R(IS) 8/93

Mr. J. G. Mitchell QC	CSIS/65/1991
17.11.92
Applicable amount - disability premium - whether retrospective medical statements may be accepted
On 2 October 1992 the claimant appealed against a decision of an adjudication officer to refuse SDP from 10 July 1990. On that date the claimant had submitted a medical statement of incapacity for work, adding that she had been incapable since January 1990. The first tribunal hearing was adjourned for her to obtain a doctor’s statement clarifying the date from which she was claiming to be incapable of work.
Her doctor provided a form Med 5 on which he certified that he advised her to refrain from work from 29 April 1990 to 9 July 1990. A second tribunal refused the appeal. The claimant appealed to the Commissioner.
The Commissioner found the decision of the second tribunal erroneous in law and remitted the case to another tribunal.
Held that:
1. 	regulation 2(1) of the Social Security Medical Evidence Regulations 1976 enables any evidence, including that not in strict conformity with the rules, to be taken into account and with or without further evidence to be held to be sufficient in a particular case (para. 14);
2. 	a decision on the sufficiency of such evidence is for the adjudicating authorities and not for the Secretary of State (para. 15);
3. 	the acceptance of retrospective evidence must not prejudice the right of the adjudication officer to determine that the claimant is not incapable of work for the purposes of paragraph 5 of Schedule 1 to the Income Support (General) Regulations 1987 (para. 16).
[Note: This decision relates to the Social Security Medical Evidence Regulations 1976 as in force prior to their amendment with effect from 9 March 1992 by SI 1992/247.]

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. 	My decision is that the decision of the social security appeal tribunal dated    9 January 1991 is erroneous in law and is set aside. The claimant’s case is referred to another tribunal for reconsideration.
2. 	This is an appeal by the claimant with leave on a question of law against the above mentioned tribunal decision. The appeal was dealt with at an oral hearing held before me at which the claimant, who did not attend, was represented by Mr. C. Orr, Welfare Rights Officer, Strathclyde Regional Council Social Work Department. The adjudication officer was represented by Mr. Ferrie acting as the Solicitor in Scotland to the Department of Social Security. I am obliged to both representatives for their submissions.
3. 	On 2 October 1990 the claimant appealed against the decision of an adjudication officer who had held that she was not entitled to a disability premium in the computation of her income support from 10 July 1990. On that date the claimant had submitted a medical statement of incapacity for work to the National Insurance Office.
4. 	Under regulation 17(d) of the Income Support (General) Regulations 1987 (SI 1987 No. 1967) the aggregate amount of a claimant’s income support is to include the amount of any premiums applicable to the claimant under Parts III and IV of Schedule 2. Under paragraph 4 of Schedule 2 the weekly premiums specified in Part IV of the Schedule are to be applicable to a claimant who satisfies the conditions specified in paragraphs 8 to 14 in respect of that premium. Under paragraph 11 the condition applicable to a disability premium, where a claimant is a single claimant aged less than 60, is satisfaction of the additional conditions specified in paragraph 12. The material condition of paragraph 12 in force at the relevant time (which was not correctly quoted to the tribunal by the local adjudication officer) was that contained in sub‑head (1)(b) which states:
“(b) the circumstances of the claimant fall and have fallen, in respect of a continuous period of not less than 28 weeks, within paragraph 5 of Schedule 1 ...”
5. 	The material provisions of paragraph 5 of Schedule 1 are in the following terms:
“5. A person who provides evidence of incapacity in accordance with regulation 2 of the Social Security (Medical Evidence) Regulations 1976 (evidence of incapacity for work) in support of a claim for sickness benefit, invalidity pension or ... provided that an adjudication officer has not determined that that person is not incapable of work, ...”
6. 	At a first tribunal hearing of the claimant’s appeal on 12 November 1990 the claimant maintained that she had long been incapable of work and in particular referred to a letter dated 9 November 1990 from her doctor certifying that she had been unfit for employment since 3 January 1990. The tribunal adjourned the appeal to allow the claimant to obtain a medical certificate clarifying from what date she was incapable of work and in particular covering a period from 29 April 1990 to       9 July 1990 when her doctor had apparently originally considered that she was not incapable of work. The claimant’s doctor then supplied a medical statement dated    23 November 1990 on a form “MED 5” in which he stated that he had examined the claimant on 19 April 1990, 4 May 1990, 11 July 1990, 3 August 1990 and               24 September 1990 and advised the claimant to refrain from work from 29 April 1990 to 9 July 1990 on a diagnosis of generalised osteo‑arthritis.
