UK Social Security and Child Support Commissioners' Decisions

RIS_4_04 [2003] UKSSCSC CIS_2699_2001 (07 July 2003)

R(IS) 4/04


Mr J. Mesher CIS/2699/2001

07.07.03

Incapacity for work – deemed incapacity – retrospective medical evidence produced after date of decision

The claimant had been in receipt of income support at a reduced rate as an asylum seeker. He was granted exceptional leave to remain on 9 July 2000 and on 24 August 2000 he claimed income support at the full rate, including a disability premium, backdated to 9 July 2000. On 30 August 2000 a decision-maker decided that he was entitled to increased income support only from 24 August 2000 and that he was not entitled to a disability premium because he had not been submitting medical certificates in support of a claim for incapacity benefit before 25 May 2000. On 13 September 2000 the claimant appealed, producing with his appeal retrospective evidence of incapacity for work. The appeal tribunal confirmed the decision and declined to deal with the disability premium, which they considered would have been the subject of a separate decision by the incapacity benefit section of the Benefits Agency. The Secretary of State supported the claimant's appeal to the Commissioner, submitting that the tribunal had erred in failing to deal with the disability premium, and that the claimant was entitled to a disability premium.

Under the current form of paragraph 12(1)(b) of Schedule 2 to the Income Support (General) Regulations (paragraph 12(1)(b)) the claimant's entitlement to disability premium depended upon deemed incapacity for work under regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995 for a minimum of 364 days. The condition for deemed incapacity was the production of evidence of incapacity in accordance with the Social Security (Medical Evidence) Regulations 1976 ("the Medical Evidence Regulations"). It had been established in R(IS) 8/93 that retrospective medical evidence was acceptable for the purposes of regulation 2(1) of the Medical Evidence Regulations in its form before 13 April 1995 and specifically for entitlement to disability premium under the version of paragraph 12(1)(b) then in force. The question for the Commissioner was whether that legislation in its current form and regulation 28 could be satisfied by the production of retrospective medical evidence.

Held, allowing the appeal, that:

It was clear from the wording of regulation 2(1)(d) of the Medical Evidence Regulations that that regulation in its current form could be satisfied in respect of periods prior to the coming into existence or the putting forward of the evidence in question (paragraphs 13-14);

there was nothing in the wording of the present form of paragraph 12(1)(b) to exclude the use of retrospective evidence (paragraph 15);

regulation 28 could in its terms be applied to any period for which the question of deemed incapacity for work needed to be decided and retrospective evidence of incapacity was therefore acceptable where a past period was in issue (paragraphs 19-21);

however, the evidence of incapacity was produced after the date of the decision under appeal to the tribunal and, since the physical production of evidence was the key circumstance for the purposes of regulation 28, both the tribunal and the Commissioner were prevented by section 12(8)(b) of the Social Security Act 1998 from taking it into account (paragraphs 26-33);

The Commissioner set aside the tribunal's decision and referred the case to the Secretary of State for consideration of a revision of the decision of 30 August 2000 under regulation 3(4A) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

Note: On 22 January 2004 the Secretary of State informed the Commissioner that the decision of 30 August 2000 had been revised, so as to increase the amount of income support entitlement from 24 August 2000 by the inclusion of the disability premium in the claimant's applicable amount. The Commissioner issued a final decision, dated 23 January 2004, to the effect that the appeal against the decision of 30 August 2000 had lapsed.

INTERIM DECISION OF THE SOCIAL SECURITY COMMISSIONER

The decision of the Sutton appeal tribunal dated 23 February 2001 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to substitute a decision on the appeal against the decision dated 30 August 2000 having made the necessary findings of fact (Social Security Act 1998, section 14(8)(a)(ii)). However, I defer making that decision until the Secretary of State has reported the result of his consideration of the question referred in paragraph 35 below. That is why I have given this decision the heading of an interim decision.

