[2004] UKSSCSC CSIB_570_2004 (05 November 2004)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSIB/570/04

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  D J MAY QC

Oral Hearing

Appellant:  				          Respondent:  Secretary of State

Tribunal:  Glasgow			     Tribunal Case No:  

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the appeal tribunal given at Glasgow on 25 May 2004 is erroneous upon a point of law.  I set it aside.  I make the decision I see fit.  It is that I supersede the decision of the decision maker dated 6 February 2003 awarding national insurance credits on the basis of a relevant change of circumstances, namely that from 11 September 2003 he is to be treated as being capable of work and accordingly not entitled to national insurance credits from that date.  I also hold that the decision of the decision maker appealed against to the tribunal was in error in law for the reasons stated below but was capable of correction in the manner set out by me above.

2.	This appeal came before me for an oral hearing on 2 November 2004.  The claimant was represented by Mr Lawson of Drumchapel Law and Money Advice Centre.  The Secretary of State was represented by Mr Bartos, Advocate, instructed by Mr Brown, Solicitor, of the Office of the Solicitor to the Advocate General.

3.	The history of the case was that the claimant was awarded national insurance credits from 6 February 2003 by decision of a decision maker dated 6 February 2003.  On 17 July 2003, this decision was superseded and the claimant was found not entitled to credits from and including 29 June 2003 as he was to be treated as being capable of work from that date.  On 8 August 2003 another decision maker purported by reconsideration to alter that supersession decision by finding that he was to be treated as being incapable of work and remained entitled to national insurance credits from 29 June 2003.  That decision and the manner in which it was expressed was incompetent in respect that reconsideration is no basis upon which to alter a final decision.  It did however in essence restore the position of the claimant’s entitlement decided on the 6 February 2003.  Following upon that decision on 8 August 2003, a further medical examination for the purposes of a personal capability assessment was fixed for 10 September 2003.  The claimant failed to attend that examination.  In these circumstances, on 25 September 2003 a decision maker made the following decision:

“[The claimant] failed to attend a medical examination 10 September 2003.

[The claimant] did not provide good cause for his non attendance.

I have superseded the decision of the Decision Maker dated 8 August 2003.

Therefore [the claimant] is not entitled to National Insurance Credits from and including 11 September 20003 as he is to be assessed as being capable of work from this date”.

4.	The claimant appealed against that decision to a tribunal.  

5.	The decision made by the tribunal was as follows:-

“Appeal was Disallowed

The decision of the Secretary of State issued on 25/09/2003 is Confirmed

The appellant having failed without good cause to attend for medical examination on 10/09/2003 has properly been treated as capable of work from 11/09/2003”.

It is apparent from the statement of reasons for the decision that the case being advanced before the tribunal was one related to whether he had failed to attend on 10 September 2003 without good cause.  It appears from the reasons for the decision that he was asserting that he had not received notice of the appointment on that date.

6.	The parties to the appeal both accepted that the tribunal erred in law on a technical basis by confirming a decision of a Secretary of State which itself erred in law.  As I have indicated, it purported to supersede a decision of a decision maker dated 8 August 2003.  It was accepted by parties that this was neither a decision made under section 8 or section 10 of the Social Security Act 1998 and thus not capable of supersession.  Mr Bartos submitted that that decision was a revision decision of the decision of 17 July 2003, though it is not expressed as such.  What it sought to do, albeit incompetently, was to restore the position set out in the decision awarding credits on 6 February 2003.  It did not deal effectively with the decision of 17 July 2003.  What it should have done was to revise the decision of 17 July 2003 as the application for such had been made by the claimant within the period of one month and to find that there was no basis to supersede that decision.  In order to put the case on the correct tracks, I consider that I have to carry out that exercise in this decision.  The revision that requires to be made to the decision of 17 July 2003 was that there were no grounds to supersede the decision of the decision maker dated 6 February 2003.  I make that decision.  The authority that Mr Bartos prayed in aid to enable me to carry out these corrections was R(IB) 2/04.  Mr Lawson made no submissions to the contrary.  Whilst I am somewhat reluctant to take steps myself to correct the poor and indeed incompetent decision making by the Secretary of State, I accept that the effect of the decision of the Tribunal of Commissioners is to enable me to do so.  Having said that I would underline my own view that the Commissioner is not bound to take the course if in the exercise of his judicial discretion he considers that it is an inappropriate course to take.  In this case I have taken this course because the principal argument advanced by both parties on the merits of the case indicated that such a course should be adopted from their respective standpoints.  Mr Lawson’s submission was that there were no grounds to supersede the award of national insurance credits.  Mr Bartos’ submission was that there should be such a supersession of that award upon the basis of a change of circumstances in terms of regulation 6(2)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

