Decision No: C3/09-10(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

	Application by the claimant for leave to appeal
	and appeal to a Social Security Commissioner
	on a question of law from a Tribunal’s decision
	dated 3 February 2009

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that 	the appeal can properly be determined without a hearing.

2.	I grant leave to appeal and proceed to determine all questions arising 	thereon as though they arose on appeal.  

3.	The decision of the appeal tribunal dated 3 February 2009 is in error of 	law. The error of law identified will be explained in more detail below.

4.	Pursuant to the powers conferred on me by Article 15(8) of the Social 	Security (Northern Ireland) Order 1998, I set aside the decision 	appealed against. 

5.	I am able to exercise the power conferred on me by Article 15(8)(a)(i) 	of the Social Security (Northern Ireland) Order 1998 to give the 	decision which I consider the appeal tribunal should have given as I 	can do so without making fresh or further findings of fact.

6.	My decision is that the decision-maker on 19 February 2008, had 	grounds to supersede the decision dated 29 June 2005 awarding 	incapacity benefit (IB) from and including 10 May 2005. The appellant 	is not entitled to IB credits from and including 19 February 2008.

7.	Accordingly, although the appeal to the Social Security Commissioner 	succeeds, the practical outcome for the appellant, in terms of his 	entitlement to IB credits, is the same as that determined by the appeal 	tribunal.

Background

8.	The decision under appeal to the appeal tribunal was a decision of the 	Department, dated 19 February 2008, which decided that: 

(i)	grounds existed to supersede an earlier decision of the Department, dated 29 June 2005, and which had awarded an entitlement to incapacity benefit (IB), from and including 10 May 2005; and

	(ii)	the appellant was not incapable of work in accordance with the 		personal capability assessment and not entitled to IB credits 			from and including 19 February 2008. 

9.	The appeal was received in the Department on 19 March 2008.

10.	In the papers which are before me is a copy of a Form ‘SET3d’, the 	contents of which would suggest that an appeal tribunal hearing took 	place on 3 July 2008. The contents of the ‘SET3d’ also confirm that the 	decision of the appeal tribunal, dated 3 July 2008, is set aside on the 	basis that the appellant had been unable to attend the appeal tribunal 	hearing due to illness.

11.	A further appeal tribunal hearing took place on 23 September 2008. 	The appellant was not present. The appeal was adjourned, with the 	reasons for the adjournment being given as the inability of the 	appellant to attend due to illness.

12.	A further appeal tribunal hearing took place on 6 November 2008. On 	this occasion the appellant was present. Once again the appeal was 	adjourned with the stated reasons for adjournment being that the 	appellant should submit to the appeal tribunal details of a further 	hospital consultation. 

13.	The substantive appeal tribunal hearing took place on 3 February 	2009. The appellant was present, and the appeal tribunal noted that it 	had further medical evidence before it. The appeal was disallowed.

14.	On 26 March 2009 an application for leave to appeal against the 	decision of the appeal tribunal was received in the Appeals Service.

15.	On 2 April 2009, the application for leave to appeal was refused by the 	legally qualified panel member (LQPM). 

Proceedings before the Social Security Commissioner

16.	On 29 April 2009 a further application for leave to appeal was received 	in the Office of the Social Security Commissioners and Child Support 	Commissioners.

17.	On 16 June 2009 observations were sought from Decision Making 	Services (DMS) and these were received on 8 July 2009. DMS 	opposed the application on the grounds cited by the appellant but 	supported the application on the basis of a further identified ground. 

18.	Observations were shared with the appellant on 8 July 2009.

Errors of law

19.	A decision of an appeal tribunal may only be set aside by a Social 	
	Security Commissioner on the basis that it is in error of law.

20.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in 	Great Britain have referred to the judgment of the Court of Appeal for 	England and Wales in R(Iran) v Secretary of State for the Home 	Department ([2005] EWCA Civ 982), outlining examples of commonly 	encountered errors of law in terms that can apply equally to appellate l	egal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.” 

The submissions of the parties

21.	In the application for leave to appeal to the Social Security 	Commissioner, the appellant has submitted that the appeal tribunal 	discarded very detailed medical evidence about his condition which he 	regarded as a very partial stance to take.

22.	In their written observations on the application for leave to appeal, 	DMS have opposed the application on the grounds cited by the 	appellant but supported the application on the basis of a further I	identified ground. The further identified ground relates to how the 	appeal tribunal dealt with the supersession decision, and in submitting 	that the decision of the appeal tribunal was in error of law, DMS have 	relied on my own decision in C12/08-09(DLA) and, more particularly, 	my comments at paragraph 52 of that decision. 

