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Cite as: [2009] NISSCSC C8_08_09(IB), [2009] NISSCSC C8_8_9(IB)

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[2009] NISSCSC C8_08_09(IB) (06 February 2009)

Decision No: C8/08-09(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 9 January 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

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.

The decision of the appeal tribunal dated 9 January 2008 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.

For further reasons set out below I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given, as there are further findings of fact which require to be made. Further I do not consider it expedient to make such findings at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

In referring the case to a differently constituted appeal tribunal for re-determination I direct that the appeal tribunal takes into account the guidance set out below.

It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside the issue of his entitlement to incapacity benefit (IB) remains to be determined by another appeal tribunal. In accordance with the guidance set out below the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

Background

On 7 September 2007, a decision-maker of the Department made a decision which superseded an earlier decision of the Department, and which refused entitlement to IB from and including 7 September 2007.

An appeal against the decision dated 7 September 2007 was received in the Department on 27 September 2007.

Following the preparation of the submission for the appeal tribunal hearing, the appellant forwarded a letter from his general practitioner (GP) dated 3 December 2007.

The letter dated 3 December 2007 was considered by the decision-maker in an addendum, dated 14 December 2007, to the main appeal tribunal submission.

The appeal tribunal hearing took place on 9 January 2008.

The appeal tribunal disallowed the appeal, and confirmed the decision dated 7 September 2007.

On 25 March 2008 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service. The principal grounds submitted in support of the application were that:

(i) the appeal tribunal failed to take into account medical evidence sent by the appellant's doctor and dated 3 December 2007;

(ii) physical descriptor 11(e) was not discussed apart from length of time, treatment received and 'hearing aid';

(iii) no attempt was made to ascertain the severity of the appellant's disablement or, if necessary, have the facts established by a hearing test.

On 8 April 2008 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

The proceedings before the Social Security Commissioner

On 30 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. Reference was made to the earlier grounds submitted. Additionally the applicant stated that an MRI scan was pending and consideration should have been given to an adjournment to await the result of the MRI scan, and that a hearing test should have been considered.

On 3 June 2008 observations were sought from Decision Making Services (DMS) and these were received on 30 June 2008. DMS opposed the application for leave to appeal.

The observations from DMS were shared with the applicant on 3 July 2008.

On 11 August 2008 further submissions in reply to the DMS submissions were received from the applicant. In these further submissions the applicant submitted that:

(i) the IB50 questionnaire was not completed correctly;

(ii) medical evidence had been provided by his doctor which should have been discussed;

(iii) tests should have been carried out to completely disregard evidence of impaired hearing;

(iv) he did not understand how the appeal tribunal could accept evidence of the examining medical officer (EMO) as his hearing problems were not discussed at any time.

On 15 October 2008 further submissions were received from the applicant in which he repeated his arguments with respect to the appeal tribunal's consideration of the evidence with respect to impaired hearing.

On 10 November 2008 I granted leave to appeal to the Social Security Commissioner. The reasons which I gave for granting leave was that an arguable issue arose as to whether the statement of reasons for the appeal tribunal's decision was adequate to explain why the appeal tribunal accepted and preferred the evidence which it did, and rejected other evidence available to it.

On 19 November 2008 further submissions were received from the appellant's representative relating to the granting of leave to appeal. In these submissions the representative indicated that the appellant had been the subject of an MRI scan, following which he had an insole and, subsequently, a splint fitted and that he was awaiting an appointment to check his hearing impairment.

Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I was satisfied that the appeal could properly be determined without a hearing.

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 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

(i) The arguments before the Social Security Commissioner

The appellant, and his representative, have consistently argued that the appeal tribunal erred in law in its assessment of the appellant's hearing. Submissions were also made concerning the appellant having undergone, since the date of the appeal tribunal decision, an MRI scan in connection with his ankle problem. This aspect of the appellant's submissions is dealt with in further detail below.

In summary the main grounds identified by the appellant and his representative are:

(i) the IB50 questionnaire, particularly in relation to 'hearing' had been completed incorrectly;

(ii) the appeal tribunal failed to take into account medical evidence sent by the appellant's doctor, and dated 3 December 2007;

(iii) physical descriptor 11(e) was not discussed apart from length of time, treatment received and hearing aid; and

(iv) no attempt was made to ascertain the severity of the appellant's disablement or, if necessary, have the facts established by a hearing test.

In response, DMS submits that:

(i) the appeal tribunal had not erred in failing to adjourn in order to obtain the results of an MRI scan or to have a hearing test conducted; and

(ii) the appeal tribunal had implicitly accepted that the appellant did not have a hearing problem and, as such, rejected the evidence of the appellant's GP in favour of the evidence of the EMO.

