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[2005] UKSSCSC CIB_3743_2004 (10 June 2005)

CIB/3743/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I grant leave to appeal against the decision of the tribunal given on 3 August 2004, but I dismiss the claimant's appeal against that decision.

The case arises out of a supersession decision terminating an award of incapacity credits following a report made by a BAMS doctor using the new electronic form IB 85. The case was referred to me as an appeal, and on that basis I gave a direction on 9 November 2004 calling for observations from the Secretary of State In his observations the Secretary of State's representative pointed out that the chairman had in fact refused leave to appeal, but the representative asked that his observations be treated as observations on the appeal if I granted leave. The claimant's representative accepts that leave to appeal was refused by the chairman, and it is therefore necessary for me to consider whether leave should be given at this stage.

Prior to the hearing of the appeal, the claimant's representative sent the tribunal a written submission making two general points. The first point was that the personal capability assessment had been applied in this case in the terms of the amendments purportedly made by the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996. The amendment to regulation 27 made by those regulations was held by the Court of Appeal to be invalid in Howker v Secretary of State for Work and Pensions (reported as R(IB) 3/03), and on the basis of Howker the representative submitted that no valid personal capability assessment had been carried out in this case.

The second point concerned the electronic IB 85:

"The practice of the Department is now to provide a computerised version of the IB85. This concludes with the doctor's name in type. I submit that the purpose of a signature is to authenticate the document. Without such authentication it is impossible for third parties to be sure that the document accurately reflects what the doctor recorded. I submit that such unsigned IB85s do not constitute evidence for a disallowance in the same way that an unsigned IB50 would not be evidence for a claim. Decisions based upon 'computerised' PCAs are therefore, I submit, invalid on this additional ground."

Although the tribunal increased the claimant's points score, it dismissed his appeal. The statement of reasons dealt with the Howker submission as follows:

"We have before us a submission from the…representative on the subject of Howker. The argument is that in the light of the Court of Appeal decision the Medical Advisor in applying the PCA took into account amendments to the Regulations which by virtue of the Howker decision invalidated the PCA. We note that Commissioner Jacobs in his decision CIB/0844/2003 did not take that line. As we understand it the position is that a representative relying on Howker should identify the amended provision which it is thought applies to the appellant and if the amendment is not neutral in the sense that it applies a more rigorous test than that originally imposed that provision is ultra vires which means we must apply the provision in its unamended form. Unhappily the representative has not identified which, if any, of the relevant provisions as amended apply in this case.

Insofar as the amendments apply to the descriptors in the relevant Schedule to the Social Security (Incapacity for Work) (General) Regulations 1999 they all in the view of the Tribunal to a greater or lesser extent impose a more stringent test and cannot, therefore be said to be neutral. The safest course for us, therefore, is to apply those Regulations in their unamended form and this we have done."

However, the statement of reasons made no reference to the representative's submission concerning the lack of signed authentication of the electronic form IB85. The grounds of the application for leave to appeal are that the tribunal failed to deal adequately with the submission concerning the invalidity of the personal capability assessment, and that the tribunal failed to consider the argument with regard to the lack of the doctor's signature on the IB85.

I agree with the Secretary of State's representative that the first ground of appeal is without foundation. In his written submission, the claimant's representative referred to CIB/0844/2004, but as the chairman correctly pointed out, that case held that a tribunal has to consider whether amendments to the personal capability assessment made by the 1996 Amendment Regulations which are not covered by the Howker decision are neutral or adverse in order to decide whether the amendments are valid. The case is not authority for the proposition that no valid personal capability assessment has been carried out if the descriptors have been applied in the terms of the 1996 amendments; a proposition which has now been specifically rejected by, among others, Mrs Commissioner Parker in CSIB/598/2004. The tribunal in this case gave entirely adequate reasons for rejecting the representative's submission concerning the validity of the personal capability assessment, and then applied CSIB/598/2004 in the most favourable possible way for the claimant. I reject this ground of appeal.

However, I consider that I should grant leave to appeal in relation to the second ground of appeal in the light of the decision of deputy Commissioner Sir Crispin Agnew of Lochnaw Bt QC in CIB/3984/2004. In that case the deputy Commissioner held that an unsigned electronic medical report which was challenged was only competent evidence if it was certified in accordance with section 7 of the Electronic Communications Act 2000. The section provides:

"(1) In any legal proceedings-

(a) an electronic signature incorporated into or logically associated with a particular electronic communication or particular electronic data, and

(b) the certification by any person of such a signature,

shall be admissible in evidence in relation to any question as to the authenticity of the communication or as to the integrity of the communication or data.