7. 	A differently constituted tribunal reconsidered the claimant’s appeal on          9 January 1990. They unanimously refused the appeal. The tribunal made the following findings of fact:
“1. 	The tribunal find established the facts as set forth in the adjudication officer’s submission section five summary of facts paragraphs 5.1 to 5.4 inclusive.
2. 	The appellant has been treated as incapable of work since 10 July 1990.
3. 	The appellant was examined by her doctor, Dr. I. M. Halliday on       19 April 1990, 4 May 1990, 11 July 1990, 3 August 1990 and 24 September 1990. He issued a statement on form MED 5 on 23 November 1990 all as is stated in his certificate being page 17 of the appeal papers the terms of which are held repeated herein for the sake of brevity and are accepted. Said doctor earlier provided the appellant with a certificate in the form of a letter dated               9 November 1990 which she submitted to the Department. The tribunal find the terms of said letter established and they are held repeated herein for the sake of brevity.”
8. 	The tribunal’s reasons were stated in the following terms:
“The relevant legislation is contained in regulation 17 of and paragraph 4, 11 and 12(1)(b) of Schedule 2 to the Income Support (General) Regulations 1987. Said paragraph 12(1)(b) refers to paragraph 5 of Schedule 1 of these regulations.
The appellant did not claim the benefits referred to therein that is sickness benefit, invalidity benefit or severe disablement allowance and did not provide evidence of incapacity as is required in accordance with regulation 2 of the Social Security (Medical Evidence) Regulations 1976 and Part I of Schedule 1 to these regulations. Paragraph 9, Part 1, Schedule 1 is not satisfied because the doctor’s statement of 23 November 1990 was given more than one day after the dates of the examinations.  Accordingly the requirements of said paragraph 12(1)(b) requiring her to be treated as incapable of work for a continuous period of not less than 28 weeks are not satisfied. The appeal therefore does not succeed.”
9. 	Regulation 2 of the Social Security (Medical Evidence) Regulations 1976, (SI 1976 No. 615) referred to in paragraph 5 of Schedule 1 to the Income Support (General) Regulations, contained, as in force at the relevant date, the following material provisions:
“2.‑(1)	Subject to ... [inapplicable] ... where a person claims any benefit and his entitlement to that benefit depends on his being incapable of work in respect of the day or days to which his claim relates, he shall furnish evidence of such incapacity in respect of that day or those days either by means of a certificate in the form of a statement in writing given by a doctor in accordance with the rules set out in Part I of Schedule 1 to these regulations on the form set out in Part II of that Schedule or by such other means as may be sufficient in the circumstances of any particular case.” 
Rules 9 and 12 of the rules in Schedule 1 above referred to provided as follows:
“9. 	A doctor’s statement must be given on a date not later than one day after the date of the examination on which it is based, and no further doctor’s statement based on the same examination shall be furnished other than a doctor’s statement by way of replacement of an original which has been lost or mislaid, in which case it shall be clearly marked ‘duplicate’.
...
12. 	The period specified shall begin on the date of the examination on which the doctor’s statement is based and shall not exceed 6 months unless the claimant has, on the advice of a doctor, refrained from work for at least 6 months immediately preceding that date.”
10. 	It was common ground between the representatives before me that the decision of the tribunal in this case is erroneous in law because the tribunal failed to record any consideration of the final words of regulation 2(1) quoted above: “... or by such other means as may be sufficient in the circumstances of any particular case.” In consequence the tribunal have not expressed any conclusion upon whether these words could be applied in the circumstances of this case. I agree that the decision of the tribunal is erroneous in law in this respect. The tribunal did not have before them the original of the form MED 5 signed on 23 November 1990 and in particular they did not have the reverse side of that form before them which, when signed by a claimant, included a claim for benefit. The tribunal cannot therefore be faulted for holding, as they did, that the claimant had not claimed sickness benefit. However the terms of the reverse side of that document were produced to me in response to a nominated officer’s direction and it is conceded by the adjudication officer that the claimant did make a claim for sickness benefit on the reverse of that form on 23 November 1990. It is also accepted by the adjudication officer that there is no evidence of any decision of an adjudication officer in relation to that claim determining that the claimant was not incapable of work, as provided in paragraph 5 of Schedule 1 to the Income Support General Regulations.