(ii) The documentary evidence before the appeal tribunal in relation to 'hearing'

In order to assess the appellant's capacity for work he was requested to complete a questionnaire giving details of how his illness affects his ability to perform various activities. The appellant completed the relevant questionnaire on 20 July 2007 and returned this with a statement from his GP. The statement from the GP is in the form of a 'Med 4' document, which sets out the main diagnosis as right ankle pain. Copies of the relevant documents were attached to the original appeal submission as tabbed documents. In his responses in the questionnaire, to the questions about any problems with hearing, the appellant chose to tick the box 'I have no problem hearing'.

The appellant was examined by an EMO of the Department on 22 August 2007. A copy of the report of the medical examination is also attached to the original submission as a tabbed document. In the report of the medical examination there is a section in which the appellant's diagnoses are recorded as 'right ankle injury' and 'right knee pain' and that there are 'no other medical conditions identified'. In a section headed 'Description of functional ability' the problems with the right ankle injury and the right knee pain are elaborated on and, once again, it is noted that 'no other medical conditions identified'.

In his letter of appeal, dated as received in the Department on 27 September 2007, the appellant indicates that he wishes to appeal as he is 'still unable to do any work due to my ankle injury'. Once again there is no mention of any problem with hearing.

(iii) The decision-maker's addendum dated 14 December 2007

Following the preparation of the submission for the appeal tribunal hearing, the appellant had forwarded a letter from his GP dated 3 December 2007.

The letter dated 3 December 2007 was considered by the decision-maker in an addendum, dated 14 December 2007, to the main appeal tribunal submission. This is the 'decision maker's addendum of 14.12.07' to which the appeal tribunal refers in the statement of reasons.

The letter, dated 3 December 2007, from the appellant's GP refers to the appellant's problems with ankle pain following an earlier injury. The GP then added:

'In addition [the claimant] has impaired hearing and is currently being treated for depression.'

In the addendum, dated 14 December 2007, the decision-maker indicates:

'I would point out that at the time of examination there was no evidence that [the claimant] was suffering from impaired hearing or depression. [The claimant] indicated in his IB50 questionnaire that he had no problem with hearing and was not suffering from a mental health problem. He was also not suffering from either problem when [Dr M] completed the Form Med 4 on 20/7/07 (Tab …). If these are new incapacities since the date of the decision, then the correct procedure is for [the claimant] to make a new claim for incapacity benefit.'

(iv) Record of proceedings for the appeal tribunal hearing

An oral hearing of the appeal was held on 9 January 2008 at which the appellant attended and gave oral evidence. The appellant was represented and his representative made submissions on his behalf.

The record of proceedings, in part, records the following:

Mr Rice: questionnaire not properly completed: S(b) c 6(c): p.6. getting up p.13. Hearing: also incorrectly completed. Ankle main disabling factor: see letter from General Practitioner 3.12.07. Chronic foot injury: incapable of work. Disputed descriptors: 1(d), 4(c), 5(b), 6(c), 11(e)

Appellant: no date for MRI scan.

Hearing problem since childhood. No treatment since childhood. No hearing aid.

(v) The appeal tribunal's decision and statement of reasons

As was noted above, the decision under appeal to the appeal tribunal was a decision dated 7 September 2007, when a decision-maker of the Department made a decision which superseded an earlier decision of the Department, and which refused entitlement to IB from and including 7 September 2007.

The appeal tribunal disallowed the appeal and confirmed the decision dated 7 September 2007. The appeal tribunal completed a 'Score Sheet' in which entries, by way of found and noted descriptors, are made opposite the activities of walking, stairs and standing.

The statement of reasons for the appeal tribunal's decision is brief, and reads as follows:

'Appellant concedes that he voluntarily abstains from pain relief, during the day but takes medication at night to relieve pain and promote sleep.

This circumstance undermines his appeal to a significant degree but we do not intend to interfere with the Examining Medical Officer's assessment (tab …) or dissent from the decision maker's addendum of 14.12.07.

We, therefore, disregard the complaints of impaired hearing and depression and concur with the physical descriptors awarded, if generously, a total of 14 points. Appellant is not incapable of work in accordance with the personal capability assessment.'

(vi) The error of law

The appeal tribunal had to decide whether the decision-maker, on 7 September 2007, had grounds to supersede an earlier decision of the Department, and to decide whether the appellant was entitled to IB, being incapable of 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.

