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Cite as: [2011] NICom 183
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GT-v-Department for Social Development (IB) [2011] NICom 183
Decision No: A34/09-10(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 23 September 2009
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. The decision of the appeal tribunal dated 23 September 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.
2. 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, including medical evidence, 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.
3. 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
4. The decision under appeal to the appeal tribunal was a decision of the Department, dated 24 February 2009, which decided that:
(i) grounds existed to supersede an earlier decision of the Department, dated 18 February 2000, and which had awarded an entitlement to IB, from and including 31 October 1999; and
(ii) the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 24 February 2009.
5. The appeal was received in the Department on 27 February 2009. On 25 March 2009 the decision dated 24 February 2009 was looked at again but was not changed.
6. An oral hearing of the appeal took place on 24 June 2009. The appeal was adjourned in order that the appeal tribunal might have sight of the appellant’s general practitioner (GP) records. The substantive appeal tribunal hearing took place on 23 September 2009. The appellant was present, and was represented. The appeal was disallowed. The appeal tribunal confirmed the outcome decision under appeal namely that the appellant did not have an entitlement to IB from and including 24 February 2009. In so doing, however, the appeal tribunal differed from the decision-maker in determining the scores to be ascribed as part of the assessment of the extent to which the appellant can 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, the prescribed activities being found in Parts I and II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.
7. On 5 November 2009 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service (TAS). On 10 November 2009, the application for leave to appeal was refused by the legally qualified panel member (LQPM).
Proceedings before the Social Security Commissioner
8. On 19 November 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners. On 3 February 2010 observations were sought from Decision Making Services (DMS) and these were received on 3 March 2010. In these initial observations DMS opposed the application on the majority of the grounds cited by the appellant, supported the appeal on one such ground and on two other identified grounds. On 16 March 2010 the written observations were shared with the appellant and his representative, Mr Michael Roddy, Omagh Independent Advice Service. The proceedings before the Social Security Commissioners were then stayed as one of the issues which arose in the appeal was being considered by a Tribunal of Commissioners in another appeal.
Errors of law
9. 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.
10. 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
11. In the application for leave to appeal to the Social Security Commissioner, the appellant, through his representative, submitted that the decision of the appeal tribunal was in error of law on the basis that:
(i) the appeal tribunal had accepted the clinical findings contained in a report of the medical officer of the Department and had concluded that the appellant’s medical condition had improved since he had previously been assessed in connection with the personal capability assessment in May 2007. A submission had been made that the report of the medical officer had been inaccurate, that the appellant had satisfied the tests associated with the personal capability assessment on a number of occasions, and had also been awarded an entitlement to disability living allowance (DLA);
(ii) it was clear from consideration of all of the other available evidence, from the previous personal capability assessments, and from the fact of the award of entitlement to DLA that the appellant’s condition had not improved;
(iii) the appeal tribunal had not explained why it had rejected the evidence from the appellant’s GP and the appellant’s own oral evidence;
(iv) there was no requirement that an individual has to be severely disabled and a moderate impairment may impact on a claimant’s functional ability to satisfy the relevant descriptors;
(v) case-law had established that the paperwork associated with previous assessments in connection with the personal capability assessment should be considered where no relevant change in condition is being argued;
(vi) the appeal tribunal had recorded, in the record of proceedings for the appeal tribunal’s decision that the appellant had sat for thirty minutes during the oral hearing of the appeal in no apparent discomfort, which clearly influenced the appeal tribunal’s conclusions with respect to the activity of sitting. The appeal tribunal’s observations were irrelevant as the appellant, on the day of the appeal tribunal hearing, had sat in an upright chair with a back and arms as opposed to an upright chair with no arms.
12. As was noted above, Mr Kirk, for DMS, supported the application for leave to appeal on one of the grounds cited by the appellant’s representative, and on two other identified grounds.
The appeal tribunal’s ocular observations
13. In an IB50 questionnaire, completed by the appellant on 12 May 2008, the appellant indicated that he could not sit for more than 30 minutes without having to move from a chair, explaining, further, that ‘Sitting for prolonged periods increases back and leg pain and accordingly I would have get up and move around’. In the report of a medical examination conducted by a medical officer of the Department on 12 December 2008, the medical officer gave the opinion that the appellant had no problem with sitting.