(2) For the purpose of this section an electronic signature is so much of anything in electronic form as-

(a) is incorporated into or otherwise logically associated with any electronic communication or electronic data; and

(b) purports to be so incorporated or associated for the purpose of being used in establishing the authenticity of the communication or data, the integrity of the communications or data, or both.

(3) For the purposes of this section an electronic signature incorporated into or associated with a particular electronic communication or particular electronic data is certified by any person if that person (whether before or after the making of the communication) has made a statement confirming that-

(a) the signature,

(b) a means of producing, communicating or verifying the signature, or

(c) a procedure applied to the signature

is (either alone or in communication with other factors) a valid means of establishing the authenticity of the communication or data, the integrity of the communication or data, or both."

It seems to me to be very much open to question whether section 7 of the Electronic Communications Act 2000 has any application to the electronic form IB 85, since there is nothing in the form which purports to establish the authenticity of the data in the document, as required by section 7(2)(b) of the Act. Indeed, the complaint in this case is that the report is not properly authenticated because it contains no signature. As the submission annexed to the deputy Commissioner's decision pointed out (paragraph 13), there is no requirement in the legislation for a medical report prepared for incapacity benefit purposes to be signed, although Solicitor's Branch considers that the arrangements in place to create a logical association between an electronic report and the unique login credentials of the doctor providing the report do in fact meet the requirements of section 7 of the 2000 Act. The electronic IB 85 contains the name of the doctor, a statement by the doctor that he has completed the form in accordance with current guidance and a confirmation that the report contains no harmful data. Although the electronic report therefore identifies the author of the report, there is nothing in the report which purports to be an electronic signature, or any other authentication of the report corresponding to a manual signature in a conventional document.

In civil proceedings in England and Wales to which the strict rules of evidence apply, documents such as faxes and e-mails can be admitted in evidence either as hearsay evidence under the Civil Evidence Act 1995, or at common law as part of the records of a business or public authority. At common law, proof of the genuineness of a signature in civil cases was permitted by comparison of documents or by expert evidence, but such modes of proof are clearly inapplicable to electronic signatures. In such cases section 7 of the 2000 Act allows the authenticity of a communication or of data to be authenticated by means of a statement which certifies the electronic signature and which contains the information required by section 7(3).

It must be noted, however, that section 7 does not lay down a procedure which is to be used in every case where the authenticity of an electronic document or of electronic data is in dispute. Section 7(1) provides that an electronic signature or the certification by any person of such signatures "shall each be admissible in evidence in relation to any question as to the authenticity of the communication or data as to the integrity of the communication or data." In the same way as the Civil Evidence Act 1995 removes restrictions on the admissibility of evidence resulting from the hearsay rule, the Electronic Communications Act 2000 therefore allows an electronic signature to be authenticated by means of a certificate in the prescribed form.

However, even assuming that the electronic form IB 85 does contain an electronic signature, section 7 of the Electronic Communications Act 2000 has no application to tribunals constituted under the Social Security Act 1998, for the simple reason that the strict rules of evidence do not apply to proceedings before those tribunals.-see, in particular, the decision of Chief Commissioner Temple in R(U) 5/77. and the other cases referred to in my decision CDLA/2014/2004. The fact that the authenticity of the report is disputed therefore does not prevent a tribunal from receiving the report in evidence and it is open to the Secretary of State to establish the authenticity of an electronic signature by means of a certificate or by any other appropriate method, without recourse to the 2000 Act. I therefore cannot agree that in proceedings before appeal tribunals the procedure prescribed by section 7 of the 2000 Act must be used in every case where the authenticity of the electronic IB 85 is challenged.

Since there was no requirement for the IB 85 to be signed and the representative did not raise any other reason to doubt the authenticity of the BAMS doctor's report, I do not consider that the claimant's submission concerning the lack of a signature on the BAMS medical report merited specific consideration by the tribunal in the statement of reasons. I therefore reject this ground of appeal also. I have granted leave to appeal because the authenticity of the BAMS report was challenged in general terms and I might therefore have had to have allowed the appeal for a reason not relied on by the claimant's representative if I had considered that CIB/3984/2004 was correctly decided. However, for the reasons I have given, I do not take that view. I therefore dismiss the appeal.

(signed on the original) E A L BANO

Commissioner

10 June 2005