GT v Department for Social Development (IB) [2011] NICom 150

Decision No:  C26/10-11(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 29 May 2008

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    Having considered the circumstances of the case, 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 29 May 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.

 

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 may be 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.

 

4.    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.

 

5.    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) credits 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

 

6.    The decision under appeal to the appeal tribunal was a decision of the Department, dated 12 December 2007, which decided that:

 

(i)          grounds existed to supersede an earlier decision of the Department, dated 18 June 2007, and which had awarded an entitlement to IB credits, from and including 25 May 2007; 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 12 December 2007.

 

7.    An appeal against the decision dated 12 December 2007 was received in the Department on 21 January 2008.

 

8.    On 7 April 2008 the decision dated 12 December 2007 was looked at again but was not changed.

 

9.    The substantive appeal tribunal hearing took place on 29 May 2008 as a ‘paper’ hearing.  The appeal tribunal disallowed the appeal and confirmed the outcome decision dated 12 December 2007.

 

10.   On 20 November 2008 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.

 

11.   On 4 December 2008, the application for leave to appeal was refused by the legally qualified panel member.

 

       Proceedings before the Social Security Commissioner

 

12.   On 16 January 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).  On 13 February 2009 observations were sought from Decision Making Services (DMS) and these were received on 9 March 2009.  In these observations DMS opposed the application on the grounds cited by the appellant but supported the application on another identified ground.  Written observations were shared with the appellant and his representative, Mr John Murphy, Elliott-Trainor Partnership, on 19 March 2009.  On 18 May 2009, the late application was accepted for special reasons.  On 5 November 2009, the Social Security Commissioner sought further observations from DMS on a specific question.  The further observations were received on 20 November 2009 and were shared with the appellant and his representative on 26 November 2009.  On 3 December 2009 further observations in reply were received from the appellant’s representative which were shared with DMS on 14 December 2009.  On 18 December 2009 further correspondence was received from DMS which was shared with the appellant and his representative on 13 April 2010.  On 6 September 2010 a copy of a medical report which was relevant to the issues arising in the appeal and which, until that date, could not be traced within the appeal papers, was received in OSSC.

 

       Errors of law

 

13.   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.

 

14.   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 of law in the instant case

 

       The evidence which post-dated the decision under appeal

 

15.   In the ‘Documents Considered’ section of the record of proceedings for the appeal tribunal hearing it is recorded that the appeal tribunal had before it:

 

‘1.       Submission papers

 

2.       Letter General Practitioner, Dr McDowell, dated 9/5/2008.’

 

The remainder of the record of proceedings reads as follows:

 

          ‘Paper case. Decision 12/12/2007.

 

          Problem descriptors identified were:

 

          1.  Speech.

 

          2.  Bowels.

 

          3.  Bladder.

 

          4.  Consciousness.

 

          All papers on file perused.

 

          New information:

 

Letter Dr McDowell dated 9/5/2008 to say (the claimant) reports he has 2-4 seizures per month. Doctor stated consultant has increased Lamictal to 275 mg daily.’

 

16.   The statement of reasons for the appeal tribunal’s decision reads as follows:

 

‘Scoring as shown.

 

Panel accepts possible increase in frequency of fits post decision but panel must think of Appellant’s condition on 7 December 2007, the date of decision.

 

In claim form, appellant stated he had fits occasionally (see page 14 claim form) and had had fits from 1 January 2007 to 9 September 2007.  Appellant opted not to attend personally for hearing.  If panel had evidence that (the claimant) had had 2 fits in the 6 months prior to date of decision.  Scoring would have been 14d = 12 points. We do not have any such evidence.

 

The panel therefore chose 14e = 8 points, for Appellant having at least one episode of altered consciousness in the 6 months before decision date.

 

Total score for descriptors, 8 points.’

 

17.   In C2/10-11(IB), I stated the following, at paragraphs 22 to 33:

 

‘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.

 

27.     In R(DLA) 2/01, Commissioner Jacobs considered how disability appeal tribunals (as they then were) should consider evidence which post-dated the decision under appeal, in light of a then extant rule in section 33(7) of the Social Security Administration Act 1992. Section 33(7) provided that a disability appeal tribunal should ‘… not take into account any circumstances not obtaining at the time when the decision appealed against was made.’

 

28.     In R(DLA) 2/01, the date of the decision under appeal was 15 September 1998.  The appeal tribunal hearing took place on 18 February 1999, when the appeal tribunal had before it oral evidence from the appellant that he had had a serious operation in January 1999, and also had before it a letter from the appellant’s GP, dated 3 November 1998.  The statement of reasons for the appeal tribunal’s decision recorded, in two separate places, that ‘we hear’ the case on the basis of the evidence which was before the adjudication officer on 15 September 1998.

