UK Social Security and Child Support Commissioners' Decisions

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal is allowed. The decision of the Durham appeal tribunal dated 24 September 2001 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to substitute the decision which the appeal tribunal should have made on the facts it found (Social Security Act 1998, section 14(8)(a)(i)). My decision is that the claimant's entitlement to disability living allowance is not to cease from 15 June 2000 by virtue of regulation 19(3) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, as the Secretary of State has failed to show that the conditions for the application of that provision are satisfied. In paragraphs 19 to 21 below I say something about where that decision leaves matters generally.

The background

2. The claimant was first awarded the higher rate of the mobility component and the lowest rate of the care component of disability living allowance (DLA) from 6 April 1992. That award seems to have been made for a period of about five years, as a renewal claim was made on a form signed on 28 August 1996. On that claim the higher rate of the mobility component and the lowest rate of the care component were awarded from 23 January 1997 for life by an adjudication officer's decision dated 24 October 1996. An anonymous allegation led the Secretary of State to make investigations into the claimant's condition in 1999. It is important in analysing subsequent events and decisions to try to identify the legal powers available. There were significant changes in the legislation with effect from 18 October 1999. Therefore, I have set out the relevant legislation with a few comments in an appendix to this decision.

The evidence of the sequence of events

3. It is known that the DLA Unit dealing with the claimant's case sent a request, it seems to the District Benefit Centre (DBC) in Newcastle, for the claimant to be visited by an examining medical practitioner (EMP). An EMP visited the claimant's home on 8 October 1999 and got no reply at the door despite waiting for 10 minutes. He reported that on a form DBD313A. Presumably, notice had been given to the claimant of the date and time of the visit, but there is no direct evidence of that in the papers or any indication of by whom any notice was given. On 11 October 1999 someone from Medical Services ("provided by Sema Group on behalf of the Benefits Agency") wrote to the DLA Unit that the claimant had stated that he would not been seen until he had a written confirmation from Blackpool of the reason for the examination. On 29 October 1999 the DLA Unit wrote to the claimant saying that the Secretary of State had the right to look again at any claim regardless of the length of the award, referring to section 54(1)(a) of the Social Security Administration Act 1992. It was said that a medical examination was the best way to obtain up-to-date information, that the DBC would be asked to arrange for a medical examination in the near future and that if the claimant failed to make himself available his benefit might be suspended. Another EMP visit was apparently arranged for 25 November 1999. Again there is no direct evidence of notice of the date and time having been given or by whom. The claimant was not in.
4. Payment of benefit was then suspended. However, according to the letter of 28 February 2000 to the claimant's MP, payment was reinstated after the claimant had telephoned to ask why his order book had been suspended. There is a suggestion on the telephone call record of 26 January 2000 that correct procedure had not been followed. There is a further record of an abortive visit to the claimant on 18 March 2000 (pages 73 and 74). Someone has written on the form that the claimant had said that he would not have an examination unless the DLA Unit rang him first, but it looks as though this was not done by the EMP. There is now in the papers (pages 117 to 120) a copy of an undated letter in form DBD413, apparently from Medical Services in Newcastle saying that "we need some more information" and that a doctor would visit on 18 March 2000 in the morning. There is also a copy of a letter in the same form for 1 April 2000 in the morning.
5. On 15 June 2000 a letter was sent to the claimant by the DLA Unit containing the following:

"On 8 October 1999, 25 November 1999 and 18 March 2000 you failed to make yourself available for examination by one of our visiting medical doctors.

Because you failed to attend these examination we cannot be sure we are paying you the right amount of Disability Living Allowance.

What you should know

We have decided to stop paying you Disability Living Allowance from 21 June 2000.

We want to look again at the amount of benefit we can pay you as soon as possible. To help us do this please attend the next medical examination. An appointment will be sent to you from the Newcastle Disability Benefits Centre.

There is no right of appeal against this decision.

If you do not attend the examination we can decide to terminate your benefit."