The appeal tribunal’s powers with respect to supersession decisions

23.	A Tribunal of Commissioners in Great Britain, in R(IB) 2/04, undertook 	an extensive analysis of the legislative provisions relating to decision-	making and appeals.  In Great Britain these provisions are the Social 	Security Act 1998 and the Social Security and Child Support (Decisions 	and Appeals) Regulations 1999, both as amended.  In Northern Ireland 	these provisions are the Social Security (Northern Ireland) Order 1998 	and the Social Security and Child Support (Decisions and Appeals) 	Regulations (Northern Ireland) 1999, both as amended.  To all intents 	and purposes the legislative provisions with respect to decision-making 	and appeals in Great Britain and Northern Ireland are identical.

24.	At paragraph 73, of R(IB) 2/04, in discussing the appeal tribunal’s 	powers with respect to supersession decisions:

‘… it follows from our reasoning … that the appeal tribunal has jurisdiction, on appeal, to decide whether the outcome arrived at by that decision (i.e. either to change or not to change the original decision) was correct. This will or may involve deciding (a) whether one of the statutory supersession grounds (whether the one relied upon by the decision-maker or not) applied and (b) if so whether the original decision ought to be changed.’

25.	The grounds upon which a decision can be superseded are to be found 	in regulation 6 of the Social Security and Child Support (Decisions and 	Appeals) Regulations (Northern Ireland) 1999, as amended.

The context of C12/08-09(DLA)

26.	It is important that my comments at paragraph 52 of C12/08-09(DLA) 	are seen in the context of the remainder of that decision. 

27.	In that case, the social security benefit under consideration was 	disability living allowance (DLA). The decision under appeal to the 	appeal tribunal was a decision in which a decision-maker decided to 	supersede an earlier decision of the Department and, further, decided 	that the appellant was not entitled to any rate or component of DLA, 	from a specific date. The earlier decision of the Department had 	included an award of entitlement to DLA.

28.	The decision-maker had determined that the evidence available to him 	suggested that there had been an improvement in the appellant’s care 	needs sufficient to amount to a relevant change of circumstances, 	since the earlier decision had been made, and satisfying regulation 	6(2)(a)(i) of the Social Security and Child Support (Decisions and 	Appeals) Regulations (Northern Ireland) 1999, as amended.

29.	The decision-maker had determined that there was also sufficient 	evidence to further decide that the appellant did not satisfy the 	conditions of entitlement to either component of DLA from and 	including a specific date.

30.	The decision-maker had also set out the legal basis upon which 	entitlement to DLA was removed from a specific date (‘the effective 	date of supersession’).

31.	In C12/08-09(DLA), at paragraphs 33 to 36, I set out the duties of the 	appeal tribunal with respect to the decision-making process:

		’33.	Accordingly, the first task of the appeal tribunal was to 	determine whether the decision-maker, on 24 March 2007, 	had grounds to supersede the earlier decision of the 	Department, dated 29 November 1996.

		34.	If the appeal tribunal determined that the decision-maker, on 	24 March 2007, did not have grounds to supersede the 	decision dated 29 November 1996, then that latter decision 	would continue to have effect.

		35.	If the appeal tribunal determined that the decision-maker, on 	24 March 2007, did have grounds to supersede the decision 	dated 29 November 1996, then the appeal tribunal could 	have gone on to consider entitlement to benefit, in light of the 	substantive rules for entitlement to DLA.

		36.	Finally, the appeal tribunal was under a duty to determine the 	effective date from which any supersession decision should 	take effect.’

32.	The approach taken by the appeal tribunal in C12/08-09(DLA) was in 	error in the following way. Neither the decision notice prepared by the 	LQPM of the appeal tribunal, nor the statement of reasons for the 	appeal tribunal’s decision, dealt with the issue of supersession to any 	degree of sufficient detail. As I noted at paragraphs 44 to 45:

		’44.	What the decision notice and statement of reasons does tell 	the appellant is that the appeal tribunal has determined and 	agrees that the appellant should not have an entitlement to 	either component of DLA from a specific date, and then 	something of the evidential basis for its conclusions on that 	issue.

		45.	What the decision notice and statement of reasons does not 	inform the appellant is:
			(i)	that the appeal tribunal has addressed the issue of 	whether the Department had a legal and evidential basis 	for reconsidering and changing its earlier decision; and
			(ii)	the effective date from which any new decision should 				take effect.’
 