The background

The claimant had been awarded income support at the urgent cases rate on the basis that he was an asylum-seeker. On 9 July 2000 the Immigration and Nationality Directorate of the Home Office wrote to him to say that his application for asylum had been refused, but that he had been granted exceptional leave to enter the United Kingdom until 30 May 2004. Among the information given in the letter was the statement that he would be able to get social security benefit, including income support, if he met the conditions. The claimant did not inform the income support office until he submitted an A1 claim form, which was received on 24 August 2000. On the form (which was completed at a local citizens advice bureau) he said that he had been sick since 1998 and that he had claimed incapacity benefit and disability living allowance (DLA). He said that he believed that he was now entitled to the "ordinary" rate of income support and asked for the increase in benefit to be fully backdated. He also said that he believed that he was entitled to the disability premium because he had been incapable of work for more than one year.

The decision-maker apparently wrongly treated the case as one of a new claim, but decided first that the claimant was not entitled to the increased benefit from 9 July 2000, only from 24 August 2000, and that he was not entitled to the disability premium as he had not been submitting medical certificates in support of a claim for incapacity benefit before 25 May 2000. I am not sure of the exact way in which that decision was notified to the claimant. The Secretary of State's written submission to the appeal tribunal referred to one decision dated 30 August 2000, but what was set out in section 2 of that submission is probably the revised decision made after the appeal was received. The claimant's letter of appeal refers to one letter dated 29 August 2000 to say that the claimant was not entitled to income support from 9 July 2000 and one letter dated 1 September 2000 to say that he was entitled to income support of £52.50 per week (i.e. excluding the disability premium) from 24 August 2000. However, it is clear that the appeal was against all the points notified in those letters and that the revised decision covered supersession for change of circumstances, the effective date of the superseding decision and the amount of benefit awarded in the new decision.

The claimant enclosed with his appeal a copy of a report dated 28 June 1999 by Dr Stuart Turner, a consultant psychiatrist. This gave harrowing details of the claimant's experiences and included the opinion that the claimant was suffering from a chronic post traumatic stress disorder with possibly some relatively mild depression in addition. The citizens advice bureau prepared a detailed written submission, in which it was said that they had been unable to obtain any backdated medical certificates from the claimant's general practitioner, although he did provide ongoing certificates.

The appeal tribunal's decision

The appeal tribunal dismissed the appeal. The reasons explained why it had been decided that the conditions for making the new decision effective before 24 August 2000 were not met. The final paragraph was as follows:

"The decision under appeal does not deal with the Appellant's claim for Disability Premium which is therefore not an issue in this appeal. Disability Premiums are dealt with by the Incapacity Benefit Section of the Benefits Agency and the Appellant's claim for such a Premium would have been dealt with by a separate decision of that Section."

The appeal to the Commissioner

The claimant now appeals against that decision with my leave. The appeal was supported in the Secretary of State's written submission dated 14 February 2002. There is no doubt that the appeal tribunal erred in law by failing to consider the question of the claimant's qualification for the disability premium. That question, and its impact on the amount of income support to which the claimant was entitled, was clearly part of the decision under appeal. That on its own requires the setting aside of the appeal tribunal's decision. The Secretary of State's submission supported the appeal tribunal's approach to the effective date for the increased benefit, but submitted that the Commissioner should substitute a decision that the claimant's income support should include the disability premium from 24 August 2000. There was no reply at that stage from the claimant's representative, as it now transpires that the person dealing with his case had left the citizens advice bureau.

As I had serious doubts about the reasoning leading to the conclusion that the claimant qualified for the disability premium, I directed an oral hearing. Following a postponement for the citizens advice bureau to obtain representation for the claimant, he was represented at the hearing by Mr Stewart Wright of the Child Poverty Action Group. The Secretary of State was represented by Mr Vaughan Lewis of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to both representatives for clear and well-constructed submissions, which were substantially in agreement on the issue of the disability premium.

