UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CIB_1956_2001 (20 May 2002)

 


CIB/1956/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the claimant's appeal. I set aside the decision of the Leeds appeal tribunal dated 23 January 2001 and I substitute my own decision. Although the claimant's award of sickness benefit and his subsequent awards of invalidity benefit and incapacity benefit fall to be superseded, the supersession does not result in any change to his entitlement. Consequently, there has been no overpayment of benefit and arrears of incapacity benefit from 4 November 1999 are now due to him.

REASONS

2. I held an oral hearing of this appeal at which the claimant appeared in person and the Secretary of State was represented by Miss Deborah Haywood of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions.
3. The claimant was formerly a labourer. He became incapable of work on 22 August 1994 and received statutory sick pay until 28 October 1994 when he retired on medical grounds. His application for retirement was supported by his doctor who, in a letter dated 17 June 1994, said that the claimant was suffering from hypertension, arthritis and eczema over both hands and feet. After his retirement, the claimant was paid sickness benefit, followed by invalidity benefit and then incapacity benefit form 13 April 1995 when that benefit was introduced to replace sickness and invalidity benefit. In 1999, he visited India. When he showed the Benefits Agency his passport on his return, for the purpose of verifying his dates of absence, it was noticed that he had been abroad several times while in receipt of benefit. The claimant readily admitted that that was so. It is not in dispute that he had not notified the Agency of his absences abroad because he did not realise he needed to do so. In fact, he ought to have disclosed each absence. Section 113 of the Social Security Contributions and Benefits Act 1992 provides that a person is disqualified for receiving benefit while absent from Great Britain, subject to provision made by regulations. In the present case, regulation 2(1) of the Social Security (Persons Abroad) Regulations 1975 is relevant. That provides:

"…. a person shall not be disqualified for receiving any benefit in respect of incapacity by reason of being temporarily absent from Great Britain for any day falling within the first 26 weeks beginning with the day following the day on which he left Great Britain if –

(a) the Secretary of State has certified that it is consistent with the proper administration of the Act that, subject to the satisfaction of one of the conditions in sub-paragraphs (b), (bb) and (c) below, the disqualification under [section 113(i)(a) of the 1992 Act] should not apply, and

(b) the absence is for the specific purpose of being treated for incapacity which commenced before he left Great Britain, or

(bb) …., or

(c) on the day on which the absence began he was, and had for the past 6 months continuously been, incapable of work and on the day for which benefit is claimed he has remained continuously so incapable since the absence began."

The Secretary of State issued certificates under sub-paragraph (a) in respect of all the absences. In respect of all the absences except the first, the condition of sub-paragraph (c) was satisfied. However, sub-paragraph (c) did not apply to the first absence, which was from 21 November 1994 to 14 January 1995 and, there being no evidence that sub-paragraph (b) applied, the adjudication officer decided that the claimant was disqualified for receiving sickness benefit during that absence. That had serious repercussions because it meant that the claimant did not qualify for invalidity benefit before 13 April 1995 which, in turn, had the effect that not only was incapacity benefit payable at a lower basic rate in the beginning but it was also payable throughout the indefinite period of the award without any additional pension. The consequence was that the Secretary of State, who by then had taken over the role of the adjudication officer, superseded the awards of sickness, invalidity and incapacity benefit and decided that £11,483.98 had been overpaid to the claimant of which £10,483.66 was recoverable from him.

4. The claimant appealed, contending that the condition of regulation 2(1)(b) was satisfied in his case. He stated that he had gone to India to see a hakim, a doctor treating people with old Indian remedies, in order to obtain treatment for his eczema. The Secretary of State reconsidered the decision under appeal but took no action because "the treatment has to be arranged prior to him leaving Great Britain and …. he has previously claimed all of his visits were for the purpose of visiting his family in India". The case came before a tribunal on 30 November 2000 and was adjourned so that the claimant could obtain further evidence. It came back before a differently constituted tribunal on 23 January 2001. The tribunal dismissed the appeal, holding –

" that on a balance of probabilities the main purpose of the trip was a holiday and that the treatment was incidental (albeit important) to that holiday."

The claimant now appeals with the leave of a full-time chairman.

5. In a particularly helpful written submission, adopted by Miss Haywood, the Secretary of State accepts that the tribunal's decision is erroneous in point of law. In R(S) 6/61, the Commissioner said of the case before him:

"This was no vague intention or unsettled plan, and in my opinion it sufficiently satisfies the requirement of the regulation that the claimant's absence must be for the specific purpose of being treated. The regulation does not say 'for the sole purpose of being treated', and I do not think that such a restriction ought to be read into it."