33.	In their written observations on the appeal in C12/08-09(DLA), DMS 	had submitted that while the appeal tribunal did not specifically refer to 	the grounds for supersession in the conclusion to its statement of 	reasons, and while it may have been preferable for it to have done so, 	in concluding that no award of DLA was appropriate it was implicit that 	the appeal tribunal considered that grounds for supersession existed to 	remove the award, namely a relevant change of circumstances.

34.	I rejected that submission from DMS, and concluded, at paragraph 48:

		‘The appeal tribunal was under a specific duty to determine whether 	the decision under appeal was correct.  As that decision was a 	supersession decision the duty was to determine whether there 	were grounds to supersede under regulation 6 of the Social 	Security and Child Support (Decisions and Appeals) Regulations 	(Northern Ireland) 1999, as amended.’

35.	Finally I stated, at paragraph 52 that:

		‘The appeal tribunal’s duty is not only to consider the supersession 	issue, including grounds, entitlement and effective date, but to 	make clear that it has done so.  It is not sufficient for it to be, as 	DMS suggests, implicit from the appeal tribunal’s documentation 	that the supersession issue was addressed.  That consideration 	must be explicit from the decision notice, the statement of reasons 	or a combination of both.  In the present case, I am of the view that 	it is not even implicit that consideration was given to the 	supersession issue.

36.	It was in the context of the submission made by DMS, and my rejection 	of the argument that it could be implied from the appeal tribunal’s 	reasoning, that my comments at paragraph 52 were derived.

37.	As was noted above, where the decision under appeal is a 	supersession decision, it is important that the appeal tribunal considers 	whether the decision-maker had grounds to supersede, and to 	determine the effective date from which any supersession decision 	should take effect. It is important to note that the grounds on which a 	decision may be superseded, under regulation 6 of the Social Security 	and Child Support (Decisions and Appeals) Regulations (Northern 	Ireland) 1999, as amended, are varied. Each ground will have its own 	requirements, legal and evidential. Further, while most regulation 6 	grounds have a general relevance to all social security benefit 	decision-making, some grounds will have a more specific relevance to 	decision-making in respect of particular social security benefits.

38.	For example, the principal ground for supersession in IB cases is to be 	found in regulation 6(2)(g) of the Social Security and Child Support 	(Decisions and Appeals) Regulations (Northern Ireland) 1999, as 	amended. Regulation 6(2)(g) reads as follows:

	 ‘(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;’

39.	Regulation 6(2)(g) was introduced through amendments introduced in 	1999 through the Social Security and Child Support (Decisions and 	Appeals) (Amendment No. 2) Regulations (Northern Ireland) 1999, as 	amended. The purpose of the amendment was to provide that the 	obtaining of a medical report or medical evidence following an 	examination is in itself a ground for supersession. Previously, case-law 	had held that the obtaining of a new medical opinion did not itself 	amount to a change of circumstances justifying a supersession on that 	ground – R(IS) 2/97 and R(DLA) 6/01.

40.	While regulation 6(2)(g) has been, since its introduction, the principal 	basis on which decisions relating to IB have been superseded, it is 	important to note that this does not mean that there cannot be a 	supersession on any other ground contained in regulation 6 of the 	Social Security and Child Support (Decisions and Appeals) Regulations 	(Northern Ireland) 1999, as amended. It is possible to supersede, for 	example, on the basis that there had been a relevant change of 	circumstances, under Regulation 6(2)(a)(i). To do so, however, would 	require the decision-making authority to identify the relevant change of 	circumstances, and the date from which the supersession took effect.   

41.	Accordingly, depending on the ground relied on by the decision-maker, 	and the desired effect in respect of social security entitlement, the 	analysis of the supersession issue, including grounds, entitlement and 	effective date which may be required may vary. It is arguable that in IB 	cases, the regulation 6(2)(g) ground is intrinsic to the benefit decision 	itself and that, subject to the necessary and sufficient fact-finding, a 	confirmation of the benefit decision by the appeal tribunal will be 	sufficient to confirm that the decision-maker had grounds, under 	regulation 6(2)(g), to supersede the earlier entitlement decision. All will 	depend on the circumstances of each individual case, however.          

The appeal tribunal’s approach to the supersession issue

42.	The statement of reasons for the appeal tribunal’s decision begins with 	the following paragraph:

	‘The Tribunal considered all the oral and written evidence at the 	hearings on 03.02.2009 and on 06.11.2008 in order to decide 	entitlement to Incapacity Benefit credits on the basis of the personal 	capability assessment, at the date of decision, 19.02.2008.’
    
