Decision No:  C16/00-01(IB)

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND)

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 27 January 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by myself, by the Department (which has now taken over the functions of the Adjudication Officer) against a decision dated 27th January 2000 of an Appeal Tribunal (hereinafter called “the Tribunal”) sitting at Enniskillen.  The Tribunal had allowed the claimant’s appeal against an earlier decision of an Adjudication Officer which reviewed a previous decision awarding the claimant Incapacity Benefit.  The review decision also revised the previous decision and terminated the claimant’s entitlement to Incapacity Benefit.  This reviewing and revising decision (being the decision under appeal) was lost and was not before the Tribunal but it does appear that it was notified to the claimant by letter dated 10th August 1999.  The score sheet which would normally include the Adjudication Officer’s findings in relation to the All Work Test was also lost so that neither the claimant nor the Tribunal had sight of this All Work Test Assessment.  Both the claimant and the Tribunal did have sight of a medical report dated 19th July 1999.

2.	The claimant appealed to the Tribunal and the Tribunal held a hearing which was attended by the claimant, her representative, Ms Foster and by Mrs Murray an officer of the Department for Social Development.  At that hearing the Tribunal suggested to the officer that if she wished to seek an adjournment to seek further evidence the Tribunal would consider this but the presenting officer said that she did not want an adjournment.

3.	The Tribunal proceeded to decide the matter and decided that it could not be satisfied on the balance of probabilities, on the basis of the evidence presented by the Department that there had been a relevant change of circumstances to enable the previous decision as regards the appellant’s incapacity for work and the award of benefit to her to be revised.

4.	The application to me was by letter from the Decision Making and Appeals Unit of the Department.  The grounds for the application were that pursuant to decision C40/98(IB) (a decision of the Chief Commissioner for Northern Ireland) the Tribunal should have proceeded to consider the question of whether the All Work Test was satisfied and if appropriate whether the Adjudication Officer had grounds to review (and supersede) the decision of a Tribunal dated 11th February 1999 (which it appeared was the earlier decision to the effect that the claimant was incapable of work and entitled to Incapacity Benefit).  Mr Toner submitted that the Tribunal had erred in law in not so doing.

5.	Observations on the appeal was made by Messrs C…, W…, Solicitors by letter dated 14th September 2000.  In opposing the appeal the solicitors submitted that the correct decision was taken based on the rules of natural justice and the right to a fair hearing.  They contended that the right to a fair hearing extended to the right to have notice of the other side’s case.  Indeed in their view disclosure of the opposing case must be made in reasonable time to allow the person affected by it to prepare defence or comment.  In this case, in the solicitors’ submission, the absence of the Adjudication Officer’s assessment on the All Work Test and the decision under appeal meant that the claimant did not have time to consider the assessment or the subsequent decision.  They further submitted that decision C40/98(IB) was not really on the point of a right to a fair hearing.

6.	I begin by considering whether the Tribunal should have adjourned in this matter to enable the Departmental Officer to make further inquiries.  The Tribunal had expressly asked the officer if she wished any adjournment and had in fact been informed that the Departmental Officer did not want to seek any further advice.  In those circumstances and, bearing in mind that the Departmental Officers are expected to have some expertise in presenting cases, I consider that the Tribunal was perfectly justified in proceeding in this matter.

7.	I now come to the question of the substantive decision made by the Tribunal and whether or not it was correct.  In this case the Tribunal was faced with a situation where the original Adjudication Officer’s decision was missing and similarly the All Work Test Assessment was missing.  Indeed the Tribunal was not in possession of any evidence that the All Work Test Assessment had been made.  It did, however, have evidence that the claimant had been notified of the decision.  The appeal letter from the claimant was before the Tribunal and is before me.  This letter states as follows “I am appealing against your decision that I am able to go back to work.”  It then makes various contentions in relation to the claimant’s health.