The qualifications for the disability premium

As from 13 April 1995, when incapacity benefit, with its new structure for determining incapacity for work, replaced sickness and invalidity benefit, the relevant condition for the disability premium (in paragraph 12(1)(b) of Schedule 2 to the Income Support (General) Regulations 1987) has been in the form below. That was subject to an amendment from 2 October 1995, which I have incorporated in the text:

"(1) Subject to sub-paragraph (2) and paragraph 7 the additional condition referred to in paragraphs 10 and 11 is that either–

(a) … ; or

(b) the claimant–

(i) is entitled to statutory sick pay or is, or is treated as, incapable of work, in accordance with the provisions of Part XIIA of the Contributions and Benefits Act and the regulations made thereunder (incapacity for work), and

(ii) has been so entitled or so incapable, or has been treated as so incapable, for a continuous period of not less than–

(aa) 196 days in the case of a claimant who is terminally ill within the meaning of section 30B(4) of the Contributions and Benefits Act; or

(bb) 364 days in any other case;

and for these purposes any two or more periods of entitlement or incapacity separated by a break of not more than 56 days shall be treated as one continuous period;"

Immediately before 13 April 1995 the condition in paragraph 12(1)(b) required the claimant's circumstances to fall within paragraph 5 of Schedule 1 to the Income Support Regulations and to have done so for a continuous period of not less than 28 weeks. Paragraph 5 of Schedule 1 applied to a person who was entitled to sickness benefit, invalidity pension or severe disablement allowance or who was in receipt of statutory sick pay or who would be entitled to sickness or invalidity benefit but for failure to claim or to meet the contribution conditions or for being in the three waiting days. It was generally accepted, by the application of the principle of Commissioner's decision R(IS) 8/93, that the conditions in paragraph 5 could be established by retrospective medical certificates or by retrospective medical evidence under the Social Security (Medical Evidence) Regulations 1976, and that so could the 28 weeks in paragraph 12(1)(b) of Schedule 2. In particular Mr Commissioner Mitchell QC said this in paragraph 16:

"So far as the question of the sufficiency of retrospective evidence to satisfy the terms of paragraph 12(1)(b) of Schedule 2 and paragraph 5 of Schedule 1 to the Income Support (General) Regulations is concerned I do not consider that the wording of those paragraphs necessarily precludes the use of retrospective evidence. I note the doubt expressed in Mesher, CPAG's Income Related Benefits: The Legislation, 1992, pages 161 and 175. However, the relevant provision for qualification for a disability premium requires evidence of present incapacity for work coupled with evidence that such incapacity has been present for the past 28 weeks, not necessarily that there has been past evidence of such previous incapacity. I therefore consider that in a case such as the present retrospective evidence of incapacity in support of a claim for one of the specified benefits and covering the requisite qualifying period could be accepted."

The current form of paragraph 12(1)(b) of Schedule 2 directs one straight to decisions made on incapacity for work under the regime established by Part XIIA of the Social Security Contributions and Benefits Act 1992. There was no question here of the claimant possibly being entitled to statutory sick pay and, although he had apparently claimed incapacity benefit, he would not have had a contribution record to qualify for that benefit. Thus I do not need to look at the part of paragraph 12(1)(b) concerned with statutory sick pay or at paragraph 12(1)(a). I do though note briefly that if the claimant had been awarded the DLA which he had apparently claimed, he would qualify for the disability premium under paragraph 12(1)(a) from the beginning of the award. I have no information about the fate of his DLA claim.

Incapacity for work and regulation 28 of the Incapacity for Work Regulations

Part XIIA covers sections 171A to 171G of the Social Security Contributions and Benefits Act 1992. Section 171A(1) provides that for the purposes of the Act (thus including income support) whether a person is capable or incapable of work is to be decided according to Part XIIA. In specified circumstances, not including those of the claimant here, the question is to be decided on the "own occupation" test (section 171B(1)). In all other circumstances the question is to be decided according to a "personal capability assessment", what used to be called the all work test (section 171C(1)). Regulations can define the personal capability assessment by reference to the extent to which the person is capable of performing prescribed activities (section 171C(2)) and section 171C(3) provides:

"(3) Regulations may provide that, in any prescribed circumstances, a person to whom subsection (1) above applies shall, if the prescribed conditions are met, be treated as incapable of work in accordance with a personal capability assessment until such time as—

(a) such an assessment has been carried out in his case, or

(b) he falls to be treated as capable of work in accordance with regulations under section 171A(2) or (3) above or section 171E below.

