[2005] UKSSCSC CIB_4012_2004 (28 February 2005)
CIB/4012/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant from a decision of the Stockport Appeal Tribunal given on 3 September 2004 confirming the decision of the secretary of state issued on 23 April 2004 and finding that the claimant had failed to establish good cause for not attending a medical examination on 25 March 2004.  For the reasons given below, I set aside the decision of the tribunal and substitute my own decision setting aside the decision of the secretary of state on the ground that the secretary of state has failed to prove that written notice of the time and place for the examination was sent to the claimant at least 7 days beforehand in accordance with regulation 8(3) of the Social Security (Incapacity for Work)(General) Regulations 1995.  I further decide that the claimant is not to be treated as capable of work because of his failure to attend the medical examination in question, and that the decision dated 10 December 1998 awarding the claimant national insurance credits from and including 4 December 1998 is not to be superseded on that account.

2.	The claimant was in receipt of national insurance credits from and including 4 December 1998, having become incapable of work on that day due to arthritis.  He passed a personal capability assessment on 10 January 2002.  The secretary of state contends that on 10 March 2004 a letter was sent to him asking him to contact the Medical Services to arrange an appointment.  No reply was received and it is said that on 16 March 2004 a letter of appointment for a medical examination on 25 March 2004 was sent to the claimant’s address (given as 140 H….. Road).  The claimant contends that he did not receive either letter, and questions whether it might have been lost in the post or sent to his previous address.  

3.	The claimant did not attend the medical examination, which is said to have been at 9.00am, and on 26 March 2004 form BF223 was sent to ask for his reasons.  This document does not seem to have been sent by post, unlike the earlier ones, as it was responded to the same day by the claimant saying he had not received the letter of 16 March.  In his notice of appeal he states that he handed his reply to the staff at Cheetham Hill office.  He also suggests that the form may have been sent to his old address, 16 B…. Road.  From his reply on form BF223, it would seem that he had recently moved, and he also suggests on that letter that the letter must have been sent to his old address.

4.	A decision maker considered his reply on form BF223 and stated (file p.D1) that “Examination of IFDM1 reveals that all correspondence has been timeously and accurately issued to the address supplied by the customer. i.e. 140 H… ROAD…”  The decision maker further stated that the customer had not previously reported postal delivery problems and did not accept good cause under regulation 8(2).  The 1998 decision awarding incapacity credits was therefore superseded.  The claimant was then notified that, because he had failed to attend the medical examination, he would not get any more credits and would no longer be entitled to income support because he was sick – I do not know if there was a separate decision in relation to income support.

5.	The claimant responded immediately repeating what he had written previously.  The decision was reconsidered but not changed by another decision maker who says “I have checked the address and the appointment was sent to the correct address.”  A further attempt by the claimant to have the decision reconsidered met with the same fate.  This decision maker does not say how the address was checked, and there is no suggestion that any method other than by reference to form IFDM1 was used.

6.	The claimant appealed, but rather unwisely in my view elected to have a paper hearing.  This meant that the tribunal did not have the advantage of seeing and hearing from him in person on an issue where his credibility and possibly his honesty was in issue.  It also meant that the tribunal had no way of assessing his credibility or of asking questions relating to such matters as when he moved to a new address, whether the new address was a house in multiple occupation, and whether any other letters had gone astray there.  

7.	The statement of reasons for the decision of the tribunal confirming the decision of the secretary of state contains a clear error in line 2 of the second paragraph where there is a reference to the claimant not attending the hearing when it is clear that the chairman intended to refer to him not attending the medical examination.  I attach no importance to this.  The tribunal stated that the Benefits Agency record that two letters were sent to the claimant on the 10 and 16 March 2004 at his current address.  It concluded in effect that, in the absence of any evidence of other problems with the post at that address, it was unlikely that two letters would have gone astray and on that basis dismissed the appeal.  It would appear from that finding that the tribunal concluded that the letters were correctly addressed to 140 H….. Road.

8.	Unfortunately it appears to me that the tribunal erred in law in its approach to the question whether section 8(3) of the Incapacity for Work Regulations was complied with.  That paragraph provides that “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.”  There is no question here of the claimant agreeing to accept a shorter period of notice.  The burden of proof is on the secretary of state to show that this provision has been complied with, and I have come to the conclusion that that burden has not been discharged for the reasons given below.

