UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CIB_516_2008 (18 July 2008)

CIB/516/2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The decision of the Sutton appeal tribunal dated 5 July 2007 is erroneous in law. I set it aside and remit the case is referred to a differently constituted appeal tribunal for determination.

REASONS
1. The tribunal's decision is erroneous in law for reasons outside the control of the tribunal. They were hearing an appeal from a supersession decision by which the Secretary of State had terminated the claimant's award of incapacity credits following an assessment of the claimant's capacity for work in accordance with the personal capability assessment. Neither party told them that, prior to the recent personal capability assessment – in which the claimant had been assessed as not incapable of work – there had been an earlier personal capability assessment, following which the Secretary of State had decided that the claimant was not incapable of work but an appeal tribunal had substituted a decision that the claimant was incapable of work.
2. This meant that the tribunal adopted a legally erroneous approach to the appeal – for which they are entirely blameless. The existence of an earlier favourable personal capability assessment was a fact that the tribunal were obliged to take into account in determining whether the burden of showing that the claimant was not entitled to credits had been discharged. In the circumstances, they could not, and therefore did not, do so.
3. The claimant is a man born in 1951. In 1991 he was medically retired from the fire service following an injury on duty which has left him with symptoms of back pain. It appears from page 2 of the papers that he was awarded sickness benefit, and subsequently incapacity benefit, in 1994. He has had a number of awards of IB since then, but has not been continuously in receipt of it. It seems from his evidence that he has tried to work but his efforts to do so have been frustrated by periodic flare-ups of his back condition. It appears that his most recent award (whether of benefit or of credits), prior to the award to which this appeal relates, ended in March 2004.
4. The facts of the case, as presented in the Secretary of State's submission to the tribunal (page 1A) was that the claimant became incapable of work on 1 October 2004 and was awarded incapacity credits. His incapacity had been stated by his doctor to be back pain. As the claimant had been incapable of work for 196 days preceding 15 April 2004, the personal capability assessment was applicable; the claimant completed a questionnaire in December 2006 and was examined by a medical services doctor in March 2007. A decision that he was no longer entitled to incapacity credits was made in April 2007.
5. The claimant's self-assessment (pages 3-22) was to the effect that he scored 59 points; the doctor's report (pages 24-44) was to the effect that he scored no points. The decision-maker agreed with the doctor. The claimant appealed; as a result the decision was reconsidered but was not changed.
6. The claimant supplied copies of a recent letter and of a letter dated in 2005 from his GP, and a from Med 3 certificate dated June 2006. He did not opt for an oral hearing. The appeal tribunal considered the appeal on paper in July 2007. The tribunal agreed with the Secretary of State's score of no points under the personal capability assessment. There was an unacceptable delay – not apparently the fault of the members of the tribunal – in producing the tribunal's statement of reasons, which was prepared in December 2007 and received by the claimant in January 2008.
7. The statement of reasons is thorough; the tribunal directed themselves that 'at the outset of a claim, the burden of proving incapacity rests with the claimant but once an award has been made, the decision maker has to show that the claimant has ceased to qualify for the benefit or credit'. The examined the evidence of the reporting doctor closely and gave adequate reasons for agreeing with it.
8. In January 2008 the claimant wrote to the tribunal service saying that he wished to appeal; he enclosed further evidence. One of the pieces of evidence was a decision notice dated 7 November 2005 in which an appeal tribunal had allowed an appeal of his, the tribunal saying that they had considered the case on the papers and, taking into account the EMP's findings, concluded that he satisfied the personal capability assessment because in addition to 10 points already awarded he scored 7 points under descriptor 3c (cannot sit comfortably for more than 30 minutes).
9. The inferences that one is compelled to draw from this are (1) that the claimant underwent the personal capability assessment in late 2004 or in 2005; (2) that the examining doctor and the decision-maker had awarded a score of 10 points; and (3) that the examining doctor had either recommended a further score of 7 points that the decision-maker had (wrongly in the tribunal's view) rejected or had made findings from which the tribunal concluded that the decision-maker ought to have awarded a further 7 points.
10. It is not the tribunal's fault that they did not know this. It is unfortunate that the claimant did not include this information in his evidence. He may have thought the tribunal would be bound to know the claim history, claimants not always appreciating that the tribunal service is a separate body, independent of the Department, and does not have sight of the Department's files.
11. It is particularly unfortunate that the information was overlooked within the Department when its submission to the tribunal was prepared. Its presentation of the facts of the case (which I have summarised above) gave the erroneous impression that the unfavourable personal capability assessment of March 2007 was the only personal capability assessment undergone by the claimant and that the case was an example of the common situation in which an award of incapacity benefit or credits is initially made on the basis of a GP's certificate pursuant to regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995.
