Decision No: C5/03-04(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 16 October 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant, against a decision dated 16 October 2002 of an Appeal Tribunal sitting at Newtownards.  That Tribunal had disallowed the claimant’s appeal against a decision of the Department dated 25 April 2001.  I think it is important in this appeal that I set out in some detail the decision of the decision maker in the Department.  It is as follows:

“My decision only for the period from and including 25 April 2001 is that [the claimant] is capable of work and not entitled to incapacity credits from and including 25 April 2001 on the basis of ongoing incapacity for work.”

2.	At the end of the decision there is a list of legislation referred to.  That legislation includes regulations 10 and 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.

3.	The Tribunal decision reads as follows:

“Appeal Disallowed
The Appellant cannot be treated as incapable of work and is not incapable of work in accordance with the personal capability assessment from and including 25.4. 2001 and is not entitled to credits on the basis of ongoing incapacity for work.”

4.	The claimant’s appeal to the Tribunal made no reference to any legislative provision.  It was based mainly on the contentions that the doctor who had examined him on behalf of the Department had not understood his medical condition and that he was not deceiving the Department and felt insulted that he had not been allowed the benefit.  The claimant also offered to have his Consultant explain the condition to the Tribunal.  Before the Tribunal hearing which made the decision under appeal there were two previous hearings which were adjourned.  The first hearing which was on the 29 August 2001 adjourned to enable the appellant to obtain a report from Dr.McC…, Consultant Immunologist.  The report which was obtained in response to this adjournment appears to be that dated 1 October 2001.  That report states as follows: -

“This is to confirm that [the claimant] attends the Royal Victoria Hospital, Belfast.  He has a deficiency in his immune system and requires regular intravenous treatment every two weeks.  This treatment is given as a Day Case at the Royal Victoria Hospital and, provided he continues on this treatment, he remains reasonably well.  

If you require any further details about this patient’s case history or the condition from which he suffers, this can be forwarded on request provided [the claimant] gives permission.”

5.	There was a further adjournment on 6 March 2002 to enable the claimant to obtain additional medical evidence.  In response to this adjournment there was a further letter produced, again from Dr. McC…, which was addressed to the claimant and stated as follows: -

“I apologise for the delay in replying to you about your appeal.  
I have read over the literature which you left me very carefully and I quite honestly do not feel that there is anything further I can contribute to what I said in my original Medical Report.

It is clear that when you were interviewed for your appeal you were asked about problems with sitting, problems with bending or kneeling, ability to walk or climb stairs and all of these issues have been clearly outlined.

I do not feel that there is anything with regard to your medical condition which affects your ability to perform any of these functions and therefore there is nothing further that I can add apart from the fact that you suffer from recurrent infections and require intravenous therapy on a regular basis.  I doubt if either of these would influence the Appeals Committee with regard to your benefits.”

6.	The claimant did not make a timeous request for the statement of reasons of the Tribunal and the legally qualified panel member did not exercise her discretion to supply same out of time.  I waived the requirement to produce the statement of reasons when I granted leave to appeal.  I did have before me the Tribunal’s record of proceedings.  That record does not show the claimant as raising expressly any issue in relation to exemption from the Personal Capability Assessment nor does it show the Tribunal questioning expressly on those issues.  The record does show the medical member of the Tribunal as commenting as follows: -

“Deficiency in immune system.  No medical evidence that it is severe or uncontrollable”.  
There is no indication of the claimant responding directly to these comments.  He did state that he had felt “great” at the time of the decision maker’s decision but had got worse since.  The tenor of the claimant’s evidence was that he suffered infections/abscesses but that these infections were minor due to the treatment that he got and that he sliced and dressed his own abscesses.  He also stated that he could go for months and not have any infections or abscesses and that his treatment kept his condition “stable and liveable”.  