6. There appears to have been another abortive visit on some date after 21 July 2000, the date of another request for an EMP visit (page 77), where again it has been written by someone that the claimant had been advised by his representative not to submit to an examination until he had a letter from the DLA Unit explaining the need for one. On 26 January 2001 the Secretary of State superseded the decision of 24 October 1996 and gave a decision that the claimant was not entitled to DLA from and including 15 June 2000 because he had failed, without good cause, to attend for or submit to a medical examination. It was said that he had failed without good cause to attend two consecutive appointments for a medical examination and was no longer entitled to benefit. A tick was put in a box referring to section 19 of the Social Security Act 1998.
7. I should add that there is evidence of a further decision to suspend payment, in the first page of a letter dated 5 February 2001 from the DLA Unit (page 100), and a suggestion in a letter dated 2 March 2001 from the DLA Unit (page 112) that payment of benefit had been reinstated after the suspension in June 2000. These oddities muddy waters which are already not very clear, but since the letters were written after the date of the decision under appeal to the appeal tribunal I give them no more attention in my decision itself (but see paragraphs 19 to 21 below).

The appeal to the appeal tribunal

8. The claimant appealed against the decision of 26 January 2001, making a variety of points that I do not need to detail. He did not attend the hearing on 24 September 2001 and neither did his representative (for a reason which I do not now need to explore). The appeal tribunal decided that the claimant was not entitled to DLA from and including 15 June 2000. Its statement of reasons included the following:

"There is abundant evidence available to this Tribunal, which is accepted, that the Benefits Agency and their Medical Services made arrangements for an Examining Medical Practitioner to call on the appellant at his home on 13 October 1999, 25 November 1999, 18 March 2000, 1 April 2000 and 21 July 2000, and all of these visits were unsuccessful in that the appellant was either not present, or was present but refused to consent to an examination taking place."

The appeal tribunal said that correct procedure had been followed. It relied on section 19 of the Social Security Act 1998 and said that the conditions of subsections (2) and (3) were met. The appeal tribunal found no good cause as the claimant was acting on misinformed and misplaced advice.

The appeal to the Commissioner

9. The claimant now appeals against that decision with my leave. The appeal is supported in the submission dated 8 April 2002 on behalf of the Secretary of State, which suggested that the Commissioner should substitute a decision reinstating the award of DLA with effect from 15 June 2000. The claimant's representative did not object to that suggestion. In view of the support of the appeal I do not need to go into the broad issues raised by the claimant, or even many of the points discussed in the submission of 8 April 2002.

Section 19 of the Social Security Act 1998

10. It is plain that the appeal tribunal went wrong in law in relying on section 19 of the Social Security Act 1998. The terms of section 19 are wider than those of section 54 of the Social Security Administration Act 1992. I do not want to attempt any definition of precisely when section 19(1) entitles the Secretary of State to refer a person to a medical practitioner (especially as any definition would probably be academic in view of the wider powers in regulation 19 of the Decisions and Appeals Regulations). I am satisfied that the Secretary of State could have referred the claimant for examination under section 19 at the relevant dates after 18 October 1999. I do not need to decide whether, as required if the conditions of section 19(2) are to be satisfied, the medical practitioner had requested the claimant to attend for or submit to medical examination. The evidence noted above leaves the question of who gave notice to the claimant, acting on whose behalf, in considerable doubt. In other cases the absence of clear evidence might be fatal to a case under section 19.
11. In the present case, assuming that section 19(2)(b) was satisfied, section 19(3) cannot support the decision made against the claimant. The sanction provided by section 19(3) is that "the decision" is to be made against the claimant. In a case like the present that must refer to a decision on the claimant's substantive entitlement, through the mechanism of revision or supersession. The appeal tribunal did not identify any ground of revision or supersession (such as a relevant change of circumstances since DLA was awarded from 23 January 1997) or make a new decision that the claimant did not satisfy the conditions of entitlement to DLA. The failure to submit to medical examination was regarded as in itself sufficient explanation. Nor was there any attempt to justify the effective date of 15 June 2000. If the decision was to be supported by section 19, there would have had to be an examination of the proper date for a superseding decision to take effect under section 10 of the Social Security Act 1998 or regulation 7 of the Decisions and Appeals Regulations. There was no such examination.
12. All of that of course reflects the mistaken reliance on section 19 of the Social Security Act 1998 in the decision of 26 January 2001. The reasons given for that decision clearly referred to the terms of regulation 19 of the Decisions and Appeals Regulations, but there was no printed box to be ticked for that regulation. It may be a case, like that of the available decision codes in CDLA/2335/2001, of using the "least inappropriate" box on the form. But there was nothing to stop the officer, who filled in the form by hand, from writing in the correct legislation relied on. The failure to do so, and the failure to correct that in the written submission to the appeal tribunal, led the appeal tribunal into error.

