CIB/1381/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This appeal fails. The decision of the Manchester appeal tribunal on 24 January 2003 is not wrong in law. The Secretary of State’s appeal to the Commissioner against the tribunal’s decision is therefore dismissed.

2.	The fundamental issue in this appeal is a straightforward one: did the claimant have good cause for failing to attend a medical examination in connection with his claim for national insurance credits on the basis of incapacity for work?  Hiding behind this issue is a logically prior question: what is meant by a letter of appointment being “sent” to a claimant?

3.	The essential facts are that the claimant completed an incapacity for work questionnaire and returned it to the Benefits Agency.  The department’s Medical Services then sent the claimant a letter on 30 September 2002 asking him to attend for a medical appointment on 9 October 2002.  The claimant failed to attend.  There are powers in such circumstances for a claimant to be deemed to be capable of work unless he or she can show “good cause” for not attending such an examination (Social Security (Incapacity for Work) (General) Regulations 1995 (S.I. 1995 No. 311), reg. 8(2) and (3)).  Regulation 8, in its entirety, reads as follows (and as amended in a way which is not material to this appeal):

“Person may be called for a medical examination
    8.—(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)  Subject to paragraph (3) 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.
    (3)  A person shall not be treated as capable of work under paragraph (2) unless written notice of the time and place for the examination was sent to him at least 7 days beforehand, or unless he agreed to accept a shorter period of notice.”

4.	On 14 October 2002 the Benefits Agency wrote to the claimant asking for an explanation for his non-attendance on 9 October.  The claimant replied to the effect that he had not received the appointment letter until 10 October, i.e. the day after the scheduled appointment, and that he had telephoned the office immediately to explain the situation.  A decision maker in the Benefits Agency took the view that there was no evidence of incorrect postal delivery.  The reasons given were that the claimant had received previous mail from the Department, the Post Office had reported that there was a regular postman on the round in question and that misdelivery was “highly unlikely”.  The decision maker therefore superseded the earlier decision awarding credits and disallowed the claim as from 16 October 2002, the date of the decision.

5.	The claimant appealed to a tribunal.  The tribunal, which heard evidence from the claimant, allowed his appeal against the Secretary of State’s decision.  After reviewing the history of the case, the tribunal’s statement of reasons concluded:

“The appellant attended the hearing of his appeal, no presenting officer attending on behalf of the Department, and confirmed his explanation that he had not received notification in time.  He explained that he lived in flats, that there were four different blocks of flats with different names and on occasions post did get delivered to the wrong block.  He produced a note from his mother, confirming that there had been difficulties with the post in the past.

I saw no reason to doubt the evidence given to me by the appellant and accepted that he had not received notification relating to the medical appointment in sufficient time to attend.  I therefore found that he had established good cause for failing to attend the medical examination and the appeal succeeded.”

6.	The Secretary of State then sought leave to appeal to the Commissioner.  This was refused by a District Chairman on the ground that the evaluation of evidence is solely a matter for the tribunal.  The Secretary of State then made an application for leave to appeal direct to the Commissioner.  Mr Commissioner Angus granted leave to appeal on the basis that the grounds of appeal were arguable, but with the comment that this was no guarantee that the appeal itself would be allowed.

7.	The Secretary of State’s grounds of appeal are as follows.  First, it is said that the decision maker had already established that there were no postal problems.  Secondly, it is argued that regulation 8(3) of the Social Security (Incapacity for Work) (General) Regulations 1995, when read with section 7 of the Interpretation Act 1978, creates a presumption of deemed service where a document has been properly addressed and posted.  Regulation 8(3) of the 1995 Regulations, quoted in paragraph 3 above,  requires that notice of the time and place of the examination should be sent to the claimant at least seven days beforehand.  Section 7 of the 1978 Act, in summary, deems service to have been effected where a document is properly addressed, prepaid and posted, and for delivery to have been so effected in the ordinary course of post.   Reliance is placed upon the official record that the appointment letter was duly posted on 30 September 2002, thus meeting the seven day requirement in regulation 8(3).

8.	The claimant’s representative essentially contends that the decision maker’s evidence is insufficient to discharge the burden of proof in this matter.

9.	I am not satisfied that either of the grounds of appeal put forward by the Secretary of State is made out.  There is nothing in the first ground of appeal, which is simply an attempt to disguise a challenge to the appeal tribunal’s evaluation of the evidence and its conclusions on matters of fact as an issue of law.  As the District Chairman stated in refusing the original application for leave to appeal, evaluation of evidence is solely a matter for the tribunal at first instance. This tribunal had the opportunity of hearing the claimant at first hand and reviewing documentary evidence of problems with the post which he had submitted, alongside the Benefits Agency’s evidence that there had not been any such problems.  It is settled law that the burden of proof is on the Secretary of State to show that the relevant notice was sent and on the claimant to demonstrate that he had “good cause” for the failure to attend the medical examination (see Mr Commissioner Rowland’s decision R(IB) 2/01, para. 7).  The tribunal’s statement of reasons indicates that the tribunal properly directed itself on the relevant law.  The simple fact that the tribunal preferred the evidence of the claimant to that of the Secretary of State is not in itself a valid ground of appeal.