14. In the record of proceedings for the appeal tribunal hearing, the following is recorded:
‘He sits at the computer for about 15/20 minutes each day talking to the family in England/Scotland.
He spends a lot of time reading/watching television. He then moves about.
He would only sit for 25 minutes/30 minutes before having to get up from the chair.’
15. At the conclusion of the record of proceedings, the following is recorded:
‘Legally Qualified Member note, he sat for about 30 minutes during the hearing in no apparent discomfort.
16. In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal recorded that:
‘…The Tribunal accepted on balance that he had some difficulties from time to time when rising from sitting and bending and kneeling and also that he had some problems with sitting and standing ..’
17. The appeal tribunal applied descriptor (d) of activity 3 in Part I to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, which reads that the claimant:
‘… cannot sit comfortably for more than 1 hour without having to move from the chair.’
18. In R(DLA) 1/95, a Social Security Commissioner in Great Britain made the following observations, at paragraph 5, in relation to an appeal tribunal’s ocular observations of the appellant, during the course of an appeal tribunal hearing:
‘It seems to me that a tribunal are entitled to have regard to what they see provided that the weight to be accorded it is considered carefully. Disability appeal tribunals are not bound by the technical rules relating to admissibility of evidence and the answer depends on the weight to be attached to such observation. I remind myself of the words used by Birch J in R. v. Madhub Chunder [1874] 21 WRCR 13 at page 19. “For weighing evidence and drawing inferences from it, there can be no cannon. Each case presents its own peculiarities and in each commonsense and shrewdness must be brought to bear upon the facts elicited. If the tribunal were to rely on its own observation alone, where such observation was contrary to the medical evidence, then it seems to me that the weight would be negligible. However in the case before me the tribunal’s observation was but one of the factors which brought them to the conclusion that the claimant did not satisfy the conditions for the mobility component.’
19. In R4/99 (IB), Commissioner Brown observed, at paragraphs 21 to 24:
‘21. In my view the Tribunal is entitled (as is any adjudicating body) to use all its senses in assessing evidence before it. The essential question in this case appears to me to be whether or not the observations which all the members of the Tribunal made were to be treated as evidence or as a part of ordinary common sense in assessing evidence which was already given. In my view what happened was the latter. As Mr McAvoy stated there was strong medical evidence against Mrs McG... in this case. The Tribunal recorded in its decision:-
"The Tribunal decided on reading the medical evidence and hearing the Tribunal's Medical Assessor, that the appellant would suffer from pain and discomfort as a result of the osteoporosis. The difficulty for the Tribunal was matching the medical evidence to the allegations of limitation made by the appellant, particularly in light of the observations of the Examining Medical Officer ("Examining Medical Officer"). The Tribunal also found that its own observations were in contradiction of the appellant's evidence particularly with regard to sitting where each Tribunal member noted that the appellant sat easily, without any "shifting" in the seat or apparent discomfort and without the need to rise."
Later the Tribunal stated:-
"In respect of "sitting" our own observations as well as those of the Examining Medical Officer, led us to award (e) which did not attract points". Both these extracts are from the section headed "Findings of fact material to the decision".
Under "Reasons for decision" the Tribunal stated:-
"The Tribunal in this case accepted that the appellant suffered from osteoporosis, from which she claimed back, neck and arm problems. What the Tribunal did not accept was the level of limitation alleged by the appellant as a result of her medical problems. The Tribunal as a whole felt her symptoms were exaggerated, especially in her questionnaire, but nonetheless also at the Tribunal hearing. The Tribunal members each remarked on discussion that the appellant sat without apparent discomfort for well over 30 minutes, without shifting or moving about the seat. We also took into account the clinical findings of the Examining Medical Officer as well as his observations in respect of her movements generally. We find that although this lady would have some pain and discomfort with her condition, this would not be to the extent required for her to pass the All Work Test. We noted her ability to faithfully swim and exercise as directed and believe if she could do these activities, even in some pain, then she could manage other activities. We note also that tabulations 1 and 3 refer only to back pain. In conclusion, on balance we accepted the evidence of the Examining Medical Officer for the most part, though we felt that the points awarded by the Examining Medical Officer and Adjudication Officer were a bit low".
