[2005] UKSSCSC CIB_3649_2004 (15 June 2005)
CIB/3649/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Although I find that the decision of the appeal tribunal (the tribunal”) given on 7 July 2004 under registration No. U/44/0225/2003/01472 was erroneous in point of law, for the reason indicated below, the claimant’s appeal fails.

2.	The claimant is a man born 11 September 1976.  He became incapable of work on 8 January 2003.  He did not satisfy the contribution conditions and there was no entitlement to incapacity benefit, but he was treated as incapable of work pending a personal capability assessment.  He completed an incapacity for work questionnaire on 16 May 2003, stating that he had a problem with heroin abuse and depression.  His right hand had been damaged in an accident; his tendons had been lacerated, which restricted the use of his hand.  From his completion of the descriptors, he was not sure whether he could tie a bow in string, and he had difficulty with lifting and carrying.  The case was referred to Medical Services who were unable to advise on the basis of the evidence held, and the claimant was examined by an examining medical practitioner on 29 July 2003, who recorded a diagnosis of drug misuse, right shoulder problem and right hand problem.  The examining medical practitioner assessed the claimant as being unable to pick up and carry a 2.5 kilogram bag of potatoes with one hand but that he could with the other; he assessed the claimant as having mental problems. This led to an award of 5 points by the decision maker on 5 August 2003, who then decided that the claimant was no longer entitled to incapacity credits from that date, as he had been found capable of work following the personal capability assessment.  The claimant appealed. At his request the decision was reconsidered but not revised, and the appeal proceeded.  

3.	A tribunal was first held on 25 May 2004.  The claimant was represented but was not present.  The appeal was adjourned because of lack of time.  The tribunal was then held on 7 July 2004.  Again the claimant was represented but was not present, although he had been expected to attend.  The tribunal clerk telephoned the claimant, who stated that he was under the impression that the tribunal date was a week later.  His representative sought an adjournment.  The tribunal recorded that it was satisfied that the claimant had been notified of the hearing date, that there were no interlocutory matters to be dealt with, and it had sufficient evidence in front of it to determine the matter.  It therefore proceeded to hear the case.  The appeal failed.

4.	The claimant’s representative applied unsuccessfully for the decision to be set aside on the basis that the major issue before the tribunal was to be a mental health assessment and therefore it was vital that the claimant should attend and give evidence.  The failure to attend was due to mental illness.  There had been discrimination against the claimant.  The legally qualified panel member refused the application on the grounds that although regulation 57(1)(a) of the Social Security (Decisions and Appeals) Regulations 1999 was satisfied, it would not be just to set aside the decision.  The claimant had been given notice of the hearing and had instructed his representative to attend.  There was no evidence to explain why his health prevented him from attending.

5.	The claimant sought leave to appeal on the grounds that the tribunal should have adjourned the hearing, and that it had failed to record the reasons why it decided to proceed and reject the request for an adjournment.  Also, although the representative had made a written submission based around Howker v the Secretary of State [2002] (reported as R(IB) 3/03) and CIB/884/2003 that 

“the examination that the [claimant] had undergone was perhaps not the examination envisaged by Parliament and this raised issues about the decision that had been made, the tribunal’s decision was silent on this issue and gives no reason as to whether this submission was rejected and if so why”.

6.	In connection with the request for adjournment, the Secretary of State’s representative submitted that there was no breach of natural justice:

	“5…..The tribunal explained that it felt that there was sufficient evidence before it to decide the case without a further adjournment.  The claimant’s representative was present and able to give evidence on his behalf.  The claimant had been properly notified at the hearing and given the opportunity to attend.  The clerk had even telephoned the claimant in order to establish the reason for his non-attendance.  I submit that there is no automatic right to an adjournment and that a tribunal is entitled to find the claimant’s reasons for not attending do not merit one.  

	6.	The record of proceedings [pages 53-54] clearly shows that the tribunal considered the relevant issues and gave reasons why it decided not to adjourn.  I submit that the tribunal properly exercised their jurisdiction in this matter and adequately explained the reasons behind their decision.  The claimant’s representative stated that the claimant had attended the previous tribunal, implying that he would have certainly attended this one if he had known the correct date.  However the record of proceedings for the previously adjourned tribunal [page 46K] shows that the claimant had not been present”.  

I have already noted in paragraph 3 above the reasons given by the tribunal for proceeding with the case and I accept the Secretary of State’s submission on this point in its entirety. This is not affected by the claimant’s representative’s subsequent explanation that the claimant was advised not to attend the first abortive tribunal hearing as it would be adjourned for lack of time. 
	