The prescribed conditions may include the condition that it has not previously been determined, within such period as may be prescribed, that the person in question is or is to be treated as capable of work."

Regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995 provides:

"(1) Where the question of whether a person is capable or incapable of work falls to be determined in accordance with the personal capability assessment that person shall, if the conditions set out in paragraph (2) are met, be treated as incapable of work in accordance with the personal capability assessment until such time as he has been assessed or he falls to be treated as capable of work in accordance with regulation 7 or 8.

(2) The conditions are—

(a) that the person provides evidence of his incapacity for work in accordance with the Social Security (Medical Evidence) Regulations 1976 (which prescribe the form of doctor's statement or other evidence required in each case); and

(b) that it has not within the preceding 6 months been determined, in relation to his entitlement to any benefit, allowance or advantage which is dependent on him being incapable of work, that the person is capable of work, or is to be treated as capable of work under regulation 7 or 8, unless—

(i) he is suffering from some specific disease or bodily or mental disablement which he was not suffering from at the time of that determination; or

(ii) a disease or bodily or mental disablement which he was suffering from at the time of that determination has significantly worsened; or

(iii) in the case of a person who was treated as capable of work under regulation 7 (failure to provide information), he has since provided the information requested by the Secretary of State under that regulation."

There is a definition of "medical evidence" in regulation 2(1), but that does not seem to be relevant to regulation 28(1) with its express adoption of the rules in the Medical Evidence Regulations (and see regulation 6(1)(a)).

The Medical Evidence Regulations

Regulation 2(1) of the Social Security (Medical Evidence) Regulations 1976, in its current form, provides:

"(1) Subject to regulation 5 [self-certification for first seven days of incapacity] where a person claims he is entitled to any benefit, allowance or advantage (other than industrial injuries benefit or statutory sick pay), and his entitlement to that benefit, allowance or advantage depends on his being incapable of work, then in respect of each day until he has been assessed for the purposes of the personal capability assessment, he shall provide evidence of such incapacity—

(a) by means of a certificate in the form of a statement in writing given by a doctor in accordance with the rules set out in Part I of Schedule 1 to these Regulations on the form set out in Part II of that Schedule; or

(b) where a doctor—

(i) has not given a statement under sub-paragraph (a) of this paragraph since the patient was examined and wishes to give such a statement but more than one day has passed since the examination; or

(ii) advises that the patient should refrain from work on the basis of a written report from another doctor,

by means of a special statement given in accordance with the rules set out in Part I of Schedule 1A to these Regulations on the form set out in Part II of that Schedule; or

(c) [statements specially requested by the Secretary of State under the personal capability assessment]; or

(d) where it would be unreasonable to require a person to provide a statement in accordance with sub-paragraphs (a) to (c), such other evidence as may be sufficient to show that he should refrain (or should have refrained) from work by reason of some specific disease or bodily or mental disablement."

The statements under the rules relevant to sub-paragraphs (a) to (c) of regulation 2(1) do not cover cases where a doctor on the basis of a current examination gives an opinion that a person should have refrained from work in the past or where a doctor's opinion has been given in a context which does not directly involve advice either to refrain from work or not to refrain. However, in such cases it would clearly be unreasonable to require a person to provide a statement which could not be given in accordance with the rules. In those cases, and others, sub-paragraph (d) can come into play and regulation 2(1) will be satisfied by evidence which is sufficient to show that the person should refrain (or should have refrained) from work in respect of the days in question. That form of words plainly shows that regulation 2(1) can be satisfied in respect of periods prior to the coming into existence or the putting forward of the evidence in question. That seems to reflect the principles adopted in R(IS) 8/93 when regulation 2(1) was in a much less expanded form.