7.	Mr Lawson’s argument departed from that argued before the tribunal.  The position before me was that he relied upon a decision of Mr Commissioner Mesher in CIB/790/2004.  Regulation 28(1) of the Social Security (Incapacity for Work) (General) Regulations 1995 provides:-

	“28(1) Where the question of whether a person is capable or incapable of work falls to be determined in accordance with the personal capability assessment that person shall, if the conditions set out in paragraph (2) are met, be treated as incapable of work in accordance with the personal capability assessment until such time as he has been assessed or falls to be treated as capable of work in accordance with regulation 7 or 8.”  

In both this case and in CIB/790/2004 the conditions for the operation of regulation 28(1) applied.  The award of national insurance credits in both cases, as I understand it, followed upon satisfaction of the conditions set out in that regulation.  

8.	In CIB/790/2004, the claimant had ceased to provide medical evidence after 17 August 2002.  What the Commissioner said in regard to that as to whether the award of credits could be superseded was:-

	“17.	I see the position as follows, using the circumstances of the present case as an example.  The ceasing to provide medical evidence after 17 August 2002 was a relevant change of circumstances in the general sense, because it was material to the question of whether the claimant was incapable of work in accordance with the PCA.  However, it was not a change of circumstances that on its own justified a superseding decision removing entitlement to incapacity credits.  The change of circumstances only showed that the claimant could not be treated as incapable of work, not that she was not actually incapable of work in accordance with the PCA.  That could not be shown until a PCA had been arranged, as decided in CIB/1031/2000 and CIB/3106/2003.  Thus, the relevant change of circumstances which justified altering the existing decision was the carrying out of the PCA in which it was determined that the claimant was not incapable of work.”

9.	Mr Lawson submitted that that case set out a general proposition, which was applicable in this case, namely that supersession on a relevant change of circumstances could not arise until the claimant was found actually incapable of work in accordance with a personal capability assessment and not in respect of a change in circumstances following a failure to attend a medical examination.

10.	Mr Bartos had two submissions in reply.  The first was that I should not follow CIB/790/2004.  His second submission was that in any event it fell to be distinguished.  Regulation 28 makes treatment of being incapable of work in accordance with the personal capability assessment dependent on either of the events of (a) the claimant having been assessed, or (b) falling to be treated as capable of work in accordance with regulation 7 or 8 not having occurred.  It was his submission that in CIB/790/2004, the latter condition did not apply.  That was accepted by Mr Lawson.  However, in the instant case, regulation 8 was quite clear.  It stated:-

“(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.

…..”.

In this case it was his submission that as the claimant had not attended for examination, he fell to be treated as capable of work and accordingly there were grounds for supersession.

11.	Mr Lawson had no satisfactory response to that submission.  He simply sought to rely on CIB/790/2004.  He did not accept that there was a distinction between that case and the instant case: he simply reiterated that there were no sufficient grounds to supersede and no change of circumstances to justify supersession.

12.	I am persuaded by the reasoning of Mr Bartos’ submission which in my view is correct.  It is not necessary for me to consider whether I ought to follow CIB/790/2004 as there is a clear distinction between that case and the present and that distinction lies in the event referred to in regulation 8 having occurred.  There was accordingly a conclusion in this case that the claimant fell to be treated as capable of work in accordance with regulation 8.  That was not disputed before me as it was before the tribunal.  In these circumstances there is a relevant change of circumstances.  CIB/790/2004 has no application in this case.  Having determined that issue, I have accordingly made the decision which is set out above in paragraph 1.

13.	The appeal succeeds but that success is of no benefit to the claimant.

						(Signed)
						D J MAY QC
						Commissioner
						Date:  5 November 2004