CMcB-v-Department for Social Development (IB) [2010] NICom 92

Decision No:  C1/10-11(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 21 April 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    The decision of the appeal tribunal dated 21 April 2009 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to incapacity benefit (IB) credits from and including 25 September 2008 is confirmed.

 

       Background

 

2.    The decision under appeal to the appeal tribunal was a decision of the Department, dated 25 September 2008, which decided that:

 

(i)              grounds existed to supersede an earlier decision of the Department, dated 11 June 2001, and which had awarded an entitlement to IB, from and including 7 April 2001; 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 25 September 2008.

 

3.    The appeal was received in the Department on 30 September 2008.

 

4.    On 8 November 2008 the decision dated 25 September 2008 was looked at again but was not changed.

 

5.    The substantive appeal tribunal hearing took place on 21 April 2009.  The appellant was present, and gave evidence.  The appeal was disallowed.

 

6.    On 28 May 2009 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.

 

7.    On 2 June 2009, the application for leave to appeal was refused by the legally qualified panel member.

 

       Proceedings before the Social Security Commissioner

 

8.    On 15 June 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.

 

9.    On 8 September 2009 observations were sought from Decision Making Services (DMS) and these were received on 5 October 2009.  In these initial observations DMS opposed the application on the grounds cited by the appellant but supported the application on two further identified grounds.

 

10.   Observations were shared with the appellant and her representative on 24 November 2009.  On 18 January 2010 leave to appeal was granted by the Chief Social Security Commissioner who gave, as a reason for granting leave, that it was arguable that the decision of the appeal was wrong in law, because the appeal tribunal had not adequately dealt with the issue of supersession.

 

       Errors of law

 

11.   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.

 

12.   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.”

 

       Was the decision of the appeal tribunal in the instant case in error of law?

 

       The submissions of the parties

 

13.   In the application for leave to appeal to the Social Security Commissioner, the appellant has submitted that the decision of the appeal tribunal was in error of law on the basis that the appeal tribunal did not fully consider the medical evidence available to them in reaching the decision.

 

14.   In their written observations on the application for leave to appeal, DMS opposed the application on the grounds cited by the appellant but supported the application on two further identified grounds.  These two further identified grounds concerned how the appeal tribunal dealt with the supersession issue, and whether the statement of reasons for the decision of the appeal tribunal were adequate to explain how it dealt with certain of the evidence which was before it.

 

       Analysis

 

15.   If the appellant is making a bare assertion that the appeal tribunal did not consider at all the medical evidence which was before it, then such a submission must be rejected directly.

 

16.   The record of proceedings for the appeal tribunal hearing records that the appeal tribunal had before it the appeal submission, which itself contained a copy of a medical report from the appellant’s general practitioner (GP), dated 12 November 2007, together with a report of an examination conducted by a medical officer of the Department dated 2 June 2008.  The record of proceedings for the appeal tribunal hearing also records that the appeal tribunal had before it a copy of a letter from the appellant’s GP dated 20 April 2009.  In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has stated that ‘… the Tribunal considered all of the available evidence, including the appeal papers, a letter from her GP dated 20.4.09 and her oral evidence.’  Accordingly, it is clear that the appeal tribunal did, in fact, consider all of the medical evidence.

 

17.   It may be the case that the submission which the appellant is making is that the statement of reasons for the appeal tribunal’s decision is not adequate to explain what the appeal tribunal made of all of the medical evidence which was available to it.  Such a submission also equates to the first basis upon which DMS have also submitted that the decision of the appeal tribunal is in error of law.  DMS have submitted that the reasons are inadequate in failing to explain the conclusions with respect to the medical management of the appellant’s medical conditions.

 

18.   There is no doubt that the statement of reasons for the appeal tribunal’s decision is brief.  I would say, at the outset, that there is no link between brevity of reasons and lack of adequacy of reasons.  The conclusions of an appeal tribunal can be explained in a succinct and brief manner provided those reasons are logical, coherent and are not perverse.

