaterial'). Errors of law of which it can be said that they would have made no difference to the outcome do not matter."

The error of law in the present case

21. The decision notice for the appeal tribunal's decision reads as follows:

'Appeal disallowed

Department correct to supersede the decision awarding credits on the basis of a change of circumstances. Appellant is not incapable of work and not entitled to Incapacity Credits from and including 15.6.07.

Thereafter, there is no reference, in the statement of reasons for the appeal tribunal's decision, to the fact that the decision under appeal was a decision dated, 15 June 2007, in which a decision-maker of the Department decided to supersede an earlier decision of the Department dated 28 September 2006 which had awarded entitlement to IB credits from and including 8 May 2006. The decision-maker, on 15 June 2007, also decided that the appellant was not entitled to IB credits from and including 15 June 2007.

22. In C7/08-09(IB), at paragraphs 41 to 44, and 49 to 53, I said the following about identifying the correct ground for supersession in IB appeals:

'41. Regulation 6(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, reads as follows:

'Supersession of decisions

6.—(1) Subject to the following provisions of this regulation, for the purposes of section 10, the cases and circumstances in which a decision may be superseded under that section are set out in paragraphs (2) to (4).'

42. Regulation 6(2)(g) reads as follows:

'(g) is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision) and where, since the decision was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Incapacity for Work Regulations from a doctor referred to in paragraph (1) of that regulation;'

43. Regulation 6(2)(g) was introduced through amendments introduced in 1999 through the Social Security and Child Support (Decisions and Appeals) (Amendment No. 2) Regulations (Northern Ireland) 1999, as amended. The purpose of the amendment was to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession. Previously, case-law had held that the obtaining of a new medical opinion did not itself amount to a change of circumstances justifying a supersession on that ground – R(IS) 2/97 and R(DLA) 6/01.

44. While regulation 6(2)(g) has been, since its introduction, the principal basis on which decisions relating to IB have been superseded, it is important to note that this does not mean that there cannot be a supersession on any other ground contained in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. It is possible to supersede, for example, on the basis that there had been a relevant change of circumstances, under regulation 6(2)(a)(i). To do so would require the decision-making authority to identify the relevant change of circumstances, and the date from which the supersession took effect.

....

49. As has already been noted, in an IB case, it is possible to supersede a decision awarding entitlement to the benefit, on the basis that there had been a relevant change of circumstances, since the decision was made. Such a supersession would be made under the legislative power given in regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

50. To supersede on this basis would require the decision-making authority, in this case the appeal tribunal:

(i) to identify what the relevant change of circumstances was; and

(ii) identify the date from which the supersession took effect.

51. It is my view that the appeal tribunal made an error in identifying the correct ground for supersession. The legislative provisions which make provision for the supersession of decisions, and the date from which a supersession decision should take effect, namely Article 11 of the Social Security (Northern Ireland) Order 1998 and regulations 6 and 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, are complex. There is a temptation to assume that the natural ground on which a supersession decision has been made is 'change of circumstances'.

52. The cases and circumstances under which a decision may be superseded are more varied than 'change of circumstances', however, and specific provisions have been included to deal with discrete situations, such as supersessions in respect of IB. The appeal tribunal was given clear guidance by the decision-maker, and the appeals writer, on the apposite legislative basis on which the supersession decision was undertaken. It is essential that appeal tribunals are satisfied that the correct ground has been identified, and that the supersession decision takes effect from the correct date.

53. Even if the appeal tribunal had in mind that the correct ground for supersession was a relevant change of circumstances, under regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, it has not explained what that change was and, more importantly, why the change and, by implication the supersession, took effect from the identified date ie 18 July 2007. Accordingly, even if the appeal tribunal was not in error by failing to identify the correct ground for supersession, it was in error in following through with the ground which it did identify.'

23. In C9/08-09(IB), I added the following, at paragraphs 43 to 46:

43. In the present case, it is arguable that the appeal tribunal had in mind, and intended to apply, the regulation 6(2)(a)(i) 'change of circumstances' ground, as an alternative to the regulation 6(2)(g) ground, which had formed the basis of the decision under appeal. To support that argument, the appeal tribunal, in the SORs, has indicated that it is of the view that there has been a relevant change of circumstances, namely an improvement in the appellant's 'condition'. Further, a change of circumstances is mentioned in the appeal tribunal's decision notice.