10.	The second ground of appeal raises rather more complex issues.  The Secretary of State’s case is that, given that there was evidence that the letter of appointment was properly posted, then it should be deemed to have arrived in the ordinary course of post, bearing in mind the provisions of regulation 8(3) of the 1995 Regulations and section 7 of the Interpretation Act 1978.  In doing so the Secretary of State relies on a decision of Mr Commissioner Mitchell, CSIB/611/1998, in which the Commissioner concluded that the claimant had not shown good cause for failing to attend.  On the facts in that case the claimant stated that he had never received the relevant letter although he had received a later letter of disallowance sent to the same address.  I do not find that CSIB/611/1998 assists the Secretary of State in any way whatsoever.  In that case, which concerned the claimant’s failure to return an incapacity benefit questionnaire, the appeal tribunal heard evidence from the claimant and, put simply, did not believe him.  The tribunal accordingly found that there was no good cause for the failure to comply. Mr Commissioner Mitchell in turn concluded, on appeal by the claimant, that on the evidence before it the tribunal had not erred in law.  Thus that case turned on issues of credibility and evaluation of evidence by the tribunal.  In CSIB/611/1998 the tribunal did not accept the claimant’s evidence in all the circumstances of the case.  In the case under appeal the tribunal did.  This is a question which lies within the province of the fact finder, and I have already concluded that there are no grounds on which to interfere with the tribunal’s reasoning on this point.

11.	Nor I am convinced that the Secretary of State’s reliance on section 7 of the Interpretation Act 1978 necessarily advances his argument.  Section 7 states:

“Where an Act passed after the commencement of this Act authorises or requires any document to be served by post, whether the expression ‘serve’, or the expression ‘give’ or ‘send’, or any other expression is used, then, unless the contrary intention appears, the service shall be deemed to be effected by properly addressing, prepaying, and posting a letter containing the document, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

12.	Before considering section 7 in more detail, I observe at this point that there is a specific provision in the social security legislation which deems official notices to have been “given or sent” on the day on which they were posted, providing such documents were sent by post to the claimant’s last known address (reg. 2(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999 No. 991)).  However, as Mr Commissioner Turnbull observed in decision CJSA/3523/2002, that regulation, by its express terms, “applies only to notices or other documents which are required to be given or sent by any provision of the Social Security Act 1998, the Child Support Act 1991 or the 1999 Regulations themselves”. Mr Commissioner Turnbull concluded that regulation 2(b) thus has no application to an official notice to an unemployed claimant to attend an interview under regulation 23 of the Jobseeker’s Allowance Regulations 1996 (S.I. 1996 No. 207). Undoubtedly, by the same reasoning, regulation 2(b) of the 1999 Regulations does not apply in respect of a notice under regulation 8 of the Social Security (Incapacity for Work) (General) Regulations 1995, as in the case under appeal.

13.	Some useful guidance may also be found in the decision of Mr Commissioner Mesher in R(CS) 1/99, where one of the issues was the interpretation of regulation 30(2)(a) of the Child Support (Maintenance Assessment Procedure) Regulations 1992.  That regulation, which deals with the ascertainment of the effective date for a new maintenance assessment, refers to a maintenance enquiry form being “given or sent to an absent parent”.  Mr Commissioner Mesher observed that the ordinary meaning of “send” is “despatch” (see Nash v Ryan Plant International Ltd [1978] 1 All E.R. 492) but that there was a secondary meaning of “send” which also encompassed actual receipt of the document being sent.  He further held, bearing in mind the drafting of regulation 30 as a whole, that the ordinary meaning applied in regulation 30(2)(a) (see paras 10-12 of his decision).  In that particular legislative context, therefore, “sent” meant “despatched” and did not require consideration of the question of receipt.  However, the Commissioner noted that if the relevant form had been misaddressed, despite the correct address being in the departmental records, then it could not be said to have been “sent” to the person concerned (see, to the same effect, Mr Commissioner Rowland in R(IB) 2/01, para. 7).

14.	In R(CS) 1/99 Mr Commissioner Mesher also considered the effect of section 7 of the 1978 Act.  He observed that section 7 contains two separate presumptions.  The first is that service is deemed to be effected by properly addressing, pre-paying and posting.  The second is that service is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of post.  The starting point, however, must be to ascertain the true meaning of the legislative provision in question: is it the date of despatch or the date of receipt that is crucial? (See further R v Secretary of State for the Home Department, ex parte Yeboah [1987] 3 All E.R. 999).  If the former is the correct construction, then the second presumption in section 7 does not come into play.

