Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2009] NISSCSC C7_08_09(IB) (16 February 2009)

Decision No: C7/08-09(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 14 November 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
2. The decision of the appeal tribunal dated 14 November 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 18 July 2007, had grounds to supersede the decision dated 31 May 2005 awarding incapacity benefit (IB) from and including 1 December 2004. The appellant is not entitled to IB from and including 18 July 2007.
6. Accordingly, although the appeal to the Social Security Commissioner succeeds, the practical outcome for the appellant, in terms of his entitlement to IB, is the same as that determined by the appeal tribunal.

Background

7. On 18 July 2007, a decision-maker made a decision of the Department which superseded an earlier decision, dated 31 May 2005, and which awarded an entitlement to IB, from and including 1 December 2004. The decision dated 18 July 2007 went on to decide that the appellant was not entitled to IB from and including 18 July 2007.
8. An appeal against the decision dated 18 July 2007 was received in the Department on 14 August 2007.
9. The appeal tribunal hearing took place on 14 November 2007. The hearing was a 'paper' hearing which meant that the appellant was not present. That aspect of the appeal will be discussed in further detail below.
10. The appeal tribunal disallowed the appeal.
11. On 28 November 2007, a request for a statement of reasons (SORs) for the appeal tribunal's decision was received in The Appeals Service (TAS).
12. On 25 January 2008, the SORs were issued to the appellant.
13. On 19 February 2008, an application for leave to appeal to the Social Security Commissioner was received in TAS.
14. On 26 February 2008, the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

The proceedings before the Social Security Commissioner

15. On 1 April 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. In the application for leave to appeal, the appellant submitted that the appeal tribunal's decision was wrong, as the appeal tribunal did not have before it relevant information concerning the applicant's medical condition. The appellant submitted that he had an appointment with his medical consultant on 27 November 2007, and that a medical report arising from this appointment was subsequently prepared. The appellant submitted that had the appeal tribunal had sight of the findings and conclusions in the medical report arising from the appointment, then the appeal tribunal might have arrived at a different conclusion.
16. On 8 May 2008 observations were sought from Decision Making Services (DMS) and these were received on 27 May 2008. DMS opposed the application, submitting that the appeal tribunal was entitled to arrive at the evidential conclusions which it did, and was entitled to proceed to determine the appeal on the basis of the evidence before it.
17. The observations from DMS were shared with the appellant on 29 May 2008.
18. A further response was received from the appellant on 26 June 2008. In this further response the appellant enclosed a medical report from a consultant orthopaedic surgeon, dated 27 November 2007, and submitted that the clinical findings in that report supported his stated restrictions.
19. This response was shared with DMS on 4 July 2008.
20. A further response was received from DMS on 11 July 2008 who continued to oppose the application, by submitting that the contents of the further medical report, dated 27 November 2007, were similar to those contained in a previous medical report, which had been before the appeal tribunal.
21. On 10 November 2008, I granted leave to appeal. The reason which I gave for granting leave was that an arguable issue arose as to whether the appeal tribunal identified the correct ground for superseding an earlier decision of the Department.
22. On 8 December 2008 a further submission was received from the appellant, in response to the granting of leave to appeal. In this submission the appellant submitted that all of the clinical evidence from the consultant orthopaedic consultant would support the fact that his condition had not changed and that he would require some form of surgical procedure in the future.
23. Having considered the circumstances of the case I was satisfied that the appeal could properly be determined without a hearing.

Errors of law

24. 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.
25. 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 in the instant case

26. 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.
27. 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.'

28. 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.
29. The decision under appeal to the appeal tribunal, in the present case, was a decision dated 18 July 2007. On that date, a decision-maker superseded an earlier decision of the Department, dated 31 May 2005, and which had awarded an entitlement to IB, from and including 1 December 2004. The decision dated 18 July 2007 went on to decide that the appellant was not entitled to IB from and including 18 July 2007.
30. Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 18 July 2007, had grounds to supersede the earlier decision of the Department, dated 31 May 2005.
31. If the appeal tribunal determined that the decision-maker, on 18 July 2007, did not have grounds to supersede the decision dated 31 May 2005, then that latter decision would continue to have effect.
32. If the appeal tribunal determined that the decision-maker, on 18 July 2007, did have grounds to supersede the decision dated 31 May 2005, then the appeal tribunal could have gone on to consider entitlement to benefit.
33. Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.
34. In the written submissions, prepared for the appeal tribunal hearing, the appeals writer dealt with the supersession decision, in some considerable detail.
35. Firstly, at paragraph 9 of section 4 of the written submissions, the appeals writer refers to the decision-maker having made a supersession decision, on 18 July 2007.
36. Secondly, at paragraph 17 of section 5 of the written submissions, the appeals writer states that:

'The law says that the Department may supersede a decision awarding incapacity benefit on receipt of medical evidence following an examination by a medical officer of the Department. In this case a report was received following an examination on 14/3/07 and the Department, on consideration of all evidence, determined that [the claimant] is not incapable of work in accordance with the personal capability assessment.'