Regulation 19 of the Decisions and Appeals Regulations

13. Could the appeal tribunal's decision be saved on the basis that it was justified under the terms of regulation 19 of the Decisions and Appeals Regulations? Or should I substitute a decision to the same effect on the findings of fact made by the appeal tribunal? In my judgment, the answer to both questions is no.
14. The first condition for making a decision under regulation 19(3) that entitlement is to cease is that payment of the relevant benefit "has been suspended" under regulation 19(2). Those words carry the necessary implication that payment has been and remains suspended. Thus action on 26 January 2001 could only be based on the suspension effected by the letter of 15 June 2000, not on the earlier suspension in early 2000 or late 1999. Payment was reinstated after that earlier suspension. It seems to me that it must follow also that the failures to attend or submit to medical examination on which the earlier suspension was based could not be looked at when the suspension was imposed on 15 June 2000. The effect of those failures was wiped out by the lifting of the suspension of payment. Thus the letter of 15 June 2000 could not properly rely on the EMP visits of 8 October 1999 and 25 November 1999, regardless of the outcome of any dispute about whether the claimant was given notice of those visits. The letter of 15 June 2000 mentioned only one other failure, on 18 March 2000, rather than two consecutive failures. As noted in paragraph 4 above, there was a letter giving notice of the visit on 18 March 2000 (and I can pass over the question of whether the letter in fact imposed a requirement by the Secretary of State). There was also a letter giving notice of a visit on 1 April 2000, but there is no evidence before me of the outcome of that visit, or whether it in fact took place. Thus the evidence before the appeal tribunal and before me does not show, as at 15 June 2000, two consecutive failures, without good cause, to attend or submit to medical examination, so as to justify suspension of payment of benefit under regulation 19(2).
15. It might be argued that, since the payment of DLA was undoubtedly suspended by the Secretary of State on 15 June 2000 with effect from 21 June 2000 and there is no right of appeal against the decision to suspend (Decisions and Appeals Regulations, Schedule 2, paragraph 24), the validity of the suspension has to be accepted when regulation 19(3) is being considered. For this purpose (it may be different in other cases) I am prepared to assume that suspension of payment of benefit notified in the letter of 15 June 2000 was sufficiently linked to the conditions of regulation 19(2) to have been done purportedly under regulation 19(2), despite there being no reference to any legislation whatsoever in the letter. But the argument cannot be right. Where entitlement to benefit is to be removed, possibly for quite a long past period, under regulation 19(3), the decision-maker or, on appeal, an appeal tribunal or Commissioner, must be satisfied that payment had been properly suspended under regulation 19(2). The reference to suspension "under" regulation 19(2) must require that the conditions for suspension in regulation 19(2) were in fact met. Even if I am wrong about that and the fact of a suspension purportedly under regulation 19(2) is enough as a pre-condition of the application of regulation 19(3), there is still a discretion whether or not to decide that entitlement ceases. The word "may" is used, not "shall". It must then be relevant to the exercise of that discretion if the proper conditions for suspension under regulation 19(2) have not been shown to exist.
16. In the present case, if that discretion had to be considered it does not rescue the appeal tribunal's decision. The absence of evidence of two consecutive failures, without good cause, to attend or submit to medical examination, points strongly against exercising the discretion so as to terminate entitlement. It could just possibly be argued that clear evidence of some further failure to submit to medical examination, after 15 June 2000, might justify terminating entitlement. It could be said that there were then two more or less consecutive failures (on 18 March 2000 and the unknown date after 21 July 2000). But even so (and ignoring the fact that there is no such clear evidence) that could not justify the terminating of the claimant's entitlement to DLA from 15 June 2000, rather than some later date.
17. Thus even stretching the scope of regulation 19(3) some way beyond what I consider its proper limits could not support the appeal tribunal's decision. Its decision must be set aside as erroneous in point of law.