At the oral hearing of the appeal the appellant's representative made submissions on the descriptors and activities which he submitted were at issue in the appeal, and which he submitted ought to be considered by the appeal tribunal.

The role of an appeal tribunal in considering issues raised by an appeal was examined in depth by the Court of Appeal in Mongan v Department for Social Development ...[2005] NICA 16)) reported as R 3/05 (DLA). In that case the Lord Chief Justice stated, at paragraph 17:

'Whether an issue is sufficiently apparent from the evidence will depend on the particular circumstances of each case. Likewise, the question of how far the tribunal must go in exploring such an issue will depend on the specific facts of the case. The more obviously relevant an issue, the greater will be the need to investigate it.'

The appellant's representative raised an issue that the appellant had problems with hearing, submitting that the questionnaire had been incorrectly completed by the appellant with respect to this activity, that there was supporting evidence in the form of the report from the GP dated 3 December 2007, and that among other disputed descriptors, descriptor '11(e)' was in dispute.

In Part I to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, descriptor 11(e) reads as 'Cannot hear well enough to understand someone talking in a normal voice on a busy street'.

In R5/99(IB) the Chief Commissioner, at paragraph 11, gave guidance to appeal tribunals in relation to the approach to be taken when considering the activities and descriptors relevant to what was then the 'All Work Test', now the 'Personal Capability Assessment'.

'I would commend the words of Mr Commissioner Walker QC in CSIB/324/97 at paragraph 11 … as a sensible guide to Tribunals hearing cases dependent on the All Work Test, as long as it is appreciated that the Commissioner is setting out "the best and safest practice." His words should not be used as a straitjacket. If the approach recommended by Mr Commissioner Walker is not adopted it does not necessarily mean that a Tribunal's decision is erroneous on point of law.'

In turn, the words of Mr Commissioner Walker QC in CSIB/324/97 at paragraph 11 were:

'"... I have come to the view that the best and safest practice is for a tribunal to consider, and make findings of fact about, first, the disability or disabilities, be they disease or bodily or mental problems, from which an individual has been proved on the evidence to suffer. Second, they should consider and make findings of fact about which, if any, of the activities set out in the Schedule, are established to be adversely affected by any of those disabilities. Thirdly, and based upon appropriate findings of fact, in the case of each such activity the tribunal should determine which descriptor best fits the case having regard to the evidence, in their view. Finally, in the reasons, they should explain why a particular activity has been held not to be adversely affected where there was a contention that it was so affected, and why a particular descriptor has been preferred to any other contended for."

In R5/99(IB) the Chief Commissioner, at paragraph 13, went on to qualify the rigorous application of the 'best and safest practice test'. He stated:

'There are cases where it will clearly not be necessary to follow this "best and safest practice"; for example, in situations where the issue is whether or not the Tribunal believes the claimant on a fundamental and relevant matter - (see GB Decision CIB/16572/96 in which Deputy Commissioner Ramsay held that, where a Tribunal had come to the conclusion on perfectly reasonable grounds that it did not believe the claimant when he alleged that the responses he had given in a questionnaire were not accurate, it was not necessary to record specific findings on each of the activity questions brought into question by the claimant; the reason for this conclusion is because the finding that the Tribunal did not believe that the claimant had been mistaken at the time of his original response in reality covers all the disputed areas raised at the hearing).'

It is clear that the guidance offered by the Chief Commissioner is equally applicable to both the making and recording of decisions.

To what extent then did the appeal tribunal adhere to the appropriate standards?

There is no doubt that the appeal tribunal did consider the submitted problem with hearing at the oral hearing of the appeal. As was noted above, the record of proceedings notes that:

'Hearing problem since childhood. No treatment since childhood. No hearing aid.'

What is clear, however, is that the appeal tribunal did not go on to explore the submission made by the appellant's representative that the appellant's problems with hearing were such that descriptor 11(e) was appropriately applicable to the appellant in that he could 'not hear well enough to understand someone talking in a normal voice on a busy street'. That is relevant as the remainder of the record of proceedings demonstrates that the other disputed activities – walking, standing, rising, and bending and kneeling – were explored by the appeal tribunal, not only in terms of the medical derivation of problems associated with those activities but also in terms of the effect and degree of limitation caused. In this regard the record of proceedings records:

'Walking: 50/90 metres: foot gets sore and stiff. Don't like tablets during the day. Painkillers ease the pain. Can walk on after a rest. Standing: wouldn't stand too long. Would kneel leg on chair. Stiff in morning. Holds hand rail on stairs. Not rest on stairs. Could stand 5/10 minutes. Rising: putting strain on foot. Support out of habit. Bending etc. Down on one knee to stand again.'

