Decision No: C37/02-03(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 22 May 2002

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of the Legally Qualified Member, against the decision of an Appeal Tribunal.  The Tribunal had disallowed the claimant’s appeal against a decision to the effect that the claimant was not incapable of work in accordance with the personal capability assessment from and including 21 February 2002 and is not entitled to credits on the basis of ongoing incapacity for work.

2.	The claimant became unfit for work on 16 February 2000 and made a claim for incapacity benefit (IB) by reason of blackouts and migraines.  The personal capability assessment applied from 16 February 2000.  The claimant was not entitled to IB as he did not satisfy the contribution conditions for the receipt of that benefit.  Instead he was awarded a National Insurance Contribution credit for each complete week that he was incapable of work.  In order to determine capacity for work the claimant was requested to complete the usual questionnaire giving details of how his illness affected his ability to perform various activities.  After the form was completed and returned, a Medical Officer of the Department examined the claimant on 5 December 2001.  The Department then considered all the available evidence and decided that the claimant scored 8 points in relation to the personal capability assessment.  Accordingly the Department determined that the claimant was not incapable of work in accordance with the personal capability assessment from and including 21 February 2002 and was not entitled to credits on the basis of ongoing incapacity for work.  The claimant then appealed.  In the meantime the decision of 21 February 2002 was looked at again on receipt of the appeal but on 17 April 2002 it was decided that the decision should stand.

3.	The Tribunal rejected the claimant’s appeal awarding the claimant the same number of points, namely 8, in relation to physical descriptors.  

4.	The claimant sought the leave of the Legally Qualified Member to appeal to a Commissioner.  Leave was granted on 16 January 2003 by the Legally Qualified Member although no point of law was set out by the Member when granting leave.

5.	The claimant has appealed on the following grounds: -

“Basically I don’t believe they understand the effect my medication has on me!  After taking it approx ½ hr. later I’m in the twilight zone!  By that I mean I’m so lethargic I just cannot be bothered to do much of anything, ie answer the door, the mobile even to bring in the milk so I sit most of the day like a zombie listening to the radio.  Also when I originally had to go on Job-seekers the girl who ‘signed’ me on couldn’t believe I’d been taken off I/C as neither could the women in the Jobcentre or Joblink.  There is no way can I go job searching unless I don’t take my ‘epilim’ and then I run the very high risk of more black-outs which I am not prepared to do (money or no money) I hope who is reading this understands my predicament.”

6.	Having considered the circumstances of the case I am satisfied that this appeal can properly be determined without a hearing.  However, I have had the benefit of written submissions from the claimant and also from Mr Toner (and later Mr Fletcher) of the Decision Making and Appeals Unit of the Department.

7.	The Tribunal’s decision and its reasons for its decision are available to me.  However, the record of proceedings was not available as the claimant failed to apply for this record within the statutory time limit and therefore the record has not been produced by the Chairman.  In accordance with regulation 55(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 an application for such a record must be received by the Clerk to the Tribunal within six months of the date of the Tribunal decision.  The decision was issued on 23 May 2002 but the application for the record was not received until 10 February 2003, a date outside the six month limit.  Accordingly I am not entitled to make any assumptions in favour of the claimant on the grounds that there may have been supportive evidence in such a record as a lack of a record is due to the claimant failing to comply with the statutory time limit.  However as the claimant had originally wanted his appeal to the Tribunal to be decided on the papers only, a lack of a full record in a case such as the present is probably a minimal disadvantage to the claimant.

8.	However, there is a substantial difficulty in the claimant’s appeal.  A Commissioner only has jurisdiction to allow an appeal if there has been an error in law.  It must be appreciated that a tribunal is entitled to draw its own inferences and reach its own conclusions and however profoundly a Commissioner, as an appellate tribunal on an appeal from a tribunal on a point of law, may disagree with its views of the facts, he or she is not able to upset the tribunal’s conclusions unless:

(a)	there is no or no sufficient evidence to found them – which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal, or

(b)	the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse.

In this case I neither express disagreement nor agreement with the Tribunal’s inferences and conclusions.  However, even if I were in disagreement, that does not render the decision erroneous in point of law as the Tribunal’s conclusions are based on sufficient evidence, its assessment of the evidence was reasonable and the primary facts found justify the conclusion.

9.	I have found myself unable to conclude that there has been any error of law for the reasons either explicitly or implicitly set out by the claimant.  Accordingly I rule that the Tribunal’s decision is not erroneous in law as the claimant has submitted.

10.	However, very properly, Mr Toner of the Decision Making and Appeals Unit of the Department has drawn my attention, in a letter dated 1 July 2003, to a significant and relevant matter.  In the circumstances it is useful to quote the relevant part of this letter, in which he has stated: -

“[The claimant] was not entitled to receive benefit as he did not satisfy the contribution conditions for such an award.  He was however, depending on whether he was incapable of work or treated as incapable of work, entitled to be credited with earnings for the purposes of National Insurance Contributions.  Therefore a decision had been made by the Department under Article 9 of the Social Security (Northern Ireland) 1998 which might be revised under Article 10 or superseded under Article 11 (see paragraph 7 of Commissioner’s decision (C11/01-02(IB) (…)).

Article 11(3) of the Order provides that regulations may provide the cases, circumstances and procedure for superseding earlier decisions and regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 is made under that enabling power.

When making his decision on 21 February 2002 the decision maker did not address supersession.  Likewise the submission to the Tribunal did not address supersession and the Tribunal did not remedy that defect.  Accordingly, I submit that the Tribunal erred in law by not identifying any case or circumstance which could lead to supersession, that being in issue in this case (see C11/01-02(IB), paragraph 12).”