43.	Thereafter there is further reference to the decision which is under 	appeal to the appeal tribunal. 

44.	The decision notice reads as follows:

	‘Disallow. The claimant fails the personal capability assessment 	and is not incapable of all work or entitled to incapacity credits 	from and including 19/2/08’

45.	The reference to ‘all work’ in the decision notice is unusual. At one 	stage, the test for incapacity for work was known as the ‘all work’ test 	but, following reforms introduced in April 2000, through the coming into 	force of the relevant parts of the Welfare Reform and Pensions 	(Northern Ireland) Order 1999, the test became known as the personal 	capability assessment. 

46.	Did the appeal tribunal deal adequately with the supersession issue? It 	is marginal but my conclusion is that it did not. The decision under 	appeal to the appeal tribunal was a decision of the Department, dated 	19 February 2008, which decided that: 

(i)	grounds existed to supersede an earlier decision of the Department, dated 29 June 2005, and which had awarded an entitlement to IB, from and including 10 May 2005; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 19 February 2008. 

47.	The statement of reasons and decision notice are sufficient to deal with 	the second part of the decision but not the first. Having failed 	adequately to determine whether the decision-maker had grounds to 	supersede the earlier decision of the Department, the appeal tribunal 	erred in law.   

The appellant’s grounds for appealing
   
48.	In the application for leave to appeal to the Social Security 	Commissioner, the appellant has submitted that the appeal tribunal 	discarded very detailed medical evidence about his condition which he 	regarded as a very partial stance to take.

49.	An application to the Social Security Commissioner for leave to appeal 	requires the appellant to identify the grounds or basis on which it is 	submitted the decision of the appeal tribunal is in error of law.

50.	Having considered the application made by the applicant, and the 	grounds set out in the application, I am satisfied that no error of law 	can be identified within those grounds. 

51.	It is clear that the appeal tribunal undertook a rigorous and rational 	assessment of all of the evidence before it. 

52.	The appeal tribunal gave a sufficient explanation of its assessment of 	the evidence, explaining why it took the particular view of the evidence 	which it did. Any conflict in the evidence before the appeal tribunal has 	been clearly resolved and explained.   

53.	The appeal tribunal made sufficient findings of fact, relevant to its 	decision, all of which are wholly sustainable on the evidence, and all of 	which are supported by relevant evidence. None of the appeal 	tribunal’s findings are irrational, perverse or immaterial.

54.	The appeal tribunal applied the correct standard of proof, ie on the 	balance of probabilities, having no power to apply any other standard.

55.	All evidential issues raised by the appeal, either expressly or apparent 	from the evidence, were fully examined by the appeal tribunal in 	conformity with its inquisitorial role. 

56.	I have no hesitation in adopting the findings in fact made by the appeal 	tribunal.

Disposal

57.	My decision is that the decision-maker, on 19 February 2008, had 	grounds to supersede the decision dated 29 June 2005 awarding IB 	from and including 30 May 2005. The ground for supersession is to be 	found in regulation 6(2)(g) of the Social Security and Child Support 	(Decisions and Appeals) Regulations (Northern Ireland) 1999, as 	amended, namely that since the decision awarding IB was made, the 	Department has received medical evidence following an examination in 	accordance with regulation 8 of the Social Security (Incapacity for 	Work) (General) Regulations (Northern Ireland) 1995, from a doctor 	referred to in paragraph (1) of that regulation.

58.	The test of incapacity for work, applicable to the appellant, was the 	personal capability assessment. The personal capability assessment is 	an assessment of the extent to which a person who has some specific 	disease or bodily or mental disablement to perform certain of the 	activities as prescribed - section 167A(1), 167C(1) and (2) of the Social 	Security Contributions and Benefits (Northern Ireland) Act 1992.

59.	The prescribed activities are to be found in Parts I and II to the 	Schedule to the Social Security (Incapacity for Work) (General) 	Regulations (Northern Ireland) 1995, as amended.

60.	Adopting the findings of fact made by the appeal tribunal, the 	application of relevant descriptors to relevant activities means that the 	appellant scores 0 points. The appellant, therefore, fails to satisfy the 	personal capability assessment in that he is not incapable, by reason of 	some specific disease or bodily or mental disablement to perform 	certain of the activities as prescribed in the relevant legislation.

61.	The appellant is not, therefore, entitled to IB credits from and including 	19 February 2008, which is the correct date from which the 	supersession decision takes effect.

	(Signed):  K Mullan

	COMMISSIONER

	22 October 2009