22. Against that background it appears to me that what the Tribunal was doing was not introducing fresh evidence but using its observations as one means of assessing the evidence which was already before it.
23. Having read the record I do not consider that the Tribunal was in error of law in the method in which it conducted the hearing. I specifically do not conclude that there was any violation of the rules of natural justice in the Tribunal using its ocular observations as one of the methods of assessing the evidence already before it without specifically asking for comment on its ocular observations. The Tribunal was not itself providing evidence. Its duty was to adjudicate on the evidence before it but it was entitled to use its own observations in so doing. As the Commissioner stated in CDLA/021/1994:-
"I remind myself of the words used by Birch J. in R .v. Madhub Chunder, (1874) 21 WRCR 13 at page 19: "For weighing evidence and drawing inferences from it, there can be no cannon. Each case presents its own peculiarities and in each common-sense and shrewdness must be brought to bear upon the facts elicited. If the tribunal were to rely on its own observation alone, where such observation was contrary to the medical evidence, then it seems to me that the weight would be negligible. However in the case before me the tribunal's observation was but one of the factors which brought them to the conclusion that the claimant did not satisfy the conditions....""
24. It appears to me also perfectly clear that the Tribunal's own observations were but one of the factors which brought it to the conclusion which it reached. The fact that the observation was so specific in terms of one of the descriptors does not mean that observation was qualitatively altered into evidence. It merely means that the observation pointed particularly sharply to the weight to be given to the evidence before it.”
20. In C34/99 (IB), at paragraph 20, Commissioner Brown observed:
‘… As regards the Tribunal's own observations the recording of same does not appear to have been influential in its decision. Even if it had been it would not necessarily be an error for the Tribunal's observations of the claimant sitting in a chair with arms to be used as part of its assessment of evidence. Tribunal's are not required to sit with closed eyes. It would be in a situation to ascertain whether or not the claimant used any chair arms for support etc. However, in this case, there is no indication that the observations influenced the Tribunal in its decision, rather the reverse as they are not recorded as part of the reasons for the decision nor in the findings.’
21. In R3/01(IB)(T), a Tribunal of Commissioners noted, at paragraphs 27 to 28, that:
‘27. Fifthly, we would state that a Tribunal can use its own observations in reaching an assessment of credibility. It is, however, strongly desirable that a Tribunal seek a comment from the parties on specific observations of activity as opposed to a more generalised impression of the witness. Comment on observations can be sought in an uncontroversial manner and it is up to the Tribunal whether or not its accepts any explanation which is given. A Tribunal will not necessarily be in error if it does not seek such an explanation but it is much less likely to err if it does so. It may, of course be in error if the observations raise a fresh issue not already in contention and the Tribunal does not seek comment on them. For example if an Examining Medical Doctor opines that a claimant always has to hold on when rising from a chair and the decision maker so accepts and awards points accordingly and the Tribunal observes the claimant to rise without holding on, it must mention its observations and seek comment. Whether or not it accepts the explanation given is a matter for the Tribunal.
28. Where, however, a Tribunal makes an observation which is merely confirmatory of existing evidence it can use that observation as an aid to assessment of the evidence before it without necessarily having to seek comment. Much will depend on whether or not a new issue is raised by the observations made.’
22. Finally, in R(DLA) 8/06, Commissioner Jacobs, as he then was, stated, at paragraphs 13 to 19:
‘13. Tribunals have an inquisitorial function and may fail to comply with that function if they neglect to make appropriate inquiries in the light of an observation made during the hearing. Tribunals must also ensure that the parties have a fair hearing and the failure to allow a claimant to comment on observations may be a violation of that duty, as in CDLA/440/1995 (cited by the Secretary of State).
14. Like all evidence, a tribunal must not take observations into account unless they are relevant and reliable. And, if they do take them into account, they must assess their proper significance. Depending on the circumstances, this may require further investigation, analysis and, if the chairman provides a full statement of the tribunal's decision, explanation. These stages are not entirely distinct, as the following discussion shows.
