Decision No: C20/98(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

INCAPACITY BENEFIT

Appeal to the Social Security Commissioner
on a question of law from the decision of
Newry Social Security Appeal Tribunal
dated 6 November 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision dated 6 November 1997 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Newry.  I held an oral hearing of the appeal.  Mr F... did not attend.  Mr Brady attended to represent him and Mr Toner of Central Adjudication Services attended to represent the Adjudication Officer.

2.	The Tribunal's decision dismissed Mr F...'s appeal against an Adjudication Officer's decision disallowing Incapacity Benefit from and including 21 August 1997 on the grounds that Mr F... has failed to return the questionnaire sent out by DHSS in relation to the All Work Test.

3.	There was no contention by either party that the claimant did not have to undergo the All Work Test.

4.	The Chairman of the Tribunal had granted leave to appeal.  The original application was on the grounds that the Tribunal did not believe him.  This is not of course an error of law.  The Chairman gave no indication why he had granted leave to appeal on the face of such an application.  In these circumstances it would have been particularly helpful for the Chairman to indicate why he thought that leave should be granted.
5.	At hearing I had the benefit of a letter from Central Adjudication Services dated 6 March 1998.  It stated that the claimant had identified no error of law but that the Tribunal had erred in not considering the claimant's state of health.  The claimant had had a head injury and the representative had intimated that he may have had a mental health condition.  For this reason the application for leave to appeal was not opposed.

6.	At hearing Mr Brady and Mr Toner both expressed the view that the Tribunal did not go far enough in consideration of the claimant's health.  It had stated that they found him lucid but had not sufficiently examined his health difficulties.

7.	It was accepted that the findings of fact showed that the Tribunal had specifically rejected Mr Brady's contention that the claimant had difficulty in understanding correspondence.  This of course it was entitled to do.  It also did not accept that the claimant had not received correspondence as he claimed.  This again the Tribunal was entitled to do.

8.	The only matter on which the Tribunal's decision could possibly be criticised was on the point made by Central Adjudication Services as set out at paragraph 5.

9.	The relevant regulation under which the Tribunal had to consider the matter was regulation 7(1) of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995.  That regulation states:-

"Where a person fails without good cause to comply with a request of the Secretary of State to provide the information referred to in regulation 6(1)(b) (All Work Questionnaire) he shall, subject to paragraph (2), be treated as capable of work."

Paragraph (2) states:-

"A person shall not be treated as capable of work under paragraph (1) unless -

(a)	at least six weeks has elapsed since the Department sent that person the first request for that information; and

(b)	the Department has sent that person a further request at least four weeks after the first and at least two weeks have elapsed since the further request was sent."

There was no contention that there had been any failure to observe the requirements of regulation 7(2).

10.	Regulation 9 of the said Regulations provides:-

"The matters which are to be taken into account in determining whether a person has good cause under regulation 7 or 8 shall include -

(a)	whether he was outside Northern Ireland at the relevant time;

(b)	his state of health at the relevant time; and

(c)	the nature of any disability from which he suffers."

11.	It is therefore obligatory on the Tribunal to take into account the above three matters.  As regards the claimant's state of health, I do not regard the above-mentioned Regulations as imposing on a Tribunal in every case a duty to launch into an exhaustive enquiry about the claimant's state of health.  The onus of proving good cause is on the claimant.  Whilst the Tribunal must take into account the claimant's state of health in deciding whether or not he has shown good cause, the onus is on the claimant to produce evidence as regards his health and show that his state of health was instrumental in his failure to provide the relevant information.

Regulation 9 is made under section 167A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and states at sub-section (4):-

"Regulations may prescribe for the purposes of this section -

(a)	matters which are or are not to be taken into account in determining whether a person does or does not have good cause for any act or omission."

Regulation 9 then sets out the matters which are to be taken into account in determining whether a person has good cause.   The onus of proof of good cause is still on the claimant.  The sub-section and the regulation made thereunder are simply providing that the claimant's state of health is a matter which must be taken into account by the Tribunal.  It is not imposing upon the Tribunal any additional duties than those it already has.  The Tribunal cannot be faulted for not taking on board evidence which was not before it.

12.	In this case the only evidence which the Tribunal had were the certificates from the GP that the claimant had had a head injury and Mr Brady's contentions at hearing.

