SD-v-Department for Social Development (IB) [2010] NICom 107
Decision No:  C19/10-11(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 15 January 2009

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

2.	The decision of the appeal tribunal dated 15 January 2009 is in error of law.  The error of law identified will be explained in more detail below.  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.

3.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because I have identified that the appeal tribunal ought to have considered the potential applicability of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995, as amended.  The appellant may wish to adduce evidence in connection with that issue and specific findings in fact will have to be made in connection with that issue.  I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

4.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

5.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to incapacity benefit (IB) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background

6.	The decision under appeal to the appeal tribunal was a decision of the Department, dated 1 October 2008, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, dated 27 July 2007, and which had awarded an entitlement to IB credits, from and including 25 April 2007;

(ii)	the grounds were that there had been a relevant change of circumstances since the decision dated 27 July 2007, namely that the appellant had failed to provide medical evidence of his incapacity for work from 18 September 2008; and

(iii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB credits from and including 18 September 2008.

7.	The appeal was received in the Department on 14 October 2008.  On 4 December 2008 the decision dated 1 October 2008 was looked at again but was not changed.

8.	The substantive appeal tribunal hearing took place on 15 January 2009 as a ‘paper’ hearing.  The appellant through completion of Form REG2(i)d on 19 December 2008 had indicated that he was content for the appeal to proceed without an oral hearing.  The appeal was disallowed.

9.	On 2 February 2009 an application was received in The Appeals Service (TAS) from the IB appeals team to have the record of the decision of the appeal tribunal corrected on the submitted basis that the appeal tribunal had disallowed entitlement to IB credits from the incorrect date.

10.	On 7 February 2009 the legally qualified panel member (LQPM) decided that she did not consider it appropriate to correct the record of the decision of the appeal tribunal.

11.	On 19 April 2009 an application for leave to appeal against the decision of the appeal tribunal was received in TAS.  On 20 April 2009, the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

12.	On 8 June 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 23 September 2009 I accepted the late application for special reasons.

13.	On 23 September 2009 observations were sought from Decision Making Services (DMS), and these were received on 15 October 2009.  In these observations DMS opposed the application on the grounds cited by the appellant, but identified two further errors on which basis DMS submitted the decision of the appeal tribunal was in error of law.  The observations from DMS were shared with the applicant on 4 November 2009.

14.	On 8 April 2010, I requested DMS to provide observations on a specific question directed to them.  Further written observations in response to this request were received on 29 April 2010.  These further observations were shared with the appellant on 18 May 2010.  In the meantime, further correspondence was received from the applicant on 12 May 2010.  Further correspondence in connection with the further observations from DMS was received on 9 June 2010.

	Errors of law

15.	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.

16.	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.”

	Was the decision of the appeal tribunal in the instant case in error of law?

	The submissions of the parties

17.	In the application for leave to appeal to the Social Security Commissioner, the applicant submitted that the decision of the appeal tribunal was in error of law on a number of grounds and indicated that he was also seeking to rely on the arguments which he had submitted before.  In that respect I have taken into account the submissions which were made by the applicant in the original application for leave to appeal which was made to the LQPM.

18.	In summary, the applicant:

(i)	challenges the conclusions and findings of the medical officer of the Department as misleading and submits that such conclusions and findings cannot be relied on due to the brevity of the examination;

(ii)	sets out in detail the degree of functional limitation resultant on his range of physical and mental disabilities;

(iii)	raises a specific challenge to the findings and conclusions with respect to various physical activities associated with the personal capability assessment and, in particular, with respect to bending and kneeling;

(iv)	sets out how his mental health problems affect him in the areas of completion of daily tasks, daily living, coping with pressure and interaction with other people;

(v)	submits that he has had an entitlement to the relevant benefit for some time and challenges the policy reasons for taking him off that benefit.

19.	In the written observations on the application for leave to appeal, DMS have opposed the application on the basis of the grounds submitted by the applicant but submitted that the decision of the appeal tribunal was in error of law on the basis of two other identified grounds.

20.	The first ground was summarised as follows:

	‘Whether the appeal tribunal was correct to disallow entitlement to incapacity benefit credits from the date identified in the decision notice, given the subsequent application by the Department for correction of an accidental error in that decision notice.