15. An observation must be relevant to an issue of fact that is before the tribunal and to the time of the decision under appeal under section 12(8)(b) of the Social Security Act 1998. The latter is the most obvious problem that arises with the relevance of observations, because they were made later than the time of the decision. The tribunal cannot rely on them, unless it is possible to relate them back to that time: R(DLA) 2 and 3/01. The tribunal will have to set the observations in the context of the evidence as a whole. If that evidence does not disclose whether there has been a change in the claimant’s disablement, the tribunal cannot rely on the observations without further inquiry.
16. An observation can only be taken into account if it is reliable. The problem with an observation is that it is a limited snapshot on a particular day. It may not give a reliable picture of the claimant’s disablement. Take as an example a claimant who has asthma. The claimant may walk into the tribunal room and talk without any sign of breathlessness. The claimant may have used an inhaler before coming into the room. And the waiting and hearing rooms are likely to be warm and dry. But that same claimant may be breathless without medication or in cold or damp conditions. In other words, the tribunal’s observation is reliable only in the conditions and circumstances under which it was made. Another factor is that asthma is known to be variable in its effects. The observation may be an accurate picture of the claimant’s disablement on a day when the effects of the asthma are not severe. But that same claimant might be severely breathless on a different day. In other words, the tribunal’s observation does not give a picture of the claimant’s overall disablement. The tribunal could not rely on the observation in this example without further inquiry.
17. The significance of an observation can only be assessed in the context of the evidence as a whole and that evidence may have to include the result of further inquiries into the issues of relevance and reliability. And the significance of the observation, once assessed, may vary. At one extreme, it may be of no significance at all. At the other extreme, it may alone be decisive on an issue. In between, it may tip the balance of other factors, be just one of a number of factors taken into account in an overall impression, or just confirm a conclusion that is based on all evidence. The extent to which further inquiries are appropriate may depend upon the significance that the observation is likely to have in the final deliberations.
18. The significance of an observation cannot in practice be separated from the chairman’s explanation of how the tribunal reached its decision, because only by that explanation is it disclosed to anyone other than the panel members. It is unfortunate that chairmen are often not as precise as they could be in stating the significance attached to an observation. It is seldom that the observation will have been decisive. It is more likely to be just one of a number of factors that were taken into account or merely confirmatory of a decision reached on other grounds.
19. If an observation is used purely as confirmation of a conclusion that the tribunal would have reached anyway, there is no need for a tribunal to investigate it further or for the claimant to have a chance to comment on it. However, if an observation is one of the factors taken into account in reaching a conclusion, any failure in the tribunal’s inquisitorial duty or violation of the right to a fair hearing will mean that the decision is wrong in law. In De Silva v Social Security Commissioner [2001] EWCA Civ 539, the chairman recorded that the decision of the majority of the tribunal had been based on the evidence as a whole and referred to three pieces of evidence by way of example. The claimant challenged the provenance of one of those pieces of evidence. The chairman had attributed this evidence to the claimant, but he denied saying it, alleging that it was said by someone else at the hearing. I dismissed the claimant’s appeal, saying that even if the tribunal did make the mistake alleged, it had not affected the outcome because it was only one of three factors listed and even together they were not comprehensive of the reasons for the tribunal’s decision. The Court of Appeal decided that that was wrong. As Lord Justice Latham explained at paragraph 11:
“Even though the Tribunal was careful to state that the decision was based upon all the evidence, the emphasis that it placed on this particular piece of evidence cannot be ignored. If it was a mistake, which was the assumption that the Commissioner was prepared to make for the purposes of his decision, it must have had an effect on the decision of the majority. That being so, I consider that the Commissioner’s decision was wrong in law.”
The Court of Appeal went on to decide whether the claimant had made the disputed statement and, having decided that he had, dismissed his appeal.’
23. In relation to the application of those principles in the instant case, Mr Kirk, for DMS, submitted that:
‘It is not in my opinion unreasonable to assume that the tribunal’s conclusions as to (the claimant’s) sitting difficulties were influenced by the observations of the Legally Qualified Panel Member (LQM) …
… As I have previously stated there is nothing in the record of proceedings which would indicate that the tribunal ever put its observations to (the claimant) for comment. As those observations appear to have influenced its decision on the points that should be awarded for the descriptor of sitting, and the fact that the tribunal had disagreed with the views of the EMP, it is my submission that the tribunal should have afforded (the claimant) the opportunity to comment on its observations. For that reason I submit that the tribunal has erred in law as contended and that there is merit in this ground of appeal.’
