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[1999] UKSSCSC CIB_4961_1997 (23 September 1999)

R(IB) 1/00

Mr. E. Jacobs CIB/4961/1997
23.9.99

All work test questionnaire - failure to provide information - whether in deciding at least four weeks have elapsed between the issue of the first and second request for information, the day of issue is to be included in the period - burden of proof on the adjudication officer to show the conditions on which regulation 7 depended were satisfied

The first self-assessment questionnaire was issued to the claimant on 17 October 1996 (day 1). The second questionnaire was issued on 14 November 1996 (day 29). On the 29 November 1996 (day 44) the adjudication officer, and on appeal a tribunal, decided the claimant was no longer entitled to incapacity benefit as pursuant to regulation 7(1) of the Social Security (Incapacity for work)(General) Regulations 1995 "at least" six weeks had elapsed since the first request, "at least" four weeks had elapsed between the issue of the first request and second request, and a further two weeks had elapsed after the second request.

Held, allowing the appeal, that:

for the purpose of regulation 7(b) four clear weeks must elapse between the date of issue of the first request, and the date of issue of the second request. In determining whether that period has elapsed the dates of issue of the requests are to be excluded so that the period begins after the day of issue of the first request, and ends the day before the second request is issued;

the burden was on the adjudicating officer to show the conditions on which regulation 7 depended were satisfied, and computer records might record the day a letter was generated rather than issued. The tribunal failed to determine on the balance of probabilities, on the basis of evidence, the day on which the request was posted.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is as follows. It is given under section 14(8)(a)(i) of the Social Security Administration Act 1998:

The decision of the Sutton social security appeal tribunal held on 25 March 1997 is erroneous in point of law.

Accordingly, I set it aside and, as I can do so without making fresh or further findings of fact, I give the decision that the tribunal should have given.

My decision is:

No grounds exist to review the decision of the adjudication officer dated 1 July 1992 awarding invalidity benefit to the claimant from and including 10 June 1992.

The appeal to the Commissioner

This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of a Commissioner. The adjudication officer does not support the appeal.

The history of the case

On 3 December 1996, an adjudication officer reviewed the last operative decision awarding benefit to the claimant and decided that from and including 29 November 1996 the claimant was no longer entitled to incapacity benefit. The reason for the decision was that the claimant was to be treated as capable of work under regulation 7(1) of the Social Security (Incapacity for Work)(General) Regulations 1995.

The claimant appealed against that decision to the tribunal. She did not attend, and was not represented, at the hearing of the appeal. The tribunal confirmed the adjudication officer's decision.

The application of regulation 7

Regulation 7 provides that a person who fails without good cause to provide the information required by a self-assessment of capacity questionnaire is to be treated as capable of work provided that two conditions are satisfied. Those conditions are that:

"(a) at least 6 weeks have elapsed since the Secretary of State sent that person the first request for that information; and

(b) the Secretary of State has sent that person a further request at least four weeks after the first, and at least two weeks have elapsed since that further request was sent."

The adjudication officer's submission to the tribunal was that self-assessment questionnaires were issued to the claimant on 17 October 1996 and 14 November 1996, and that the adjudication officer's decision terminating entitlement to incapacity benefit was given from 29 November 1996.

If 17 October 1996 is taken as day 1, the second questionnaire was issued on day 29 and the adjudication officer's decision was given on day 44.

Certainly six weeks elapsed between day 1 and day 44, and two weeks elapsed between day 29 and day 44. However, was day 29 "at least four weeks after" day 1?

I issued a direction asking for submissions from the adjudication officer on these questions:

"Is day 1 included in the reckoning? Is day 29 included in the reckoning? There are authorities that decide that the words "at least" mean that there must be four clear weeks. Do they apply here?"

The adjudication officer's response was that "at least four weeks" should be given its normal meaning of at least four periods of seven days. On this basis, taking 17 October 1996 as day 1, four weeks has elapsed by the end of 13 November 1996 and the reminder, sent on 14 November 1996, was sent at least four weeks after the first. I reject that submission.

Many expressions referring to time are used in legislation. When a piece of modern legislation uses expressions that have established meanings, I am entitled to assume that they bears those meanings unless the context otherwise requires.

There are many authorities on the meaning of "at least" and "after". In one sense, they are all decisions that depend on the particular context in which the words were used. However, from those myriad instances a general principle has emerged, subject to the overriding consideration that the context must not require a different interpretation. The general principle is set out in paragraph 1132 of Volume 45 of Halsbury's Laws of England (4th edition):

"When a period is fixed before the expiration of which an act may not be done, the person for whose benefit the delay is prescribed has the benefit of the entire period, and accordingly in computing it the day from which it runs as well as the day on which it expires must be excluded, and the act may not be done before midnight of that day."

That passage was approved by the Court of Criminal Appeal in R v. Long [1959] 3 All England Law Reports 559 at page 560, with the exception of the words underlined which did not appear in the edition current in 1959. There is nothing in the context of this regulation, or the legislation in which it is contained, to require a different interpretation.

The time limits specified are to the benefit of the claimant. They must be complied with by the adjudication officer before a claimant can be treated as capable of work. If 17 October 1996 and 14 November 1996 are both excluded from the reckoning, the second questionnaire was not sent at least four weeks after the first. So, the conditions which permitted the claimant to be treated as capable of work were not satisfied. So, there were no grounds to review the decision awarding benefit to the claimant. The tribunal misinterpreted or misapplied regulation 7. This makes its decision wrong in law.

Proof of time limits

Even if the adjudication officer's interpretation of regulation 7 were correct, there are problems with the adjudication officer's decision. I dealt with this in my Direction to the adjudication officer:

"What the adjudication officer says to the tribunal is evidence. However, the officer may not have had personal knowledge of the issue of the forms and almost certainly had no personal recollection of this. The officer's submission must have been based on the records. I assume that these took the form of computer records. Should the tribunal have asked for a copy of these records?

Anyway, do the records show the date when a document was generated by a computer or the date when the document was sent? Is it possible to be sure that a document generated on a particular day was put into the external mail on that day? Often the mailing arrangements in offices mean that an item must be in the mail room by early afternoon if it is to be sent that day."

The adjudication officer replied that she had not been able to obtain from the local office any details of the records kept and referred to in the adjudication officer's submission to the tribunal. However, she accepted that the record would show the date that the letter was generated by the computer and that it was not possible to be sure whether the letter was posted on the same day.

The burden was on the adjudication officer to show that the conditions on which regulation 7 depended were satisfied. The tribunal had to decide on the balance of probabilities on the basis of the evidence produced whether the document was posted on the day that it was produced. The tribunal did not investigate this matter and that is another error of law.

Summary

As I have decided that the tribunal's decision is erroneous in law, I must set it aside. I, therefore, have power either to refer the case to another tribunal or to give a decision myself, with or without further findings of fact. It is not necessary for me to make further findings of fact as I can give the decision which the tribunal should have given on its findings of fact. That decision is set out in paragraph 1.3.

Date: 23 September 1999 (signed) Mr. Edward Jacobs Commissioner