R1/04(IB)(T)

Judge Martin QC
Mrs M F Brown
Mr J P Powell
29.7.03	C21/02-03(IB)(T)

Supersession – claimant previously treated as incapable of work

The claimant was treated as being incapable of work under the exceptional circumstances set out in regulation 27(2)(b) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 and awarded national insurance contribution credits.  Following a medical examination the Department decided that the claimant was no longer incapable of work in accordance with the Personal Capability Assessment and therefore not entitled to credits on the basis of ongoing incapacity for work.  His appeal to a tribunal was disallowed.  He appealed to the Commissioner on the ground that he could not understand the tribunal decision as his condition had worsened since a previous disallowance had been overturned in his favour.

Held:-  

1.	The Department, as the body seeking to supersede, has to produce evidence that regulation 27(2)(b) no longer applies (paragraph 10).

2.	Claimant should have been made aware of previous adjudication history and contended grounds for supersession to afford him the opportunity to produce the relevant evidence in support of his appeal (paragraph 10).

3.	The term “previously undiagnosed” in regulation 27(2)(b) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 refers to diagnosis of a medical practitioner (paragraph 10).

4.	Once a diagnosis is made by a medical practitioner, it can no longer be argued that the condition was previously undiagnosed as required under regulation 27(2)(b) (paragraph 10).

Obiter

1.	Failure to adequately set out past adjudication history in the submission, combined with the failure to send representatives to hearings, only serves to mislead the Tribunal and can lead to errors (paragraph 7).

DECISION OF THE TRIBUNAL OF COMMISSIONERS

1.	This is an appeal, leave having been granted by Mrs Commissioner Brown, by the claimant against a decision dated 6 November 2001 of an Appeal Tribunal sitting at Omagh.  The Chief Commissioner, in exercise of his powers under Article 16(7) of the Social Security (Northern Ireland) Order 1998, being of the view that this decision involved questions of special difficulty directed that the matter be dealt with by a Tribunal of Commissioners.  Our decision is that the appeal is allowed and that the case is remitted for rehearing and redetermination by a freshly constituted Tribunal.

2.	The Tribunal had disallowed the claimant’s appeal against a decision of the Department dated 25 July 2001 to the effect that the claimant was not incapable of work in accordance with the Personal Capability Assessment from and including 25 July 2001 and so was not entitled to credits on the basis of ongoing incapacity for work.  There was no issue either before the Tribunal or before us that the claimant could be entitled to credits other than on the basis of incapacity for work.  The claimant’s grounds of appeal to us reiterated his health complaints and stated that he did satisfy the Personal Capability Assessment.

3.	The claimant unfortunately did not request a hearing by the Tribunal and the matter was dealt with at what has become known as a paper hearing.  The submission to the Tribunal by the Department made no mention of the basis on which the claimant had previously been considered to be incapable of work though paragraph three of that submission stated: -

“Due to a change in law from 13.4.95, entitlement to credits is dependent upon [the claimant] being incapable of work in accordance with the personal capability assessment.”

4.	The submission did not mention whether the claimant had previously undergone a Personal Capability Assessment (or its predecessor the All Work Test), the outcome of same, nor anything as to the basis on which the claimant had previously been considered as incapable of work.  Neither did it mention anything to do with supersession of any previous decision.  The submission did not actually mention that the claimant had ever previously been considered as unfit for work but it was perhaps clear from the date when he was initially awarded incapacity credits (13 May 1994) that there had been a previous award.  There was no mention of regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 which sets out the grounds on which an existing decision can be superseded.  The Department’s decision made no mention of supersession.  The Tribunal did not correct this defect.  

5.	The claimant’s grounds of appeal were contained in an OSSC1 form received in the Commissioner’s office on 20 May 2002.  They consisted again of reiteration of his health complaints and that he thought the decision was wrong because he still suffered from the said complaints.  Attached to these grounds was the claimant’s application to the chairman of the Tribunal for leave to appeal to the Social Security Commissioner.  Included amongst the grounds for that application was mention of the fact that the claimant had not attended the Tribunal as he had thought the decision would be overturned in his favour, this having happened in 1999.  This led to further enquiries being made by the Commissioner with carriage of the file and as a result of that it was ascertained that the claimant had previously been found to be incapable of work on the basis that he was within regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 (the Incapacity Regulations).  The basis of the treatment of the claimant as incapable of work appeared to be that he came within regulation 27(2)(b) in that he had been found, on medical examination on 3 February 2000, to have a previously undiagnosed potentially life threatening condition, i.e. high blood pressure.  