24. I agree with these submissions from Mr Kirk. The next alternate descriptor which the appeal tribunal could have considered was 3(c) which reads:
‘… cannot sit comfortably for more than 30 minutes without having to move from the chair.’
25. Descriptor 3(c) attracts 7 points and, added to the nine points which were awarded for standing, rising from sitting and bending and kneeling would have meant that the appellant satisfied the personal capability assessment and that his appeal was successful. Accordingly, the appeal tribunal’s findings and conclusions on the activity of sitting were crucial to the determination of the appeal. Given the possible reliance by the appeal tribunal on the ocular observations by the LQPM of the time spent and manner of sitting of the appellant during the oral hearing, as noted in the record of proceedings, it seems to me to be the type of case, envisaged by the Tribunal of Commissioners in R1/01(IB)(T), where the appeal tribunal’s ocular observations should have been put to the appellant in order to give him an opportunity to comment. It would, of course, have been for the appeal tribunal to accept or reject any comments which have been made. There is no evidence contained within the record of proceedings for the appeal tribunal hearing, or the statement of reasons for the appeal tribunal’s decision that comments were invited on the appeal tribunal’s ocular observations. Accordingly, the failure of the appeal tribunal to put the observations and invite comments renders its decision as being in error of law.
The relevance of the previous personal capability assessments
26. As was noted above, the proceedings before the Social Security Commissioners in the instant case were stayed as one of the issues which arose in the appeal was being considered by a Tribunal of Commissioners in another appeal. That issue was the relevance, in an appeal involving a failure of the personal capability assessment, of the paperwork associated with previous personal capability assessments, and the duties on appeal tribunals with respect to previous personal capability assessments.
27. In JC-v-Department for Social Development (IB) ([2011] NICom 177 C10/10-11(IB)(T)), a Tribunal of Commissioners undertook an extensive analysis of the case-law relating to the introduction of the Great Britain equivalent of regulation 6(2)(g) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999 and, more particularly, the effect of the introduction of that provision on the requirement to consider previous adjudication history. At paragraph 50 of their decision, the Tribunal of Commissioners concluded that:
‘…From those decisions we derive and accept the following principles:
(i) there was a clear purpose to the introduction of regulation 6(2)(g) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, which was to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession;
(ii) accordingly, there is no requirement to identify a regulation 6(2)(a)(i) change of circumstances in order to supersede an IB decision;
(iii) there is a difference between the evidential requirement to determine the ground for supersession and the evidential requirement to establish whether an individual is incapable of work in connection with the all work test or personal capability assessment;
(iv) it is no longer necessary as a matter of law for an appeal tribunal to have before it and to consider the evidence of the claimant’s previous assessments in connection with the all work test or personal capability assessment;
(iv) an appeal tribunal is entitled to call for whatever evidence it considers to be relevant to the proper determination of the issues arising in an appeal;
(v) the requirement for an appeal tribunal to consider the evidence associated with previous favourable assessments in connection with the all work test or personal capability assessment depends entirely on the relevance of the earlier assessments to the determination of the claimant’s incapacity for work at the date of the supersession decision;
(vi) an appeal tribunal will be required to consider the evidence associated with previous favourable assessments where an appellant asserts that there has been no change in his medical condition or disablement and that the evidence associated with previous assessments is relevant to that continuing medical condition or disablement. In such circumstances the last previous assessment is likely to be of more relevance than earlier ones and the relevance of any particular assessment is likely to diminish with the passage of time;
(vii) details of the basis of the claimant’s previous assessments in connection with the all work test or personal capability assessment may be relevant evidence of the claimant’s overall capacity, particularly where the claimant has a variable condition. Variability may increase the relevance of older assessments carried out before the last previous assessment;
(viii) details of the basis of the claimant’s previous assessments in connection with the all work test or personal capability assessment may be of no relevance in a case, for example, where there is evidence that the claimant’s condition has changed in a way that renders the details of the earlier assessment irrelevant;
(ix) where the evidence associated with a previous favourable assessment in connection with the all work test or personal capability assessment is no longer available, it does not follow that the award of entitlement to benefit or credits, based on that favourable assessment, should automatically continue, simply because a comparison cannot be made. The appeal tribunal must reach a decision based on whatever evidence is available to it;
(x) the value of the evidence associated with a previous favourable assessment in connection with the all work test or personal capability assessment may be minimal. This may be the case where an appeal tribunal has replaced a decision of the Department with its own decision, and there are no relevant findings in fact or reasons for the appeal tribunal’s decision because the success of the appeal obviated the requirement to call for these;
(xi) an appeal tribunal may call for evidence associated with a previous unfavourable assessment in connection with the all work test or personal capability assessment. It follows that where evidence of previous assessments is of relevance in cases, for example, where the claimant’s condition is variable, the evidence may assist in determining the claimant’s overall capacity.’