44. I am not convinced, however, that the appeal tribunal did intend to apply the regulation 6(2)(a)(i) 'change of circumstances' ground, as an alternative to the regulation 6(2)(g) ground. Change necessarily involves comparison of the circumstances as they were at the time of the original decision and circumstances at the date of the supersession decision. There is no further explanation, in the SORs, for example, as to how such a comparison was made.

45. Even if the appeal tribunal had in mind that 'relevant change of circumstances' was the correct ground, it has not explained why the change and, by implication the supersession, took effect from the identified date ie 22 August 2007. Accordingly, even if the appeal tribunal was not in error by failing to identify the correct ground for supersession, it was in error in not following through with the ground which it did identify.

46. It is essential that appeal tribunals are satisfied that the correct ground has been identified, and that the supersession decision takes effect from the correct date. It is not enough, as DMS suggest in their submissions, that its implicit from the appeal tribunal's decision notice and SORs, that the correct ground for supersession has been applied. In this regard, I refer to my comments in C12/08-09 (DLA), at paragraphs 52 and 57:

'52. The appeal tribunal's duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it has done so. It is not sufficient for it to be, as DMS suggests, implicit from the appeal tribunal's documentation that the supersession issue was addressed. That consideration must be explicit from the decision notice, the statement of reasons or a combination of both. In the present case, I am of the view that it is not even implicit that consideration was given to the supersession issue.

57. DMS submits that it may have been preferable for the appeal tribunal to refer specifically to the grounds for supersession in the conclusion to its statement of reasons. It is not preferable but essential that it should do.'

24. Accordingly I find that the appeal tribunal erred in law in failing to identify the correct ground for supersession in the present case and I set aside the decision of the appeal tribunal on that basis.

The appellant's other grounds for appealing

25. In her application for leave to appeal to the Social Security Commissioner, the applicant submitted that the decision of the appeal tribunal was in error of law as she had been on IB for many years, that her condition had not changed during that time and, if anything, her condition had got worse. She also submitted that she now had a number of other problems due to the medication which she was taking.
26. In their written observations on the application for leave to appeal to the Social Security Commissioner, DMS submitted the following observations:

'In the decision C14/03-04(IB) an issue arose at appeal where the claimant had passed several previous personal capability assessments, and asserted that her condition had not improved. In that decision the NI Commissioner held:

"12. … I am not prepared to conclude that the Tribunal believed that the claimant had only succeeded previously in passing the personal capability assessment on appeal. It has recorded specifically that it has read the decision maker's decision. It appears much more likely to me that because it was hearing an appeal the Tribunal referred to a previous appeal. As regards the remaining part of ground 1 (that the Tribunal should have given consideration to seeking the medical evidence on which the previous award was based), that evidence not being already before it, I do consider that there is some merit. I do not say that the Tribunal in every case where there has been a previous award must adjourn or even consider adjourning to obtain earlier medical evidence. However, the claimant in this case was asserting that she was no better than she had been when last examined. It would have been helpful in this case and in other similar cases (where the grounds of appeal assert there has been no improvement since the last medical examination) if the report of that medical examination had been produced to the Tribunal. It is not, of course, necessary for the Tribunal to actually reach a conclusion as to whether or not there are any differences in the examination findings, nor indeed as to the medical opinions. The Tribunal's duty in looking at regulation 6(2)(g) is to determine, bearing in mind the burden of proof on a supersession whether or not the claimant is incapable of work. That does not entail making a comparison between two medical examinations even where the claimant contends that she has not improved. In this case, however, as the claimant did not have access to the relevant medical examination report and as she was obviously placing considerable reliance on the outcome of that examination, the Tribunal should have given consideration to whether it should adjourn in order to attempt to gain sight of the previous EMP report. ….

13. As I have mentioned previously I think it would be helpful, in cases where a claimant has asserted that the situation is no different than it was at the time of the previous examination, if the report of that previous examination could be put before the Tribunal."

27. In the present appeal, the previous medical report dated 21 March 2006 was provided and was considered as noted in the tribunal's record of proceedings. The tribunal therefore had before it the appropriate evidence in accordance with the Commissioner's recommendations in C14/03-04(IB). I would submit however that the relevant legislation does not require a change of circumstances to be identified since the previous determination of (the claimant's) incapacity for work, in order that entitlement can be superseded. Regulation 6 of the Social Security & Child Support (Decisions & Appeals) Regulations (NI) 1999 provides:

"6.—(1) Subject to the following provisions of this regulation, for the purposes of Article 11, the cases and circumstances in which a decision may be superseded under that Article are set out in paragraphs (2) to (4).