The use of "retrospective" medical evidence

In the present case there is therefore no problem in relation to regulation 2(1) of the Medical Evidence Regulations stemming from the fact that Dr Turner's report was not provided to the Benefits Agency until 13 September 2000. I shall return below to the question of whether, in the absence of any backdated certificates from the claimant's general practitioner, the report is sufficient to show that he should have refrained from work in the year before 24 August 2000. Nor is there a problem stemming from the form of paragraph 12(1)(b) of Schedule 2 to the Income Support Regulations. In R(IS) 8/93 Mr Commissioner Mitchell QC did not find the use of the present tense in the form of paragraph 12(1)(b) in force at the time any barrier to the use of retrospective evidence. He did not read the requirement, through the combination with paragraph 5 of Schedule 1 as then in force, that the claimant should have provided evidence of incapacity for at least 28 weeks as entailing that the evidence must have been provided through the course of those weeks. Nor should the present form of paragraph 12(1)(b) in itself exclude the use of retrospective evidence or require a person to have been found to be incapable of work or to be treated as incapable by decisions made during or before the necessary period of 364 days. There was no disagreement between Mr Wright and Mr Lewis on those conclusions. The problem, if there is one, therefore lies in the structure of the provisions for determining incapacity for work, and in particular in regulation 28 of the Incapacity for Work Regulations.

Regulation 28 has a straightforward application in cases of ordinary claims for incapacity benefit or income support for a forward period. Assuming that (as in this case) the claimant would be subject to the personal capability assessment from the outset, the Secretary of State may actually apply that assessment (as set out in regulations 24 to 26, involving the familiar point scoring exercise) at any time, having obtained the necessary evidence. From the date that that is done the result will determine whether the claimant is capable or incapable of work. But until the assessment is actually applied (or the claimant fails to supply information or attend a medical examination) the claimant is to be treated as incapable of work, subject to the rules in regulation 28(2)(b) where the claimant had been found capable of work during the previous six months. The question is whether the terms of regulation 28 restrict it to such a forward application or whether they allow an application to a past period.

The argument for the first alternative would start with the opening words of regulation 28(1), which could be said to identify the date on which the question of incapacity for work is raised as the potential starting-point for the operation of regulation 28. Then it could be said that treating the claimant as incapable of work "until such time as" the assessment is actually carried out is essentially a process which looks forward and works forward from the starting point. Within that context, it could then be argued that the condition in regulation 28(2)(a) of providing evidence of incapacity in accordance with the Medical Evidence Regulations has to be met by actual provision of the evidence during the period for which the treatment as incapable is to operate. That would enable the Secretary of State to make a judgment about how quickly it was necessary to carry out an actual personal capability assessment, depending on the nature of the reasons given in the evidence of incapacity. The six month rule in regulation 28(2)(b) could then sensibly be applied by reference to the date on which the question of incapacity for work is raised. It could be argued that the overall structure of regulation 28 points to such a forward-looking process and that to allow it to operate retrospectively for past periods would give those claiming such an effect an unfair advantage, in that however weak their evidence, the Secretary of State could only carry out a personal capability assessment and put its result into effect from the date of that assessment.

Mr Wright accepted the straightforward "normal" operation of regulation 28, but submitted that its words did not exclude an operation over past periods during which no evidence of incapacity was provided. I do not need to consider what was said about the policy intention, or lack of any such intention, to alter the pre-April 1995 position on the use of retrospective evidence. But I do take proper account of the support of the claimant's case on behalf of the Secretary of State and the absence of any dissent from the proposition that the post April 1995 system could be run satisfactorily with the use of retrospective evidence.

I think that the crux of Mr Wright's case was that the opening words of regulation 28(1) do not establish the date on which the question of incapacity for work is raised as the starting-point for the period for which a person can be treated as incapable. They simply define the general purpose for which a decision under regulation 28 is required. It was submitted that the regulation can then be applied whenever it needs to be decided in relation to any period whether a person is incapable of work under the personal capability assessment, but there has not been an actual assessment. Mr Wright submitted that the rest of regulation 28 could be applied with little or no strain on that basis, using the beginning of the past period in issue as the starting point for the potential deeming and for applying the six months test of regulation 28(2)(b).