28. I apply those principles to the instant case, in the following way. There was no requirement, as a matter of law, for the appeal tribunal to have before it and to consider the evidence of the claimant’s previous assessments in connection with the all work test or personal capability assessment. The appellant’s representative made reference, in his submissions to the appeal tribunal, to previous successful personal capability assessments. Those references were made in the context of a further submission that there had been no change in the appellant’s medical condition. Further, the appellant’s representative provided the appeal tribunal with a copy of a medical report, prepared by a medical officer of the Department, dated 10 May 2007, in connection with the most recent personal capability assessment. Accordingly, there was a requirement on the appeal tribunal to assess the evidence associated with the most recent previous assessment and to consider whether that evidence was relevant to his continuing medical condition or disablement.
29. What did the appeal tribunal do with the evidence relating to the most recent personal capability assessment ie the medical report prepared by the medical officer of the Department on 10 May 2007? In many ways the appeal tribunal did what was asked of it ie it weighed and assessed the evidence in the report dated 10 May 2007 in the context of a submission that there had been no change in the appellant’s medical condition. In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has recorded:
‘… The Tribunal noted the contents of the previous Examining Medical Practitioner examination on 10 May 2007, but believed that his condition had improved since then and the Tribunal considered that a previous award of benefit was no guarantee of a subsequent award of benefit, given that a person’s condition could improve with time and the Tribunal believed this is indeed what has happened on this occasion with the Appellant.’
30. I can find no fault with the conclusions of the appeal tribunal in respect of its assessment of the evidence contained in the report of the medical examination conducted on 10 May 2007. It is important to note that the assessment of the evidence contained in the medical report was in the context of a rigorous assessment of all of the evidence which was before the appeal tribunal. The appellant’s representative disagrees with the appeal tribunal’s assessment of the evidence including the medical report dated 10 May 2007. It is the submission of the appellant’s representative that the appellant’s medical condition had not changed. It was the conclusion of the appeal tribunal that the appellant’s medical condition had. The appeal tribunal has justified its conclusion following a thorough assessment of all of the evidence which was available to it. Its findings and conclusions are not perverse or irrational, and its reasons are more than adequate.
31. I would add, in addition, that there was no requirement on the appeal tribunal, in the instant case, to call for the evidence associated with personal capability assessments prior to the most recent in 2007. As was noted by the Tribunal of Commissioners in sub-paragraph (vi) of paragraph 50 of JC-v-Department for Social Development (IB):
‘… the last previous assessment is likely to be of more relevance than earlier ones and the relevance of any particular assessment is likely to diminish with the passage of time;’
The relevance of entitlement to DLA
32. In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative alluded to the fact that the appellant had an entitlement to an award of DLA and had retained that award following a periodic review by the Department.
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 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 one exception which does not have relevance here, 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, although the appellant’s representative made submissions to the appeal tribunal concerning the appellant’s ongoing entitlement to DLA, he did not seek to adduce evidence concerning that award to the appeal tribunal. The appellant’s representative is experienced in appearing before appeal tribunals in appeals against decisions of the Department in connection with social security benefit entitlement. He could, had he thought it to be relevant, have sought to bring such evidence before the appeal tribunal. I find no fault with how the appeal tribunal dealt with this issue and conclude that the appeal tribunal was under no duty to address the basis on which entitlement to DLA had been awarded.