	In this case (the claimant) was initially treated as being incapable of work pending an assessment being carried out under the PCA.  One of the conditions that allowed for this was the provision of medical evidence of his incapacity for work (regulation 28(2) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.  As (the claimant) failed to supply this evidence from 18 September 2008 the award of Credits was superseded from this date (as stated in Department’s decision and subsequently its submission).  Furthermore as the test for incapacity was the PCA this had to be carried out, hence a further decision from and including 1 October 2008.

	The Department in identifying the disallowance date referred to article 7(2)(c)(v) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999.  This states:

“7. –  (1)…

(2) Where a decision under Article 11 is made on the ground that there has been, or it is anticipated that there will be, a relevant change of circumstances since the decision had effect or, in the case of an advance award, since the decision was made, the decision under Article 11 shall take effect – 

(c)	where the decision is not advantageous to the claimant –

(v) in any other case, except in the case of a decision which supersedes a disability benefit decision from the date of change.”

As there had been a relevant change of circumstances in this case (namely the failure to provide medical evidence) I would contend that the above legislation enabled the Department to supersede the decision awarding incapacity credits with effect from 18 September 2008.

The tribunal in the statement of reasons stated the following:

“…We did not consider it appropriate to disallow from an earlier date.”

In view of the above I would contend that the tribunal erred in disallowing incapacity credits from and including 1 October 2008.’

21.	The second ground was summarised as follows:

‘I would submit that there is a further error in law in the tribunal’s failure to consider whether regulation 27 of the Social Security (incapacity for Work) (General) Regulations 1995 applied in this case.  This provision provides:

’27. A person who is not incapable of work in accordance with the personal capability assessment shall be treated as incapable of work if –

(a)	he suffers from a previously undiagnosed potentially life-threatening condition;

(b)	he suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work;

(c)	he suffers from a severe uncontrolled or uncontrollable disease; or

(d)	he will, within three months of the date on which the doctor examines him, have a major surgical operation or other major therapeutic procedure,’

In paragraph 52 of unreported decision C5/08-09(IB) Commissioner Mullan considered whether this provision and stated:

“…the primary issue before the appeal tribunal was whether the appellant was incapable of work in accordance with the personal capability assessment.  Having done so….the appeal tribunal was under a duty to consider whether the appellant satisfied any of the exceptional circumstances set out in regulation 27 applied to him.  That required the appeal tribunal to acknowledge, in its statement of reasons, that the application of regulation 27 was considered by the appeal tribunal.  It required the appeal tribunal to make sufficient findings of fact in connection with those exceptional circumstances.”

In paragraph 54 Commissioner Mullan while acknowledging that in the majority of cases where the tribunal is considering whether a claimant is incapable of work in accordance with the personal capability assessment the further issue of whether the exceptional circumstances are satisfied would not be relevant, nevertheless concluded that it would be best practice for the tribunal to record in its statement of reasons that it considered regulation 27 but discounted it.

He went on to state, in paragraph 55:-

“Where, of course, regulation 27 has a potential relevance there is a greater duty on the appeal tribunal to consider that application, as indicated in paragraph 52 above.”

As the tribunal awarded 2 points for descriptor 17(a) (mental stress being a factor in making him stop work) I would submit that this is an indication regulation 27 was potentially relevant.  Therefore I would submit that in the light of the above case law the tribunal erred in law.’

My analysis

22.	The decision under appeal to the appeal tribunal was a decision of the Department dated 1 October 2008, which decided that:

(a)	grounds existed to supersede an earlier decision of the Department, dated 27 July 2007, and which had awarded an entitlement to IB credits, from and including 25 April 2007;

(b)	the grounds were that there had been a relevant change of circumstances since the decision dated 27 July 2007, namely that the appellant failed to provide medical evidence of his incapacity for work from 18 September 2008; and

(c)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB credits from and including 18 September 2008.

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

‘Appeal Disallowed

		Appellant is not incapable of work in accordance with the personal capability assessment and is not entitled to Incapacity Credits from the [sic] 1/10/08’

24.	In the statement of reasons for the appeal tribunal’s decision it is recorded that:

‘… The Department, following the receipt of medical evidence from a doctor approved by the Department had grounds to supersede the decision awarding Incapacity Credits.  The Appellant is not entitled to Incapacity Credits from 1 October 2008 being the date of the decision made to disallow the benefit.  We did not consider it appropriate to disallow from an earlier date.’