11. 	In that situation Mr. Orr submitted that the claimant was able to satisfy the conditions of paragraphs 12(1)(b) of Schedule 2 and 5 of Schedule 1 to the Income Support (General) Regulations. Founding upon the final words of regulation 2(1) of the Medical Evidence Regulations he submitted that those regulations allowed for evidence other than a medical certificate in full compliance with the rules in Part 1 of Schedule 1. Retrospective evidence or a retrospective medical certificate should, he argued, also be regarded as acceptable notwithstanding the present tense used in paragraphs 12(1)(b) and 5. Backdated claims for sickness benefit were commonly accepted, subject only to the question of good cause under the Claims and Payments Regulations. The retrospective MED 5 covering the period from 29 April 1990 could be accepted, as could the doctor’s retrospective letter together with evidence from the claimant covering the period from 3 January 1990. The fact that there was a dispute over the claimant’s incapacity for work at the time in April 1990 and that the claimant had signed as unemployed whilst that dispute continued was not unusual and not fatal, according to Mr. Orr.
12. 	Mr. Ferrie on behalf of the adjudication officer pointed out that the form MED 5 had not received recognition in the Medical Evidence Regulations until their amendment in 1992 by the Social Security (Miscellaneous Provisions) Amendment Regulations 1992 (SI 1992 No. 247) when an additional provision and additional rules were introduced. He accepted however that the MED 5 was at the material time an official Departmental form. Furthermore the Department of Social Security’s “Guide for Registered Medical Practitioners” (the July 1991 edition of which was produced by Mr. Orr) expressly recognised, in section 8, the form MED 5 as a doctor’s special statement to be used in certain circumstances where the form MED 3 could not be used. Those circumstances included where:
“No statement has been issued since the patient was examined and you wish later to issue a statement more than one day after the examination; ...”
Mr. Ferrie submitted however that for the purposes of paragraph 5 of Schedule 1 to the Income Support (General) Regulations if the evidence of incapacity offered was a doctor’s statement it must comply with the Medical Evidence Regulations. The MED 5 form in the present case did not comply with rules 9 and 12 quoted above.
13. 	Upon the face of the matter it seems curious that the Department should recognise in their Guide situations in which the MED 3 form complying with the medical evidence rules could not be used and provide an official substitute such as the MED 5 form containing the same words of claim for adoption by the signature of a claimant, but fail to give recognition to their alternative use in the Medical Evidence Regulations over a lengthy period. It would be truly bizarre however if the effect of regulation 2(1) was as Mr. Ferrie suggested and medical statements in the form of MED 5 could not be taken into account as evidence under the Medical Evidence Regulations for the purposes of establishing incapacity for work under regulation 2 from 1976 until that regulation was amended and an additional schedule of rules were introduced with effect from 9 March 1992.
14. 	I am unable to accept Mr. Ferrie’s submission. In my judgment the form of regulation 2(1) of the Medical Evidence Regulations prior to amendment on 9 March 1992 and in particular the words “... or by such other means as may be sufficient in the circumstances of any particular case” enabled any other relevant evidence, including medical statements not in strict conformity to the rules in Schedule 1, to be taken into account and, with or without other evidence, held to be sufficient in an appropriate case. I am reinforced in that view by reference to reported decision CS/33/1949. In that case objection was taken to medical certificates covering a period of two and a half months submitted together in arrears which were said not to conform with the requirements of rule 4 contained in the National Insurance (Medical Certification) Regulations 1948 (SI 1948 No. 1175), then in force. In paragraph 4 of his decision the Commissioner drew attention to the corresponding words of regulation 2(1) of those regulations:
“... or by such other means as the determining authority may accept as sufficient in the circumstances of any particular case or class of cases”.