The supersession issue
37. In the written observations on the application for leave to appeal, Mr Kirk addressed the issue of the appeal tribunal’s treatment of the question of supersession. He submitted that:
‘The decision under appeal was a supersession decision, the grounds for supersession being that the Department had received medical evidence following an examination from a health care professional (Regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999). In considering this ground for supersession the decision maker and subsequently the tribunal do not have to show that there has been an improvement in a claimant’s condition. All that has to be established is that following the receipt of the medical evidence a claimant does not satisfy the PCA. In this case it is difficult to establish from the statement of reasons what grounds for supersession were relied upon by the tribunal to remove the award. At various points the tribunal refer to (the claimant’s) condition improving which suggests that it was considering a relevant change of circumstances (regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999. However towards the end of its reasons it states “… the Department had established ground to review on the basis of the medical report from the Medical Examining Practitioner…” which would indicate grounds existed on the basis of this report (regulation 6(2)(g) of the above regulations) which in fact is the correct ground as stated in the Department’s decision and in its submission to the tribunal.
Whilst the tribunal removed the award from the correct effective date I would submit that its failure to identify the correct ground for supersession or following through with the ground that it identified renders the decision erroneous in point of law (see paragraphs 49-53 of C7/08-09(IB) refers).’
38. I am of the view that the appeal tribunal addressed the issue of whether there had been a change of circumstances in the appellant’s medical condition precisely because that issue had been raised by the appellant’s representative. I am not of the view that the appeal tribunal conflated the grounds for supersession or otherwise mixed them up.
39. It is helpful to recall, however, that 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.
40. 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;’
41. 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.
42. 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.
43. 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.
44. In the instant case, I am satisfied that the appeal tribunal did address, in an adequate manner, the supersession issue. It recognised and confirmed the outcome decision under appeal. Although it utilised the language of ‘review’ and ‘revise’ rather than supersession, it recognised that the basis on which the decision awarding entitlement to IB had been changed by the Department was the receipt of the report of a medical examination. That relates to regulation 6(2)(g).
The appeal tribunal’s assessment of the appellant’s own evidence
45. In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative submitted that the appeal tribunal had not explained why it had rejected the evidence from the appellant’s GP and the appellant’s own oral evidence.
46. In Quinn v Department for Social Development ([2004] NICA 22), the Court of Appeal emphasised that assessment of evidence and fact-finding role is one for the appeal tribunal. At paragraph 29, the Court stated:
‘It is clear that the Tribunal considered Dr Manley’s report since they refer to it in their findings and describe it as being less than helpful. The challenge to the Tribunal’s attitude to the report cannot proceed on the basis that they ignored it; rather it must be either that they misconstrued it or they failed to give it sufficient weight. As to the latter of these two possibilities it is of course to be remembered that a view of the facts reached by a tribunal can only be interfered with by the Court of Appeal in limited and well-defined circumstances.
Carswell LCJ described those circumstances in Chief Constable of the RUC v Sergeant A [2000] NI 261 at 273f as follows: -
“A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless—
(a) there is no or no sufficient evidence to found them, which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR 697 at 699, per Lord Sutherland); or
(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, per Viscount Simonds at 29 and Lord Radcliffe at 36.”
47. At paragraph 4 of R(DLA) 3/04, Mrs Commissioner Brown had made similar remarks:
‘I should state at the outset that the weight to be given to any evidence is completely a matter for the Tribunal. The weight to be given to an item of evidence is a matter of fact. That means that I can disturb it only if that conclusion as to weight is one which no reasonable Tribunal could have reached. Having examined Dr M...’s report I do not consider that the Tribunal’s conclusions as to the weight to be given to it are such as no reasonable Tribunal could have reached.’
48. In C14/02-03(DLA), Commissioner Brown, at paragraph 11, stated:
‘ … there is no universal rule that a Tribunal must always explain its assessment of credibility. It will usually be enough for a Tribunal to say that it does not believe a witness.’
49. 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.’
50. 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:
51. In the instant case, it is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it. 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.
52. In any event, and absent the error with respect to the evidential assessment 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.
Exceptional circumstances?
53. In the written observations on the application for leave to appeal, Mr Kirk submitted that:
‘At paragraph 54 of C5/08-09(IB) Commissioner Mullan held:
“As was noted above, the primary issue before the appeal tribunal was whether the appellant was incapable of work in accordance with the personal capability assessment. Having done so, and determined that the appellant was not so incapable, the appeal tribunal was under a duty to consider whether the appellant satisfied any of the exceptional circumstances set out in regulation 27 applied to him. That required the appeal tribunal to acknowledge, in its statement of reasons, that the application of regulation 27 was considered by the appeal tribunal. It required the appeal tribunal to make sufficient findings of fact in connection with those exceptional circumstances.”