The Commissioner's substituted decision on the appeal

18. I must then consider my decision on the appeal. The representative of the Secretary of State has submitted that I should substitute a decision in favour of the claimant on the basis that the facts and circumstances are sufficiently recorded. He has thus disclaimed the opportunity to put forward further evidence as to the giving of notice of appointments for medical examinations. The current evidence, as described above, is lacking on crucial points. In those circumstances the only conclusion to which I can come on the evidence available is that the Secretary of State has failed to prove that as at 15 June 2000 the conditions for suspension of payment of benefit under regulation 19(2) of the Decisions and Appeals Regulations were met. Accordingly, the decision under regulation 19(3) must be that the claimant's entitlement to DLA is not to cease from 15 June 2000. I consider that I have no discretion in that matter, but if I am wrong about that (see paragraph 15 above) I conclude that the circumstances clearly point to not exercising the discretion to decide that entitlement should cease (for the reasons given in paragraph 16 above and in the absence of any clear evidence of a further notice to attend a medical examination after 21 July 2000). The result is that the claimant's previous life awards of entitlement to DLA continue to operate.

The limits of the Commissioner's decision

19. I stress that my decision is limited to the question of entitlement. There was no right of appeal from the decision to suspend payment notified in the letter of 15 June 2000 and my decision does not directly touch that decision. However, I have concluded that the conditions for suspending payment of benefit were not met at that date either under section 19 of the Social Security Act 1998 or under regulation 19(2) of the Decisions and Appeals Regulations. It must now be for the Secretary of State to determine whether the decision notified in the letter of 15 June 2000 is to be revised in accordance with regulation 3(8) of the Decisions and Appeals Regulations. If a revised decision is given, it seems to me that it is open to the Secretary of State to consider whether payment of DLA to the claimant should be suspended under some other power available to him, or from a later date under regulation 19(2) of the Decisions and Appeals Regulations. At this point the existence or otherwise of another decision on suspension in February 2001 may become relevant.
20. I should also point out that my decision is limited to the question of the termination of entitlement under regulation 19(3) of the Decisions and Appeals Regulations as from 15 June 2000, or some date down to 26 January 2001. My decision does not prevent the Secretary of State, if he wishes, from revising or superseding the decision awarding entitlement to DLA for life from 23 January 1997 on some other basis or of from terminating entitlement under regulation 19(3) from some later date. The current legislation contains no special protection for life awards, even in cases where the award was made before 18 October 1999. The legislation in force down to 17 October 1999 did contain protections once an application for review got to an adjudication officer. However, there was nothing in that pre-18 October 1999 legislation to prevent the Secretary of State from investigating the circumstances of claimants, including those with life awards of DLA. I have set out in the Appendix the legislation operative from 1997 giving the Secretary of State the express power, if it was actually needed, to undertake investigations to obtain evidence and information prior to applying for a review and the right to require any DLA beneficiary to submit to a medical examination in the course of such investigations. Those powers extended to beneficiaries of life awards just as much as beneficiaries of limited awards. There thus seems to me to have been ample legal power for the Secretary of State to have started the investigation of the claimant's circumstances in 1999 and to have required the claimant to submit to a medical examination both before and after 18 October 1999.
21. Of course I express no opinion whatsoever about whether the Secretary of State could prove the grounds necessary for a revision or supersession as above or an application of regulation 19(3) from some date after 26 January 2001. The existence or otherwise of another decision on suspension in February 2001 may again be relevant to the latter possibility.