15.	Mr Commissioner Turnbull, in his decision in CJSA/3523/2002, has also helpfully reviewed the decisions of the courts on the application of section 7 of the 1978 Act (or rather on its statutory predecessor, section 26 of the Interpretation Act 1889, which was in the same terms).  These authorities included R. v. London (County) Quarter Sessions Appeal Committee, ex parte Rossi [1956] Q.B. 682 and Maltglade v. St. Albans RDC [1972] 3 All E.R. 129.  Based on those authorities, the Commissioner concluded (at para. 14 of his decision) that, in the context of the Jobseeker’s Allowance Regulations 1996, the position was as follows:

“The notice under Reg. 23 calling the Claimant for an interview on 25 October, in order to be effective, in my judgment had to be received by that date at the latest. I therefore think that a claimant who proved that the notice of interview in fact arrived after the date of the interview would be entitled to say that it had not been “sent” to him as required by Reg. 23, and therefore that he had not “failed to attend” the interview within Reg. 25(1)(a). His entitlement to benefit could therefore not be terminated under Reg. 25 even if he had not shown good cause within the 5 day period permitted by Reg. 27. If that is so, it follows, applying Ex parte Rossi, that a claimant is also permitted to prove non-receipt of the notification of the interview date.”

16.	Mr Commissioner Turnbull therefore effectively concluded that “sent” in the context of regulation 23 of the Jobseeker’s Allowance Regulations 1996 meant “delivered” and not merely “despatched”.  He noted that, were it simply to mean “despatched”, then in the event that the claimant did not discover within five days that he had missed the scheduled interview, he would have no opportunity to establish good cause for that omission under regulation 27.

17.	In the present case I am concerned with the meaning of “send” in regulation 8(3) of the Social Security (Incapacity for Work) (General) Regulations 1995.  Does this mean “despatch” (as Mr Commissioner Mesher found in the child support context in R(CS) 1/99), or “deliver” (as Mr Commissioner Turnbull found in the jobseeker’s allowance context in CJSA/3523/2002)?  I take from the decision in R(CS) 1/99 that the former is the ordinary meaning of “send”.  But I also recognise that the child support scheme represents a very different statutory context. The cessation of entitlement to benefit for failing to attend at a jobseeker’s allowance interview obviously represents a more analogous situation to that in the present case.

18.	There are, however, some differences between the statutory regime which applies to notices to unemployed claimants under regs 23-30 of the Jobseeker’s Allowance Regulations 1996 and the provisions that apply in respect of notices to attend medical examinations in relation to incapacity claims under the 1995 Regulations.  For example, under regulation 27 of the 1996 Regulations a claimant has just five days in which to show good cause for the failure to attend, a factor which clearly weighed with Mr Commissioner Turnbull.  There is no such stipulation under the 1995 Regulations.  Indeed, there is a relatively open-ended good cause defence for these purposes, which moreover is not confined to the consideration of specific prescribed factors (see regulation 9 of the 1995 Regulations), as is the case under some other social security legislation. In addition, regulation 23 of the 1996 Regulations refers to notification being “given or sent”, whereas regulation 8 of the 1995 Regulations simply refers to written notice “being sent”.

19.	The considerations discussed in the previous paragraph might suggest that this case can be distinguished from CJSA/3523/2002.  If that were so, “sent” in regulation 8(3) means “despatched” and not “received”.  But, as Mr Commissioner Mesher stressed in R(CS) 1/99, it is important to pay particular attention to the statutory drafting of the provision in question.  In this context it may well be significant that regulation 8(3) provides that a person cannot be treated as capable of work “unless written notice of the time and place for the examination was sent to him at least 7 days beforehand, or unless he agreed to accept a shorter period of notice” (emphasis added).  The passage in italics might be construed as indicating a requirement that the claimant had indeed received actual prior notification of the appointment.  After all, the claimant could hardly consent to a shortened period of notice if he had not received any such notification.

20.	In the circumstances of this appeal, however, I am not in fact satisfied that I need to rule on the meaning of “sent” in regulation 8(3).  I have not sought detailed arguments on whether “sent” in this context means “despatched” or “delivered”.  The reason for this is that the effect of regulations 8(2) and (3) is to pose at least two distinct questions.  First, was the claimant sent the appropriate written notification at least seven days beforehand (reg. 8(3))?  Secondly, has the claimant shown good cause for failing to attend for or submit himself to such an examination (reg. 8(2))?  The principal error in the submission of the Secretary of State’s representative is that these two issues are conflated.  In my view the issue of good cause is a logically separate question to that of the sending.

21.	In this case, the tribunal’s statement of reasons explicitly records that the Benefits Agency “sent” the claimant the relevant notification (without exploring the niceties of what “sent” actually means).  It is also clear that the tribunal recognised that the burden of proof was on the claimant to show that he had not received that letter and so had good cause for his failure to attend.  The statement of reasons explains why the tribunal found that the claimant had discharged that burden of proof.  Neither of the grounds of appeal put forward by the Secretary of State undermines the fundamental basis of the tribunal’s decision and the reasons for it. For the practical purposes of the disposal of this appeal, it matters not whether the notification was not actually “sent” as a mater of law, or whether it was sent but the claimant has good cause for his failure to attend.  Moreover, as the Commissioners have repeatedly observed, it ill behoves the Secretary of State to complain about decisions reached by tribunals on issues relating to credibility and the burden of proof when the Department consistently fails to make arrangements for presenting officers to attend tribunal hearings. My decision is therefore as set out in paragraph 1 above.

	(Signed)	N J Wikeley
		Deputy Commissioner

	Date	5 September 2003