6.	Observations on the appeal were made by Mrs Gunning of the Decision Making and Appeals Unit of the Department by letter dated 25 September 2002.  We are indebted to Mrs Gunning for her thorough investigation of the past adjudication situation in this case.  We accept that Mrs Gunning was unable to trace the previous papers in the case other than the doctor’s report of 3 February 2000 on form IB85 and we accept also her submission based on that report.  It appears that the claimant was found to be incapable of work on the basis of the said regulation 27(2)(b).  We accept also Mrs Gunning’s submission that the Department’s submission to the Tribunal was flawed in that it made no mention of the fact that the claimant had previously been subjected to the Personal Capability Assessment or that he was treated as incapable of work under prescribed exceptional circumstances and that supersession was an issue.  

7.	This, in our view, is a serious omission on the part of the Department and unfortunately it is not an isolated instance of such an omission.  We have come across numerous cases where Tribunals have been misled because the Department has failed to set out adequately the past adjudication history of a case.  We consider that the failure to do so, combined with the failure to send representatives to the hearings, is leading to errors on the part of Tribunals, to considerable concern for claimants and public expense in the form of appeals which could be avoided.  We have no jurisdiction over what the Department includes in submissions but we have noted in numerous individual cases that errors by Tribunals are being caused because of inadequate submissions and because of the failure of the Department to send to the hearings representatives who are fully apprised of the adjudication history.

8.	Mrs Gunning has submitted that the Tribunal erred in law because it failed to remedy the defect in relation to supersession.  We consider that she is correct.  We are also of the view that a natural justice issue arises.  

9.	Mrs Gunning has invited us to decide the case ourselves by finding that grounds for supersession have been established under regulation 6(2)(g) of the said Regulations.  We could do this as it does appear that there were grounds for supersession on the basis of the Tribunal’s findings.  However, we are not prepared to do so because we consider the claimant should have an opportunity to obtain further evidence as to his blood pressure condition as at 25 July 2001 (the date of the decision under appeal).  It appears to us that, had the claimant been informed of the previous basis for his being treated as incapable of work, he would have been in a position to obtain evidence as to whether or not the situation as regards his blood pressure had improved at that date.   

10.	It must be remembered that, as the Department was the body seeking to supersede its earlier decision, it had to produce evidence that regulation 27(2)(b) of the Regulations no longer applied.  This, in our view, would not have been very difficult in that the phrase “previously undiagnosed” in that provision does appear to us to refer to diagnosis by a medical practitioner.  Once the diagnosis was made by such a practitioner it could scarcely be said that the condition was previously undiagnosed.  However, because the claimant was unaware of the need for supersession and the grounds thereof, he was not aware of the relevance of his blood pressure condition (which could have had relevance in relation to regulation 27(2)(a) of the said Incapacity Regulations).  The Department was in possession of the evidence in relation to the blood pressure having been the basis of the previous treatment of the claimant as incapable of work.  The claimant was not therefore fully apprised of the issues which needed to be considered in this case.  He should have been made aware of the previous adjudication history and the contended grounds for supersession.  Had he been so aware he could have obtained evidence from his own General Practitioner as to his blood pressure situation.  The Tribunal could then have decided whether or not regulation 27(2)(a) could assist the claimant.  In other words it could have decided whether the blood pressure problem was controlled or controllable and, if it was not controllable, whether there was a reasonable cause for it not to be so controlled by a recognised therapeutic procedure.

11.	We therefore decline to decide this matter.  We set aside the Tribunal’s decision on the grounds that it is in error of law and we refer the matter back to a differently constituted Tribunal.  We direct the Department to prepare for that Tribunal a proper submission dealing with supersession and setting out the adjudication history of the case and the basis upon which the claimant has been in the past found to be incapable of work and to produce its best evidence that no exceptional circumstances within regulation 27(2)(a) or (b) apply.  The claimant should also be aware that the question of the control of his blood pressure at 25 July 2001 may be an issue.  It is a matter for him whether he wishes to produce further evidence in relation thereto.

12.	The appeal is allowed.

Date:  29 July 2003	(Signed):  Judge Martin QC
(Corrected 10 September 2003)	Chief Commissioner

	(Signed):  M F Brown
	Commissioner

	(Signed):  J P Powell
	Deputy Commissioner