37. Paragraph 17 of section 5 has a footnote added to it and the footnote reads:

'The Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, regulation 6(1) and 2(g)'

38. The appeals writer is submitting that the decision dated 18 July 2007 was made under the provisions of regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.
39. At Tab 8 is a copy of the decision dated 18 July 2007. In the decision it is noted that:

'I have superseded the decision of the Department dated 31/05/05 awarding Incapacity Benefit from and including 01/12/04.

This is because the Department has made a determination that [the claimant] is no longer incapable of work from medical evidence received following an examination in accordance with regulation 8 of the Incapacity for Work Regulations.'

40. There is a further reference, in the decision, to regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.
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.
45. How did the appeal tribunal consider the supersession issue in the present case?
46. In the SORs for the appeal tribunal's decision, it is noted that:

'The decision under appeal is the Department's decision dated 18 July 2007'.

47. So far, so good, and an accurate description of what the appeal tribunal had to consider. The decision notice, however, reads as follows:

'Appeal disallowed. There are grounds to supersede the decision awarding incapacity benefit being relevant change of circumstances as the claimant scores 10 points only in accordance with the personal capability assessment. He is not entitled to incapacity benefit from and including 18.7.07.'

48. The supersession undertaken by the decision-maker of the Department, on 18 July 2007 was on the specific basis of the regulation 6(2)(g) power. The appeal tribunal's decision, however, is formulated on the basis that the grounds for supersession were a relevant change of circumstances. Why is this difference important?
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.

The appellant's other grounds for appealing

54. In the application for leave to appeal, the applicant has submitted that the appeal tribunal's decision is wrong, as the appeal tribunal did not have before it relevant information concerning the applicant's medical condition. The applicant submits that he had an appointment with his medical consultant on 27 November 2007, and that a medical report arising from this appointment was subsequently prepared. The applicant submits that had the appeal tribunal had sight of the findings and conclusions in the medical report arising from the appointment, then the appeal tribunal might have arrived at a different conclusion.
55. In the letter of appeal, received in the Department on 14 August 2007, against the decision of the Department, the applicant indicated that he was waiting for an appointment with his medical consultant. Further, he stated that it would be mid to late September 2007 before he would be seen at his medical consultant's clinic. On 16 October 2007, the applicant was notified by TAS, utilising Form Reg2d, that his appeal had been received. With Reg2d was enclosed a copy of an information leaflet and a copy of the appeal submission prepared by the Department. The applicant was asked to choose whether he wished to have an oral hearing of his appeal or wished to have the appeal determined on the basis of the papers alone.
56. The information leaflet which was forwarded to the applicant gives detailed information about the appeal process. There is a lengthy section which delineates the difference between an oral and a paper hearing. There is advice on sources of assistance which might be available to the applicant. There is a detailed section headed 'Additional Evidence' which informs the applicant of his right to provide further evidence to the appeal tribunal, the benefits of the provision of comprehensive evidence and the process whereby such additional evidence should be made available to the appeal tribunal. Finally, the applicant is informed of his right to seek a postponement of his appeal, should the need for a postponement arise, and the process whereby an application for a postponement should be made.
57. The applicant's response to the receipt of Form Reg2d was to complete Form Reg2(i)d, ticking a relevant box to indicate that he was 'content for the appeal to proceed without an oral hearing'.
58. Accordingly, I am satisfied that the applicant, in advance of any hearing and determination of his appeal, was aware of his right to appear in person at an oral hearing; had been given a copy of the submissions which would be before the appeal tribunal; was aware of his right to adduce additional evidence, including medical evidence, for the appeal tribunal to consider; and of his right to seek a postponement of his appeal should the requirement for a postponement arise.
59. The applicant did not seek to exercise any of these options, and TAS correctly exercised its powers to list the appeal for hearing and determination on the basis of the papers alone.
60. Further I am of the view that the appeal tribunal was correct to proceed to determine the appeal on the basis of the papers, submissions and evidence which was before it on the date of the hearing, that is 14 November 2007. The appeal tribunal was clearly of the view that it had sufficient evidence before it in order to determine the relevant issues. That evidence included a copy of a medical report, dated 5 March 2007, from the same medical consultant whom the applicant attended in November 2007.
61. An appeal tribunal has the legislative power, under regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, to adjourn an appeal tribunal of its own motion. Such an adjournment might be for the attendance of an appellant or other witness, or for the production of additional evidence. A decision by an appeal tribunal as to whether or not to adjourn is one within its own judicial discretion.
62. Appeal tribunals should, of course, consider critically the issue of adjournment. The appeal tribunal should first ask whether the evidence to be obtained is necessary and if so whether it is likely to assist in determining the matter when the case comes back. The precise nature and relevance of the additional evidence should be identified. Only if the evidence is material to the issues arising in the appeal, and not presently available to the appeal tribunal, should an adjournment to obtain that evidence be considered. Appeal tribunals should also take into account the opportunity which the parties have had to obtain the evidence, the need to avoid delays to others and whether there is a reasonable prospect of obtaining the evidence. A conflict of evidence between parties may not necessarily be resolved by seeking further evidence. Rigorous evaluation of the available evidence to resolve the conflict is often more appropriate.
63. Additionally, it should not be assumed that because an appeal tribunal gives a direction as to evidence, it will be supplied. Some thought should also be given to how long the delay might be in obtaining evidence, especially in relation to medical reports which may not be given priority by medical practitioners. Consideration should also be given to the person who will take responsibility for (i) obtaining the evidence and (ii) preparing the evidence.
64. In summary, adjournments for further evidence require very careful consideration to determine whether they are really needed and, if so, whether they will achieve the intended outcome of providing the additional evidence needed.
65. In the present case, there is nothing to suggest that the appeal tribunal did not give careful consideration to the issue of obtaining additional medical evidence, and it clearly adhered to the proper adjournment principles, as outlined above.
66. As was indicated by Mrs Commissioner Brown at paragraph 16 of C6/05-06 (IB):