12. A commissioner granted leave to appeal, finding it arguable that the tribunal's decision was erroneous in law as a result. The Secretary of State resists the appeal. He submits (pages 97-99) that the existence of the 2007 personal capability assessment amounted to grounds for superseding the award; the decision-maker and the tribunal did not have to be satisfied that the earlier decision had been wrong; while the burden of showing that the award should be terminated rested with the Secretary of State, he could discharge it simply by showing that the claimant no longer scored sufficient points to satisfy the personal capability assessment. The tribunal had applied the correct test and their finding that the claimant did not satisfy the personal capability assessment at the date of the supersession decision was a sufficient basis for their decision. The law did not require them to have the previous personal capability assessment before them, in circumstances in which the claimant had not relied upon it.
13. The Secretary of State also observed that it was apparent from the previous tribunal's decision that the claimant had been held to fail the previous personal capability assessment; therefore the papers relating to it would not have assisted him in the current appeal. He referred to the decision of Mrs Deputy Commissioner Ramsay in CIB/103/2001.
14. In CIB/103/2001 the claimant had told the appeal tribunal that he had won his last two appeals and was not improving. The tribunal did not refer to this in their reasoning. Mrs Ramsay held that that was not an error of law. She pointed out that cases in which previous personal capability assessments had been favourable to a claimant were different from cases in which they were unfavourable: the examining doctor's unfavourable report was unlikely to assist the claimant and the earlier tribunal's favourable decision was unlikely to provide much illumination as it was unlikely that anybody would have requested a full statement of reasons. While the Secretary of State was under a duty to produce relevant evidence, the papers relating to the claimant's previous appeals were not relevant for the reasons just given and it was incumbent on a claimant to produce them if he wished to the tribunal to take them into account.
15. That was a case where the tribunal knew that the claimant had had previous favourable tribunal decisions. In the present case the tribunal were induced, by a combination of the claimant's silence on the point and the misleading terms of the Secretary of State's submission, to believe that there had been no previous personal capability assessment of the claimant, when in fact there had been a personal capability assessment in terms which led the previous tribunal to conclude upon reading it that he scored 17 points and was incapable of work in accordance with it.
16. I do not call in question the well-established principle that it is not an error of law for a tribunal to fail to find a fact (even if true) for which there is no evidence before them. But the issue in the present appeal does not merely concern the tribunal's failure to find as a fact that there had been a previous favourable personal capability assessment. Their ignorance of the previous personal capability assessment prevented them taking it into account, as they would have obliged to do had they known of it, in deciding whether the Secretary of State had discharged the burden of showing that an award of incapacity credits was no longer justified. In the result, the tribunal adopted the correct approach, but not to all of the legally relevant material.
17. Nor do I call in question Mrs Deputy Commissioner Ramsay's decision in relation to the case before her. It is (with respect) entirely understandable that she did not consider a tribunal to have erred in law in failing to adjourn a hearing in what she pithily described as a probably 'futile attempt to obtain evidence which might have illuminated the basis on which the two previous tribunals had made their decisions'. I do not say that the present tribunal would have been obliged to undertake any further enquiries had they known of the previous tribunal's decision. But the information contained in the 2005 decision notice – that there had been a personal capability assessment in terms which led the previous tribunal to conclude upon reading it that the claimant was incapable of work – would have been a relevant piece of information that they would have had to consider.
18. Their failure to consider it means that, objectively speaking, they adopted a legally erroneous approach. The judgment that they were called upon to make required them to take the earlier personal capability assessment into account in their evaluation: see by analogy Secretary of State for Education v Tameside MBC [1977] AC 1014 at 1047D-F. Their decision is accordingly vitiated by an error of law for which they, of course, take no blame.
19. I must remit the case to be reheard since I cannot decide whether the claimant was or was not entitled to incapacity credits in 2007. The Secretary of State should provide the new tribunal with as much information as is available about the 2005 personal capability assessment and appeal. The fact that the claimant was held entitled to incapacity credits in 2005 does not of course conclude the issue of whether he was so entitled in 2007. But, given that the claimant appears to suffer from a fluctuating condition, the tribunal may be assisted by having the benefit of seeing the two assessments performed in 2005 and 2007 rather than only the assessment of 2007.

(signed on the original) Nicholas Paines QC

Deputy Commissioner

18 July 2008