 

19.   In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has recorded that:

 

‘The Appellant has not satisfied the requirements of the Personal Capability Assessment (PCA).  The Tribunal considered all of the available evidence, including the appeal papers, a letter from her General Practitioner dated 20.4.09 and her oral evidence; it accepted that she suffers from a degree of back pain and anxiety and depression.  However, the medical management of her conditions are not consistent with the levels of disability alleged by the Appellant, whose evidence was felt to be exaggerated.’

 

20.   I find no difficulty with the appeal tribunal’s conclusions with respect to the appellant’s credibility.  In C14/02-03(DLA), Commissioner Brown stated at paragraph 11:

 

‘ … 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.’

 

21.   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.’

 

22.   This reasoning was confirmed in CIS/4022/2007.  After analysing a series of authorities on the issue of the assessment of credibility, including R3/01(IB)(T), the Deputy Commissioner (as he then was) summarised, at paragraph 52, as follows:

 

‘In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted.  As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately "the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it".

 

23.   It is arguable that the appeal tribunal’s reasons for its decision are that while it accepted that the appellant suffers from a degree of back pain and anxiety, her evidence concerning the effects of her medical conditions on her daily life and ability to function was exaggerated, and the available medical evidence, including evidence concerning the medical management of her conditions, did not corroborate any greater limitation in function such as that claimed by the appellant.  It is arguable that the appeal tribunal could have expanded on the last part of those reasons, including a more detailed reference to the medical evidence from the appellant’s GP.  It noted, however, that it had considered this evidence and, it seems to me that read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.

 

24.   In the written observations on the application for leave to appeal, DMS has also submitted that:

 

‘In addition I would submit that the tribunal has not adequately dealt with the issue of supersession in this case.  In Northern Ireland decision C12/08-09(DLA) Commissioner Mullan stated at paragraph 52:-

 

“The appeal tribunal’s duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it has done so……..That consideration must be explicit from the decision notice, the statement of reasons or a combination of both.”

 

       In paragraph 57 he went on to state that it was not preferable for a tribunal to refer specifically to the grounds for supersession in the conclusion to its statement of reasons but essential that it does so.  In (the claimant’s) case there is no mention of supersession in the tribunal’s decision notice.  In its reasons the tribunal states:-

 

“the Appellant was not entitled to any points under the Personal Capability Assessment and accordingly the Department had grounds on that date to supersede previous decisions awarding incapacity credits.”

 

       I would submit that the tribunal has not adequately explained the grounds for superseding the award of credits, particularly when contrasted to paragraph 15 of the Department’s submission regarding the issue of supersession.  I would therefore submit that the tribunal has erred in law in relation to this issue.’

 

25.   I have clarified my comments in C12/08-09(DLA) in many decisions since that decision was disseminated.  I would repeat that it was in the context of the submission made by DMS in C12/08-09(DLA), and my rejection of the argument that it could be implied from the appeal tribunal’s reasoning that it had considered whether the decision-maker had established grounds to supersede, that my comments at paragraph 52 were derived.

 

26.   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.

 

27.   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;’

 

28.   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)297 and R(DLA)6/01.

 

29.   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.

 

30.   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.

 

31.   In the instant case, I am satisfied that although the issue is marginal, the appeal tribunal did address, in an adequate manner, the supersession issue.  It recognised and confirmed the outcome decision under appeal.  It made reference to the requirement for the Departmental decision-maker to identify grounds to supersede in the statement of reasons.  While it would have been beneficial for the appeal tribunal to identify that the grounds to supersede were those found in regulation 6(2)(g) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, this is one of those cases where 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 is sufficient to confirm that the decision-maker had grounds, under regulation 6(2)(g), to supersede the earlier entitlement decision.

 

32.   In any event, if I had been wrong in respect of my conclusions with respect to the supersession issue, I would have been content 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.

 

       Disposal

 

33.   The decision of the appeal tribunal dated 21 April 2009 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to IB credits from and including 25 September 2008 is confirmed.

 

 

(signed):  K Mullan

 

Commissioner

 

 

 

4 October 2010