In relation to regulation 28(2)(a), he adapted the principle applied in R(IS) 8/93 to the present context. Once it is accepted that regulation 28 can be applied to a period before the date on which the question of incapacity for work is raised, it would be inconsistent and unfair to impose a condition that evidence of incapacity for work had been provided in that period. For there would have been no reason for the person to provide such evidence in that period, before the question was raised. In the present case, the claimant was entitled to income support at the urgent cases rate as an asylum seeker without having to show incapacity for work or any other reason for not being available for employment. It was only when that route to entitlement fell away that the question of incapacity for work became relevant. It was submitted that regulation 28(2)(a) is satisfied if evidence in accordance with the Medical Evidence Regulations is provided which relates to all or part of the period in issue. It does not matter either that the evidence is about a period before it comes into existence or that it is not produced until after the period in issue.

I accept the reasoning and the conclusion of that submission, which I find persuasive. If legislation makes the question of incapacity for work for a past period relevant, as paragraph 12(1)(b) of Schedule 2 to the Income Support Regulations does, then regulation 28 of the Incapacity for Work Regulations should be applied if its terms allow. Mr Wright has demonstrated that such an interpretation can be supported by the language of regulation 28.

He also submitted that, if the contrary argument on regulation 28(2)(a) were right, it would seem to exclude in practice any backdated claims for incapacity benefit by claimants who are subject to the personal capability assessment. Such a claimant would not have been providing evidence during the period before the backdated claim was made. Mr Wright submitted that such a result would be unfair, that no one had ever thought that it would follow from the reforms in April 1995 and that it was inconsistent with the provisions allowing entitlement to incapacity benefit for three months before the date of claim (Social Security (Claims and Payments) Regulations 1987, Schedule 4, paragraph 1). I agree that that is another good reason for interpreting regulation 28 in the way which I have accepted, and that if that results in some advantageous treatment for those making backdated claims or arguing for the disability premium on the basis of past satisfaction of regulation 28, then that simply has to be accepted. However, any advantage may be limited by the fact that, if the claimant has to rely on evidence of incapacity within regulation 2(1)(d) of the Medical Evidence Regulations (because the rules for statements under sub-paragraphs (a) to (c) cannot be complied with), the evidence must be sufficient to show that the claimant should have refrained from work by reason of some specific disease or bodily or mental disablement. There is therefore a stage at which decision-makers and appeal tribunals have to evaluate the evidence put forward and consider, not whether it indicated that the personal capability assessment would have been passed, but whether the claimant should have refrained from work.

Mr Lewis agreed with Mr Wright's submissions. He added the point that regulation 28(2)(a) incorporated the conditions in regulation 2 of the Medical Evidence Regulations, and that since regulation 2(1)(d) allowed retrospective evidence, so must regulation 28(2)(a). I do not think that that follows. If regulation 28(2)(a) were properly to be interpreted as requiring the evidence to have been provided during the period in issue, then the terms of the Medical Evidence Regulations would not have altered that.

Finally, Mr Wright relied on the decision of Mr Commissioner Rowland in decision CIS/4772/2000, where it was assumed, apparently without argument, that retrospective evidence could be used to satisfy regulation 28 of the Incapacity for Work Regulations and in turn the qualification for the disability premium. That is obviously highly persuasive, but there is a further crucial point in that decision which I am forced to reject below.

