Northern Ireland - Social Security and Child Support Commissioners' Decisions

EO’D-v-Department for Social Development (IB) [2010] NICom 110

 

                              Decision No: C18/10-11(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 8 July 2009

 

                   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 application 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. 

 

2.       The decision of the appeal tribunal dated 8 July 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.

 

3.       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. This is because there is detailed evidence relevant to the issues arising in the appeal to which I have not had access, and there may be 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.

 

4.       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

 

5.       The decision under appeal to the appeal tribunal was a decision of the Department, dated 10 March 2009, which decided that:

 

(i)              grounds existed to supersede an earlier decision of the Department, dated 24 April 2002, and which had awarded an entitlement to IB, from and including 2 January 2002; and

 

(ii)             the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 10 March 2009.

 

6.       An appeal against the decision dated 10 March 2009 was received in the Department on 24 March 2009. On 8 May 2009 the decision dated 10 March 2009 was looked at again but was not changed. The substantive appeal tribunal hearing took place on 8 July 2009. The appellant was present, and was accompanied by his niece. The appeal was disallowed.

 

7.       On 24 September 2009 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service. On 29 September 2009, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

Proceedings before the Social Security Commissioner

 

8.       On 30 October 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners. On 22 December 2009 observations were sought from Decision Making Services (DMS) and these were received on 18 January 2010. In these initial observations DMS opposed the application on the grounds cited by the appellant. The initial observations were shared with the applicant and his representative on 2 February 2010. On 3 March 2010 further observations in reply were received from the applicant’s representative which were shared with DMS on 8 March 2010.

 

9.       On 12 March 2010 a further submission was received from DMS which was shared with the applicant and his representative on 25 March 2010. On 2 August 2010 the Chief Social Security Commissioner directed that the application could properly be determined without a hearing.

 

10.     On 13 September 2010 I requested that DMS provide further observations on a specific issue raised by me. These further observations were received on 30 September 2010 and were shared with the appellant’s representative on 6 October 2010. On 18 October 2010 further correspondence was received from the appellant’s representative.

 

The error of law in the instant case

 

11.     In the application for leave to appeal to the LQPM, the appellant submitted that:

 

‘…. my last treadmill test was on the 19 June 2009.  On attending my treadmill test I was examined by a Consultant Cardiac Surgeon I had a heart trace done blood taken and my cholesterol checked.  When checking the results of my treadmill test the consultant told me that I had managed to walk for three minutes ten seconds before I experienced chest pain.

 

He also stated to me that in his opinion I had a blockage in one or more ventricles and this would probably need surgery.  He said that before that I would have to have a Myocardial Perfusion Test on my heart. This would take two days one for a Rest Test and one for a Stress Test.  He said it usually took between twelve to fourteen weeks for an appointment but that he felt my case was urgent so he would try to get me in earlier.  He also raised my Ikorel medication to help with my breathlessness.

 

The Special Investigations Unit at the Royal Victor ia Hospital have contacted me and asked me could I come in on the 28 and 29 July 09.  I have said yes and have received written confirmation from them.  This is six to eight weeks early.

 

When I tried to make this point at my oral hearing I was told by the GP on the panel that this information could not be considered because they were only looking at the evidence of my medical carried out on the 10-3-09 by Dr Wilson.

 

My point I was trying to make with the GP was that if Dr Wilson’s opinion about my heart condition was wrong which it is surely his report about me is wrong which it is.’

 

12.     At the outset I would state that I cannot comment on the submission as to what was alleged to have been stated by the medically qualified panel member (MQPM) during the course of the oral hearing. I have perused the record of proceedings for the appeal tribunal hearing, and have noted the following entry:

 

‘I did treadmill on 19/6/2009 – Dr Davies said thought blockage in ventricle. He wants me to go for myocardial profusion imaging. Take 12-14 weeks on waiting list.’

 

13.     I am satisfied, therefore, that the appellant made reference to his participation in a further treadmill test on 19 June 2009. I cannot be satisfied, however, on the basis of the record of proceedings alone, that there was a further comment on the significance of this evidence by the MQPM. 

 

14.     What I do wish to comment on, however, is what the appeal tribunal, as a whole, made of the evidence concerning the further treadmill test. In the statement of reasons for the appeal tribunal decision, at paragraph 14, the following is recorded:

 

‘He said he had a treadmill recently, namely on 19 June 2009 and the doctor told him there was a blockage in his ventricle. He said they were to perform a myocardial perfusion imaging though there is delay in getting an appointment…’

 

15.     In AR-v-Department for Social Development (IB) [2010] NICom6 (C2/10-11(IB)), I stated, at paragraphs 22 to 26:

 

‘22.     Article 13(8)(b) of the Social Security (NI) Order 1998 provides –

 

‘(8) In deciding an appeal under this Article, an appeal tribunal –

 

(a)……….

