Decision No: C25/02-03(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

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 3 July 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of the Chairman, against the decision of the Appeal Tribunal sitting at Ballymena on 3rd July 2002 (“the Appeal Tribunal”).  For the reasons which I give, that decision is erroneous in point of law.  I therefore set it aside and refer the case to a differently constituted Tribunal (“the new Tribunal”) for a complete rehearing.  

2.	The question for determination by the Appeal Tribunal was whether the claimant satisfied the personal capability assessment and was accordingly incapable of work.  It will simplify matters if I say at the outset that only the mental health descriptors are in issue.  The claimant has not suggested a problem with any of the physical descriptors.  

3.	The appeal was the subject of an oral hearing which took place in Belfast on 8th October 2003. Miss Jacqui Loughrey of the Law Centre (NI) appeared for the claimant and Mrs Jean Gunning of the Department for Social Development’s Decision Making and Appeals Unit appeared for the Department. Both Miss Loughrey and Mrs Gunning presented their respective cases with the care, courtesy and attention to detail that I had been told to expect. I am grateful to both of them.

4.	On 22nd February 2002, a decision maker had decided that the claimant did not satisfy the personal capability assessment from and including that date.   The relevant parts of that decision are as follows: -

	“He cannot be treated as incapable of work from and including 22/2/02 because none of the exempt conditions apply.  

	He does not satisfy the personal capability assessment from and including 22/2/02 because he has not reached 10 points from mental descriptors arising from some specific mental illness or disablement.”  

	The total points were 5, which were calculated as follows: - [there then follows details of the scoring]

	…

	Therefore he is capable of work and cannot be treated as incapable of work because there are no exceptional circumstances.”

	I have superseded the decision of the Department dated 17/5/00 awarding Incapacity Benefit from and including 7/2/00.  

	This is because the Department has made a determination that [the claimant] is no longer incapable of work from medical evidence received following an examination in accordance with regulation 8 of the Incapacity for Work Regulations.

	My decision only for the period from and including 22/2/02 is that [the claimant] is capable of work and is not entitled to Incapacity Benefit from and including 22/2/02.”
 
The text of the decision is followed by a list of the various legislative provisions in accordance with which the decision was taken.  These include regulations 6(2)(g) and 7(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.  From the wording of the decision and the references to regulations 6(2)(g) and 7(2), it is clear that the decision is a supersession decision and that the grounds of supersession are: - 

“that the decision to be superseded [that is, the decision of 17 May 2000] 

… 

(g) is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision) and where, since the decision was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Incapacity for Work Regulations from a doctor referred to in paragraph (1) of that regulation;”.  

Regulation 8 of the 1995 Regulations is the provision which enables the Department to require a recipient of incapacity benefit to undergo an examination by a doctor approved by the Department.

5.	The principal facts are as follows.  The claimant was born on 30th April 1946.  He was, therefore, nearly 56 on 22nd February 2002.  He was a self-employed, part-time, taxi driver who became incapable of work and claimed incapacity benefit from 4th February 2000.  The reason put forward for his incapacity was depression.  It appears that, in the past, he has had problems with alcoholism.  However, his general practitioner has indicated that this particular problem is behind him and that he now abstains from alcohol.  His general practitioner describes his problems as “depression/anxiety”.  It appears from the Department’s records that on 17th May 2000, a decision maker decided that the claimant was entitled to incapacity benefit and an award was made from and including 7th February 2000.  The circumstances in which that award was made have given rise to much debate.

6.	It is common practice for the Department to revisit incapacity benefit cases from time to time.  On 20th September 2001, a report was obtained from the claimant’s general practitioner.  The report was considered and it was decided that the claimant did not fall into an exempt category.  The assessment proceeded and on 23rd October 2001, the claimant completed an incapacity for work questionnaire and then, on 24 January 2002, he underwent an examination by a doctor approved by the Department.  As already indicated, only the mental health descriptors were in issue.  The examining doctor was of the opinion that the claimant satisfied the following descriptors.  That is, 17(a) Mental stress was a factor in making him stop work (2 points); 17(c) Avoids carrying out routine activities because he is convinced tey will prove too tiring or stressful (1 point); 17(f) Is scared or anxious that work would bring back or worsen his illness (1 point), and 18(d) Gets irritated by things that would not have bothered him before he became ill (1 point).  Those descriptors gave the claimant a score of 5 points but such a score is not sufficient to satisfy the personal capability assessment.  On 22nd February 2002, a decision maker considered the evidence and gave the decision referred to above. 