8.	It is therefore quite apparent that the Adjudication Officer had made a determination that the claimant was capable of work at the relevant time.  Regulation 20 of the Incapacity for Work (General) Regulations (Northern Ireland) 1995 provided that determinations as to capacity or incapacity for work were to be made by the Adjudication Officer.  Those functions are now exercised by the Department.  In this case it is quite apparent from the appeal letter that the Adjudication Officer had determined that the claimant was capable of work.  Such determination alone however does not constitute grounds for review.  In this connection I would refer to my own decision in the case C65/98(IB) paragraph 32.  There must be a relevant change of circumstances.  For purposes of the All Work Test the relevant change is a change in functional ability as assessed on that test.

9.	It is for the Department to show that there has been such a change and in this case it does seem likely that the change would have been a change in functional ability as assessed on the basis of the All Work Test.

10.	The review grounds existed if there was a change in functional impairment so as to give less than 15 points score in the view of the Adjudication Officer or on appeal of the Tribunal.  In this case there was no indication of what findings of fact the Adjudication Officer had made on the All Work Test.  It is those findings of fact which constitute the relevant change of circumstances.  It is settled law that it is for the Adjudication Officer and now the Department to establish that grounds to review exist.

11.	It is settled law that Tribunals deal with cases by way of rehearing.  They are not confined to deciding whether or not, on the evidence before the decision maker, the decision maker was correct to make the decision which was made.  Rather they have to take into consideration all the evidence relevant to the time when the relevant decision was made whether presented before or after that date.

12.	In addition what a Tribunal has to decide is whether or not there is a relevant change of circumstances, in this case (it appears) whether there has been a functional improvement as assessed on the All Work Test.

13.	It appears to me, having read the Tribunal’s reasoning in this case, that the Tribunal was asking itself whether it was satisfied that the decision maker had actually considered that there was a relevant change in circumstances.  I reach this conclusion because of the part of the reasoning which I set out below:-

“The Tribunal were therefore concerned with an appeal where the initial score sheet of the Department which had made the decision had been misled; and where the original decision obviously based on the score sheet had been misled as well.  The Tribunal had not sight of the original decision appealed against.  The burden of proof in this case rested with the Department to show that the appellant was no longer incapable of work; it had to show to the satisfaction of the Tribunal that grounds to review the initial award of benefit to the appellant did exist; it sought to do so on the basis of the appellant failing the “all work test”; - the evidence produced in relation to the appellant failing the “all work test” was evidence by the Presenting Officer that there was a record on the Department’s system that on the 9 August 1999, a decision had been made on the case adverse to the appellant, as regards to the all work test; she had scored less than 15 points.  No computer print-out was produced by the Presenting Officer to the Tribunal as regards the record on the system; and she declined the opportunity to investigate the matter.  Accordingly, the Tribunal had to consider if the evidence presented to it; properly amounted to a relevant change in circumstances: the Tribunal considered that the evidence presented was very unsatisfactory, - the Tribunal could not properly ascertain if the Department in making its decision had taken into account matters which should not have been taken into account, or had taken into account matters which it should have taken into account.  The absence of the score sheet, and the original decision was crucial to the proper determination of the appeal, and was very prejudicial to the appellant.”

14.	In this case, it is quite correct that the Tribunal did not have an indication as to what, if any, were the findings of the Adjudication Officer on the All Work Test.  All that it did have was evidence that there had been a determination that the claimant was capable of work and a decision on the basis of that determination that the claimant was no longer entitled to Incapacity Benefit.  The Tribunal was quite correct in that the onus of establishing grounds for review rested on the Adjudication Officer.  What it had to do in this case was to ask itself whether on the evidence before it, it was satisfied that such grounds for review existed, not whether it was satisfied that the Adjudication Officer had considered that grounds for review existed.  Tribunals are not bound by the opinions of Departmental Officials.  They frequently substitute their own decisions for such opinions.  The presence or absence of evidence as to the findings of the Adjudication Officer in relation to the scoring on the All Work Test or otherwise is not therefore a matter which would per se prevent the Tribunal from considering the appeal.