(Signed) J Mesher

Commissioner

Date: 8 July 2002

APPENDIX TO CDLA/5167/2001

The relevant legislation in force down to 17 October 1999

22. When the investigation process started, apparently in September 1999, the Social Security Administration Act 1992 was still in force. Section 54(1) and (2) provided:

"(1) Before a claim for an attendance allowance, a disability living allowance or a disability working allowance or any question relating to such an allowance is submitted to an adjudication officer under section 20 above the Secretary of State may refer the person in respect of whom the claim is made or the question is raised to a medical practitioner for such examination and report as appear to him to be necessary--

(a) for the purpose of providing the adjudication officer with information for use in determining the claim or question; or

(b) for the purpose of general monitoring of claims for attendance allowances, disability living allowances and disability working allowances.

(2) An adjudication officer may refer--

(a) a person in respect of whom such a claim is made or such a question is raised;

(b) a person in respect of whom an application for a review under section 30 or 35 above has been made or is treated as having been made,

to a medical practitioner for such examination and report as appears to the adjudication officer to be needed to enable him to reach a decision on the claim or question or the matter under review."

Then section 54(8) provided:

"(8) Where--

(a) the Secretary of State has exercised the power conferred on him by subsection (1) above or an adjudication officer has exercised the power conferred on him by subsection (2) above; and

(b) the medical practitioner requests the person referred to him to attend for or submit himself to medical examination; but

(c) he fails without good cause to do so,

the adjudication officer shall decide the claim or question or matter under review against him."

23. Mr Commissioner Rowland in decision CDLA/14884/1996 suggested that the Secretary of State's power under section 54(1) arose once there was a question of the Secretary of State's applying to an adjudication officer for review. There are some difficulties in fitting such circumstances under the wording of section 54(8), but I am prepared to accept that that suggestion is right.
24. As from 1 July 1997, subsection (7A) of section 30 of the Social Security Administration Act 1992 (inserted by the Social Security Administration (Fraud) Act 1997) provided:

"(7A) The Secretary of State may undertake investigations to obtain information and evidence for the purposes of making applications under subsection (7) above [ie applications to an adjudication officer for review]."

From the same date, section 57A of the Social Security Administration Act 1992 (also inserted by the 1997 Act) gave power to make regulations enabling the Secretary of State to require attendance allowance and DLA beneficiaries to submit to medical examinations and for the withholding of payment of benefit for a failure to do so. Regulation 5A of the Social Security (Disability Living Allowance) Regulations 1991 (inserted with effect from 25 August 1997) provided:

"5A.-(1) The prescribed circumstances in which a person who is awarded disability living allowance shall be required to attend for, or submit himself to, a medical examination, are where the Secretary of State is undertaking an investigation under section 30(7A) of the Administration Act.

(2) An examination under paragraph (1) shall be conducted by a medical practitioner who is--

(a) approved by the Secretary of State; or

(b) engaged by an organisation approved by the Secretary of State."

Regulation 5B provided:

"5B.-(1) Subject to paragraph (2), where a person who is receiving disability living allowance is required by the Secretary of State to attend for, or submit to, a medical examination under regulation 5A and fails to comply with that requirement on more than one occasion, that allowance may be withheld, in whole or in part, from a date, not earlier than the second occasion, as the Secretary of State shall determine.

(2) Paragraph (1) shall not apply where--

(a) a person who is required to attend for, or submit to, a medical examination proves to the satisfaction of the Secretary of State that he has good cause for failing to comply with the requirement to attend for, or submit himself to, medical examination;

(b) a person who is required to attend for, or submit to, a medical examination produces such evidence as is acceptable to the Secretary of State in place of a medical examination; or

(c) the Secretary of State otherwise has available to him such evidence as is acceptable to him.