7.	The claimant appealed and his grounds of appeal included the following: -

	“I disagree with the decision of the Department that I am capable of work.  I suffer from severe depression and my condition is not improving.  On or around 16.6.00 I was advised by the Department that my mental illness was so severe that I was exempt from the PCA.  I want the Department to furnish a copy of the evidence upon which the decision of June 2000 was made to the Appeals Service.”

8.	The Department, in its submissions to the Appeal Tribunal, dealt with the matter as follows -

	“In his letter of appeal [the claimant] states that he disagrees with the decision of 22.02.2002 and points out that he had previously been advised in June 2000 that his condition was so severe that he was exempt from the personal capability assessment at that time.  On that occasion [the claimant] had satisfied the exceptional circumstances set out in law and it had been accepted that he had a specified incapacity and was therefore incapable of work in accordance with the personal capability assessment at that time.  [The claimant] asked that the Department furnish a copy of the medical evidence on which this decision was based.  Unfortunately, despite an exhaustive search, the documents, including the medical evidence used to arrive at the decision dated 14.06.2000, cannot be traced.  I apologise to the tribunal and to [the claimant] for any inconvenience that this may cause them.  However, I would respectfully point out that the law states that the Department may supersede a decision awarding incapacity benefit on receipt of medical evidence following an examination by a medical officer of the Department.  On 24.01.2002 [the claimant] was examined by a medical officer of the Department who reported: -  no life threatening condition:  no thought/intent to do self‑harm; no undiagnosed condition found; no surgery planned; and that [the claimant] therefore no longer satisfied any of the exceptional circumstances required to satisfy the personal capability assessment due to a specified incapacity.”

9.	The appeal came before the Appeal Tribunal sitting at Ballymena on 3rd July 2002.  The Tribunal consisted of a legally qualified chairman sitting with a medically qualified member.  The claimant attended with his then representative and one of his daughters.  He appears to have given evidence to the Tribunal but there is a problem about what was said.  The Appeal Tribunal decided that he satisfied descriptors 15(e), 16(c), 17(a), 17(c), 18(d) and 18(e) and awarded him 7 points.  That was two more than had been awarded by the decision maker.  However the Appeal Tribunal made no mention of descriptor 17(f), in respect of which the decision maker had awarded him 1 point.  The Tribunal neither awarded him the point nor said why it did not do so.  It was simply silent on the matter.  The Appeal Tribunal’s reasons for its decision were as follows: -

	“Claimant is a quiet introspective morose man who suffers from moderate depression and anxiety.  His General Practitioner confirmed in IB113 that he is ‘fairly stable’ at present and has not touched alcohol for more than one year – he is a recovering alcohol (sic).  He no longer attends psychiatric Outpatients.

	Medical Referee found that claimant had responded well to current medication and had ‘mild’ degree of depression.  Tribunal considered the representations of Mr G..., claimant’s daughter and claimant himself and accepts that claimant suffers from mild to moderate depression which is reflected in the 7 points (an increase of 2 points from that awarded by Medical Referee) allowed by Tribunal.

	Claimant’s story was not wholly convincing.  Tribunal did not believe his account of smashing the window of his car with his fist.  He subsequently stated that he broke it with a stick.  Both the General Practitioner’s evidence and comments of Medical Referee describe a recovering alcohol (sic) who is presently rather depressed, but stable at present and Tribunal accepts this assessment.”.  

10.	Permission to appeal to a Commissioner was granted by the Chairman. In summary form the claimant’s grounds of appeal are as follows: -

	(1)	That the Appeal Tribunal failed to address the issue, which he had raised in his grounds of appeal, that his condition was no different from what it had been in June 2000 when he had been exempted from undergoing the personal capability assessment.

	(2)	That the Appeal Tribunal failed to deal adequately with and failed to award him points in respect of certain mental health descriptors.  In particular, it failed to explain why it did not award him any points in respect of descriptor 17(f).  That being the descriptor in respect of which the decision maker had awarded him 1 point.

	(3)	That the Appeal Tribunal failed to appreciate the point of the claimant’s evidence about becoming angry and smashing the window of his car.  He submits that this evidence was directed to descriptor 18(b) which is ‘Gets upset by ordinary events and it results in disruptive behavioural problems’ (2 points).  Instead of concentrating on this issue, in respect of which the incident of the car window was put forward as an example, the Appeal Tribunal became bogged down in the precise mechanics of what happened.  It is submitted that exactly how the window was broken is neither here nor there.  The real issue was whether the claimant could be said to get upset with ordinary events with resulting disruptive behavioural problems.