In paragraph 5 of his decision the Commissioner said:
“I have no hesitation in the circumstances of this case in accepting these certificates as sufficient evidence of the claimant’s incapacity during the period in question”.
15.	I should add that the expression “the determining authority” in the last mentioned regulations was defined as an insurance officer, tribunal or Commissioner. It was accepted before me by Mr. Ferrie that a decision on the sufficiency of such evidence under regulation 2(l) of the Medical Evidence Regulations 1976 remained one for the equivalent adjudicating authorities and not for the Secretary of State despite the removal of the express words. I agree. I consider that if it had been intended to alter the position radically so as to make the decision one for the Secretary of State, that would have been expressly done. In any event the matter concerns evidence of incapacity for work which is of course a matter for the adjudicating authorities and not the Secretary of State.
16. 	So far as the question of the sufficiency of retrospective evidence to satisfy the terms of paragraph 12(1)(b) of Schedule 2 and paragraph 5 of Schedule 1 to the Income Support (General) Regulations is concerned I do not consider that the wording of those paragraphs necessarily precludes the use of retrospective evidence. I note the doubt expressed in Mesher, CPAG’s Income Related Benefits: The Legislation, 1992, pages 161 and 175. However the relevant provision for qualification for a disability premium requires evidence of present incapacity for work coupled with evidence that such incapacity has been present for the past 28 weeks, not necessarily that there has been past evidence of such previous incapacity. I therefore consider that in a case such as the present retrospective evidence of incapacity in support of a claim for one of the specified benefits and covering the
requisite qualifying period could be accepted. However the acceptance of such retrospective evidence could not in my view be allowed to prejudice the proviso in paragraph 5 of Schedule 1 to the Income Support (General) Regulations that an adjudication officer has not determined that the person is not incapable of work. It would seem to follow therefore that if evidence of past incapacity is only presented with the claim made (by way of review) for disability premium, or in the course of adjudication upon it, a decision on entitlement to the premium could not be required from the adjudication officer or made by the appellate authorities without the adjudication officer having the opportunity to make an adverse determination on incapacity for work. The adjudication officer has had that opportunity in the present case.
17. 	The provision relative to the 28 week period in paragraph 12(1)(b) is somewhat imprecisely worded but the parties’ representatives were agreed before me, and I accept, that the intention of the provision was to specify a continuous period of that length immediately preceding and continuing up to the date when qualification for the premium was claimed to commence. I consider that the words used adequately express that intention.
18. 	For the reasons already given the decision of the tribunal is erroneous in law. It is in addition strictly speaking erroneous in law in not having recognised that the decision of the adjudication officer under appeal was a decision made, as mentioned above, on a claim made by way of a request for review of the claimant’s award of income support to have a disability premium included by revision of the applicable amount of her income support. The claimant’s submission of medical evidence of incapacity for work was no doubt evidence of a relevant change of circumstances for the purposes of review under section 104(1)(b) of the Social Security Act 1975, as it then was, and the adjudication officer’s adverse decision was, or should have been, a refusal to revise the existing award of income support on that ground because the full conditions for an award of disability premium were held not to be satisfied.
19. 	I set aside the decision of the tribunal and refer the claimant’s appeal for reconsideration by another tribunal. The new tribunal will reconsider the claimant’s case in the light of the rulings given above and bear in mind that they are dealing with a review question as just pointed out. In the event of the tribunal being satisfied that there is sufficient and acceptable evidence of the claimant’s incapacity for work for the purposes of paragraph 5 of Schedule 1 and paragraph 12(l)(b) of Schedule 2 to the Income Support (General) Regulations from a date prior to 10 July 1990 the tribunal will require to fix the commencement date accepted by them and specify the 28 week period. In the event that that period has not expired by 10 July 1990 the tribunal will also bear in mind that from that date the claimant submitted other evidence by way of medical statement as to her incapacity for work. The tribunal will be entitled to have regard to such other evidence for the purpose of establishing a date later than 10 July 1990 at which the decision awarding continuing income support falls to be revised to include the commencement of entitlement to disability premium. 
20. 	The appeal of the claimant is allowed. 

Date: 17 November 1992	(signed) Mr. J. G. Mitchell QC
	Commissioner