UK Social Security and Child Support Commissioners' Decisions

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is allowed. The decision of the Aldershot appeal tribunal dated 7 February 2007 is erroneous in point of law, for the reason given below, and I set it aside. It is expedient for me to substitute the decision on the claimant's appeal against the decision dated 1 November 2006 that the appeal tribunal should have given on its findings of fact (Social Security Act 1998, section 14(8)(a)(i)).
2. My substituted decision is that the appeal is allowed and that the decision awarding the claimant invalidity benefit from and including 9 October 1995 does not fall to be superseded with effect from 1 November 2006, as the conditions in regulation 8 of the Social Security (Incapacity for Work) (General) Regulations 1995 for deeming a claimant to be incapable of work are not satisfied, so that there is no justification for giving a decision that the claimant is not entitled to incapacity benefit. Accordingly, the decision awarding the claimant incapacity benefit continues in effect and payment of incapacity benefit in accordance with that award must now be made (subject to any further action that the Secretary of State for Work and Pensions might take to supersede the awarding decision from a subsequent date).
3. In this case, the representative of the Secretary of State, in the submission dated 14 September 2007, supported the claimant's appeal to the Commissioner and the substitution of a decision in the claimant's favour. In those circumstances and in the light of the urgency resulting from the claimant's critical financial situation, my decision can be very brief. In his reply received on 24 October 2007, the claimant has repeated his request for an oral hearing before the Commissioner. I refuse that request. The appeal can properly be decided without an oral hearing. I have decided in the claimant's favour on the papers. An oral hearing would be a waste of the claimant's time and energy and making the arrangements would lead to delay. In any case, most of the matters that the claimant wants to discuss fall outside the scope of the present appeal.
4. The appeal tribunal was concerned with the decision dated 1 November 2006 that there had been a relevant change of circumstances, in that the claimant had failed without good cause to attend an examination by an approved doctor on 23 October 2006, so that by virtue of regulation 8(2) of the Social Security (Incapacity for Work) (General) Regulations 1995 ("the 1995 Regulations") he was to be treated as incapable of work. It was said that written notice of that examination had been sent to him on 16 October 2006 (according to a scheduling log), so that regulation 8(3) was satisfied:

"(3) A person shall not be treated as capable of work under paragraph (2) unless written notice of the time and place for the examination was sent to him at least 7 days beforehand, or unless he agreed to accept a shorter period of notice."

The superseding decision was that the claimant was treated as capable of work and was not entitled to incapacity benefit from and including 1 November 2006.

5. The claimant's appeal against that decision was disallowed by the appeal tribunal of 16 April 2007. The main emphasis of the appeal was on whether the claimant had had good cause for not attending the examination, in relation to which complicated issues were raised about his medical condition and capacity to attend and about his past dealings with the offices administering his benefits, including whether he was entitled to more information in advance about what he would be asked at the examination. The appeal tribunal's statement of reasons included the statement that the sending of the letter of appointment on 16 October 2006 was at least seven days prior to the appointment on 23 October 2006.
6. When granting the claimant leave to appeal against the appeal tribunal's decision I raised several questions about the proper interpretation of regulation 8(3) of the 1995 Regulations, including whether "at least seven days beforehand" requires seven clear days between the date of sending of the notice and the date of the appointment. In the submission of 14 September 2007 the representative of the Secretary of State has submitted that it did, relying on a Commissioner's decision in another case (R(IB) 2/00) that was about a time limit in the form of at least a number of weeks elapsing since the date of sending a document. I agree that the rule approved there, as would also apply to a limit in the form of so many days or weeks after sending, applies by analogy to the test of whether notice of an examination has been sent at least seven days beforehand. The use of the phrase "at least" has a significant effect on the context. Neither the day of the sending of the notice nor the day of the examination counts. There must be at least seven clear days between those two days. In the present case, as submitted on behalf of the Secretary of State, there were not seven clear days between 16 October 2006 and 23 October 2006, only six.
7. Accordingly, regulation 8(3) operated to prevent it being determined that the claimant was to be treated as capable of work merely by reason of failing to attend the examination on 23 October 2006, regardless of whether the date of sending notice was properly a later date than 16 October 2006. The appeal tribunal erred in law in failing to reach that conclusion on its findings of fact as to the dates. I therefore set its decision aside. There is then no need for me to consider further the adequacy of the evidence of the notice of the examination actually being put into the post on 16 October 2006 or the effect of the date of sending under regulation 8(3) being the date of receipt in the ordinary course of the post, not the date of posting, as decided in Commissioners' decisions CSIB/721/2004 and CIB/4012/2004. Nor do I need to consider the claimant's arguments about whether he had good cause for not attending the examination.
8. It is plainly then right for me to substitute the decision that the appeal tribunal should have given on the basis of its findings of fact. I am prepared to accept that there was a ground of supersession in a relevant change of circumstances, in that the failure to attend the examination might potentially have affected the claimant's entitlement to incapacity benefit. However, in the particular circumstances, even on the assumption that notice of the examination was sent on 16 October 2006, the operation of regulation 8(3) of the 1995 Regulations prevented the claimant being treated as capable of work. There was therefore no basis for giving a superseding decision altering the claimant's existing entitlement to incapacity benefit. The decision of 9 October 1995 does not fall to be superseded with effect from 1 November 2006 and accordingly continues in force.
9. My decision to that effect is set out in paragraph 2 above. I cannot deal with the knock-on effect of my decision on other benefits. That is outside the scope of the present appeal and in any event I have nowhere near enough information to make any comment at all.

(Signed) J Mesher

Commissioner

Date: 25 October 2007