 

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.’

 

23.     Article 13(8)(b) exhorts appeal tribunals to concentrate on the decision under appeal, and, more particularly, the date of the decision under appeal. The applicability of Article 13(8)(b) has to be considered, however, in the context of the social security appellate structure. It is inevitable that the appeal tribunal hearing will take place at a date later to the date of the decision under appeal. In the majority of cases, the date of the appeal tribunal hearing will be at least some months after the date of the decision under appeal and, in some rare instances, may take place at a date some years after the date of the decision under appeal.

 

24.     It is equally often the case that the appellant, or any representative whom the appellant might have and, in rare instances, the Department, as the other party to the proceedings, may also have, between the date of the decision under appeal and the date of the appeal tribunal hearing, sought to adduce further evidence considered to be relevant to the issues arising in the appeal. Moreover, the appeal tribunal itself 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 for the purpose, for example, of production of additional evidence.

 

25.     In oral hearings, where the appellant is in attendance, the appeal tribunal will also usually hear the oral evidence of the appellant given, therefore, at a time which post-dates the decision under appeal.

 

26.     In short, therefore, an appeal tribunal may find that there is before it evidence which post-dates the decision under appeal. The question arises, therefore, as to how the appeal tribunal should deal with such evidence in light of the rule set out in Article 13(8)(b) of the Social Security (NI) Order 1998.’

 

16.     After considering the decisions of Commissioner Jacobs in R(DLA) 2/01 and R(DLA) 3/01, I added, at paragraphs 31 to 33:

 

‘31.     In R(DLA) 3/01, Commissioner Jacobs considered the effect of section 12(8)(b) of the Social Security Act 1998, the equivalent in Great Britain to Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, in light of his comments in R(DLA) 2/01. At paragraph 58 he stated:

 

‘Section 12(8)(b) limits an appeal tribunal’s jurisdiction by preventing it taking into account a fresh circumstance. It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal. I stand by the statement of law that I set out in [R(DLA) 2/01] para.9 … In relating later evidence to the time of the decision, the claimant’s evidence is admissible, although it will, like all evidence, have to be weighed by the appeal tribunal.’

 

32.     The decisions in R(DLA) 2/01 and R(DLA) 3/01 were considered by Commissioner Brown in C24/03-04(DLA). In that case, the Commissioner stated, at paragraphs 6 to 8:

 

‘6.       I shall deal first with the third ground of appeal.  The ground is based on the provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998.  That provision is as follows: -

 

“In deciding an appeal under this Article, an appeal tribunal –

 

a)       …

 

b)       Shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

 

7.       This is a mandatory provision.  It prevents the Tribunal from taking account of circumstances not obtaining at the date of the decision under appeal. It does not relate to evidence whenever it came into being, which is relevant to what the circumstances were up to the date of the relevant decision.  It does not prevent the Tribunal taking into account evidence obtained after the decision under appeal was made, for the purpose of drawing inferences as to the circumstances obtaining when or before the decision was made.  For example, if a claimant tells the Tribunal that his situation now is the same as it was at the date of the decision under appeal and produces evidence as to his present walking ability, why should that latter evidence if accepted not be used to determine the circumstances at the date of the claim?

 

The Tribunal in deciding the appeal must not take into account circumstances which did not obtain at the time of the decision under appeal.  However, it is entitled to take account of any evidence which indicates what those circumstances were.

 

In this connection I would refer in particular to decision CDLA/4734/99, a decision of Mr Commissioner Jacobs in Great Britain. 

 

…As Commissioner Jacobs stated at paragraph 57 of that decision: -

 

“There is a difference between a circumstance and evidence of that circumstance.”

 

At paragraph 58 he stated: -

 

“Section 12(8)(b) [the Great Britain equivalent to Article 13(8)(b)] limits an Appeal Tribunal’s jurisdiction by preventing it taking into account a fresh circumstance.  It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal.  I stand by the statement of the law that I set out in CDLA/2934/1999, paragraph 9: -

 

“In the case of a claim for a Disability Living Allowance, the jurisdiction [of an Appeal Tribunal] is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The effect is also to limit the evidence that is relevant to the appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However, it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time, it is not admissible.””