I agree with the Secretary of State that, while another aspect of R(S) 6/61 was overruled by a Tribunal of Commissioners in R(S) 2/86, it remains good law that the condition in what is now regulation 2(1)(b) of the 1975 Regulations is satisfied if treatment is but one purpose of the absence abroad. I also accept that there is nothing in regulation 2(1)(b) that requires treatment to be the main purpose of the absence and that the tribunal erred in law in adopting that test. It is enough that treatment be an operative purpose of the absence. However, in R(S) 2/86 and R(S) 1/90, Tribunals of Commissioners have stressed that an intention to secure treatment must have been formed before the absence commenced and that it is not to be assumed that, because a person has treatment while abroad, he necessarily formed the intention to have the treatment before he left Great Britain.

6. In the present case, the Secretary of State accepts that the treatment given to the claimant while in India potentially falls within the scope of regulation 2(1)(b). I have before me an affidavit from the hakim who, with his brother who was also a hakim, gave the claimant his treatment. I also have before me a letter from Dr D J Barker MA MB FRCP, a consultant dermatologist, written to the claimant's former solicitor (and for which, very creditably, no fee was charged), in which he refers to notes made by Dr K Reid, his clinical assistant.

"…. It wasn't until January 1994 that the condition of [the claimant's] palms was described as 'reasonable'. Later that year the problem became active again and Dr Reid started treatment with a drug (Neo-Tigason) which is thought to be good for scaly skin diseases. In the event this treatment didn't prove very successful. In a letter dated 14^th October 1994 Dr Reid comments 'He is off to India for a long holiday and he says that usually improves his skin. I hope that this is the case'.

"Dr Reid next reviewed [the claimant] in January 1995 when he returned from India. The skin was just as bad as ever and various treatments were tried including hand and foot PUVA therapy and potent topical steroids. In the latter part of the year [the claimant] was skin tested but these were all negative which suggests that he did have a constitutional pattern of eczema. In June 1995 there is a comment from Dr Reid which is as follows. 'The eczema of his hand is improving. He attributes this to a mixture of Olive Oil and a powder from India which he uses twice daily.' In November 1995 the condition of his hands was again described as 'reasonable' and Dr Reid records that your client was off for another holiday in India. In April 1996 he is recorded as still using Olive Oil and a 'Chinese powder' he brought from India. ….

"….

"I am not aware of the nature of the treatment [the claimant] was given in India and it is difficult for me to comment on its value. There are several entries in the notes that [the claimant] was using such a preparation with apparent benefit although of course we saw him shortly after his return from his first trip to India when his hands were still very active. I have to say however that the mention of trips to India in [the claimant's] hospital notes definitely refer to then as holidays rather than visits to seek further treatment. I find it perfectly credible that [the claimant] had both aims in mind but there are no entries in the hospital records which specifically deal with this."

That seems to me to be very powerful evidence that the claimant did see the hakim during the absence in India which commenced on 21 November 1994 but, as Dr Barker points out, it does not deal with the question whether the claimant had formed an intention to obtain such treatment before he left Great Britain.

7. The only evidence that he had formed such an intention comes from the claimant's own assertions. He gave sworn evidence to me. He described his eczema as it was before he obtained the treatment. He said it caused his hands and feet to bleed and that it was so bad he had had to eat with gloves on. He said that he had been urged by relatives to try Indian treatments but that he had been sceptical, because he doubted that such treatments would be superior to the "advanced" treatment he had received from his doctors in England. Nevertheless, he had decided to try such treatment, nothing else being effective and, he said, that was a reason for his journey to India in November 1994. Ms Haywood did not challenge that evidence.
8. I am prepared to accept the claimant's evidence. I have no doubt that the trip was also a holiday and, like the tribunal, I incline to the view that that was the main purpose of the journey. I therefore do not find it surprising that the claimant referred to it as a holiday. However, I accept that the claimant's eczema, which was one cause of his retirement and was obviously defeating Western medical science, was so irritating the claimant that finding a cure for it added to his desire to go to India, even though he had no high hopes of success. That, in my view, is enough to make "being treated" in India a "specific purpose" of the absence.
9. Accordingly, having accepted that the tribunal's decision is erroneous in point of law for the reason given in paragraph 5 above, I give the decision set out in paragraph 1.

M. ROWLAND

Commissioner

20 May 2002