7.	The claimant’s grounds of appeal to me, as mentioned above, were that his condition should have been considered under regulation 10(2)(e)(vii) of the above Regulations and that the Tribunal had erred in not so considering it.  In the course of the submissions to me, firstly in the OSSC1 form dated 20 February 2003, then in subsequent observations sent on 28 May 2003 and dated 3 July 2003 the claimant’s representative, Ms J… of the Primary Immunodeficiency Association submitted that the Department and the Doctors advising it had not considered the question of exemption under regulation 10.  She submitted that the evidence raised the issue and that the matter had not been considered by the Tribunal which had erred in failing to carry out its inquisitorial role in this respect.  Ms J… submitted further that the medical member’s use of the phrase “severe or uncontrollable” was indicative of his mind being on regulation 27(2)(a)(i) which uses that phrase and that he may have misdirected the Tribunal.

8.	The appeal was opposed by the Department which was represented by Mr Toner of the Decision Making and Appeals Unit.  Mr Toner made observations on the appeal by letters dated 1 May and 20 June 2003.  Mr Toner submitted that an examination of the Departmental decision showed that the decision maker had decided that none of the exempt conditions in regulation 10 applied.  He submitted further that the doctor who had examined the claimant on behalf of the Department had not advised that he should be exempted from the Personal Capability Assessment.  Mr Toner submitted that in the absence of the statement of reasons it was difficult to offer meaningful comment on the claimant’s appeal, though the comment of the medical member outlined above would perhaps indicate that the provisions of regulation 10(2)(e)(vii) were considered.  He submitted also that the decision notice of the Tribunal on 16 October 2002 was in terms which would indicate that regulation 10(2)(e)(vii) was considered.  In this respect Mr Toner referred specifically to the Tribunal having decided that the claimant could not be “treated as incapable of work and is not incapable of work in accordance with the Personal Capability Assessment”.

9.	I issued a direction in this case dated 10 December 2003 directing the Department and the claimant to make written observations on whether or not there would have been a breach of the inquisitorial role if the Tribunal had not considered regulation 10(2)(e)(vii) of the Social Security (Incapacity for Work)(General) Regulations (Northern Ireland) 1995.  On 7 January 2004 Ms J… made observations.  She relied on paragraphs 31 and 32 of decision R(IS)11/99.  In those paragraphs Mr Commissioner Rowland stated (inter alia):-

“It seems to me that there is clearly a duty upon a tribunal to ensure that all relevant questions have been asked of a claimant.  It could not be otherwise, given the complexity of social security law and the fact that few claimants have advisors.  …  The asking of questions is largely achieved by ever-more sophisticated claim forms but even the income support claim form, which runs to several pages, cannot ask all possibly relevant questions.  Some questions are designed merely to elicit an answer which will reveal whether further questions need be asked later.  When a case goes on appeal, it seems to me that a tribunal are not bound to ask questions that have already been asked by the Secretary of State or by an adjudication officer, unless the points have been put in issue, but they are obliged to ask those questions that have not previously been asked but which should have been asked.
	
32.  In the present case, I agree with the adjudication officer now concerned that the claimant had raised, through the information he had given, the serious possibility that paragraph 6 of Schedule 1 to the Income Support (General) Regulations 1987 applied to him, even though he had not provided sufficient information to enable that question to be determined in his favour.  The local adjudication officer appears to have overlooked that fact and consequently did not ask questions calculated to elicit the relevant evidence from the claimant.  That burden accordingly fell upon the tribunal.”

10.	Ms J… submitted that the question of exemption was not expressly raised by the appeal but that it would be wrong to rely on Article 13(8)(a) of the said Order as a ground for refusing to deal with an issue to which the Department ought to have but had not addressed its mind and to which a claimant could not reasonably have been expected to refer when appealing.  She submitted that the Department failed to consider the question of exemption and in fact confused the question of exemption with the question of deemed incapacity for work.

11.	She submitted that the evidence as a whole was such as to raise the issue of possible exemption.  The medical evidence already indicated that the claimant suffered from an immune problem giving rise to opportunistic infection.  This should have alerted the Tribunal to the possibility of exemption even though the Department had overlooked this possibility.