13.	At hearing Mr Brady argued that the claimant's state of mental health would preclude him from even understanding what the reminder was from the DHSS.  He stated that the claimant had been struck by a bus in 1989 and had not been the same since.  Mr Brady also stated that the claimant's General Practitioner gave him a 52 week line and even if he had known about returning the form he would not have known what to do.  He further stated however that the claimant would have come to him if he had received either the questionnaire or the reminder.  The Tribunal in its findings of fact stated:-

"No evidence was presented to show that the claimant did not understand what the appeal was about.

Mr Brady's contention that even if the appellant did receive either the questionnaire or reminder, he would not have understood same, is not accepted as fact."

The Chairman further recorded:-

"... The claimant was lucid in his evidence.  In his appeal he never mentioned the reminder merely the questionnaire.

The Chairman felt that as Mr Brady was giving the Tribunal his personal opinion of the claimant then weight should be given to this point.  However, the Tribunal would not accept the appellant's contention that he had received neither Department of Health and Social Services correspondence. ..."

14.	It can therefore be seen that the Tribunal did take into account the claimant's state of health insofar as it had evidence presented to it in this respect.

15.	The Tribunal also has an investigative role and it can err in law if it does not fulfil that role, but however the role is limited.

16.	In decision R(SB)2/83 - a Decision of a Tribunal of Commissioners in GB, the Commissioner stated at paragraph 10 and part of paragraph 11:-

"10.	It is, of course, accepted that in this jurisdiction a tribunal has an inquisitorial function to perform.  Proceedings are not adversarial in nature.  It is open to a tribunal, and indeed it is the members', duty, whenever they identify a point in favour of the claimant, notwithstanding that it has not been taken by the claimant, to consider it and to reach their decision in the light of it.  (Moreover, exactly the same principle applies in the case of a Commissioner, or, for that matter, a Tribunal of Commissioners, and not infrequently Commissioners do of their own volition discover points, which were never put forward by the claimant, but which are instrumental in giving rise to a decision favourable to the claimant).  However, although the members of a tribunal must investigate any matter which occurs to them as having any relevance to the appeal before them, they are not expected to question the facts presented to them in case after further investigation they might prove (to the advantage of the claimant) to be materially different, especially when, as here, there has been no suggestion on the part of the claimant that he is unsure of the facts as presented by him.  We reach this conclusion irrespective of the fact that in the case of supplementary benefit appeal tribunals the chairman is often not legally qualified.  Indeed, exactly the same principle applies whether the chairman is or is not legally qualified.

11.	Of course, in a particular case it may be that a particular factual point was so obvious and self-evident that any tribunal ought to have considered it, irrespective of whether it was specifically made by the claimant.  Everything will depend upon the circumstances in any given instance.  However, the primary duty for making out his case falls on the claimant, and he must not expect to rely on the tribunal's own expertise.  We would be slow to convict a tribunal of failure to identify an uncanvassed factual point in favour of the claimant in the absence of the most obvious and clear-cut circumstances. ..."

17.	As I have stated in previous decisions I specifically approve these paragraphs.

18.	In this instance I must therefore ask myself whether or not there was any failure of the Tribunal's inquisitorial duty.  In this instance and though the decision is a very close one I am of the view that there was such a breach.  The claimant had suffered a head injury, he had been given 52 week sick lines by his GP, Mr Brady had some personal knowledge of the claimant and had given evidence of a generalised disturbance in his mental state.  I regard it as undesirable for a representative to act as a witness in a case because the two roles can easily become confused and I think that this may have been what happened in the Tribunal's mind in this case.  Mr Brady alleged that claimant had not been the same since the head injury and it may well have been that the Tribunal regarded this as a contention rather than actual evidence being given.

19.	I do consider that the Tribunal in this particular case was in breach of its inquisitorial role in not investigating rather more fully the claimant's health problems.  This could possibly have been done by affording Mr Brady an opportunity to obtain a GP's report on the claimant's cognitive memory and other functions.  On balance therefore I do consider that there was an error of law in this respect.
20.	I do not consider that this is a case where I can give the decision which the Tribunal should have given.  I therefore set the Tribunal's decision aside and remit the matter for rehearing by a differently constituted Social Security Appeal Tribunal.  The new Tribunal should deal with the issue of the claimant's mental health and the claimant or his representative may wish to put further evidence before the new Tribunal in this respect.

(Signed):  M F Brown

COMMISSIONER

17 September 1998