My conclusion of law therefore means that there is nothing in principle to prevent Dr Turner's report of 28 June 1999 being used to show that regulation 28(2)(a) was satisfied for at least 364 days before 24 August 2000 (or before 9 July 2000 if the change of circumstances could be given effect from that date). In the written submission of 14 February 2002 the representative of the Secretary of State accepted that, given the history, content and detail of the report and the related circumstances, it showed that the claimant had been incapable of work for more than 364 days. At the oral hearing, Mr Lewis repeated that agreement. In those circumstances, I would have accepted that Dr Turner's report satisfied the conditions of regulation 2(1)(d) of the Medical Evidence Regulations, as it showed that the claimant should have refrained from work from 28 June 1999 and before. On that basis the claimant therefore met the qualifications for the disability premium from both potentially relevant dates.

Section 12(8)(b) of the Social Security Act 1998

There is, however, what I find to be an insuperable obstacle to my giving effect to that qualification in the present appeal. The obstacle stems from section 12(8)(b) of the Social Security Act 1998, which came into force in relation to income support on 29 November 1999, although the same rule had applied to appeals lodged after 21 May 1998 by virtue of Schedule 6. The new rule was thus superimposed on the method of determining incapacity for work established from April 1995. Section 12(8)(b) prevents an appeal tribunal from taking into account circumstances not obtaining at the date of the decision under appeal. The same applies when a Commissioner substitutes a decision on an appeal. It is, though, established that an appeal tribunal can take into account evidence put forward after the date of the decision under appeal provided that it is relevant to the circumstances at or before that date. Dr Turner's report had not been produced to the Benefits Agency at the date of the decision under appeal (30 August 2000). The test under regulation 28(2)(a) of the Incapacity for Work Regulations is of the production of evidence of incapacity for work. It seems to me that the production of Dr Turner's report on 13 September 2000 was itself a circumstance relevant to the claimant's entitlement, not merely evidence related to some relevant circumstance.

That possibility had not been discussed at the oral hearing. I therefore gave the parties the opportunity to make written submissions. The submission on behalf of the Secretary of State was dated 26 March 2003, after some extensions of time had been granted. Unfortunately, the Commissioners' office then sent a copy of that submission to the claimant's former representative, not to Mr Wright, leading to further delay. His submission in reply was dated 30 April 2003.

The representative of the Secretary of State submitted that the provision of medical evidence was the relevant circumstance for determining incapacity for work, prior to the actual application of the personal capability assessment. The consequence was that Dr Turner's report could not be taken into account by the Commissioner under regulation 28 of the Incapacity for Work Regulations. The representative also submitted that in relation to a period before a personal capability assessment had been carried out and in which regulation 28 did not operate to deem the claimant to be incapable of work, it was not open to an appeal tribunal or a Commissioner to make any determination that the claimant scored enough points to satisfy the personal capability assessment for that period. However, a way forward in the circumstances of the present case was very helpfully suggested, which I have gratefully adopted below.

Mr Wright submitted that the physical provision of evidence was not the key circumstance for the purposes of section 12(8)(b). He argued that (a) a conclusion to the contrary would be inconsistent with the long established view set out above about the efficacy of medical evidence provided after the start of the period in issue; (b) regulation 28 focuses only on the kind of evidence to be provided and not on the physical production of evidence at any particular date; (c) the ambiguity in section 12(8)(b) about the meaning of "circumstances obtaining" should be resolved so as to interfere to the least possible extent with effective appeal rights under Article 6 of the European Convention on Human Rights; and (d) it would be artificial to say that evidence of incapacity which existed at the date of the decision under appeal could not be taken into account because it had not been given to the decision-maker. He said that the existence of Dr Turner's report was a circumstance obtaining as at 30 August 2000.

I reject Mr Wright's submission. The crucial element in it is (b) in the previous paragraph. However, in my judgment the physical provision of evidence is the key circumstance for the purposes of regulation 28 of the Incapacity for Work Regulations. The deeming in regulation 28 cannot operate, either forwards or for a past period, until the evidence is provided. Regulation 28 depends, in a case where the six months rule is not relevant, solely on the fact of the physical provision of evidence which meets the requirements of the Medical Evidence Regulations. Once that has been determined, it seems to me inescapable that the circumstances obtaining at the date of the decision include the circumstance of what evidence has or has not actually been provided to the Benefits Agency at that date. Then the force of Mr Wright's other submissions falls away. (a) has no force because the rule in section 12(8)(b) was imposed onto the existing incapacity for work rules. (c) has no force because I find no ambiguity in the circumstances. (d) has no force because it simply objects to a consequence of the application of section 12(8)(b).