 

29.     At paragraph 9 of the decision, Commissioner Jacobs noted that:

 

          ‘… 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 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.’

 

30.     In relation to the case before him, Commissioner Jacobs found that the appeal tribunal appeared wrongly to have limited itself to the evidence which was before the adjudication officer.  In relation to the evidence which post-dated the decision under appeal, and which was before the appeal tribunal, Commissioner Jacobs noted, at paragraph 11:

 

          ‘The claimant told the tribunal that his disablement at the time of the hearing was the same as that at the date of the adjudication officer’s decision.  The tribunal’s statement records that the claimant had had a serious operation on 8 January 1999 and was now recovering.  Although the statement does not say this in so many words, the implication is that although the claimant was recovering from his operation, he was nevertheless worse than he had been at the date of the adjudication officer’s decision.  That may have been correct.  However, that did not mean that by appropriate questioning the tribunal could not have obtained relevant evidence from the claimant as to his condition at the relevant time, perhaps by comparison with his condition at the date of the hearing.  The tribunal was not entitled to reject the claimant’s oral evidence on the ground that it was not before the adjudication officer.  The same point applies with greater force to the claimant’s evidence in his letter of appeal to the tribunal which was written about two weeks after the adjudication officer’s decision.  This evidence was also covered by the tribunal’s blanket rejection.’

 

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.’

 

18.   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.’

 

19.   In the instant case, the appellant had provided the appeal tribunal with evidence from his general practitioner (GP).  It is 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.

 

20.   I have noted that the appeal tribunal reminded itself that it was restricted to considering the appellant’s circumstances as at the date of the decision under appeal.  The appeal tribunal has gone on to conclude that the evidence from the GP is indicative of a change since the date of the decision under appeal – the change being described as a ‘… possible increase in frequency of fits post decision …’ The duty of the appeal tribunal, however, on the basis of the principles set out above, was 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.

 

21.   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.  I accept that the GP, in the letter dated 9 May 2008, has noted that the appellant ‘… currently reports 2-4 seizures per month …’ and that there was support for that in the increase in his medication.  I also accept that the appellant, in his claim form dated 9 September 2007 reports ‘occasional’ fits.  If the change was accepted by the appeal tribunal, it is unlikely to have been sudden but more likely to have been gradual, and the change might have been relevant to the period under consideration by the appeal tribunal.  In my view, an appropriate option for the appeal tribunal would have been to adjourn the appeal, to permit the appellant to attend to give oral evidence concerning the relevant issue.

 

22.   I also accept that the appeal tribunal considered the possible implication of a change, concluding that had there been evidence of the appellant having two fits in the six-month period prior to the decision under appeal, then the appeal tribunal would have applied Descriptor 14d, from Part II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.  The appeal tribunal concluded that it had no such evidence mainly because the appellant had not attended to give oral evidence and, although it is nowhere said in the statement of reasons, the appeal tribunal implied that the application of Descriptor 14d, attracting 12 points, would have made no difference.  It seems to me, however, that the necessary exploration of the true position with respect to the frequency of fits, might, and I emphasise might, have led to a finding that the appellant was having a seizure at least once per month.  That finding might have made a significant difference with the potential application of Descriptor 14(c) from Part II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

 

23.   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.

 

       The appeal tribunal’s assessment and application of other activities

 

24.   As was noted above, in the record of proceedings for the appeal tribunal hearing, the appeal tribunal noted that the activities of ‘speech’, ‘bowels’, ‘bladder’ and ‘consciousness’ were at issue in the appeal.  This conclusion reflects the fact that these activities were identified as being problematic by the appellant in the completed IB50 questionnaire.  DMS were requested to provide observations on the extent to which the appeal tribunal was obliged to address the evidence in connection with, and make findings in fact and conclusions in law, in respect to speech, bowels and bladder.  The statement of reasons for the appeal tribunal’s decision had concentrated on consciousness.  In reply, Mr Collins, for DMS, submitted that:

 

‘The issue of a tribunal’s obligations when recording and evaluating evidence has been considered by Commissioner Brown in unreported Northern Ireland decision C20/99(IB).  Commissioner Brown at paragraph 15 referred to C21/98(IB), noting that at paragraph 13 Chief Commissioner Martin stated:-

 

“…it is important to remember the following very relevant words of Mr Commissioner Watson in the Great Britain case R(SB)5/81:  “It is not possible to lay down a general rule for recording findings and reasons since that depends on the nature of the evidence and of the case.”