(3) [prescribed some factors to be taken into account in assessing good cause]."

Regulation 5C provided that, if there was a review decision by an adjudication officer, benefit was to be paid in accordance with that decision and that if benefit had been withheld under regulation 5B for more than three months, the Secretary of State was to apply for a review.

The relevant legislation in force from 18 October 1999

25. With effect from 18 October 1999 in DLA cases, Part II of the Social Security Administration Act 1992, which contained sections 54 and 57A, was repealed and regulations 5A to 5C of the DLA Regulations were revoked. As far as I can see, no transitional provisions or savings were made in relation to those provisions in Schedule 16 to the Social Security Act 1998 (Commencement No 11, and savings and Consequential and Transitional Provisions) Order 1999.
26. From 18 October 1999 onwards the governing statute has been the Social Security Act 1998. Under that Act all initial decisions are made by the Secretary of State. Section 19 provides:

"19.-(1) Before making a decision on a claim for a relevant benefit, or as to a person's entitlement to such a benefit, the Secretary of State may refer the person--

(a) in respect of whom the claim is made; or

(b) whose entitlement is at issue,

to a medical practitioner for such examination and report as appears to the Secretary of State to be necessary for the purpose of providing him with information for use in making the decision.

(2) Subsection (3) below applies where--

(a) the Secretary of State has exercised the power conferred on him by subsection (1) above; and

(b) the medical practitioner requests the person referred to him to attend for or submit himself to medical examination.

(3) If the person fails without good cause to comply with the request, the Secretary of State shall make the decision against him."

Section 24 provides:

"24. Regulations may make provision:

(a) enabling the Secretary of State to require a person to whom a relevant benefit has been awarded to submit to medical examination;

(b) for suspending payments of benefit, in whole or in part, in a case of a person who fails to submit himself to medical examination to which he is required to submit himself in accordance with regulations made under paragraph (a) above;

(c) for the subsequent making in prescribed circumstances of any or all of the payments so suspended;

(d) for entitlement to the benefit to cease, except in prescribed cases or circumstances, from a date not earlier than the date on which payments were suspended."

27. Regulation 19 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 provides:

"19.-(1) Except where regulation 8 of the Social Security (Incapacity for Work) (General) Regulations 1995 applies (where a question arises as to whether a person is capable of work), the Secretary of State or the [Board of Inland Revenue] may require a person to submit to a medical examination by a medical practitioner where that person is in receipt of a relevant benefit, and either--

(a) the Secretary of State considers or the Board considers it necessary to satisfy himself or themselves as to the correctness of the award of the benefit, or of the rate at which it was awarded; or

(b) that person applies for a revision or supersession of the award and the Secretary of State considers or the Board consider that the examination is necessary for the purpose of making his or their decision.

(2) The Secretary of State or the Board may suspend payment of a relevant benefit in whole or in part, to a person who fails, without good cause, on two consecutive occasions to submit to a medical examination in accordance with requirements under paragraph (1) except where entitlement to benefit is suspended on an earlier date other than under this regulation.

(3) Subject to paragraph (4), the Secretary of State or the Board may determine that the entitlement to a relevant benefit of a person, in respect of whom payment of such a benefit has been suspended under paragraph (2), shall cease from a date not earlier than the date on which payment was suspended except where entitlement to benefit ceases on an earlier date other than under this regulation.

(4) Paragraph (3) shall not apply where not more than one month has elapsed since the first payment was suspended under paragraph (2)."

Regulation 20(4) provides:

"(4) Payment of benefit which has been suspended in accordance with regulation 19 for failure to submit to a medical examination shall be made where the Secretary of State is satisfied or the Board are satisfied that it is no longer necessary for the person referred to in that regulation to submit to a medical examination."

DLA is a relevant benefit. It should be noted in passing that the Secretary of State has more general powers of suspension of payment of benefit and termination of entitlement under sections 21 to 23 of the Social Security Act 1998 and regulations 16 to 18 of the Decisions and Appeals Regulations.