(2) A decision under Article 11 may be made on the Department's own initiative or on an application made for the purpose on the basis that the decision to be superseded—

…

(g) is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision) and where, since the decision was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Incapacity for Work Regulations from a doctor referred to in paragraph (1) of that regulation;"

The burden of proving grounds for superseding an award of IB lies with the Department, and supersession is permitted by Regulation 6(2)(g). The GB Commissioner in the unreported decision CIB 1509/2004 considered how that regulation should be applied, paragraphs 7-10 refer. The Commissioner concluded that Regulation 6(2)(g) of the Social Security & Child Support (Decisions & Appeals) Regulations 1999 authorises a supersession procedure when evidence has been produced that may, or may not, show that the operative decision should be replaced and that the outcome is determined by the conditions of entitlement for an award. A condition of continuing entitlement is incapacity for work and I would submit that this is determined by the personal capability assessment which is the statutory test for assessing a claimant's capacity for work. Section 167C(5) of the Social Security Contributions & Benefits (NI) Act 1992 permits the Department to carry out the periodic re-assessment of claimants capacity for work:

"Personal capability assessments

167C …

(5) The Department may, in the case of a person who for any purpose of this Act has been determined to be incapable of work in accordance with a personal capability assessment (including one carried out by virtue of this subsection), require the question whether the person is capable or incapable of work to be determined afresh in accordance with a further personal capability assessment."

28. In the present case the tribunal considered all the available evidence and applied the relevant descriptors to measure (the claimant's) capacity for work. The tribunal assessed the evidence concerning her disabling condition, specified which evidence it preferred and provided reasons for its choice of the descriptors for rising from sitting and bending/kneeling.
29. The observations from DMS highlight a key issue which arises in the majority of appeals relating to entitlement to IB. As was noted above, Regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession.
30. This does not mean that there cannot be a supersession on any other ground contained in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. It is possible to supersede, for example, on the basis that there had been a relevant change of circumstances, under regulation 6(2)(a)(i). To do so would require the decision-making authority to identify the relevant change of circumstances, and the date from which the supersession took effect.
31. I have already determined that the appeal tribunal erred in law in failing to identify the correct ground for supersession in the present case. The first task of the appeal tribunal was to determine whether the decision-maker, on 15 June 2007 had grounds to supersede the earlier decision of the Department, dated 28 September 2006.
32. If the appeal tribunal determined that the decision-maker, on 15 June 2007, did not have grounds to supersede the earlier decision, dated 28 September 2006, then that latter decision would continue to have effect.
33. If the appeal tribunal determined that the decision-maker, on 15 June 2007, did have grounds to supersede the decision dated 28 September 2006 then the appeal tribunal could have gone on to consider entitlement to benefit. A condition of entitlement is incapacity for work. The test of incapacity for work, applicable to the appellant, was the personal capability assessment. The personal capability assessment is an assessment of the extent to which a person who has some specific disease or bodily or mental disablement to perform certain of the activities as prescribed - section 167A(1), 167C(1) and (2) Social Security Contributions and Benefits (Northern Ireland) Act 1992. The prescribed activities are to be found in Parts I and II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.
34. Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.
35. There was no duty on the appeal tribunal to consider whether there had been a relevant change of circumstances since the date of the decision awarding entitlement to IB credits, as that was not the legal basis upon which the entitlement decision was superseded. Accordingly, there was no requirement to making findings in fact with respect to changes, identify what those changes were and specify the date from which such changes should take effect. Nonetheless, and as the record of proceedings for the appeal tribunal hearing confirms, the appeal tribunal did have before it a copy of the medical report relevant to the earlier entitlement decision. The record of proceedings also shows that the appellant gave evidence to the appeal tribunal in relation to previous appeal tribunal proceedings.

Another issue arising in the appeal

36. As was noted above, during the course of the proceedings before me, I sought further observations from DMS on the extent to which the appeal tribunal's conclusions, as set out in the statement of reasons for the appeal tribunal's decision, satisfied the 'reasonable regularity' test set out in the decision of the then Chief Social Security Commissioner in R1/96(IB) (C1/95 (IB)) and as applied in subsequent decisions of the Social Security Commissioners in both Northern Ireland and Great Britain. Further, observations were sought on the extent to which the appeal tribunal had adapted and applied the 'broad view' test set out in Moyna v Secretary of State for Work & Pensions ([2003] 4 All ER 162).
37. What is at issue here is the applicability of the relevant legislative provisions to medical conditions, such as the migraine headaches suffered by the appellant, which are variable in nature, and which might cause greater limitation on certain days than on others.
38. At paragraph 7 of the decision in R1/96(IB), the then Chief Social Security Commissioner for Northern Ireland stated:

