R(s) 1/92

Mr. D. G. Rice	CS/292/1989
2.8.91 			
Review - indefinite award - whether different medical opinion justifies a review 
The claimant, who had been incapable of work since 28 January 1986 and was currently in receipt of invalidity benefit, was on 22 November 1988, examined by an examining medical officer of the Department of Social Security. The officer reported that in his view the claimant was capable of work at his normal occupation of joiner. The adjudication officer reviewed the current award, extending from 3 August 1988 to 31 January 1989 (both dates included), and his revised decision was that from and including 23 November 1988 the claimant was no longer entitled to invalidity benefit, because he had not proved that he was incapable of work by reason of some specific disease or bodily or mental disablement. The claimant appealed to the tribunal, challenging the examining medical officer’s assessment of his condition. The tribunal allowed the appeal. The Commissioner decided that the tribunal’s decision was erroneous in law.
Held that:
1.	although it was open to the adjudication officer to review such award, if the claimant ceased to satisfy the requirements for entitlement pursuant to regulation 17(4), it was for him to show that the claimant ceased to qualify (para. 3);
2.	the principle in R(S) 4/86 that an award cannot be reviewed on the basis of a different medical opinion only refers to Section 104(1)(b) of the Social Security Act 1975 and has no relevance to regulation 17(4) of the SS (Claims and Payments) Regulations (para. 4);
3.	the words of regulation 17(3) are wide in their effect. Where the relevant change in contemplation is the yardstick by which the claimant’s capacity for work should be judged and this was likely to be altered in the near future, it is inappropriate to make an award for any indefinite period, and it is proper instead to prescribe a fixed period (para. 8).	

