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JH-v-Department for Social Development (IB) [2010] NICom 16
Decision No: C9/09-10(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 2 May 2008
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 2 May 2008 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) from and including 17 January 2008 is confirmed.
Background
3. The decision under appeal to the appeal tribunal was a decision of the Department, dated 17 January 2008, which decided that:
(i) grounds existed to supersede an earlier decision of the Department, dated 22 May 2007, and which had awarded an entitlement to IB from and including 3 February 2007; and
(ii) the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 17 January 2008.
4. The appeal was received in the Department on 18 January 2008. On 12 February 2008, the decision dated 17 January 2008 was looked at again, but was not changed.
5. The appeal tribunal hearing took place on 2 May 2008. The appellant was present and gave oral evidence. He was accompanied by his sister. A presenting officer from the Department was also present. The appeal tribunal disallowed the appeal.
6. On 9 March 2009, an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service. On 27 March 2009, the application for leave to appeal was refused by the legally qualified panel member (LQPM).
The proceedings before the Social Security Commissioner
7. On 15 April 2009, 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:
(i) the appeal tribunal did not provide adequate reasons for the decision or give satisfactory findings of fact;
(ii) he had an entitlement to the middle rate of the care component of disability living allowance (DLA) since 2007 which indicated that he required substantial help with personal care;
(iii) his general practitioner (GP) considers that he is grossly unfit for any gainful employment;
(iv) the appeal tribunal breached the rules of natural justice;
(v) the appeal tribunal did not request his medical file giving details of blood tests etc; and
(vi) his condition had deteriorated.
8. On 23 July 2009 further correspondence relating to the appellant was received from his GP.
9. On 29 July 2009 observations were sought from Decision Making Services (DMS), and these were received on 14 August 2009. DMS opposed the application for leave to appeal on the grounds cited by the appellant but submitted that the decision of the appeal tribunal was in error of law on the basis of another identified ground. Observations were shared with the appellant on 9 September 2009.
10. On 20 October 2009 DMS were asked to clarify certain of the submissions which were made in the written observations received on 14 August 2009. On 27 October 2009 a further submission was received from DMS.
11. On 5 November 2009 DMS were asked to make clear the action which it submitted was appropriate in the case. On 16 November 2009 a further response was received from DMS which addressed this further query.
12. On 25 November 2009 leave to appeal was granted by the Chief Social Security Commissioner. In granting leave to appeal, the Chief Commissioner gave, as reasons for the grant that:
‘It is arguable that the decision was wrong in law, because the tribunal failed to state specifically what the actual grounds for supersession of the original decision were.’
13. On 25 November 2009, the appellant was informed that leave to appeal had been granted and he was provided with copies of the further submissions from DMS, dated 27 October 2009 and 16 November 2009.
Errors of law
14. 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.
15. 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 error of law in the instant case?
16. As was noted above, in the application for leave to appeal, the appellant submitted that the appeal tribunal’s decision was wrong, as:
(i) the appeal tribunal did not provide adequate reasons for the decision or give satisfactory findings of fact;
(ii) he had an entitlement to the middle rate of the care component of DLA since 2007 which indicated that he required substantial help with personal care;
(iii) his GP considers that he is grossly unfit for any gainful employment;
(iv) the appeal tribunal breached the rules of natural justice;
(v) the appeal tribunal did not request his medical file giving details of blood tests etc.; and
(vi) his condition had deteriorated.
I will deal with each of those grounds in turn.
Reasons
17. Regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:
‘(4) Subject to paragraph (4A), a party to the proceedings may apply in writing to the clerk to the appeal tribunal for a statement of the reasons for the tribunal’s decision within one month of the sending or giving of the decision notice to every party to the proceedings or within such longer period as may be allowed in accordance with regulation 54 and following that application the chairman or, in the case of a tribunal which has only one member, that member, shall record a statement of the reasons and a copy of that statement shall be sent or given to every party to the proceedings as soon as may be practicable.’