11.	Before I come to consider these grounds it is appropriate to refer to a matter on which I would, in any event, have allowed the appeal.  The chairman’s record of the proceedings is an important document.  The regulations require the chairman to keep a record which is sufficient to indicate the evidence taken.  The record is intended to be a contemporaneous record of what happened at the hearing and of the evidence that was given.  Failure to keep a proper, contemporaneous, record may amount to an error of law.  It has often been said that while a failure to comply with the duty to keep a record will not always render a tribunal’s decision erroneous in law, it will do so if, in a particular case, it is necessary to look at the evidence that was given at the hearing in order to decide whether a particular ground of appeal is made out.  In the present case, what is said to be a note of the evidence does not read like a contemporaneous note.  That is, a written record of the evidence as it was given.  Instead, the record here reads, for the most part, like a series of findings or conclusions.  For example, one entry reads “Completion of tasks (e) – this was allowed by Tribunal.  Claimant used to walk, read go to yoga – no longer did.”  Further, and this is relevant to one of the grounds of appeal, under the heading “Interaction with other people (b), (c), (e)”, the record reads “(b) Claimant’s description of smashing car window did not ring true.  First he said he broke it with his fist then he said he used a stick.  Medical Referee recorded “no physical violence or aggressive behaviour”.  Those entries are not a record of what the claimant told the Appeal Tribunal but are, instead, a record of the conclusions which the members of the Appeal Tribunal reached after they had heard the evidence.  The record kept here was not in accordance with the requirements of the regulations.  This is an appeal where it was important to know what was said at the hearing.  That being so, the record of the proceedings is not only defective but the defects amount to an error of law.

12.	I also say this before leaving the topic of the record.  Many grounds of appeal relate to procedural matters that occurred at the hearing.  For example, whether the appellant was granted an adjournment to consider some point which had taken him by surprise and whether that adjournment was adequate.  Again, whether the claimant received a warning that if he proceeded he might risk losing benefit he had already been awarded.  Another example is where an appellant makes some sort of election or concession – such as electing to proceed in the absence of a representative or without a particular witness or expert report.  All these matters should be noted in the record, when they occur, so that if there is an appeal it is easy to determine the sequence of events.  This is something which it is not always easy to do when the only record that something happened or was said during the hearing is a paragraph in the statement and the ground of appeal turns on when, during the course of the hearing, the event occurred.  For example, whether a warning was given at the outset or not until the hearing had reached an advanced stage.

13.	I come back to the claimant’s grounds of appeal and can deal with two of them quite shortly.  It is conceded by the Department that descriptor 17(f) was in issue but the Appeal Tribunal simply failed to consider it or, if it did so, leave any record of its deliberations.  Incidentally, the record of proceedings records the Appeal Tribunal’s conclusions in relation to descriptors 17(b), (d) and (e) but nothing at all is said about 17(f).  The new Tribunal must first identify all the descriptors that the claimant puts in issue, listen to and record his evidence in relation to those descriptors and then make appropriate findings.  The second ground of appeal which I can dispose of briefly is the evidence relating to the breaking of a car window.  Since I am remitting the appeal for other reasons and since I have not seen and heard the claimant give his evidence, of which evidence there is no record other than that already referred to, it is unnecessary and probably inappropriate for me to rule on the point.  I simply say this.  The evidence here was directed to descriptor 18(b), and the incident was put forward as an example of how the claimant could become upset by ordinary events and over-react.  This meant that precisely what happened was not so important as the fact that an incident of, broadly, the nature put forward had occurred.  To that extent, the claimant is right to say that the Appeal Tribunal did not need to become too involved with precisely what happened.  That is true, provided that the broad thrust of the evidence is accepted.  If, however, it is not accepted and as a consequence the evidence is considered by the Tribunal to be an example of exaggeration or that it otherwise affects the claimant’s credibility, then what was said may, but not necessarily must, be important.  Many exaggerations have a basis in fact and if one listens carefully to the evidence as it comes out the fault line between mundane fact and hyperbole will often become apparent.

14.	The final ground of appeal is the Tribunal’s failure to address the issue, which had been raised in the claimant’s grounds of appeal, that his condition was no different from what it had been in June 2000, when he had not been required to undergo a personal capability assessment.  Mrs Gunning, on behalf of the Department, accepts that the Tribunal erred by failing to address this issue and that the appeal must be remitted for rehearing.  The problem in this case is that the June 2000 papers cannot now be found and it has not been possible to establish the basis on which the claimant was exempt from the assessment.  During the course of the hearing before me there was some debate, based on a letter of June 2000, as to whether the claimant had been exempt under regulation 10 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 (certain persons with a severe condition to be treated as incapable of work) or regulation 27 of those Regulations (exceptional circumstances).  Both Miss Loughrey and Mrs Gunning were of the view that the wording of the letter pointed to regulation 10 rather than regulation 27.  However, this is a matter for the new Tribunal if and to the extent that it considers it relevant.  