25.	The legislative provisions which make provision for the supersession of decisions, and the date from which a supersession decision should take effect, namely Article 11 of the Social Security (Northern Ireland) Order 1998 and regulations 6 and 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, are complex.

26.	An appeal tribunal is under a specific duty to determine whether the decision under appeal was correct.  If that decision is a supersession decision the duty is 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.  If the appeal tribunal determines that the decision-maker did not have grounds to supersede the earlier decision then that decision would continue to have effect.  If the appeal tribunal determines that the decision-maker did have grounds to supersede the earlier decision then the appeal tribunal could have gone on to consider entitlement to benefit.  Finally, and equally importantly, the appeal tribunal is under a duty to determine the effective date from which any supersession decision should take effect.

27.	Regulation 6(2)(g) Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 provides that:

‘(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;’

28.	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.

29.	Regulation 6(2)(g) has been, since its introduction, the principal basis on which decisions relating to IB have been superseded.  It is the ‘natural’ ground for superseding in IB cases.  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 would require the decision-making authority to identify the relevant change of circumstances, and the date from which the supersession took effect.

30.	As was noted above, Mr Hinton, for DMS, has submitted that in the instant case, the ground for superseding was a relevant change of circumstances.  Accordingly, the rule for establishing the effective date of the supersession was to be found in regulation 7(2)(c)(v) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

31.	Regulation 7(2)(c)(v) provides that:

‘(2) Where a decision under Article 11 is made on the ground that there has been, or it is anticipated that there will be, a relevant change of circumstances since the decision had effect or, in the case of an advance award, since the decision was made, the decision under Article 11 shall take effect – 

(c)	where the decision is not advantageous to the claimant –

(v) in any other case, except in the case of a decision which supersedes a disability benefit decision from the date of change.’

32.	Regulation 7(2)(c)(v) was introduced, to deal, in part, with the outcome of the decision of the Commissioner in Great Britain in R(IB)1/05.  In that decision, the Commissioner held that:

(i)	ceasing to satisfy a condition for regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995, as amended, by not sending in medical evidence was not a change of circumstances that justified a superseding decision removing entitlement to incapacity credits;

(ii)	that particular change of circumstances only showed that the claimant could not be treated as incapable of work in accordance with the personal capability assessment;

(iii)	the relevant change of circumstances was the carrying out of the personal capability assessment in which it was determined that the claimant was not incapable of work.

33.	Further, if the claimant failed the personal capability assessment, there would be a supersession for relevant change of circumstances but, under the provisions for the effective date of supersession which applied at that time, the effective date could not be the date of the ceasing to comply with regulation 28 but had to be the date of the decision.

34.	In the instant case, the appellant failed to send in medical evidence in accordance with the requirement set out in regulation 28 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, which is in the same terms as regulation 28 in Great Britain.  The failure was from 18 September 2008.  As set out in R(IB) 2/05, that was not a change of circumstances which could ground a supersession decision.  There was a requirement to carry out a personal capability assessment, the failure of which could be the relevant change of circumstances, sufficient to ground a supersession.  The decision incorporating the failure of the personal capability assessment was dated 1 October 2008.

35.	The amendment to regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 and, in particular, the introduction of regulation 7(2)(c)(v) permitted the effective date of the supersession to be 18 September 2008 rather than the date of the decision, 1 October 2008.

36.	Accordingly, the decision by the appeal tribunal, that the effective date of supersession was 1 October 2008, was in error of law.  I would add, however, that the appeal tribunal was not assisted in its decision-making process by the appeal submission prepared for the oral hearing of the appeal.  The appeal submission does not refer the appeal tribunal to the relevant rule for the effective date of supersession in the circumstances of the appeal.  Further, the legislative provisions themselves and the amendments to those provisions, resultant on the interpretation of them by the Social Security Commissioners, are a distinct labyrinth.  The appeal tribunal may also have been misled by the fact that the decision dated 1 October 2008 had to be a ‘composite’ decision incorporating a supersession for a relevant change of circumstances and the personal capability assessment.