 

At paragraph 17 of C20/99(IB) Commissioner Brown went on to conclude that “Reasons cannot be read in a vacuum.  They must be related to the evidence given.”

 

In the present instance, the nature of the case was that it was a paper hearing and consequently the tribunal did not have the benefit of oral evidence from (the claimant).  It relied on the Department’s submission in addition to a letter from (the claimant’s) GP dated 09 May 2008.  (This letter is unfortunately not included in the case papers.)  In its record of proceedings the descriptors identified by the tribunal reflected the choices originally made by (the claimant) when he completed his questionnaire (IB50) and subsequently addressed by the Examining Medical Officer (EMO) in his report (IB85) – tab nos. 2 and 3 in the Department’s submission.

 

 

 

 

In its reasons the tribunal went on to state:-

 

“Scoring as shown.”

 

In the decision notice the tribunal had assessed (the claimant) under the relevant descriptors as follows:-

 

“Speech            10f……………  0

Continence       13h………… .  0

Consciousness 14e………….  8”

 

I would submit that the tribunal was, in particular, obliged to address the evidence in connection with the activities which have been identified as disputed.  At paragraph 16 of unreported Northern Ireland decision C19/98(IB) Commissioner Brown stated of the tribunal:-

 

“… In my view it can make adequate findings by setting out its score and indicating the appropriate descriptor on what is known as the “score sheet” as that will indicate clearly what its findings were in relation to any particular descriptor.  The “score sheet” is in my view a collection of findings of fact.”

 

As such I would submit that in the present case it is clear from the tribunal notice that the tribunal did address the “problem activities.”  In doing so it has agreed with the scoring of the decision maker which was based on the initial findings from the examining medical officer’s report.’

 

25.   I agree with Mr Collins that the appeal tribunal, in the instant case, did consider the disputed activities of speech and continence.  I also agree that Commissioner Brown concluded that entries on the ‘score sheet’ (which is attached to decision notices in appeals involving the personal capability assessment and IB) are reflective of the appeal tribunal’s findings in fact in relation to particular descriptors.  That does negate the duty, however, on appeal tribunals to outline details of its evidential assessment in connection with those findings, particularly where there is conflict in evidence which requires to be rectified.  It does not also negate the duty on the appeal tribunal to outline its reasons for accepting or rejecting relevant evidence.  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.

 

26.   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.’

 

27.   In the instant case, I am satisfied that the appellant, having received the ‘score sheet’ and the appeal tribunal’s statement of reasons, would be aware of how the appeal tribunal arrived at its conclusions with respect to speech and continence.

 

       The supersession issue

 

28.   In the written observations on the application for leave to appeal, Mr Collins has submitted that:

 

‘Regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 allows the Department to supersede an award of incapacity credits on receipt of medical evidence following an examination by an EMO of the Department.  Following an examination of (the claimant) by the EMO the decision-maker carried out a personal capability assessment and agreed with the EMO that an award of 8 points was appropriate.  As this was below the threshold of 15 points the decision maker superseded the original award on the basis that (the claimant) was no longer incapable of work in accordance with the PCA.  As the issue of supersession formed part of the decision that was subject to the appeal it was incumbent on the Tribunal to consider this in determining the appeal.  In its statement of reason and decision notice there is no mention of whether or not the Tribunal considered the issue of supersession therefore it is my submission that the Tribunal has erred in law.  In paragraph 52 of unreported decision C12/08-09(DLA) Commissioner Mullan stated:

 

“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.  It is not sufficient for it to be ….. implicit from the appeal tribunal’s documentation that the supersession issue was addressed.  That consideration must be explicit from the decision notice, the statement of reasons or a combination of both.”

 

29.   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.

 

30.   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.

 

31.   For example, the principal ground for supersession in IB cases is to be found 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;’

 

32.   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.

 

33.   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.

 

34.   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.

 

35.   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.  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.

 

36.   In any event, and absent the error set out above, 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

 

37.   The decision of the appeal tribunal dated 29 May 2008 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.

 

38.   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.

 

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

 

40.   The decision under appeal is a decision of the Department, dated 12 December 2007, which decided that:

 

(iii)       grounds existed to supersede an earlier decision of the Department, dated 18 June 2007, and which had awarded an entitlement to IB credits, from and including 25 May 2007; and

 

(iv)       the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB credits from and including 12 December 2007.

 

41.   Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 12 December 2007 had grounds to supersede the decision of the appeal tribunal dated 18 June 2007.  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.

 

42.   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) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

 

43.   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.

 

44.   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.

 

45.   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.  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

 

 

 

18 February 2011