JD-v-Department for Social Development (IB) [2011] NICom 143
Decision No:  C24/10-11(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 8 April 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 8 April 2009 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to incapacity benefit (IB) credits from and including 6 October 2008 is confirmed.

	Background

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

(i)	grounds existed to supersede an earlier decision of the Department, dated 19 May 2003, and which had awarded an entitlement to IB credits, from and including 18 June 2003; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 6 October 2008.

3.	The appeal against the decision dated 6 October 2008 was received in the Department on 8 October 2008.  The decision dated 6 October 2008 was reconsidered on 16 November 2008 but was not changed.

4.	The substantive appeal tribunal hearing took place on 8 April 2009.  The applicant was present as was a presenting officer of the Department.  The appeal tribunal disallowed the appeal and confirmed the decision dated 6 October 2008.

5.	On 28 April 2009 an application for leave to appeal to the Social Security Commissioner was received in The Appeal Service (TAS).  On 22 July 2009 the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

6.	On 15 December 2009 a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.

7.	On 25 February 2010 observations were sought from Decision Making Services (DMS) and these were received on 15 March 2010.  DMS supported the admission of the late appeal, opposed the application on most of the grounds submitted by the applicant but supported the application on certain other submitted grounds.

8.	Observations were shared with the appellant and the appellant’s representative, Councillor Robert Smith, on 8 April 2010.  On 24 May 2010 further correspondence was received from the appellant’s representative which was shared with DMS on 25 May 2010.  On 7 June 2010 the late application was accepted for special reasons.

9.	There then followed a delay in the promulgation of this decision as certain of the issues arising in this appeal were considered by me in other appeals.

	Errors of law

10.	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.

11.	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

12.	In the application for leave to appeal to the Social Security Commissioner, the appellant has submitted that the decision of the appeal tribunal was in error of law in that he had not been given a fair hearing.  More particularly, the appellant set out the details of his medical condition and the impact of that medical condition on his ability to walk.  The appellant indicated that he was due to undergo further tests in connection with his breathlessness and that his condition had not been fully evaluated.

13.	In further correspondence dated as received on 24 May 2010, the appellant’s representative submitted that the appellant had problems with alcohol dependence, severe mood swings and deep depression which severely limited his ability to function and meant that the appellant was prone to self neglect.  The appellant’s representative submitted that the appeal tribunal failed to address these aspects of the appellant’s daily living and, as a result, the appellant did not receive a fair hearing.

14.	As was noted above, in written observations on the application for leave to appeal, DMS opposed the application on most of the grounds submitted by the applicant but supported the application on certain other submitted grounds.

	Analysis

15.	Having considered the application made by the appellant, the grounds set out in the application, and the further submissions made by the appellant’s representative, I am satisfied that no error of law can be identified.

16.	More particularly, it is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it.  The record of proceedings for the appeal tribunal hearing demonstrates that the appeal tribunal had before it the appeal submission which included:

(i)	a report from the appellant’s general practitioner (GP) dated 29 April 2008;

(ii)	the appellant’s completed IB50 questionnaire;

(iii)	the report of the examination conducted by the medical officer of the Department;

(iv)	the appellant’s letter of appeal.

17.	The file from TAS also records receipt from the appellant of correspondence from his GP, dated 28 January 2009, which was included in the papers which were before the appeal tribunal.  The record of proceedings also notes that the appeal tribunal had before it correspondence from the appellant’s representative and was supplied, as part of the hearing, with a further report of a medical examination undertaken by a medical officer of the Department in February 2008 and a personal capability assessment score sheet.  The appellant also gave oral evidence to the appeal tribunal.

18.	In my view, 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.  Further, 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.  All 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.  I cannot agree, therefore, with the appellant, that his medical conditions were not assessed by the appeal tribunal.  It is clear that the appeal tribunal undertook a detailed analysis of all of the evidence which was before it, in arriving at its conclusions.

19.	The proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to, such principles.  It is clear that the appellant was given every opportunity to give his oral evidence, and make submissions in connection with the issues arising in his appeal.

20.	Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.  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.

21.	Finally, I have considered the appellant’s submission, in the application for leave to appeal that he was due to undergo further tests in connection with his problems with breathlessness.  Having considered the record of proceedings for the appeal tribunal hearing, I have noted that there was no reference by the appellant to the fact that he was due to undergo further tests and assessments.  In A63/95(DLA), the then Chief Social Security Commissioner stated, at paragraph 7:

‘A Tribunal can clearly not be faulted for failing to take account of evidence which was not made available at the hearing.’

22.	Accordingly, I cannot find the decision of the appeal tribunal to be in error of law on the basis that it failed to take account of evidence which had not been made available to it.

23.	I have also considered the submission made by the appellant’s representative that the appeal tribunal failed to take into account the appellant’s problems with alcohol dependency, ‘severe mood swings’ and ‘deep depression’.

24.	I have noted that in the medical report, completed by the appellant’s GP on 29 April 2008, and a copy of which was attached to the original appeal submission as Tab No 2, the GP makes no mention of any problems with alcohol dependency or depression/mood.  At page 16 of the IB50 questionnaire, attached to the original appeal submission as Tab No 4, the appellant was asked whether he had been treated for anxiety, depression or mental illness, and answered this question by ticking the box ‘no’.  The appellant made no reference to problems with alcohol dependency or depression/mood, in his evidence to the medical officer of the Department (Tab No 5), or in his letter of appeal (Tab No 8).  In his oral evidence to the appeal tribunal, the appellant gave evidence that he had ‘… no problem now with alcohol’.