12.	Mr Toner submitted that as the reasons for the decision were not available it was not possible to confirm with any certainty that the Tribunal did not address the question of exemption under regulation 10 and regulation 10(2)(e)(vii) in particular.  However an examination of the decision under appeal (the Department’s decision of 25 April 2001) confirmed that the question was considered by the decision maker.

13.	Mr Toner submitted that, in light of the medical and other evidence and as regulation 10(2)(c)(vi) was not expressly raised as an issue by the appeal, the Tribunal, if it did not consider the issue of possible exemption from the personal capability test, would not have been in error of law.
14.	I agree with Mr Toner that the Department did consider whether any of the exempt conditions applied.  The Department’s decision includes the following sentences: -

“He cannot be treated as incapable of work from and including 25 April 2001 because none of the exempt conditions apply.

…

Therefore he is capable of work and cannot be treated as incapable of work because there are no exceptional circumstances.”

15.	The decision refers to regulation 10 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 which deals with conditions which exempt a claimant from having to satisfy the personal capability assessment to be treated as incapable of work.  The decision also refers to regulation 27 which sets out the exceptional circumstances in which a person who does not satisfy the personal capability assessment can nonetheless be treated as incapable of work.  It seems to me quite apparent that the Department considered both provisions in making its decision and I reject Ms Jackson’s submissions that it did not.

16.	The Department did not, in its submissions to the Tribunal, refer to regulation 10.  I am uncertain why it did not, possibly it was because of the terms of the claimant’s appeal though some mention would have been helpful.  In any event it is a matter for the Department what it includes in the submission or indeed if it makes any submission at all.  Omissions or errors in the Department’s submissions are not errors on the part of a tribunal.

17.	Ms J… referred to R(IS)11/99.  It is worthy of note that that decision related to the legal situation prior to the coming into force of Article 13(8)(a) of the Social Security (Northern Ireland) Order 1998.  That provision is as follows: -
	“In deciding an appeal under this article, an appeal tribunal – 

(a)	need not consider any issue that is not raised by the appeal;”

The authors of the 2002 edition of Volume III (Administration; Adjudication and the European Dimension) of “Social Security Legislation” comment on that provision as follows: -

“What does appear fairly clear is that para (a) is intended to make it explicit that there are limits to the extent to which a tribunal is under a duty to consider possible challenges to a decision that have not been raised by the claimant in the “appeal”.”

I agree with that comment.

18.	In addition R(IS)11/99 may not be exactly on point here in that in this case relevant questions relating to regulation 10(2)(e)(vii) could not all be asked of the claimant.  The sub-paragraph itself requires medical evidence and the claimant is not medically qualified.  The Department had sought medical advice on the potential application of the regulation 10 conditions and had been advised that the claimant needed to be “referred for assessment”.  The doctor had been asked what exempt category the claimant fell into and had left this section blank.  It seems to me quite apparent that the “assessment” referred to was the personal capability assessment and that the doctor was not prepared to give the opinion that the claimant fell into any exempt category.  The Incapacity for Work Questionnaire form completed by the claimant does not specifically ask him about the various exempt conditions. It does, however, ask him for information about his diagnosis – which he supplies.  It does not ask about whether his condition is progressive but it does ask him about the effects of the condition on day-to-day life.  Again, the claimant supplies evidence.

19.	As the Tribunal of Commissioners said in decision R(SB)2/83 (which incidentally also pre-dated Article 13(8)(a) -

“Everything will depend on the circumstances in any given instance. …  We would be slow to convict a tribunal of failure to identify an uncanvassed factual point in favour of the claimant in the absence of the most obvious and clear cut circumstances.”