18. In C11/08-09(IB), at paragraphs 20 to 29, I set out the principles relevant to the provision by an appeal tribunal of reasons which are adequate to explain the decision arrived at by the appeal tribunal.
19. The requirement for an appeal tribunal to give adequate reasons for its decision includes a requirement to an explicit explanation as to why it prefers, accepts or rejects relevant evidence.
20. In C8/08-09(IB), and following an analysis of the decisions in C11/08-09(IB), and R 2/01(IB)T, I stated, at paragraph 60:
‘… 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.’
21. I should say, at the outset of the analysis of the adequacy of the appeal tribunal’s reasons, that the assessment of evidence is a matter for the appeal tribunal, and a Social Security Commissioner must be wary of interfering with the conclusions of an appeal tribunal based on its evidential assessment.
22. In the present case the reasons for the appeal tribunal’s decision are detailed and comprehensive and run to nearly four A4 pages. More particularly, it is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it.
23. In my view, 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.
24. All 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.
25. 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.
26. 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.
27. In arriving at its conclusions, the appeal tribunal did not accept the oral evidence of the appellant. The appeal tribunal was entitled to reject the oral evidence of the appellant and gave adequate reasons for that rejection.
28. 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.’
29. 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.’
30. 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:
31. Accordingly, I reject the first ground cited by the appellant in the application for leave to appeal, namely that the appeal tribunal did not provide adequate reasons for the decision or give satisfactory findings of fact.
The appellant’s entitlement to the care component of DLA
32. In the second ground in the application for leave to appeal to the Social Security Commissioner, the appellant submits that he had an entitlement to the middle rate of the care component of DLA since 2007 which indicated that he required substantial help with personal care. In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal makes reference to the completion, by the appellant, of a personal capability assessment questionnaire, and to the fact that when asked in that questionnaire whether he had an entitlement to DLA, the appellant replied by ticking a box ‘no’. I have been provided with a copy of the relevant questionnaire which was attached to the original appeal submission as Tab No. 2 and the appeal tribunal’s recording of what was in that questionnaire is accurate.
33. In C5/00-01(DLA) Commissioner Brown stated, at paragraph 15:
‘I am also satisfied that the evidence of the Examining Medical Officer and the Incapacity Benefits Medical Report were both correctly before the Tribunal. Mr Breslin is correct in stating that the tests for Incapacity Benefit and for Disability Living Allowance are different. However, information obtained in connection with one benefit can be relevant to the entitlement to another benefit though a decision on entitlement in relation to one benefit is not binding in relation to entitlement to the other. Also, of course, the assessment of evidence by one Authority does not bind another.’
34. There are two important principles noted here. The first is that the IB and DLA are two separate social security benefits, with different conditions of entitlement set out in different legislative provisions. As a general rule, and subject to an exception set out below, entitlement to DLA is not an automatic passport to entitlement to IB, and vice versa. It is for decision-makers and other adjudicating authorities such as an appeal tribunal, to be satisfied that the legislative conditions for entitlement to an individual benefit are satisfied.
35. The second principle is that there is no reason why an adjudicating authority should not look at the evidence which gave rise to entitlement to one benefit, in deciding whether that evidence is relevant to the conditions of entitlement to a second benefit. An adjudicating authority could not, in that sense, ignore the evidential basis on which entitlement to an alternative benefit had been based, if that evidence was relevant.
36. In the instant case, the appellant attended the oral hearing of the appeal, and gave oral evidence to the appeal tribunal. A record of that oral evidence is set out in the record of proceedings for the appeal tribunal hearing. Looking at that record, I have concluded that the appellant was given every opportunity to adduce evidence relevant to the issues arising in the appeal. The oral evidence which he did give related, in many parts, to the support and assistance which he received from a friend and from members of his family in connection with the routine activities associated with daily living, and with his personal care. That is the type of evidence which would be relevant to the conditions of entitlement to the care component of DLA. Accordingly, I find no basis for support of the appellant’s second ground for appealing to the Social Security Commissioner, and I reject this ground.