decision of the social security commissioner
1.	My decision is that the decision of the social security appeal tribunal given on 27 July 1989 is erroneous in point of law and accordingly I set it aside. I direct that the appeal be reheard by a differently constituted tribunal who will have regard to the matters mentioned below.
2.	This is an appeal by the claimant, brought with the leave of the tribunal chairman, against the decision of the social security appeal tribunal of 27 July 1989. In view of the complexity of the case I directed an oral hearing. At that hearing the claimant, who was present, was represented by Mrs. G. Llewelyn, a welfare rights worker from the Sheffield Coordinating Centre against Unemployment, whilst the adjudication officer appeared by Mr. N. Butt of the Solicitor’s Office of the Departments of Health and Social Security.
3.	The claimant, who had been incapable of work since 28 January 1986 and was currently in receipt of invalidity benefit, was on 22 November 1988, in accordance with normal practice, examined by an examining medical officer of the Divisional Medical Office of the Department of Social Security. The officer reported that in his view the claimant was capable of work at his normal occupation of joiner. On 28 November 1988 the claimant was advised of the outcome of the examination and invited to see his own doctor for the purposes of discussing the examining 
medical officer’s findings. He was also asked to return his invalidity benefit book to his local office and to provide them with any further medical certificates. No such certificates were at that stage forthcoming, and accordingly the claimant’s claim was referred to an adjudication officer. On 19 December 1988, the latter reviewed the current award, extending from 3 August 1988 to 31 January 1989 (both dates included), and his revised decision was to the effect that from and including       23 November 1988 the claimant was no longer entitled to invalidity benefit, because he had not proved he was incapable of work by reason of some specific disease or bodily or mental disablement. He purported to be applying regulation 17(4) of the Social Security (Claims and Payments) Regulations 1987 [SI 1987 No. 1967]. Unfortunately, the adjudication officer misapplied the burden of proof. An award had already been made covering the period from 3 August 1988 to 31 January 1989, and although it was open to the adjudication officer to review such award, if the claimant ceased to satisfy the requirements for entitlement pursuant to regulation 17(4), it was for him to show that the claimant ceased to qualify; it was not for the claimant to have to demonstrate again that he was incapable of work by reason of some specific disease or bodily or mental disablement (see R(S) 3/90).
4.	In due course, the claimant appealed to the tribunal, but not on the ground of the misapplication of the burden of proof. He merely challenged the examining medical officer’s assessment of his condition. In the event, the tribunal allowed the appeal on the ground that the effect of decision R(S) 4/86 was to preclude an award once made being reviewed merely on the basis of a different medical opinion. Unfortunately, the tribunal misunderstood the principle set out in R(S) 4/86. What was said in that decision, as regards the ineffectiveness of a different medical opinion after an award had been made, was with reference only to section 104(1)(b) of the Social Security Act 1975. Nothing there said had any bearing on regulation 17(4) of the Social Security (Claims and Payments) Regulations 1987 formerly regulation 11(2) of the Social Security (Claims and Payments) Regulations 1979 [SI 1979 No. 628]. Accordingly on that ground alone the tribunal erred in point of law, and I must necessarily set aside their decision.
5.	Of course, the claimant is not challenging the tribunal’s confirmation of the original award for the period from 3 August 1988 to 31 January 1989. His complaint is that the tribunal refused to accept that he continued to satisfy the conditions for an award after 31 January 1989. His contention is in essence that, if he satisfied the conditions before 1 February 1989, he satisfied them from that date onwards. It is not clear, in considering the position on 22 November 1988 or on 1 February 1989, whether the tribunal correctly applied the onus of proof, but as I have in any event to set aside their decision, nothing turns on the point.
6.	It follows from what has been said above that I must direct that the matter be reheard by a differently constituted tribunal. The new tribunal will	first consider the position as at 22 November 1988. The question at issue will be whether the current award could, as from that date, be reviewed. It could if the adjudication officer is able to show and the burden of proof will rest squarely on him, that the claimant ceased from that date to qualify for benefit. If the tribunal are satisfied that the adjudication officer can make out his case, then the award will come to an end on that day (and the onus of proof will be on the claimant if he wishes to re‑establish entitlement as from some later date). But what if he does not make out his case? The answer to this question will depend upon whether the award made on 3 August 1988, which would appear to have been based on a medical certificate dated 25 July 1988 advising the claimant to refrain from work for six months, was for an indefinite period under regulation 17(1), or for a fixed period under regulation 17(3). The two relevant paragraphs read as follows: 
“17.‑(1) Subject to the provisions of this regulation and of section 20(6) of the Social Security Act 1986 (Family Credit) a claim for benefit shall be treated as made for an indefinite period and any award of benefit on that claim shall be made for an indefinite period.
(3) 	If … it would be inappropriate to treat the claim as made and to make an award for an indefinite period (for example where a relevant change of circumstances is reasonably to be expected in the near future) the claim shall be treated as made and the award shall be for a definite period which is appropriate in the circumstances.”
Now, if the award commencing on 3 August 1988 was for an indefinite period, and if the adjudication officer fails to justify a review on 22 November 1988, then clearly the award will continue indefinitely. However, if the award was made for a fixed period, then it will come to an end on the expiry of that period, and thereafter it will be up to the claimant to establish once again that he is incapable of work by reason of some specific disease or bodily or mental disablement.
7.	Mr. Butt contended that the award had been made for a fixed period, namely 3 August 1988 to 31 January 1989 (both dates included), although he accepted that the claimant was not suffering from a complaint which could be expected to have a specific termination date, as in the case, for example, of someone suffering from mumps or undergoing a hernia operation. He accepted that the claimant’s condition was liable to continue indefinitely. However, he contended that, notwithstanding the claimant’s condition, it would have been inappropriate in the circumstances of the case to have treated the claim as made for an indefinite period. For at the beginning of August 1988 the claimant had been in receipt of sickness invalidity benefit for some two and half years, and the time must shortly come when the adjudication officer decided that the claimant should be medically examined by an examining medical officer of the Department and his capacity for work be judged, not merely in relation to his old occupation as joiner, but in relation to the wider field of any employment for which he might be suitable (see R(S) 7/60). I see the force of that contention. Although the claimant’s condition was unlikely to change in the near future, the yardstick by which his capacity for work should be judged was likely to change. Instead of the sole criterion being the claimant’s regular occupation as a joiner, in the near future his field of employment was likely to be enlarged to take in all other suitable forms of employment. Accordingly, I consider that the adjudication officer was right to regard it as inappropriate to treat the claim as made, and to make an award, for an indefinite period.
8.	Mrs. Llewelyn contended that regulation 17(3) did not contemplate the scenario suggested by Mr. Butt. The draftsman clearly had in mind only “a relevant change of circumstances” in the context of the claimant’s condition, and not of any extraneous circumstance. I reject that submission. Although doubtless the draftsman contemplated any change as normally relating to the claimant’s condition, the language used need not have that circumscribing effect. It is to be noted that the word “inappropriate”, which is wide in scope, is in no way cut down by any limitation, and the reference to “a relevant change of circumstances” being “reasonably to be expected in the near future” was expressly stated to be only by way of example. Accordingly, I consider that the words of regulation 17(3) are wide in their effect, and can take in the scenario envisaged by Mr. Butt. I am satisfied therefore that where, as here, the relevant change in contemplation was the yardstick by which the claimant’s capacity for work should be judged and this was likely to be altered in the near future, it was inappropriate to make an award for an indefinite period, and it was proper instead to prescribe fixed period. The effect of this was that an award had been made for a finite period concluding on 31 January 1989.
9.	It follows from what has been said above that if the new tribunal decide that the adjudication officer is unable to make out his case that the claimant ceased on 22 November 1988 to satisfy the medical conditions for an award the current award will not continue indefinitely, but terminate on 31 January 1989. The tribunal will then consider the position as from that date, and it will be for the claimant himself to show that from that time onwards he qualifies for a renewed award. The onus will be fairly and squarely on him. When considering the position both on 22 November 1988 and 1 February 1989 the tribunal will have regard to all the evidence, including the report made by the second examining medical officer of the Department on 23 February 1989, and the certificate issued by the claimant’s own GP, and will consider the claimant’s capacity for work by reference not merely to his regular employment as a joiner, but by reference to the wider field of all types of employment for which he might be suitable. Moreover, they must have regard to the onus of proof which will lie on the adjudication officer when considering the matter on 22 November 1988, and on the claimant himself when considering the renewal claim on 1 February 1989.
10.	I allow this appeal.

Date: 2 August 1991		(signed) Mr. D. G. Rice
		Commissioner