Northern Ireland - Social Security and Child Support Commissioners' Decisions

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Cite as: [2009] NISSCSC C3_9_10(DLA), [2009] NISSCSC C3_09_10(DLA)

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Decision No: C3/09-10(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 3 February 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Having considered the circumstances of the case, I am satisfied that the appeal can properly be determined without a hearing.

I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

The decision of the appeal tribunal dated 3 February 2009 is in error of law. The error of law identified will be explained in more detail below.

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.

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.

My decision is that the decision-maker on 19 February 2008, had grounds to supersede the decision dated 29 June 2005 awarding incapacity benefit (IB) from and including 10 May 2005. The appellant is not entitled to IB credits from and including 19 February 2008.

Accordingly, although the appeal to the Social Security Commissioner succeeds, the practical outcome for the appellant, in terms of his entitlement to IB credits, is the same as that determined by the appeal tribunal.

Background

The decision under appeal to the appeal tribunal was a decision of the Department, dated 19 February 2008, which decided that:

(i) grounds existed to supersede an earlier decision of the Department, dated 29 June 2005, and which had awarded an entitlement to incapacity benefit (IB), from and including 10 May 2005; and

(ii) the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB credits from and including 19 February 2008.

The appeal was received in the Department on 19 March 2008.

In the papers which are before me is a copy of a Form 'SET3d', the contents of which would suggest that an appeal tribunal hearing took place on 3 July 2008. The contents of the 'SET3d' also confirm that the decision of the appeal tribunal, dated 3 July 2008, is set aside on the basis that the appellant had been unable to attend the appeal tribunal hearing due to illness.

A further appeal tribunal hearing took place on 23 September 2008. The appellant was not present. The appeal was adjourned, with the reasons for the adjournment being given as the inability of the appellant to attend due to illness.

A further appeal tribunal hearing took place on 6 November 2008. On this occasion the appellant was present. Once again the appeal was adjourned with the stated reasons for adjournment being that the appellant should submit to the appeal tribunal details of a further hospital consultation.

The substantive appeal tribunal hearing took place on 3 February 2009. The appellant was present, and the appeal tribunal noted that it had further medical evidence before it. The appeal was disallowed.

On 26 March 2009 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.

On 2 April 2009, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

Proceedings before the Social Security Commissioner

On 29 April 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.

On 16 June 2009 observations were sought from Decision Making Services (DMS) and these were received on 8 July 2009. DMS opposed the application on the grounds cited by the appellant but supported the application on the basis of a further identified ground.

Observations were shared with the appellant on 8 July 2009.

Errors of law

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.

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 l egal 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 submissions of the parties

In the application for leave to appeal to the Social Security Commissioner, the appellant has submitted that the appeal tribunal discarded very detailed medical evidence about his condition which he regarded as a very partial stance to take.

In their written observations on the application for leave to appeal, DMS have opposed the application on the grounds cited by the appellant but supported the application on the basis of a further I identified ground. The further identified ground relates to how the appeal tribunal dealt with the supersession decision, and in submitting that the decision of the appeal tribunal was in error of law, DMS have relied on my own decision in C12/08-09(DLA) and, more particularly, my comments at paragraph 52 of that decision.

The appeal tribunal's powers with respect to supersession decisions

A Tribunal of Commissioners in Great Britain, in R(IB) 2/04, undertook an extensive analysis of the legislative provisions relating to decision- making and appeals. In Great Britain these provisions are the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999, both as amended. In Northern Ireland these provisions are the Social Security (Northern Ireland) Order 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, both as amended. To all intents and purposes the legislative provisions with respect to decision-making and appeals in Great Britain and Northern Ireland are identical.

At paragraph 73, of R(IB) 2/04, in discussing the appeal tribunal's powers with respect to supersession decisions:

'… it follows from our reasoning … that the appeal tribunal has jurisdiction, on appeal, to decide whether the outcome arrived at by that decision (i.e. either to change or not to change the original decision) was correct. This will or may involve deciding (a) whether one of the statutory supersession grounds (whether the one relied upon by the decision-maker or not) applied and (b) if so whether the original decision ought to be changed.'

The grounds upon which a decision can be superseded are to be found in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

The context of C12/08-09(DLA)

It is important that my comments at paragraph 52 of C12/08-09(DLA) are seen in the context of the remainder of that decision.

In that case, the social security benefit under consideration was disability living allowance (DLA). The decision under appeal to the appeal tribunal was a decision in which a decision-maker decided to supersede an earlier decision of the Department and, further, decided that the appellant was not entitled to any rate or component of DLA, from a specific date. The earlier decision of the Department had included an award of entitlement to DLA.

The decision-maker had determined that the evidence available to him suggested that there had been an improvement in the appellant's care needs sufficient to amount to a relevant change of circumstances, since the earlier decision had been made, and satisfying regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

The decision-maker had determined that there was also sufficient evidence to further decide that the appellant did not satisfy the conditions of entitlement to either component of DLA from and including a specific date.