15.	The new Tribunal must address the issue if, by the time the matter comes before it, the issue is still a live one.  In that event the problem for the new Tribunal will be what to do in the probable event that the missing papers are still missing.  I have been referred to a number of Commissioners decisions in which various wise remarks have been made about missing papers.  Namely Decision C11/01-02 (IB) at paragraphs 18 to 21 and GB Decisions CIB/1972/2000 and CIB/3667/2000 at paragraph 7 of the Common Appendix, Decision CIB/378/2001 at paragraphs 9 to 13 and Decision CIS/2806/2000 at paragraph 8.  Now I entirely agree with what is said in those paragraphs by the various Commissioners.  Nothing I am about to say is intended to cast any doubt on their pronouncements.  However, in practical terms, the position appears to me to be as follows.  First, if an appellant reasonably raises an issue which calls for consideration by a tribunal of earlier papers, it is appropriate and sensible for such papers to be made available to the tribunal and for the tribunal to consider them.  What the tribunal makes of those papers and what decision it comes to in respect of them is a matter for the tribunal.  Much will depend on the circumstances peculiar to the particular case.  Secondly the fact that earlier papers cannot be found does not absolve the tribunal from considering and determining the issue which has been raised.  The tribunal must do the best it can on the material that can be put before it.  Papers frequently go missing or are destroyed without realisation of their possible future relevance.  That is a fact of life. Social Security benefits, particularly if awarded on an indefinite basis, can involve the expenditure of substantial sums of money.  It would not be right for a challenge to an award to be brought to an abrupt stop simply because the Department cannot produce every item of a paper that an appellant considers relevant.  Secondary evidence will normally be admissible.  
16.	Thirdly, there will be many cases where, when the issue is investigated, the relevance of earlier papers will prove to be marginal, non‑existent or their absence can be dealt with by other evidence.  This is particularly so in cases like the present where the ground of supersession on which reliance is placed is regulation 6(2)(g).  The fact that a person has in the past been exempted from undergoing the personal capability assessment cannot mean, in the event of his asserting that there has been no improvement in his condition, that the exemption continues forever. Nevertheless, the fact that he was previously exempted, and the reasons for the exemption, are factors to be considered by a tribunal. What weight is given to them is a matter for the tribunal and will depend on the evidence, the surrounding circumstances and the reasons why the appellant wishes to raise the exemption.

17.	Fourthly, there will be cases where the absence of certain evidence means either that the Department – and one is looking at this in terms of the Department – is unable to prove its case or an integral part of its case or else such absence is extremely unfair to the appellant.  On normal principles, if the Department is unable to prove its case or part of its case, then it must fail on the relevant points before the tribunal.  That may mean allowing an appeal against the Departmental decision to withdraw benefit.  Again, in cases of procedural unfairness, it may be appropriate to allow the appeal. 

18.	An example of the former is the supersession of an award of benefit on the grounds that there has been a relevant change of circumstances.  In order to prove that the circumstances have changed, it is necessary to show in what way they have changed.  In many cases that will require the ability to demonstrate what the original circumstances were as a preliminary to addressing the change which is said to have taken place.  In other words, to establish a baseline.  Sometimes, the original circumstances need not be shown.  For example, if an award of a disability living allowance is superseded on the grounds that there has been a relevant change of circumstances and that change is a decrease in care needs, it will generally not be necessary to go into the appellant’s original needs if the evidence now shows that he now has none.  On the assumption that the original award was correctly made, there must have been a decrease in care needs and therefore a relevant change of circumstances.  However, other, perhaps borderline, cases will be more difficult.  If the original papers are missing it may not be possible for a tribunal to identify exactly what the relevant change is.  In such circumstances the tribunal must allow the appeal.