9.	On this appeal the representative of the secretary of state concedes that the secretary of state had failed to outline the details of the evidence relied on and the tribunal failed to make its own findings of fact on the evidence, which the representative submits amounted to an error of law.  However, the representative contended that it made no difference in this case.  She refers to page B1 in the file.  It is headed “SCHEDULING LOG (FORM SL1)” although at the foot of the page it has a date 26.03.2004 and a reference “ifdm1_rep”.  I am not clear from this as to the relationship between this document and the form IFDM1 referred to above.  What does appear to be clear is that this form was generated by a computer on 26 March 2004 and is a copy of computer entries as they existed at that date.

10.	The representative of the secretary of state contends that this form contains evidence on which it is possible to show that the requirements of regulation 8(3) have been met.  I disagree.  I am unable to deduce from this form alone when the claimant’s address was altered to 140 H… Road.  Nor can I be certain that “issued” is equivalent to posted, although it might well be appropriate to infer, in the absence of evidence to the contrary, that a letter giving notice of an appointment was posted within a day or so of its being issued.  Finally, and most significantly in the present case there is no indication whether, assuming the document was posted, it was sent by first or second class post.

11.	The representative of the secretary of state has referred me to CIB/4512/2002.  As the representative of the secretary of state pointed out in that case, the use of the word “sent” in regulation 8(3) attracted the statutory presumption enacted in section 7 of the Interpretation Act 1978 that when a statute authorises service of a notice:-

“…unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying 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 the post.”

12.	That contention was clearly accepted by Commissioner Angus in paragraphs 9 and 10 of his decision in that case.  The question whether a contrary intention appeared was left open by Deputy Commissioner Wikely in CIB/1381/2003, a case decided on 5 September 2003, some 6 weeks before CIB/4512/2002, but in CSIB/721/2004 Commissioner Parker, who had both previous cases cited to her, also decided that section 7 of the Interpretation Act applied to regulation 8(3).  I agree that section 7 applies.  

13.	In the present case, the representative of the secretary of state has contended that form SL1 at p.B1 of the file contains sufficient evidence to show that the requirements of regulation 8(3) have been complied with, and has explained what the various entries mean.  She explains that:- 

“The document correctly records the claimant’s name and address and a contact telephone number.  In the “Appointment Letter History” there is information to show that an appointment letter was issued on 10/03/04 and 16/03/04 and an entry at “Date of exam” and “Appointment History” to show that an appointment had been fixed for 25/03/04 at 09.00am.  Further, the entry “MSEC” [Medical Services Examination Centre] shows that the examination was to be held in Manchester.  I therefore submit that this information shows that the requirements of regulation 8(3) were met.”

14.	I accept the explanation of form SL1.  However, that evidence does not satisfy me that regulation 8(3) was complied with.  It is plain from the submissions to the tribunal at p.1b that the letter of 10 March 2004 was said to have been sent to the claimant asking him to contact the Medical Services to arrange an appointment.  It was only the letter of 16 March 2004 which it is said notified him of the time and place of the appointment, and so was capable of complying with regulation 8(3).  

15.	Form SL1 as it appears in the file at p.B1 was generated by the computer on 26 March 2004.  The claimant is said to have moved to 140 H… Road shortly before 10 March and he suggests that the two letters of 10 and 16 March may have been sent to his previous address.  The issue for the tribunal to address, therefore, should have been when the address on the computer had been changed.  Form SL1 as it appears only shows that it had been changed at latest by 26 March.  I doubt, but do not need to decide, that that is sufficient.  

16.	Further, I am not clear that a statement that a document has been issued on a particular date is evidence that it was posted on that date.  Indeed, while there are submissions that it was posted, I am not clear that there is any evidence to that effect.  If relevant, I would not be prepared to infer that it was posted on the same day it was issued without evidence to that effect.

17.	Most significantly, bearing in mind that the letter of appointment is said to have been issued on 16 March 2004 for an appointment on 25 March 2004 and, under section 7 of the Interpretation Act, the letter is deemed to have been received at the time at which it would be delivered in the ordinary course of post, there is no evidence as to the time of posting or as to whether it was sent by first or second class post.