It is arguable, therefore, that the appeal tribunal failed in its duty to explore, with sufficient adequacy, an issue raised by the appeal.

The standards with respect to the approach to be taken to the activities and descriptors within the personal capability assessment apply both to the making and recording of decisions. Before an error of law can be identified, therefore, consideration also has to be given to the statement of reasons for the appeal tribunal's decision. With respect to the submitted problems with hearing, the statement reads:

'We, therefore, disregard the complaints of impaired hearing …'

The use of the adverb 'therefore' means that consideration has to be given to the context in which the appeal tribunal disregarded the complaints of impaired hearing. In the previous sentence, the appeal tribunal noted:

' … we do not intend to interfere with the Examining Medical Officer's assessment (tab …) or dissent from the decision maker's addendum of 14.12.07'.

It seems to me that three possibilities exist.

The first is that the appeal tribunal rejected the appellant's evidence concerning his problems with hearing and simply did not accept that he had any such difficulty. That might bring this case within the category of case referred to by the Chief Commissioner in R5/99(IB), where there would be no requirement to make specific findings on each of the activity questions brought into question by the appellant, if the appeal tribunal has come to the conclusion on perfectly reasonable grounds that it did not believe the claimant. The appeal tribunal could be absolved of any duty to make specific findings on the activity of hearing, if it has rejected the appellant's evidence with respect to this activity. In this respect the appellant's indication, in the relevant questionnaire, and during the medical examination conducted by the EMO of the Department, that he had no problems with hearing might have been foremost in the mind of the appeal tribunal.

The second possibility is that the appeal tribunal agreed with the findings and conclusions of the EMO of the Department who had recorded that the appellant had no problems with his hearing.

The third possibility is that the appeal tribunal has accepted the submission contained in the addendum dated 14 December 2007. That addendum indicated that at the time of examination by the EMO of the Department there was no evidence that the appellant was suffering from impaired hearing or depression. Further, it was submitted that the appellant had indicated in his IB50 questionnaire that he had no problems with hearing and was not suffering from a mental health problem. The addendum also submitted that the appellant was not suffering from either problem when his GP completed the Form Med 4 on 20/7/07. The addendum concluded that if hearing and depression were new incapacities, since the date of the decision, then the correct procedure was for the appellant to make a new claim for IB.

In my view, there are problems with all three possibilities. Firstly, if the appeal tribunal was rejecting the appellant's evidence concerning his problems with his hearing, then it was under a duty to make that clear in its statement of reasons. The extent of the duty is not onerous. In C14/02-03(DLA), Commissioner Brown, at paragraph 11, stated:

' … there is no universal rule that a Tribunal must always explain its assessment of credibility. It will usually be enough for a Tribunal to say that it does not believe a witness.'

Additionally, in R3/01(IB)(T), a Tribunal of Commissioners, at paragraph 22 repeated what the duty is:

'… we do not consider that there is any universal obligation on a Tribunal to explain its assessment of credibility. We disagree with CSIB/459/97 in that respect. There may of course be occasions when this is necessary but it is not an absolute rule that this must always be done. If a Tribunal makes clear that it does not believe a claimant's evidence or that it considers him to be exaggerating this will usually be sufficient. The Tribunal is not required to give reasons for its reasons. There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision. It will, however, normally be a sufficient explanation for rejecting an item of evidence, including evidence of a party to an appeal, to say that the witness is not believed or is exaggerating.'

If the appeal tribunal did have difficulties with the credibility of the appellant, in respect of his problems with hearing, then there is nothing in the statement of reasons to suggest that this was the reason why it disregarded the complaints of impaired hearing.

Secondly, if the appeal tribunal was agreeing with the findings and conclusions of the EMO of the Department, and accepting the evidence contained in that report, it has given no indication that it has considered the evidence of the appellant's GP, as set out in the report dated 3 December 2007, and in which he refers to the appellant having impaired hearing. In the observations made on the appellant's application for leave to appeal to the Social Security Commissioner, DMS submitted that in accepting the evidence contained in the report of the examination undertaken by the EMO of the Department, the appeal tribunal has implicitly rejected the evidence of the GP. I cannot, with respect, accept that submission.

The reason for my rejection of the DMS submission is that there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.

In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

' … there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect. It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason. Indeed, it will sometimes be its duty to do so. However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant. It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short. We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal. That body must have regard to the whole of the evidence, including the medical evidence. Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so. Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.'