37.	I would add that the challenge to the correctness of the decision notice prepared by the appeal tribunal, through the procedures set out in regulation 56 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, which provides for the correction of ‘accidental’ errors in the decision notice, did not set out the legal basis on which it was submitted that the contents of the decision notice were incorrect.

	The regulation 27 issue

38.	Regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995 provides:

‘27.  A person who is not incapable of work in accordance with the personal capability assessment shall be treated as incapable of work if –

(a)	he suffers from a previously undiagnosed potentially life-threatening condition;

(b)	he suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work;

(c)	he suffers from a severe uncontrolled or uncontrollable disease; or

(d)	he will, within three months of the date on which the doctor examines him, have a major surgical operation or other major therapeutic procedure,’

39.	In paragraph 52 of C5/08-09(IB) I stated, in connection with regulation 27:

‘…the primary issue before the appeal tribunal was whether the appellant was incapable of work in accordance with the personal capability assessment.  Having done so….the appeal tribunal was under a duty to consider whether the appellant satisfied any of the exceptional circumstances set out in regulation 27 applied to him.  That required the appeal tribunal to acknowledge, in its statement of reasons, that the application of regulation 27 was considered by the appeal tribunal.  It required the appeal tribunal to make sufficient findings of fact in connection with those exceptional circumstances.’

40.	In paragraph 54, while acknowledging that in the majority of cases where the tribunal is considering whether a claimant is incapable of work in accordance with the personal capability assessment the further issue of whether the exceptional circumstances are satisfied would not be relevant, I concluded that it would be best practice for the tribunal to record in its statement of reasons that it considered regulation 27 but discounted its application.

41.	I went on to state, in paragraph 55:-

‘Where, of course, regulation 27 has a potential relevance there is a greater duty on the appeal tribunal to consider that application, as indicated in paragraph 52 above.’

42.	In the instant case, the appellant, in the IB50 questionnaire completed as part of the decision-making process, and in his letter of appeal, outlined problems which he had with social interaction and personal relationships.  In the report of the medical examination undertaken by the medical officer of the Department, the medical officer accepted that the appellant was ‘scared or anxious that work would bring back or worsen [his] illness’.  The decision-maker accepted this opinion and applied descriptor 17(a) from Part II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, awarding 2 points.  In further correspondence resultant on the application for leave to appeal to the Social Security Commissioner, the appellant makes reference to his inability to function in a working environment.

43.	Although the issue is marginal, it seems to me that the appeal tribunal, given the totality of the evidence, ought to have considered the potential applicability of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995, as amended.

	The appellant’s other grounds for appealing

44.	Having found that the decision of the appeal tribunal is in error of law, on the basis of the reasoning set out above, I do not have to consider the appellant’s other grounds for appealing.  I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds cited by the appellant.  The appellant’s application for leave to appeal to the Social Security Commissioner amounts to a further submission on factual issues rather than questions of law.  It is clear that an appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence, when that assessment has already been fully and thoroughly undertaken.

	Disposal

45.	The decision of the appeal tribunal dated 15 January 2009 is in error of law.  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.

46.	I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because I have identified that the appeal tribunal ought to have considered the potential applicability of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995, as amended.  The appellant may wish to adduce evidence in connection with that issue and specific findings in fact will have to be made in connection with that issue.  I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

47.	I direct that the Department prepares a new submission for the hearing to be conducted by the differently constituted appeal tribunal.  The new submission should address all of the issues relating to the supersession decisions undertaken in this case, and highlight the relevant legislative provisions with respect to the effective date of supersession, and their effect.  The new submission should also address the potential applicability of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995, as amended.  The new submission should also address any further decisions in connection with social security benefit entitlement which have been made since the date of the decision under appeal.

48.	The appellant had provided a plethora of evidence in connection with his application for leave to appeal to the Social Security Commissioner.  He will wish to consider whether to forward that evidence in connection with the appeal before the differently constituted appeal tribunal.  He will also wish to consider whether he wishes to attend the oral hearing of the appeal before the differently constituted appeal tribunal and/or seek representation in connection with the same.

(signed):  K Mullan

Commissioner

10 November 2010