 

8.       I can put the matter no better than Mr Commissioner Jacobs did in the above extract with the caveat as regards the final sentence in relation to which I would add only this, that the evidence may relate to the period over which the Tribunal has jurisdiction even though it also relates to a later time so long as it sheds light on the circumstances obtaining at the date of the decision under appeal …’

 

33.     Although, the principles in the cases cited above were in the context of disability living allowance they are applicable, in my view, to how appeal tribunals in social security appeals should address the issue of consideration of evidence which post-dates the decision under appeal.’

 

17.     In paragraph 43 I cited the following extract from paragraph 9 of the decision of Commissioner Jacobs in R(DLA) 2/01 –

 

‘…If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

 

and in paragraph 44, and in the circumstances of that case,  I found that:

 

‘…, I cannot see, from the statement of reasons for the appeal tribunal’s decision that the appeal tribunal has endeavoured to make findings concerning the relation of the evidence which post-dated the decision under appeal to the period under its consideration – that is the period up to the date of the decision under appeal.’

 

18.     In the instant case, the appellant made a specific reference to the further treadmill test which he had undertaken on 19 June 2009. It was clear that he had formed the view that this evidence was significant to the issues arising in his appeal. Although the evidence post-dated the decision under appeal, the appeal tribunal was, in my view, under a duty to determine whether the post-dated evidence relates to the period under its consideration.

 

19.     In the instant case, I cannot see, from the statement of reasons for the appeal tribunal’s decision that the appeal tribunal had endeavoured to make findings concerning the relation of the evidence which post-dated the decision under appeal to the period under its consideration - that is the period up to the date of the decision under appeal.

 

20.     Although the further treadmill test, and the evidence in connection with that test, which the claimant supplied to the appeal tribunal post-dated the decision under appeal by a number of months, the treadmill test took place only a matter of weeks before the date of the appeal tribunal hearing. In my view, the appeal tribunal should have considered the significance of the evidence and whether the evidence was related to the period under consideration.

 

21.     The failure of the appeal tribunal to make specific findings concerning the relation of specific evidence which it did not fully assess, in arriving at its decision with respect to the issues arising in the appeal, to the period under its consideration did not accord with the principles set out in R(DLA) 2/01 and R(DLA) 3/01, as approved in C24/03-04(DLA). Accordingly, the decision of the appeal tribunal is in error of law.

 

22.     It is important to note that the Department, through its DMS section is in agreement that the decision of the appeal tribunal is in error of law on the basis of principles cited above.

 

The appellant’s other grounds for appealing to the Social Security Commissioner

 

23.     Having found that the decision of the appeal tribunal is in error of law on the basis of the principles set out above, I do not have to consider the appellant’s other grounds for appealing. I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds cited by the appellant, namely that the appeal tribunal’s assessment of the evidence in respect of the appellant’s mental health was inadequate.

 

Disposal

 

24.     The decision of the appeal tribunal dated 8 July 2009 is in error of law. 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.

 

25.     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. This is because there may be 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.

 

26.     I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following.

 

27.     The decision under appeal is a decision of the Department, dated 10 March 2009, which decided that:

 

(i)              grounds existed to supersede an earlier decision of the Department, dated 24 April 2002, and which had awarded an entitlement to IB, from and including 2 January 2002; and

 

(ii)             the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 10 March 2009.

 

28.     Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 10 March 2009 had grounds to supersede the decision of the appeal tribunal dated 24 April 2002. The ground for supersession on which the decision-maker relied 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.

 

29.     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.

 

30.     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.

 

31.     If the appeal tribunal determines that the appellant is not incapable of work in accordance with the personal capability assessment then it must then decide whether any of the exceptional circumstances set out in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, apply to the appellant. Guidance as to the approach to be taken to regulation 27 is to be found in R 4/01(IB), C22/01-02(IB), CIB/14667/1996 and CIB/1381/2008.

 

32.     It will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal. The appellant and any representative of the appellant may wish to make a submission to the appeal tribunal, and adduce further evidence in connection with that submission, in connection with the further treadmill test undertaken by the appellant on 19 June 2009. The appeal tribunal should consider any evidence which post-dates the decision under appeal in line with the principles set out in R(DLA) 2/01, R(DLA) 3/01 (DLA), C24/03-04(DLA) and AR-v-Department for Social Development (IB) [2010] NICom6 (C2/10-11(IB)).

 

 

 

 

 

 

 

 

33.     It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

 

 

          (Signed):  K Mullan

 

          COMMISSIONER

 

 

 

          11 November 2010