20.	I have to decide whether the Tribunal, not the Department, erred in law.  It does appear to me, even without the reasons, to be clear that the Tribunal did not deal at hearing with the possible application of regulation 10. Had it done so the very narrow provisions of regulation 10(2)(e)(vii) would have been reflected in the questioning and the answers.  They were not. I am prepared to conclude that this matter was not raised at hearing.  Whether it was present in the Tribunal’s mind I cannot say in the absence of the full statement of reasons but it was not explored with the claimant.

21.	Did this amount to a failure of the Tribunal’s inquisitorial role?  That role does exist but it is a limited one.  It has never required the Tribunal to exhaustively trawl the evidence to see if there is any remote possibility of an issue being raised by it.  What the Tribunal has to do is to explore issues expressly raised by the appeal or clearly apparent from the evidence.  Article 13(8)(a) exempts the Tribunal from the duty to explore issues not raised by the appeal.  However, in deciding whether an issue is “raised by the appeal” it is necessary to consider not just the wording of the appeal but the substance of the appeal (CDLA/1000/01).

22.	The parties agree and it is clear to me in this case that the issue of exemption from the personal capability assessment was not expressly raised by the appeal.  The claimant never raised it by letter or at hearing.  Was it, however, clearly raised by the evidence so that it should have been explored?  To decide this it is necessary to give some consideration to the provisions of regulation 10.

23.	Regulation 10 so far as relevant reads as follows: -

“(1)  Where the question whether a person is capable or incapable of work falls to be determined in accordance with the personal capability assessment, a person shall be treated as incapable of work on any day in respect of which any of the circumstances set out in paragraph (2) apply to him.

(2)	The circumstances referred to in paragraph (1) are –
…
(e)	that he is suffering from any of the following conditions and that there exists medical evidence that he is suffering from any of them.
…
(vii)	manifestations of severe and progressive immune deficiency states characterised by the occurrence of a severe constitutional disease or opportunistic infections or tumour formation.”
 
24.	The first point of note is that medical evidence must exist that the claimant suffers from the relevant condition.  The second is that the claimant must suffer from severe and progressive immune deficiency states.  The third is that these must manifest themselves and be characterised by severe constitutional disease or opportunistic infections or tumour formation.  Sub-paragraph (vii) defines the exempting illness and provides that the medical evidence must cover it.  An immune deficiency state can exist without satisfying the condition – it is only immune deficiency states which are progressive and severe and characterised as set out in the legislation only which can qualify.  To satisfy the condition, medical evidence must exist not merely that the claimant suffers from an immune deficiency state but that it is severe and progressive and manifested and characterised as set out in regulation 10(2)(e)(vii).

25.	It would, in my view, have been open to the Tribunal to find on the basis of the evidence before it that regulation 10(2)(e)(vii) was not satisfied (though the conclusion to be reached on existing and any other evidence is a matter for the Tribunal).  However, the standard is not that, it is whether the evidence clearly raised an issue to be explored.

26.	I have found this a finely balanced decision but conclude that medical evidence in this case does raise an issue which needs to be explored.  There was a serious possibility that further evidence might have been obtained by the claimant which might possibly have brought him within the relevant provision.  I emphasise, however, that it is no more than a possibility.  There is medical evidence that the claimant suffers from an immune deficiency state and that he suffers from recurrent infections (whether those can be classed as opportunistic infections I do not have the medical knowledge to say).  On balance I think that raised an issue under regulation 10(2)(e)(vii) which required to be explored with the claimant at hearing.  The issue was not explored and that was a failure of the Tribunal’s inquisitorial role.  I set the decision aside for that reason.

27.	This is not a case where I can give the decision which the Tribunal should have given.  I therefore remit the matter to a differently constituted Appeal Tribunal for rehearing and redetermination.  It will be for the claimant to produce to the Tribunal such medical and other evidence as he wishes to support any contention that regulation 10(2)(e)(vii) can assist him.  The fact that I have set the Tribunal’s decision aside is not an indication of the eventual substantive outcome.

(Signed):  M F Brown

COMMISSIONER

23 February 2004