37. The exception to which I referred to above is set out in regulation 10 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 which provides:
‘10. – (1) Where the question of whether a person is capable or incapable of work falls to be determined in accordance with the personal capability assessment, a person shall be treated as incapable of work on any day in respect of which any of the circumstances set out in paragraph (2) apply to him.
(2) The circumstances referred to in paragraph (1) are –
(a) that he receives, in respect of the day in question, a payment of –
(i) the highest rate of the care component of disability living allowance;
(ii) …
(iii) …’
38. This means that where an individual, whose capability or incapability for work falls to be determined in accordance with the personal capability assessment, is in receipt of the highest rate of the care component of DLA, then that person is treated as incapable of work. In the instant case, as the appellant was in receipt of the middle rate of the care component only, he could not benefit from regulation 10.
Not fit for gainful employment
39. In the third ground cited by the appellant, in the application for leave to appeal to the Social Security Commissioner, he submits that his GP considers that he is grossly unfit for any gainful employment. On 23 July 2009 further correspondence relating to the appellant was received from his GP, which, I am assuming, was submitted in support of this ground. This was because the correspondence includes the following specific statement:
‘We feel he remains unfit for any gainful employment and we support his appeal for Incapacity Benefit.’
40. 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.
41. Accordingly, I also reject the third ground set out by the appellant, in the application for leave to appeal.
The rules of natural justice
42. In submitting this ground for seeking leave to appeal to the Social Security Commissioner, the appellant has not specified the precise basis on which he submits the rules of natural justice were breached by the appeal tribunal.
43. In R(S) 4/82(T), a Tribunal of Commissioners in Great Britain stated the following, at paragraph 26:
‘Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances. It has been described as “fair play in action” and its requirements depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so on…….There are accordingly no hard and fast rules that apply to all tribunals. But in the case of an appeal by a claimant for benefit to a local tribunal, for practical purposes these requirements can be reduced, as indicated by Lord Justice Diplock (as he then was) in Moore’s case at pages 486 et seq to three; an absence of personal bias or mala fides on the part of a tribunal, an obligation to base their decision on evidence and, whether or not there is an oral hearing, to listen fairly to the contentions of all persons entitled to be represented.’
44. Having considered the detail of the record of proceedings, and the statement of reasons for the appeal tribunal’s decision, I have concluded that the proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to, such principles.
45. In the original application for leave to appeal to the LQPM, the appellant had submitted that the appeal tribunal did not enquire into all aspects of his medical condition and did not investigate all of the problems which he had. All issues raised by the appeal tribunal, either expressly or apparent from the evidence, were fully examined by the appeal tribunal in conformity with its inquisitorial role.
46. Accordingly, I also reject this ground.
The appeal tribunal did not request his medical file
47. 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. The appeal tribunal was clearly of the view that it had sufficient evidence before it in order to determine the relevant issues.
48. Of course 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.
49. In C7/08-09(IB), I set out, at paragraphs 61 to 64, the proper principles on which an appeal tribunal should base any decision to adjourn or not. 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. Additionally, if the appellant was of the view that there was additional medical or other evidence which should have been before the appeal tribunal, he could have raised that question at the oral hearing of the appeal, by querying the absence of any relevant evidence and/or made an application for an adjournment.
50. Accordingly I also reject this ground.
Deterioration in condition
51. The final ground on which the appellant submitted the decision of the appeal tribunal was in error of law was that his condition had deteriorated. It is not clear whether the appellant is submitting that his medical condition had deteriorated, between the date of the decision under appeal and the date of the appeal tribunal hearing, or between the date of the appeal tribunal hearing and the application for leave to appeal.
52. 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.”