19.	An example of unfairness in a situation similar in some respects to many social security overpayment claims occurred in the recent English Court of Appeal case Post Office Counters Limited –v- Tarla Mahida [2003] EWCA Civ 1583. The defendant was a former sub-postmistress who was being sued by Post Office Counters Limited in respect of alleged discrepancies in the accounts of her sub-post office. One of the categories in respect of which she was being sued – in fact the most substantial category – related to payments of social security benefits made from the defendant’s sub-post office. Payment would be made against counterfoils in order books. The counterfoils, together with “add lists” and a claim for reimbursement would be sent to the Department of Social Security. It was alleged that there were discrepancies and that most of these related to missing counterfoils. In other words, that the sums claimed were not supported by sufficient counterfoils. Unfortunately, by the time the matter came to court, none of the original documents, “that is the dockets and foils, and claim forms”, could be found. How they came to be missing was unknown. Possibly, despite being needed for the civil litigation, by way of routine destruction. Something that was not established. Whatever the reason for their absence, the problem was that a major issue before the court was the alleged discrepancies and that was an issue which was extremely difficult to try without the original documents.

20.	The English Court of Appeal, whose judgement was delivered by Lady Justice Hale, was in little doubt that secondary evidence was admissible. However,  for the reasons which it explained, the Court of Appeal decided that to proceed on such evidence would, in the circumstances of the case, be unfair to the defendant: -

  “24.	There is no doubt that this secondary evidence was admissible.  The power in the Civil Procedure Rules rule 31.1(2) to exclude evidence even if it is admissible is principally a case management power designed to allow the court to stop cases getting out of hand and hearings becoming interminable because more and more admissible evidence, especially hearsay evidence, is sought to be adduced.  It would be a strong thing to shut the Post Office out of not only its claim but, it would probably follow, its defence to the counterclaim, or much of its defence to the counterclaim, because of the non- existence of the originals in all the circumstances.  I would, therefore, decline to say that the judge was plainly wrong in the exercise of his discretion to admit this secondary evidence.  
25.	Nevertheless, there was a substantial unfairness about this process.  The defendant was asking for details, and had asked at an early stage to see the originals.  I cannot see from the events between October 1994 and January 1995 a real sensible opportunity to take that up.  Everybody was concerned with different matters at that stage, and it was all very fraught.  The letters from Miss Watts about contacting Mr Williams to discuss matters in more detail did not in terms say: "And, if you want to see the originals, he will make them available to you for you to go through with your solicitor or other representative"  That was not what was being suggested.  So I accept Mr Kenny's submission that this was not a proper opportunity take it up then, especially in the circumstances that pertained.  
26.	Thereafter there were two lamentable failures on the part of the Post Office.  The first was to respond to a prompt request for further details of the claim made in response to the letter before action.  The second and even more serious was the failure to take proper care of the originals, which were the very foundation of their claim.  These matters and the unfairness that resulted undoubtedly go to the weight to be accorded to the secondary evidence.  The judge was undoubtedly impressed by the secondary evidence, and no doubt took into account the various matters prayed in aid in support of that secondary evidence.  Again, for my part, I would not fault a finding by the judge that there had been overclaims over a considerable period of a sufficient amount to be an important factor in bringing to an end the defendant's contract and thus to support the dismissal of her counterclaim.  
27.	But it is a completely separate question as to whether that secondary evidence was of sufficient weight to prove the precise amount of the debt claimed.  For my part, it seems to me that where an institutional creditor is relying on this sort of discrepancy in documents submitted by the alleged debtor and the alleged debtor has been from the beginning of the proceedings saying that they want more details, the claimant cannot readily be said to have discharged the burden of proving the precise amount of the debt when the claimant has been responsible for the loss of the primary evidence of that debt, coupled with the denial of the opportunity to the debtor to check those figures should the debtor wish to take it up.  That is a very basic unfairness and to my mind it should have weighed very heavily upon the judge in deciding whether he was satisfied that the amount of the debt was proved.  
28.	As for the three smaller items, these are not seriously challenged; and I would be prepared to uphold the judge's finding that liability for those had been established.  But, as for the major Department of Social Security item, I cannot regard the events of 20th October 1994 as amounting to real admissions that those precise sums were owing.  That is not the real context in which those admissions were made.  The context was one of: "We say there are these discrepancies.  We say there is a pattern in them.  We say something very serious to you.  What is your explanation?" That is the flavour of that interview.  In those circumstances, I do not feel able to uphold the judge's finding that the Post Office has proved its claim for any of the DSS liability.  It is impossible to say what it was.  
29.	To that extent, therefore, I would allow this appeal, set aside the order of the judge and substitute an order in respect of the three smaller items so mentioned.”

21.	So far as the appeal before me is concerned, I allow the appeal for the reasons given and remit the matter to the new Tribunal for rehearing.

(signed):  J P Powell

Deputy Commissioner
22 April 2004