18.	It can be seen that for the letter to have arrived at least 7 days before the examination it must be deemed to have been received at latest by 18 March 2004.  I assume without deciding that arrival at any time that day would be sufficient.

19.	There is no statutory definition of “in the ordinary course of the post”.  At one time, when the postal service was better, there was a Practice Direction in the Queens Bench Division of the High Court that for the purposes of section 7 the ordinary course of the post was to be treated as being the first working day after the letter had been posted (see [1968] 1 WLR 1489).  Subsequently this was revised by Practice Direction (QBD: Postal Service) [1985] 1 WLR 489 which read as follows:- 

“1.  Under section 7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.
  2.  To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected: (a) in the case of first class mail, on the second working day after posting: (b) in the case of second class mail, on the fourth working day after posting.  ‘Working days’ are Monday to Friday, excluding any Bank Holiday.
  3.  Affidavits of service shall state whether the document was despatched by first or second class mail.  If this information is omitted it will be assumed that second class mail was used.  

Explanatory Note

It is no longer safe to assume that letters posted by first class mail will always be delivered on the following day.  To reduce the number of applications to set aside default judgments on the grounds of late service, more realistic assumptions are now prescribed.”

20.	The position is now different under the Civil Procedure Rules, where service is no longer provided for by second class post and CPR6.7 provides that in the event of service by first class post it is deemed to be effected two working days after posting.  Similar realistic assumptions as to when post is likely to be delivered are reflected in, for example, the Land Registration Rules 2003, rule 199(4)-(5), where letters sent by first class post are treated as being delivered on the second working day after they are posted.

21.	If anything the postal service has deteriorated further since the Practice Direction in 1985.  It appears to me that at the present time, the times treated by the High Court in that Practice Direction as being the times within which letters can be taken to be delivered in the ordinary course of the post ought also, in the absence of evidence to the contrary, to be the guidelines for deciding the same question in other cases where section 7 of the Interpretation Act 1978 applies.  The test under section 7 of the Interpretation Act is not when the letter is likely to have been delivered in the ordinary course of the post, but the date by which, in the absence of mishaps, it would have been delivered.  Provision must be made for the significant percentage of letters which, even in the absence of mishaps, do not arrive on Royal Mail’s target date.  The letter of appointment was posted at the earliest on 16 March 2004, which was a Tuesday.  In the absence of any evidence from the secretary of state that it was sent by first class post (an unlikely event in any case) I can only proceed on the basis that it was sent by second class post.  Four working days after Tuesday 16 March 2004 will have been Monday 22 March 2004, which is only three days before the date fixed for the examination.    

22.	I can see no reason why, in establishing whether the requirements of regulation 8(3) have been met, the secretary of state cannot provide a simple short written statement from the appropriate person giving the date on which the written notice was posted, the time at least to an extent sufficient to show whether or not it would have been collected that day by Royal Mail from the post box, and the address to which it was posted, and also stating whether it was sent by first or second class post.  The statement should also confirm that the letter has not been returned undelivered.  

23.	It appears to me that in future there should be evidence available from the secretary of state dealing with those issues before a decision maker comes to a decision.  If it is not stated whether first or second class post was used, the decision maker should either seek further evidence or assume that second class post was used.  If there is a further issue as to whether it was posted to the correct address, as in this case where there has been a change of address, the secretary of state will normally need better evidence of the address to which it was posted than a later computer generated print out showing the address on the file at that later date.

24.	I conclude that the secretary of state has failed to prove that regulation 8(3) was complied with.  The representative of the secretary of state has not sought to adduce any further evidence or suggest that any further evidence might be available were I to remit the case to a new tribunal and has invited me to decide the appeal on the basis of the explanation of document SL1 which she has provided.  I therefore substitute my own decision as set out in paragraph 1 above.    In the circumstances it is unnecessary to consider whether there was any error of law in the finding of the tribunal as to whether the claimant had good cause for failing to attend the medical examination.

	(signed on the original)	Michael Mark
		Deputy Commissioner
		28 February 2005