In this case the tribunal found that (the claimant) was not incapable of work in accordance with the PCA. It was therefore obliged to consider whether not he satisfied any of the exceptional circumstances set out in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995. Furthermore there was a duty on the tribunal to acknowledge that it has considered the exceptional circumstances. However I can find no reference in the reasons for decision to indicate if the tribunal considered if any of the exceptional circumstances contained in regulation 27 applied to (the claimant). For that reason I submit that the tribunal has erred in law by failing to consider if regulation 27 applied in this case.’
54. The reference to paragraph 54 should be to paragraph 52. More importantly, however, the comments made in the relevant paragraph about the application of regulation 27 have to be read in the context of the particular facts of that case.
55. The potential application of regulation 27 was a real issue in C5/08-09(IB). The appellant in that case had undergone a surgical procedure after being subject to a medical examination by a medical officer of the Department. The medical officer, in the report of a medical examination, undertaken as part of the personal capability assessment, had given an opinion as to whether the relevant surgical procedure was such as to take the appellant within the exceptional circumstance in regulation 27(d). In his letter of appeal, the appellant had made reference to having been in recovery following a knee operation. The appeal writer, in the appeal submission, had addressed the potential applicability of regulation 27. At paragraph 40, and following a description of that background, I stated that:
‘It was clear, therefore, that the issue of the possible application of regulation 27 was one of the issues that was raised by the appeal and was one which required to be addressed by the appeal tribunal.’
56. It was in the context of the clear failure by the appeal tribunal to address the issue of the potential application of regulation 27, after it had been raised by the appeal, that my comments in paragraph 52 were made.
57. It is important to note that at paragraphs 54 and 55, I stated:
‘54. I would note, at this stage, that in the majority of cases in which an appeal tribunal is considering whether the appellant is incapable of work in accordance with the personal capability assessment, the further issues of whether he also satisfies the exceptional circumstances in regulation 27, will not be relevant. Nonetheless, it will be safest and best practice for appeal tribunals to note that the regulation was considered. I am aware that many LQPMs of appeal tribunals have aide-memoirs to assist in ensuring that all issues in connection with personal capability assessment appeals have been considered. In my view, such aide-memoirs should also contain a reminder to consider regulation 27. Where a statement of reasons for the appeal tribunal’s decision is requested it will also be safest and best practice to make a reference therein that the application of regulation 27 was considered but was discounted. That will not be an onerous duty for appeal tribunals. Where regulation 27 is not relevant a simple statement to that effect is sufficient.
55. Where, of course, regulation 27 has a potential relevance there is a greater duty on the appeal tribunal to consider that application, as indicated in paragraph 52 above.’
58. In the instant case, and on the basis of an assessment of all of the relevant evidence, it is clear that the substantive issue raised by the appeal was whether the appellant was incapable of work in accordance with the personal capability assessment, the further issue of whether he also satisfied the exceptional circumstances in regulation 27, was not relevant. While, in accordance with paragraph 54 of C5/08-09(IB), it would have been safest and best practice for the appeal tribunal, in the statement of reasons for its decision, to make a reference therein that the application of regulation 27 was considered but was discounted, its decision is not in error of law for having failed so to do.
Disposal
59. The decision of the appeal tribunal dated 23 September 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.
60. 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.
61. I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following.
62. The decision under appeal is a decision of the Department, dated 24 February 2009, which decided that:
(i) grounds existed to supersede an earlier decision of the Department, dated 18 February 2000, and which had awarded an entitlement to IB, from and including 31 October 1999; and
(ii) the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 24 February 2009.
63. Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 24 February 2009, had grounds to supersede the decision of the appeal tribunal dated 18 February 2000. 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.
64. 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.
65. 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.
66. 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.
67. 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’s representative may wish to make a submission to the appeal tribunal, and adduce further evidence in connection with that submission, as to the potential application of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.
68. 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
Chief Commissioner
29 June 2011