"I do not consider that the tribunal need even consider adjourning unless there is something to indicate that the appeal should not be heard on the papers. It therefore follows that unless there is some such indication the tribunal need not consider adjourning and need not refer to having considered adjourning … If there is no indication that determination on the papers would not lead to a fair hearing the tribunal need not adjourn nor even consider adjourning."

67. The appeal tribunal's decision to proceed to determine the appeal on the basis of the evidence before it was rational, and one which it was entitled to make.
68. Additionally, and in any event, it is not clear that the appeal tribunal would have arrived at a different conclusion, as suggested by the applicant, if it had sight of the further medical report, dated 27 November 2007, from the applicant's medical consultant. The clinical findings and conclusions are similar to those contained in the report from the same medical consultant, dated 5 March 2007, and which was before the appeal tribunal.
69. Finally, the applicant seems, in two respects, to have misunderstood the procedural and substantive legal rules applicable to the issues arising in his appeal.
70. Firstly, in his application to the LQPM of the appeal tribunal, for leave to appeal to the Social Security Commissioner, he submits that the conclusions of his medical consultant would impinge more greatly on his 'farming activities', than on any other 'occupations'. The test which was applicable to the applicant was the extent to which he was incapable of work in accordance with the personal capability assessment, under sections 30A and 167 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, and the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended. As was made clear in CIB/16681/1996, there is no basis for deriving from the relevant legislative provisions that the activities relevant to the personal capability assessment have to be applied in the context of work.
71. Secondly, in the further submission from the applicant, dated 24 June 2008, he indicates that the further medical report suggests that his medical condition had not improved, and had not changed since his previous assessment. That submission might give the impression that the relevant test to be applied by the appeal tribunal was to determine whether there had been a relevant change of circumstances since the previous determination. Or put from a legal decision-making perspective, whether the basis for superseding the decision awarding an entitlement to IB was under Article 11 of the Social Security (Northern Ireland) Order 1998 and regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. As was made clear above, a relevant change of circumstances can be a basis for supersession but was not the legal basis utilised in the decision-making process in this case.

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

72. It is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it.
73. 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.
74. 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.
75. The appeal tribunal applied the correct standard of proof, ie on the balance of probabilities, having no power to apply any other standard.
76. 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.
77. I have no hesitation in adopting the findings in fact made by the appeal tribunal.

Disposal

78. My decision is that the decision-maker, on 18 July 2007, had grounds to supersede the decision dated 31 May 2005 awarding IB from and including 1 December 2004. 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.
79. 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.
80. 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.
81. Adopting the findings of fact made by the appeal tribunal, the application of relevant descriptors to relevant activities means that the appellant scores 10 points. The appellant, therefore, fails to satisfy the personal capability assessment in that he 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.
82. The appellant is not, therefore, entitled to IB from and including 18 July 2007, which is the correct date from which the supersession decision takes effect.

(signed): K Mullan

Commissioner

16 February 2009