The decision-maker had also set out the legal basis upon which entitlement to DLA was removed from a specific date ('the effective date of supersession').

In C12/08-09(DLA), at paragraphs 33 to 36, I set out the duties of the appeal tribunal with respect to the decision-making process:

Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 24 March 2007, had grounds to supersede the earlier decision of the Department, dated 29 November 1996.

If the appeal tribunal determined that the decision-maker, on 24 March 2007, did not have grounds to supersede the decision dated 29 November 1996, then that latter decision would continue to have effect.

If the appeal tribunal determined that the decision-maker, on 24 March 2007, did have grounds to supersede the decision dated 29 November 1996, then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.'

The approach taken by the appeal tribunal in C12/08-09(DLA) was in error in the following way. Neither the decision notice prepared by the LQPM of the appeal tribunal, nor the statement of reasons for the appeal tribunal's decision, dealt with the issue of supersession to any degree of sufficient detail. As I noted at paragraphs 44 to 45:

What the decision notice and statement of reasons does tell the appellant is that the appeal tribunal has determined and agrees that the appellant should not have an entitlement to either component of DLA from a specific date, and then something of the evidential basis for its conclusions on that issue.

What the decision notice and statement of reasons does not inform the appellant is:

(i) that the appeal tribunal has addressed the issue of whether the Department had a legal and evidential basis for reconsidering and changing its earlier decision; and

(ii) the effective date from which any new decision should take effect.'

In their written observations on the appeal in C12/08-09(DLA), DMS had submitted that while the appeal tribunal did not specifically refer to the grounds for supersession in the conclusion to its statement of reasons, and while it may have been preferable for it to have done so, in concluding that no award of DLA was appropriate it was implicit that the appeal tribunal considered that grounds for supersession existed to remove the award, namely a relevant change of circumstances.

I rejected that submission from DMS, and concluded, at paragraph 48:

'The appeal tribunal was under a specific duty to determine whether the decision under appeal was correct. As that decision was a supersession decision the duty was to determine whether there were grounds to supersede under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.'

Finally I stated, at paragraph 52 that:

'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.

It was in the context of the submission made by DMS, and my rejection of the argument that it could be implied from the appeal tribunal's reasoning, that my comments at paragraph 52 were derived.

As was noted above, where the decision under appeal is a supersession decision, it is important that the appeal tribunal considers whether the decision-maker had grounds to supersede, and to determine the effective date from which any supersession decision should take effect. It is important to note that the grounds on which a decision may be superseded, under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, are varied. Each ground will have its own requirements, legal and evidential. Further, while most regulation 6 grounds have a general relevance to all social security benefit decision-making, some grounds will have a more specific relevance to decision-making in respect of particular social security benefits.

For example, the principal ground for supersession in IB cases 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. 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;'

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.

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, however, would require the decision-making authority to identify the relevant change of circumstances, and the date from which the supersession took effect.

Accordingly, depending on the ground relied on by the decision-maker, and the desired effect in respect of social security entitlement, the analysis of the supersession issue, including grounds, entitlement and effective date which may be required may vary. It is arguable that in IB cases, the regulation 6(2)(g) ground is intrinsic to the benefit decision itself and that, subject to the necessary and sufficient fact-finding, a confirmation of the benefit decision by the appeal tribunal will be sufficient to confirm that the decision-maker had grounds, under regulation 6(2)(g), to supersede the earlier entitlement decision. All will depend on the circumstances of each individual case, however.

The appeal tribunal's approach to the supersession issue

The statement of reasons for the appeal tribunal's decision begins with the following paragraph:

'The Tribunal considered all the oral and written evidence at the hearings on 03.02.2009 and on 06.11.2008 in order to decide entitlement to Incapacity Benefit credits on the basis of the personal capability assessment, at the date of decision, 19.02.2008.'

Thereafter there is further reference to the decision which is under appeal to the appeal tribunal.

The decision notice reads as follows:

'Disallow. The claimant fails the personal capability assessment and is not incapable of all work or entitled to incapacity credits from and including 19/2/08'

The reference to 'all work' in the decision notice is unusual. At one stage, the test for incapacity for work was known as the 'all work' test but, following reforms introduced in April 2000, through the coming into force of the relevant parts of the Welfare Reform and Pensions (Northern Ireland) Order 1999, the test became known as the personal capability assessment.

Did the appeal tribunal deal adequately with the supersession issue? It is marginal but my conclusion is that it did not. The decision under appeal to the appeal tribunal was a decision of the Department, dated 19 February 2008, which decided that:

(i) grounds existed to supersede an earlier decision of the Department, dated 29 June 2005, and which had awarded an entitlement to IB, from and including 10 May 2005; and

(ii) the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 19 February 2008.