15.	I consider that the Tribunal erred in law in not considering the matter of whether or not there had been a change on functional impairment on the basis of the evidence before it.  This evidence would of course, include any evidence which the claimant wished to produce in relation to her state of health at the relevant time.

16.	The claimant’s solicitors have made some point in relation to the matter of the claimant’s right to a fair hearing.  This right is of course undoubted but I do not see that the right is in anyway affected by the claimant not being aware of what score the Adjudication Officer would have given her on the All Work Test nor indeed as to what the Adjudication Officer’s own findings on the All Work Test were.  On appeal, the claimant was given all the evidence which could be produced in support of the Adjudication Officer’s determination and decision.  She had the opportunity to present any evidence which she wished on her own behalf and the onus of proof lay with the decision maker to establish that there were grounds to review and revise.  In those circumstances I cannot see the claimant’s right to a fair hearing is affected in this case by the absence of the Adjudication Officer’s findings.  The Tribunal may substitute its own findings and it appears that the Tribunal did have the earlier decision of the earlier Tribunal which had awarded the benefit and its score sheet.

17.	The only point which remains is for me to deal with the reference by Mr Toner to decision C40/98(IB) and in particular to paragraph 15 thereof.  To make comprehensible the statement in that paragraph is necessary to consider one of the claimant’s grounds of appeal in that case, ground 1(c) quoted at paragraph 6.  This ground was as follows:-

“Further to this, the Tribunal does not appear to have made its own assessment of whether or not the claimant satisfies the conditions of entitlement.  Rather, the statement of reasons implies that their role is to consider the correctness of the decision reached by the adjudication officer.  This is a misconception of the tribunal’s role, which is an inquisitorial one, independent of the prior findings of the adjudication officer.”

18.	Paragraph 15 is as follows:-

“Mr S also submitted in relation to ground of appeal 1(c) that the Tribunal erred in not making its own assessment of the claimant’s ability to satisfy the conditions of entitlement for Incapacity Benefit.  The hearing before a Tribunal is, in effect, a rehearing, unlike proceedings before a Commissioner on appeal from a Tribunal, which are not by way of rehearing.  Tribunals, in the circumstances, ought to be careful to decide the case on the relevant available evidence rather than deciding whether the Adjudication Officer’s decision should be overturned.  In my view the terse statement of reasons does suggest that the Tribunal’s only role in the present case was to consider the correctness of the decision of the Adjudication Officer.  The Tribunal should have considered, in light of the facts and evidence before it, what the proper decision was and then should have gone on to make it, rather than considering whether the decision under appeal was justifiable or not.  Accordingly I conclude that the Tribunal has erred in law in this respect.”

19.	I am in complete agreement with the Chief Commissioner in relation to the above extract and I consider that in this case also the Tribunal should have proceeded to decide the case on the relevant available evidence with the important proviso that in this case, being a review and supersession case, the onus was on the Adjudication Officer.  The claimant’s solicitors are correct that decision C40/98(IB) is not really on the point of a right to a fair hearing.  In this case, provided the proper procedure is followed and this will involve adequate notice and the production of all available evidence to all parties and an opportunity for the parties to attend hearing and to produce further evidence there is no prejudice to that right.  What is missing in this case is evidence of the Adjudication Officer’s findings.  In view of the fact that the Tribunal has a power to make its own findings and is not confined to deciding whether or not the Adjudication Officer’s findings were correct I can see no violation of the right to a fair hearing in this case.

20.	I allow the appeal and, as this is not a case where I can give the decision which the Tribunal should have given, I remit the matter to a differently constituted appeal Tribunal which should determine the substantive question of whether or not grounds existed at 10th August 1999 to review the earlier decision awarding Incapacity Benefit and if so what the new revised decision should be.  The Tribunal will, of course, be confined to circumstances which existed at the time of the Adjudication Officer’s decision but that does not mean that evidence as to those circumstances cannot be produced after the date of that decision.  

(Signed):  M F Brown

COMMISSIONER

18 December 2000