'I agree that, apart from those few descriptors in which the word 'sometimes' appears, there is no specific requirement that a claimant must be able to perform the activity in question 'with reasonable regularity'. Nevertheless, a Tribunal must in my opinion have regard to some such concept in reaching their decision. The real issue is whether, taking an overall view of the claimant's capacity to perform the activity in question, he should reasonably be considered to be incapable of performing it. The fact that he might occasionally manage to accomplish it, would be of no consequence if, for most of the time, and in most circumstances, he could not do so. I consider, moreover, that this approach is broadly supported by the inclusion in a small number of the descriptors of the word 'sometimes'. The effect of the inclusion of this word is that, whereas in most cases a claimant who could perform the activity 'most of the time', but who sometimes was unable to do so, would normally not score any points, where these few descriptors are concerned he qualifies for a modest score. Accordingly, as I see it, there must be an overall requirement of 'reasonableness' in the approach of the Tribunal to the question of what a person is or is not capable of doing, and this may include consideration of his ability to perform the various specified activities most of the time. To that extent 'reasonable regularity' may properly be considered. On the further subject of a 'working situation', I agree that a Tribunal should not have regard to this factor; but should confine their considerations to the claimant's ability to perform the everyday activities specified in the descriptors.'

39. The 'reasonable regularity' approach to variable medical conditions, set out in R1/96(IB) has received approval in a number of decisions of the Social Security Commissioners, as they then were, in Great Britain – see, for example the decision in CSIB/17/1996.
40. In the present case, the statement of reasons for the appeal tribunal's decision records:

'The nature of the test to be applied in these cases is such that the Tribunal cannot examine each and every day in order to assess the Appellant's capabilities. We must adopt a broad approach when applying the test.'

41. What had concerned me initially was the extent to which the appeal tribunal was confusing the 'reasonable regularity' test, as set out in R1/96(IB) with the 'broad view' test set out in Moyna v Secretary of State for Work & Pensions ([2003] 4 All ER 162). In Moyna, one of the issues being considered by the House of Lords was the applicability of legislative provisions relating to entitlement to the care component of disability living allowance to those claimants whose disabilities caused variations in limitation in function. At paragraph 19, Lord Hoffman stated:

'… the question involves taking "a broad view of the matter" and making a judgment. The standard of motor abilities required by the cooking test is not so precise as to allow calibration by arithmetical formula.'

42. The statement of Lord Hoffman was approved and extended by the Chief Social Security for Great Britain, as he then was, in R(DLA) 5/05.
43. In the present case, I am satisfied that the appeal tribunal was not adapting the applicability of a test relevant to entitlement to another social security benefit. The concept of taking a 'broad view' or 'broad approach' has also been recognised to be relevant to variable conditions in IB cases.
44. In R(IB) 2/99, after approving of the decision in R1/96(IB), a Tribunal of Commissioners in Great Britain said the following, at paragraph 15:

'Although we consider a broad approach to be justified, the words of the legislation cannot be ignored. In R(A) 2/74, the Chief Commissioner said, when remitting the case before him to another delegated medical practitioner:

"[I]n my judgment in answering the [statutory questions], 'regard must be paid to ... the claimant's requirements over a period of time'. I think that the delegate should take a broad view of the matter, asking himself some such question as whether in all the circumstances the words in the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts. These are matters for the good sense and judgment of the delegate."

It follows that, in those cases where relevant descriptors are expressed in terms that the claimant "cannot", rather than "sometimes cannot", perform the activity, one should not stray too far from an arithmetical approach that considers what the claimant's abilities are "most of the time" - the phrase used in C1/95(IB). Nevertheless, we agree that all the factors mentioned by counsel - the frequency of "bad" days, the length of periods of "bad" days and of intervening periods, the severity of the claimant's disablement on both "good" and "bad" days and the unpredictability of "bad" days - are relevant when applying the broad approach. Thus, a person whose condition varies from day to day and who would easily satisfy the "all work test" on three days a week and would nearly satisfy it on the other four days might well be considered incapable of work for the whole week. But a person who has long periods of illness separated by periods of remission lasting some weeks, during which he or she suffers no significant disablement, might well be considered to be incapable of work during the periods of illness but not to be incapable of work during the periods of remission, even if the periods of illness are longer than the periods of remission. Each case must be judged on its merits and we agree with the Commissioner who decided CIB/6244/1997 that there are some cases where a claimant can properly be regarded as incapable of work both on days when the "all work test" is clearly satisfied and on other days in between those days and that there are other cases where the claimant can be regarded as incapable of work only on "bad days", although we do not consider the distinction he drew between "variable" and "intermittent" conditions to be a helpful one.'

