THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No: CIB/849/2001

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF AN APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER:	Mr C. Turnbull

1.	This is an appeal by the Claimant, brought with my leave, against a decision of the Cardiff Appeal Tribunal made on 20 October 1999. For the reasons set out below I allow the appeal, set aside the Tribunal’s decision and remit the matter for redetermination by a tribunal which does not comprise or include the Chairman of the Tribunal.

2.	The Claimant is a man now aged 40 who became incapable of work on 27 October 1997, the cause of incapacity being certified by his doctor to be general debility. He did not, however, satisfy the contribution conditions for an award of incapacity benefit, and was awarded incapacity credits.

3.	5 appointments for a medical examination in connection with the all work test were arranged in 1998, none of which the Claimant attended. A further appointment was arranged for 27 May 1999. This time the Claimant did attend, but he was not examined, because he stated that he was not prepared to consent to the doctor’s report being seen by a lay person. (He had adopted a similar stance in 1996, as a result of which incapacity credits had been terminated from 17 June 1996).

4.	On 1 June 1999 an adjudication officer decided that the Claimant had failed without good cause to attend or submit to a medical examination. The previous decision awarding incapacity credits was therefore reviewed and revised on the ground that there had been a relevant change of circumstances, namely that the Claimant fell to be treated as capable of work. The revised decision was that he was treated as capable of work (and therefore not entitled to incapacity credits) from 28 May 1999.

5.	The Claimant appealed against that decision. He indicated that he wished an oral hearing. However, in circumstances which I deal with in a little more detail below, the hearing proceeded in his absence, and the appeal was dismissed. The appeal to the Commissioners is on the ground of an alleged breach of natural justice. 

6.	Having considered the evidence submitted on this appeal by the Claimant’s solicitors (who were also acting for him at the time of the Tribunal hearing), I think that it is very probable that there was an inadvertent breach of natural justice by the Tribunal. It appears from 4 telephone attendance notes made by the solicitors that what happened was probably as follows. On the day of the hearing the Claimant telephoned the Appeals Service in order to check the time of the hearing (which was scheduled for 11.20 a.m). He was, however, informed that it was not listed for that day. The Appeals Service realised that the wrong information had been given, and rang the solicitors to ask them to contact the Claimant to correct the position. The solicitors did so, but by the time they were able to do so the Claimant said he could no longer get to the hearing in time. The solicitors relayed this to the Appeals Service by telephone and asked for a postponement which was, however, refused.

7.	The Chairman was informed simply that there had been a request by telephone for a postponement, and in view of the fact that there had been previous adjournments, the Chairman not surprisingly refused the request. However, I think that, had he known the position, he would have felt bound to grant it. I therefore think that there was a breach of natural justice.

8.	However, at the time of granting leave to appeal I raised the issue whether attendance by the Claimant (or his solicitors) could have made any difference. Neither the Claimant nor his solicitors have made any submissions on that issue. 

9.	By Reg. 8 of the Social Security (Incapacity for Work)(General) Regulations 1995: 

“(1)  Where it falls to be determined whether a person is capable of work, he may be called by or on behalf of a doctor approved by the Secretary of State to attend for a medical examination.

(2)  …..where a person fails without good cause to attend for or submit himself to such an examination, he shall be treated as capable of work.”

10.	The Claimant’s  argument in his Appeal Form making the appeal to the Tribunal was:

“It is not lawful that by withholding my consent for my medical information to be seen by non-medical persons, that this is then construed to be a refusal to submit to a medical examination. I categorically deny that I refused to submit to a medical examination.”

11.	The Tribunal rightly rejected that argument. The purpose of the medical examination was of course to enable the adjudication officer, with the benefit of the doctor’s report, to determine whether the Claimant passed the all work test. The condition which the Claimant wished to impose on his submitting to an examination – i.e. that the doctor’s report should not be passed to any layman, including an adjudication officer - rendered an examination useless for the purpose for which it was required. I have no doubt that, by imposing such a condition, the Claimant was failing to submit himself to a medical examination within the meaning of Reg. 8(2). A person “fails” to submit himself to an examination not only if he absolutely refuses to be examined, but also if he seeks to impose as a condition of being examined a term which would render the examination useless for the purpose for which it is required. 

12.	The question which then arises is what the result of this appeal should be. I think that the breach of natural justice requires me to set the Tribunal’s decision aside. If I were now to substitute a decision to the same effect as that made by the Tribunal, it is arguable that I would be infringing the Claimant’s entitlement under Art. 6 of the European Convention on Human Rights to a hearing. I think that I must therefore remit the matter for redetermination by a differently constituted tribunal, even though there appears to be no prospect of the Claimant’s appeal succeeding. The new tribunal must consider any  arguments which the Claimant may raise, but must have regard to paragraph 11 above. 

          

        (Signed)                                           Charles Turnbull
                                                                             (Commissioner)

                    (Date)                                               17 September 2001