Decision No:  C5/09-10(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 13 November 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the application 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 13 November 2008 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 5 June 2008, had grounds to supersede the decision dated 25 February 2008 awarding incapacity benefit (IB) from and including 19 October 2007. The appellant is not entitled to IB from and including 5 June 2008.

7.	Accordingly, although the appeal to the Social Security Commissioner succeeds, the practical outcome for the appellant, in terms of her entitlement to IB, 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 5 June 2008, which decided that: 

(i)	grounds existed to supersede an earlier decision of the Department, dated 25 February 2008, and which had awarded an entitlement to IB, from and including 19 October 2007; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 5 June 2008. 

9.	The appeal was received in the Department on 24 June 2008.

10.	On 6 August 2008 the decision dated 5 June 2008 was looked at again but was not changed.

11.	The substantive appeal tribunal hearing took place on 13 November 2008. The appellant was present, and was accompanied by her husband. The appeal was disallowed.

12.	On 12 February 2009 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.

13.	On 26 February 2009, the application for leave to appeal was refused by the legally qualified panel member. 

	Proceedings before the Social Security Commissioner

14.	On 18 March 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.

15.	On 12 June 2009 observations were sought from Decision Making Services (DMS) and these were received on 27 June 2009. In these observations DMS opposed the application on the grounds cited by the appellant. DMS submitted, however, that the decision of the appeal tribunal was in error of law on the basis of its failure to address the issue of supersession. DMS requested that I should decide that the decision-maker, on 5 June 2008, was correct to find that: 

(iii)	grounds existed to supersede an earlier decision of the Department, dated 25 February 2008, and which had awarded an entitlement to IB, from and including 19 October 2007; and

(iv)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 5 June 2008. 

16.	Observations were shared with the appellant on 30 June 2009.

	Errors of law

17.	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.

18.	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 legal 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

19.	In the application for leave to appeal to the Social Security Commissioner, the appellant had submitted that: 

(i)	she is not able to work reliably at all; 

(ii)	that she is unable to undertake any work, even up to the permitted work levels; and

(iii)	to support the above, her general practitioner believes that she is incapable of work and that her previous employer terminated her employment due to her ill-health and her incapacity.

20.	In their written observations on the initial application for leave to appeal, DMS opposed the application on the grounds cited by the appellant, but also submitted that the decision of the appeal tribunal was in error of law on the basis of its failure to address the issue of supersession. In making this submission, DMS relied on my decision in C12/08-09(IB).

	The supersession issue

21.	In the written observations on the application for leave to appeal to the Social Security Commissioner, DMS also stated the following:

‘In this case one of the questions for consideration for the tribunal was whether or not the Department had the power to supersede the decision dated 25 February 2008 awarding incapacity benefit from and including 19 October 2007. In deciding this question the tribunal had to consider if grounds existed to supersede the decision of 25 February 2008, what these grounds were and the effective date of supersession. It is my submission that grounds did in fact exist, namely that the receipt of medical evidence following an examination by a health care professional (regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) regulations (Northern Ireland) and that the effective date was the date of decision 5 June 2008 (article 11(5) of the Social Security (Northern Ireland) Order 1998. Having said that it is my submission that the tribunal has not addressed the issue of supersession either in its statement of reasons or decision notice and in failing to do so has erred in law.’

22.	To support this statement, DMS cited paragraph 52 of my decision in C12/08-09 (DLA).

23.	In C3/09-10(IB), I clarified the context of my decision in C12/08-09(DLA). At paragraphs 26 to 41, I stated: 

‘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.’

24.	How did the appeal tribunal address the supersession issue in the instant case?

25.	The decision notice for the appeal tribunal’s decision reads as follows:

‘Appeal disallowed. 

From and including 5/6/08, (the claimant) is not incapable of work in accordance with the personal capability assessment. She scored 6 pts on above assessment.’          

26.	The statement of reasons for the appeal tribunal’s decision makes no reference to the decision under appeal or any further reference to the final outcome decision of the appeal tribunal.

27.	Did the appeal tribunal deal adequately with the supersession issue? My conclusion is that it did not. The decision under appeal to the appeal tribunal was a decision of the Department, 5 June 2008, which decided that: 

(i)	grounds existed to supersede an earlier decision of the Department, dated 25 February 2008, and which had awarded an entitlement to IB, from and including 19 October 2007; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 5 June 2008. 

28.	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 cited grounds in the application for leave to appeal

29.	As was noted above, in the application for leave to appeal to the Social Security Commissioner, the appellant had submitted that: 

(i)	she is not able to work reliably at all; 

(ii)	that she is unable to undertake any work, even up to the permitted work levels; and

(iii)	to support the above, her general practitioner believes that she is incapable of work and that her previous employer terminated her employment due to her ill-health and her incapacity.

30.	In their written observations on the initial application for leave to appeal, DMS opposed the application on these grounds cited by the appellant.

31.	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.

32.	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. 

33.	In the statement of reasons for the appeal tribunal’s decision, it is accepted by the appeal tribunal that the appellant was medically retired from her previous employment. The fact that the appellant was medically retired, and any agreement with the basis for that retirement by her former employer and general practitioner, are not sufficient to entitle the appellant to IB. The appeal tribunal was under a duty to determine whether there was any entitlement to IB under the legislative provisions relevant to that benefit. 

34.	In the instant case the test which was applicable to the applicant was the extent to which she was incapable of work in accordance with the personal capability assessment, under sections 30A and 167 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, and the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended. As was made clear in CIB/16681/1996, there is no basis for deriving from the relevant legislative provisions that the activities relevant to the personal capability assessment have to be applied in the context of work.  

35.	Thereafter, the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it. 

36.	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.   

37.	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.

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

39.	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. 

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

	Disposal

41.	My decision is that the decision-maker, on 5 June 2008, had grounds to supersede the decision dated 25 February 2008 awarding IB from and including 19 October 2007. 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.

42.	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) Social Security Contributions and Benefits (Northern Ireland) Act 1992.

43.	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.

44.	Adopting the findings of fact made by the appeal tribunal, the application of relevant descriptors to relevant activities means that the appellant scores 6 points. The appellant, therefore, fails to satisfy the personal capability assessment in that she 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.

45.	The appellant is not, therefore, entitled to IB from and including 5 June 2008, which is the correct date from which the supersession decision takes effect.

(signed):  Kenneth Mullan

Commissioner

18 November 2009