JO-v-Department for Social Development (IB) [2011] NICom 149
Decision No:  C25/10-11(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 20 August 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.

2.	The decision of the appeal tribunal dated 20 August 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.	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.

4.	My decision is that the decision-maker on 8 April 2009, had grounds to supersede the decision dated 21 December 2002 awarding incapacity benefit (IB) from and including 15 October 2002.  The appellant is not entitled to IB from and including 8 April 2009.

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

	Background

6.	The decision under appeal to the appeal tribunal was a decision of the Department, dated 8 April 2009, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, dated 21 December 2002, and which had awarded an entitlement to IB, from and including 15 October 2002; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 8 April 2009.

7.	The appeal was received in the Department on 22 April 2009.  On 16 June 2009 the decision dated 8 April 2009 was looked at again but was not changed.

8.	The substantive appeal tribunal hearing took place on 20 August 2009.  The appellant was present.  The appeal was disallowed.

9.	On 19 November 2009 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.  On 7 December 2009, the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

10.	On 11 January 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 5 March 2010 the late application was accepted for special reasons by the Chief Social Security Commissioner who also directed that an oral hearing of the application was not required.

11.	On 23 March 2010 further correspondence was received from the appellant.

12.	On 8 June 2010 observations were sought from Decision Making Services (DMS) and these were received on 1 July 2010.  DMS opposed the application on the grounds cited by the appellant but supported the application on the basis of a further identified ground.  DMS submitted, however, that the Social Security Commissioner should make the decision which the appeal tribunal should have made.  Observations were shared with the appellant on 11 August 2010.  On 18 August 2010 the Citizens Advice Bureau indicated in written correspondence that they would not be representing the appellant in connection with the proceedings before the Social Security Commissioner.

	Errors of law

13.	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.

14.	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

15.	In the application for leave to appeal to the Social Security Commissioner, the appellant has submitted that he was still unfit for work, that his health was bad and supplied further medical evidence from his general practitioner (GP) in support of this submission.  In further correspondence, dated 18 March 2010, he submitted that the tribunal had made a decision supported by no or insufficient evidence, and enclosed further correspondence from his GP.

16.	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 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 as clarified in C3/09-10(IB).  As was noted above DMS also submitted, however, that I should make the decision which the appeal tribunal should have made.

17.	In C3/09-10(IB), I said the following, at paragraphs 26 to 41:

‘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

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

‘Claimant appealed against a Decision made 8th April 2009 that he scored 6 points in respect of physical health descriptors on the Personal Capability Assessment and was not entitled to Incapacity Benefit from that date.’

19.	In the final paragraph of the statement of reasons, the appeal tribunal records:

‘Consequently, on the basis of the scores, it is appropriate that the decision awarding Incapacity Benefit should be superseded.  It is not possible to determine when the change in capability occurred and accordingly the appropriate date for supercession [sic] is the date of the decision i.e. 8th April 2009.

20.	The decision notice reads as follows:

‘Claimant scores 6 points on Personal Capability Assessment and is therefore deemed not incapable of work and not entitled to Incapacity Benefit from and including 8th April 2009’

21.	Did the appeal tribunal deal adequately with the supersession issue?  It is marginal but my conclusion is that it did not.  I say that the position is marginal because the appeal tribunal cites a number of legislative provisions in its statement of reasons, including regulation 6(2)(g) of the the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  Additionally, the appeal tribunal identified the correct decision under appeal.

22.	In my view, however, the reference to ‘… change in capability …’ in the statement of reasons is problematic.  As has already been noted, in an IB case, it is possible to supersede a decision awarding entitlement to the benefit, on the basis that there had been a relevant change of circumstances, since the decision was made.  Such a supersession would be made under the legislative power given in regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

23.	To supersede on this basis would require the decision-making authority, in this case the appeal tribunal:

(i)	to identify what the relevant change of circumstances was; and

(ii)	identify the date from which the supersession took effect.

24.	It is my view that the appeal tribunal may have made an error in identifying the correct ground for supersession.  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.  There is a temptation to assume that the natural ground on which a supersession decision has been made is ‘change of circumstances’.  The cases and circumstances under which a decision may be superseded are more varied than ‘change of circumstances’, however, and specific provisions have been included to deal with discrete situations, such as supersessions in respect of IB.

25.	Even if the appeal tribunal had in mind that the correct ground for supersession was a relevant change of circumstances, under regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, it has not explained what that change was and, more importantly, why the change and, by implication the supersession, took effect from the identified date ie 18 July 2007.  Accordingly, even if the appeal tribunal was not in error by failing to identify the correct ground for supersession, it was in error in following through with the ground which it did identify.’

26.	In C9/08-09(IB), I added the following, at paragraphs 43 to 45:

43.	In the present case, it is arguable that the appeal tribunal had in mind, and intended to apply, the regulation 6(2)(a)(i) ‘change of circumstances’ ground, as an alternative to the regulation 6(2)(g) ground, which had formed the basis of the decision under appeal.  To support that argument, the appeal tribunal, in the SORs, has indicated that it is of the view that there has been a relevant change of circumstances, namely an improvement in the appellant’s ‘condition’.  Further, a change of circumstances is mentioned in the appeal tribunal’s decision notice.

44.	I am not convinced, however, that the appeal tribunal did intend to apply the regulation 6(2)(a)(i) ‘change of circumstances’ ground, as an alternative to the regulation 6(2)(g) ground.  Change necessarily involves comparison of the circumstances as they were at the time of the original decision and circumstances at the date of the supersession decision.  There is no further explanation, in the SORs, for example, as to how such a comparison was made.

45.	Even if the appeal tribunal had in mind that ‘relevant change of circumstances’ was the correct ground, it has not explained why the change and, by implication the supersession, took effect from the identified date ie 22 August 2007.  Accordingly, even if the appeal tribunal was not in error by failing to identify the correct ground for supersession, it was in error in not following through with the ground which it did identify.’

27.	Accordingly I find that the appeal tribunal erred in law in failing to identify the correct ground for supersession in the present case and I set aside the decision of the appeal tribunal on that basis.

	The appellant’s grounds for appealing

28.	In the application for leave to appeal to the Social Security Commissioner, the appellant has submitted that he was still unfit for work, that his health was bad and supplied further medical evidence from his GP in support of this submission.  In further correspondence, dated 18 March 2010, he submitted that the tribunal had made a decision supported by no or insufficient evidence, and enclosed further correspondence from his GP.

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

30.	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.

31.	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.

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

33.	The appeal tribunal’s application of the applicable legal rules and principles was wholly accurate.

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

	Disposal

35.	My decision is that the decision-maker on 8 April 2009, had grounds to supersede the decision dated 21 December 2002 awarding IB from and including 15 October 2002.  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.

36.	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.

37.	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.

38.	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 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.

39.	The appellant is not, therefore, entitled to IB from and including 8 April 2009, which is the correct date from which the supersession decision takes effect.

(signed):  K Mullan

Commissioner

16 February 2011