7.	In connection with the tribunal’s failure to consider the Howker case, the Secretary of State’s representative supported the appeal, and I then asked him for a further submission on whether the outcome would have been any different if the tribunal had considered the decision in CIB/884/03.  In that respect, the Secretary of State’s representative at first supported the appeal on the grounds that the amendments to the 1995 Regulations made by the 1996 Regulations to the manual dexterity descriptor by the insertion of the words “sink” before “taps” and  “the” before “control knobs” in 7 (b) and (f) and “but can with the other [hand]” in 7(f) and 7(g) might have resulted in the loss of benefit by claimants, and the amendments were not therefore neutral as advised to the Social Security Advisory Council, and are thus ultra vires.

8.	Similarly, in the Secretary of State’s representative’s submission, in respect of lifting and carrying, the amendment made by the insertion after the word “carrying”, of the words “by the use of the upper body and arms (excluding all other activities specified in Part 1 of this Schedule)” might also have resulted in the loss of benefit by claimants, so that these amendments also are not neutral, but are ultra vires.  However, in his view, in respect of the amendment to descriptors 8(e) and 8 (f), which were contended for by the claimant, the insertion after the word “hand” of the words “but can with the other” is neutral on its potential effect on claimants.

9.	Taking these two descriptors in reverse order, I have recently considered the amendments to the lifting and carrying activity effected by the 1996 Regulations, in CIB/3397/04 in respect of which I held an oral hearing.  I concluded that the evidence as a whole is that there was no change effected by the amendment inserted by the 1996 Regulations and that the explanation given to the Social Security Advisory Committee that the amendment was neutral is correct.  Following the Howker judgement, paragraph 8 of Schedule 1 to the 1996 Regulations is not ultra vires.  My decision did not extend to the addition of the words “but can with the other [hand]” which is added to several of the descriptors by the 1996 Regulations, but I have no hesitation in finding that this addition was of a comparatively trivial nature and is to be taken as purely clarificatory in nature.  

10.	On the question of manual dexterity, the amendments to the descriptors were limited to insertion of the words “sink” before “tap”, “the” before “control knobs” in 7(b) and 7(f) and “but can with the other [hand]” in 7(f) and 7(g).  As I have already said in paragraph 10 above, the words “but can with the other [hand] are for clarification only.  In my judgment the addition of the words “sink” and “the” are of similar nature.  I have seen no suggestion that any other type of tap was under consideration prior to the amendment.  The same applies to the insertion of the word “the” in front of “control knobs” which was intended to clarify that the word “control” is to be used as an adjective and not as a verb.  The Social Security Advisory Council was correctly advised that the amendments in respect of this activity were neutral. 

11.	In the light of my decision in CIB/3397/04, I gave both parties the opportunities to make further submissions.  The Secretary of State’s representative resiled from his earlier submission as a result of my decision, and the claimant’s representative has restated his submission that because the tribunal either did not deal with his submission on Howker or did not have the submission before it, there was a material breach of the procedural rules as a result of which the tribunal’s decision should be set aside.

12.	In respect of the claimant’s representative’s submission that he had made a written submission prior to the tribunal hearing, as the Secretary of State’s representative pointed out, there is no copy in the file of a written submission made by the claimant’s representative based on the decision in the Howker case and CIB/884/03.  I note that a copy of decision CIB/2338/2000 is in the file at pages 46A to 46J, but without further explanation. The claimant’s representative properly raised the point that there may have been an error of law if a document was not in front of the tribunal.  As also submitted by the Secretary of State’s representative, in the light of decision CIB/884/03, it would have been appropriate for the tribunal to have considered in any event whether the amendments to the Social Security (Insecurity for Work) (General) Regulations 1995 (“the 1995 Regulations”) made by the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996 (“the 1996 Regulations”) were neutral in their potential effects on claimants, or whether they were adverse, and as such should be considered ultra vires.  I agree that there is no indication that the tribunal considered this aspect, and whether or not the full documentation was before it, it was in error on this aspect.  

13.	However, given my decision in CIB/3397/04 (which was subsequent to the date of the tribunal), it follows that even had the tribunal considered the issues raised by Howker, and reached what in my view is the appropriate conclusion, the outcome of the case would not have been affected.  For this reason, although the tribunal was in error, there could be no advantage to the claimant in setting aside the tribunal’s decision and the appeal fails.

14.	My decision is set out in paragraph 1 above.

	(Signed)	E A Jupp
		Commissioner
	
	(Date)	15 June 2005