45. The decision in R(IB) 2/99 was considered by a Tribunal of Commissioners in Northern Ireland in R1/02(IB)(T). At paragraph 19, they stated:

'The Appeal Tribunal did attempt to reach a conclusion based on the broad brush approach basis outlined in R(IB)2/99. A Tribunal is entitled to make a finding e.g. that on most days the claimant could walk in excess of 200 metres before stopping or severe discomfort without evidence expressly so stating. It must be permitted to exercise its judgment as to the true fact situation on the basis of the accepted evidence as a whole and may draw inferences from that accepted evidence. It is for the Tribunal, not for any witness, to make the necessary findings.'

Further, at paragraphs 25 to 26:

'25 As regards variable conditions such as the claimant's foot problem, we are largely in agreement with R(IB)2/99, a Great Britain Decision of a Tribunal of Commissioners, that the "broad approach" outlined therein is the only one which can sensibly be applied. We also, however, share the views expressed in that case decision at paragraph 15 thereof that "… the words of the legislation cannot be ignored … It follows that, in those cases where relevant descriptors are expressed in terms that the claimant "cannot", rather than "sometimes cannot" perform the activity, one should not stray too far from an arithmetical approach that considers what the claimant's abilities are "most of the time"…".

26. We also consider that certain factors mentioned in that decision are likely to be relevant in applying that approach though this list is neither prescriptive nor conclusive i.e. the frequency with which the relevant limitation(s) arise, for how long they last, the duration of periods when the limitation(s) are not present. We are less certain, however of the meaning or relevance of the phrase "the unpredictability of "bad" days" used in that decision. Adjudicators will simply have to try to determine the likely patterns of functional limitation. Uncertainty as to the possibility of a future recurrence would not of itself usually be enough to satisfy the test which must be satisfied on the balance of probability at the time of the decision maker's decision.'

46. In my view, the key sentence in the approved and much-quoted extract from R1/96(IB) is:

'The real issue is whether, taking an overall view of the claimant's capacity to perform the activity in question, he should reasonably be considered to be incapable of performing it.'

47. To my mind, that is reflective of a 'broad view' or 'broad approach', and there is nothing inconsistent between the 'reasonable regularity' test in R1/96(IB) and the 'broad approach' in R2/99(IB).
48. It is necessary, of course, to consider whether the appeal tribunal applied the test correctly in the instant case. I consider that it did. It took into account all relevant factors, in line with the guidance in paragraph 26 of the Tribunal of Commissioners in R1/02(T), and in the words of that Tribunal exercised 'its judgment as to the true fact situation on the basis of the accepted evidence as a whole'.

The appeal tribunal's assessment of the evidence and findings in fact

49. It is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it.
50. The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did. Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.
51. The appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence. None of the appeal tribunal's findings are irrational, perverse or immaterial.
52. The appeal tribunal applied the correct standard of proof, ie on the balance of probabilities, having no power to apply any other standard.
53. All evidential issues raised by the appeal, either expressly or apparent from the evidence, were fully examined by the appeal tribunal in conformity with its inquisitorial role.
54. I have no hesitation in adopting the findings in fact made by the appeal tribunal.

Disposal

55. My decision is that the decision-maker, on 15 June 2007, had grounds to supersede the decision dated 28 September 2006 awarding entitlement to IB credits from and including 8 May 2006. The ground for supersession is to be found in regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, namely that since the decision awarding IB was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, from a doctor referred to in paragraph (1) of that regulation.
56. The test of incapacity for work, applicable to the appellant, was the personal capability assessment. The personal capability assessment is an assessment of the extent to which a person who has some specific disease or bodily or mental disablement to perform certain of the activities as prescribed - section 167A(1), 167C(1) and (2) Social Security Contributions and Benefits (Northern Ireland) Act 1992.
57. The prescribed activities are to be found in Parts I and II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.
58. Adopting the findings of fact made by the appeal tribunal, the application of relevant descriptors to relevant activities means that the appellant scores 6 points. The appellant, therefore, fails to satisfy the personal capability assessment in that she is not incapable, by reason of some specific disease or bodily or mental disablement to perform certain of the activities as prescribed in the relevant legislation.
59. The appellant is not, therefore, entitled to IB credits from and including 15 June 2007, which is the correct date from which the supersession decision takes effect.

(signed) K Mullan

Commissioner

9 June 2009