11.	In my view Mr Toner has correctly stated the position and the Tribunal has erred in law by not dealing with the supersession issue.  The question arises, however, whether it is appropriate for a Commissioner, exercising powers under Article 15(8) of the Social Security (Northern Ireland) Order 1998, to give the decision which the Tribunal should have given without making fresh or further findings of fact.

12.	An examination of the decision clearly shows that the Tribunal has dealt with all the relevant evidence that was before it and has made adequate findings on that evidence and also has given adequate reasons for making those findings.  However it has failed to deal with the issue of supersession.  If it had dealt with the issue of supersession it ought to have considered regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 which provides that: -

“(2) A decision under Article 11 may be made on the Department’s own initiative or on an application made for the purpose on the basis that the decision to be superseded –
…

(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;…”

13.	Therefore, for supersession grounds to be established under this regulation, as Mr Fletcher (standing in for Mr Toner who was on holiday) has pointed out, four essential criteria must be met: -

(1)	there must be an existing “incapacity benefit decision”;

(2)	there must have been an “incapacity determination” (whether before or after the “incapacity benefit decision”);

(3)	the Department must receive medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995; and 

(4)	the medical evidence must be from a doctor approved by the Department.

14.	Mr Fletcher in his letter dated 16 September 2003, endeavoured to persuade me that a Commissioner was correct in the present case to find that the criteria set out in regulation 6(2)(g) would inevitably be satisfied and therefore there would be no necessity or requirement to refer this case back to another Tribunal.  He stated as follows: -

“The term “incapacity benefit decision” is defined by regulation 1(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 and includes a decision to award relevant credits embodied in or necessary to which is a determination that a person is or is treated as incapable of work under Part XIIA of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

The summary of facts in the Department’s submission to the tribunal indicate that [the claimant] did not satisfy the contribution conditions for incapacity benefit but was awarded national insurance contribution credits for each complete week that he was incapable of work.  I contacted Incapacity Benefits Branch who advised me that this decision was made on 12 March 2000.  Unfortunately I have been advised there is no copy of the actual decision available.  I have however enclosed a sample copy of form IB35 that is issued when claimants are disallowed incapacity benefit on contribution conditions.

The term “incapacity determination” is also defined by regulation 1(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 and includes a determination whether a person is incapable of work by virtue of the personal capability assessment as defined by regulation 2(1) of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995.

The summary of facts indicates that [the claimant] was subject to the personal capability assessment from the first date of claim, I submit that initially the basis for this decision could only have been that he was treated as incapable of work under regulation 28 of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995.  A decision treating a claimant as incapable under this regulation is not an “incapacity determination” – see regulation 1(2).

However, the decision “deeming” [the claimant] as incapable of work under regulation 28 ceased to have any effect once an assessment was carried out (see paragraph 11 of C34/02-03(IB), ….  Reported tribunal of Commissioners decision R1/02(IB)(T), paragraphs 27 and 28 and C1/99(IB), paragraph 14 … also seem relevant to this point.

It would appear from Mr Toner’s earlier submission dated 1 July 2003 that [the claimant] was assessed for and passed the personal capability assessment on 4 September 2000.  I have requested a copy of this decision from Incapacity Benefits Branch and will forward this if such a copy is available.  This assessment is clearly an “incapacity determination” as defined by regulation 1(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.

As this “incapacity determination” was made after the “incapacity decision” it would appear to satisfy the 2nd criterion for supersession under regulation 6(2)(g) – see the second of my bullet points above.  It was upon this basis that the award of credits continued past 4 September 2000.

I therefore submit that from the information available it is relatively clear an “incapacity benefit decision” incorporating an “incapacity determination” was in effect at the date on which the medical report form IB85 dated 5 December 2001 was received by Incapacity Benefits Branch.  This report is, I submit, medical evidence following an examination arranged in accordance with regulation 8 of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995 – ….

I further submit that the report completed by a Medical Support Services doctor was medical evidence from a doctor approved by the Department.  The Commissioner may also wish to note that the term “doctor” is defined in regulation 2(1) of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995 – ….”

15.	Perhaps, as Mr Fletcher has stated, the claimant was assessed and passed for the personal capability assessment on 4 September 2000 but there is no record of this in the papers before me and no copy was ever forwarded to me.  In addition, while I have been informed that an incapacity benefit decision was made on 12 March 2000, there is no copy of the actual decision available on the papers before me.  In these circumstances I do not consider that I can give the decision which I consider the Tribunal should have given without making fresh or further findings of fact – Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998.  Also, in a situation where I am being asked to rely on unsupported statements (even though I accept that they have been made in good faith) about the benefit history of the claimant, I do not think it is appropriate for me to make findings of fact based on such statements.  Accordingly I do not consider that it is expedient to make fresh or further findings of fact and, accordingly, I do not consider it is possible for me to come to a decision which the Tribunal ought to have come to if it were possible to make such findings – Article 15(8)(a)(ii).

16.	As I have found that the Tribunal has erred in law as Mr Toner has submitted, I hold that the decision appealed against was erroneous in point of law. I set the decision aside. I then must take the only possible course of action in the circumstances – namely, that set out in Article 15(8)(b) and consequently I refer the case to a freshly constituted Tribunal to deal with all the issues, including that of supersession.

(Signed):  J A H Martin

CHIEF COMMISSIONER

19 December 2003