I note that the result of Mr Commissioner Rowland's decision in CIS/4772/2000 is inconsistent with the conclusion that I have reached above, because in his directions to the new appeal tribunal he said that the claimant in that case could still produce medical evidence to satisfy regulation 28 of the Incapacity for Work Regulations. However, the point about section 12(8)(b) of the Social Security Act 1998 was not raised or mentioned in that case. I therefore do not regard that decision as standing in the way of my conclusion of law in the present case.

The claimant's appeal against the decision of 30 August 2000

Therefore, if I were to substitute a decision I could not take account of the provision of Dr Turner's report in applying regulation 28 of the Incapacity for Work Regulations. Mr Wright has submitted that evidence in the form of the claimant's statements on his claim form that he had claimed incapacity benefit, that he was sick and had suffered from depression since 1988 and that he believed that he was entitled to the disability premium was sufficient to satisfy regulation 28 and did not fall foul of section 12(8)(b). I accept that statements by a claimant personally may in some circumstances satisfy the test in regulation 2(1)(d) of the Medical Evidence Regulations of being sufficient to show that he should refrain or should have refrained from work. However, in the present case the level of detail given was so slight that the statements on the claim form are really no more than assertions. I conclude that they were not sufficient on their own to show that the claimant should have refrained from work, so that they did not amount to evidence in accordance with the Medical Evidence Regulations. It appears that medical evidence was produced in connection with the claim for incapacity benefit from 25 May 2000, leading to the claimant being treated as incapable of work from that date, but that would go only a small way towards the 364 days of incapacity needed as at 9 July 2000 or 24 August 2000.

Thus, any application of regulation 28 of the Incapacity for Work Regulations by me would produce the result that the claimant could not be treated as incapable of work for any period prior to 25 May 2000. Nor can I determine whether or not the claimant actually scored enough points on the personal capability assessment. Thus, I could not give any decision which would provide any practical help to the claimant.

I thus turn to the suggestion in the submission of 26 March 2003 on behalf of the Secretary of State. The author drew attention to the effect of regulation 3(4A) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, as in effect from 20 May 2002. That provision allows the Secretary of State to revise any decision of the Secretary of State against which a timeous appeal has been brought, which appeal has not been determined. The author then suggested that I should set aside the appeal tribunal's decision, but refer the case to the Secretary of State for consideration of the application of regulation 3(4A), instead of substituting a decision myself. That suggestion must be considered in the context of the views expressed in the submission of 14 February 2002 on behalf of the Secretary of State, confirmed by Mr Lewis at the oral hearing (see paragraph 25 above).

It is proper for me to adopt that suggestion. The appeal tribunal's decision falls to be set aside as erroneous in point of law, despite my conclusion on section 12(8)(b) of the Social Security Act 1998, because of its failure to consider qualification for the disability premium at all. Having set its decision aside, the claimant's appeal against the Secretary of State's decision of 30 August 2000 remains to be determined. I see no reason why regulation 3(4A) of the Decisions and Appeals Regulations should not apply to an appeal brought before it came into force. Therefore, I take my present decision no further than the setting aside of the appeal tribunal's decision. It would cause confusion to refer the case to a new appeal tribunal. I therefore retain the case for me to substitute a decision on the appeal, but defer the making of that decision until the Secretary of State reports to me the result of his consideration of the application of regulation 3(4A). I refer the case to the Secretary of State for that purpose. If the Secretary of State revises the decision of 30 August 2000 to any extent to the advantage of the claimant, the appeal will lapse. If he does not revise the decision to the advantage of the claimant, I shall then substitute a decision on the appeal.

Date: 7 July 2003

(Signed) J. Mesher Commissioner