53. In the instant case, the appeal tribunal was limited to taking account of evidence that was relative to the period over which it has jurisdiction under Article 12(8)(b) and could not take into account any subsequent deterioration in the appellant’s medical condition. Accordingly, a submission regarding a deterioration in a medical condition, subsequent to the decision of the appeal tribunal, cannot succeed as a ground for applying for leave to appeal to the Social Security Commissioner.
The supersession issue
54. As was noted above, in their written observations on the application for leave to appeal, DMS have opposed the application on the grounds cited by the appellant but supported the application on the basis of a further identified ground. The further identified ground relates to how the appeal tribunal dealt with the supersession decision, and in submitting that the decision of the appeal tribunal was in error of law, DMS have relied on my own decision in C9/08-09(IB) and, more particularly, my comments at paragraph 46 of that decision.
55. My comments at paragraph 46 of C9/08-09(IB) have to be seen in the context of that individual case. The decision under appeal in that case was a supersession decision undertaken by the decision-maker of the Department, on the specific basis of regulation 6(2)(g) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.
56. 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;’
57. 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.
58. Regulation 6(2)(g) has been, since its introduction, the principal basis on which decisions relating to IB have been superseded. As I indicated in C9/08-09(IB), however, and in various other cases, 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.
59. 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. In C9/08-09(IB), the decision-making authority, the appeal tribunal, had formulated its decision on the basis that the grounds for supersession were a relevant change of circumstances. In relation to this, I indicated, at paragraphs 43 to 45 that:
‘43. …it is arguable that the appeal tribunal had in mind, and intended to apply, the regulation 6(2)(a)(i) ‘change of circumstances’ ground, as an alternative to the regulation 6(2)(g) ground, which had formed the basis of the decision under appeal. To support that argument, the appeal tribunal, in the SORs, has indicated that it is of the view that there has been a relevant change of circumstances, namely an improvement in the appellant’s ‘condition’. Further, a change of circumstances is mentioned in the appeal tribunal’s decision notice.
44. I am not convinced, however, that the appeal tribunal did intend to apply the regulation 6(2)(a)(i) ‘change of circumstances’ ground, as an alternative to the regulation 6(2)(g) ground. Change necessarily involves comparison of the circumstances as they were at the time of the original decision and circumstances at the date of the supersession decision. There is no further explanation, in the SORs, for example, as to how such a comparison was made.
45. Even if the appeal tribunal had in mind that ‘relevant change of circumstances’ was the correct ground, it has not explained why the change and, by implication the supersession, took effect from the identified date ie 22 August 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 not following through with the ground which it did identify.’
60. It was in that context that I made the additional comments concerning the requirement to be satisfied that the correct ground has been identified, and that the supersession decision takes effect from the correct date.
61. 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, such as the present case, 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.
62. In the instant case, in the statement of reasons for the appeal tribunal’s decision, it is noted, at paragraph 3, that:
‘Following the outcome of the test the appellant’s award to benefit was superseded by the decision maker on 17 January 2008.’
63. In the appeal tribunal’s decision notice it is recorded that:
‘…is that from and including 17/1/08 the appellant fail [sic] the personal capability assessment … Consequently grounds to supersede are established.’
64. Did the appeal tribunal deal adequately with the supersession issue? It is marginal but my conclusion is that it did. It recognised that the decision under appeal was a supersession decision dated 17 January 2008. 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.
65. 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.
66. The appeal tribunal made sufficient findings of fact, 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. I have no hesitation in adopting the findings in fact made by the appeal tribunal.
67. Grounds existed to supersede an earlier decision of the Department, dated 22 May 2007, and which had awarded an entitlement to IB, from and including 3 February 2007; and the appellant is not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 17 January 2008.
Disposal
68. The decision of the appeal tribunal dated 2 May 2008 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 from and including 17 January 2008 is confirmed.
(signed): K Mullan
Commissioner
18 February 2010