25.	I have also noted that the appeal tribunal considered all of the evidence in connection with depression and gave a clear indication, in the statement of reasons, why it considered that the activities set out in Part II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, did not require to be applied.  Accordingly, I also reject this ground for seeking leave to appeal.

	The ‘errors’ identified by DMS

26.	In written observations on the application for leave to appeal, DMS opposed the application on the grounds cited by the appellant, but identified what were submitted to be further errors in law.  These further errors related to how the appeal tribunal dealt with the issues of supersession and the application of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

27.	In making the submission in connection with the supersession issue, DMS relied on my decisions in C12/08-09(DLA) and C3/09-109(IB).  I have clarified my comments in C12/08-09(DLA) in many decisions since that decision was disseminated.  I would repeat that it was in the context of the submission made by DMS in C12/08-09(DLA), and my rejection of the argument that it could be implied from the appeal tribunal’s reasoning that it had considered whether the decision-maker had established grounds to supersede, that my comments at paragraph 52 were derived.

28.	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.

29.	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;’

30.	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)297 and R(DLA)6/01.

31.	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.

32.	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.

33.	In the instant case, I am satisfied that although the issue is marginal, the appeal tribunal did address, in an adequate manner, the supersession issue.  It recognised and confirmed the outcome decision under appeal.  While it would have been beneficial for the appeal tribunal to identify that the grounds to supersede were those found in regulation 6(2)(g) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, this is one of those cases where 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 is sufficient to confirm that the decision-maker had grounds, under regulation 6(2)(g), to supersede the earlier entitlement decision.

34.	In any event, and absent the error with respect to the evidential assessment set out above, if I had been wrong in respect of my conclusions with respect to the supersession issue, I would have been content 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.

35.	In the written observations on the application for leave to appeal, DMS has also submitted that:

‘In determining whether or not (the claimant) was incapable of work in accordance with the PCA the tribunal had to consider whether or not regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 applied to him.  This regulation sets out certain “exceptional circumstances” under which a claimant can be treated as incapable of work where it has already been determined he is not incapable in accordance with the PCA.  At paragraph 52 of unreported Northern Ireland decision C 5/08 -09(IB) Commissioner Mullan addressed the issue of a tribunal’s responsibility, once it has decided the claimant is not incapable of work in accordance with the PCA:-

“…the appeal tribunal was under a duty to consider whether the appellant satisfied any of the exceptional circumstances set out in regulation 27…..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 the circumstances of the present case the tribunal found that (the claimant) was not incapable of work in accordance with the PCA.  I would submit that it was therefore obliged to consider whether not he satisfied any of the exceptional circumstances set out in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.  In the light of the case law referred to above there was a duty on the tribunal to acknowledge that it has considered the exceptional circumstances.  However I can find nothing in the tribunal’s reasons to indicate that it considered if any of the exceptional circumstances applied to (the claimant).  For that reason I submit that the tribunal has erred in law.’

36.	The reference to paragraph 54 should be to paragraph 52.  More importantly, however, the comments made in the relevant paragraph about the application of regulation 27 have to be read in the context of the particular facts of that case.

37.	The potential application of regulation 27 was a real issue in C5/08-09(IB).  The appellant in that case had undergone a surgical procedure after being subject to a medical examination by a medical officer of the Department.  The medical officer, in the report of a medical examination, undertaken as part of the personal capability assessment, had given an opinion as to whether the relevant surgical procedure was such as to take the appellant within the exceptional circumstance in regulation 27(d).  In his letter of appeal, the appellant had made reference to having been in recovery following a knee operation.  The appeal writer, in the appeal submission, had addressed the potential applicability of regulation 27.  At paragraph 40, and following a description of that background, I stated that:

‘It was clear, therefore, that the issue of the possible application of regulation 27 was one of the issues that was raised by the appeal and was one which required to be addressed by the appeal tribunal.’

38.	It was in the context of the clear failure by the appeal tribunal to address the issue of the potential application of regulation 27, after it had been raised by the appeal, that my comments in paragraph 52 were made.

39.	It is important to note that at paragraphs 54 and 55, I stated:

‘54.	I would note, at this stage, that in the majority of cases in which an appeal tribunal is considering whether the appellant is incapable of work in accordance with the personal capability assessment, the further issues of whether he also satisfies the exceptional circumstances in regulation 27, will not be relevant.  Nonetheless, it will be safest and best practice for appeal tribunals to note that the regulation was considered.  I am aware that many LQPMs of appeal tribunals have aide-memoirs to assist in ensuring that all issues in connection with personal capability assessment appeals have been considered.  In my view, such aide-memoirs should also contain a reminder to consider regulation 27.  Where a statement of reasons for the appeal tribunal’s decision is requested it will also be safest and best practice to make a reference therein that the application of regulation 27 was considered but was discounted.  That will not be an onerous duty for appeal tribunals.  Where regulation 27 is not relevant a simple statement to that effect is sufficient.

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.’

40.	In the instant case, and on the basis of an assessment of all of the relevant evidence, it is clear that the substantive issue raised by the appeal was whether the appellant was incapable of work in accordance with the personal capability assessment, the further issue of whether he also satisfied the exceptional circumstances in regulation 27, was not relevant.  While, in accordance with paragraph 54 of C5/08-09(IB), it would have been safest and best practice for the appeal tribunal, in the statement of reasons for its decision, to make a reference therein that the application of regulation 27 was considered but was discounted, its decision is not in error of law for having failed so to do.

	Disposal

41.	The decision of the appeal tribunal dated 8 April 2009 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to IB credits from and including 6 October 2008 is confirmed.

(signed):  K Mullan

Commissioner

4 February 2011