Decision No:  C4/09-10(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 28 March 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.

2.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

3.	The decision of the appeal tribunal dated 28 March 2008 is in error of law.  The error of law identified will be explained in more detail below.

4.	Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

5.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

6.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

7.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to incapacity benefit (IB) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background

8.	The decision under appeal to the appeal tribunal was a decision of the Department, dated 9 January 2008, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, dated 5 June 2001, and which had awarded an entitlement to IB, from and including 28 May 2001; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 9 January 2008. 

9.	The appeal was received in the Department on 11 January 2008.

10.	On 5 February 2008 the decision dated 9 January 2008 was looked at again but was not changed.

11.	The substantive appeal tribunal hearing took place on 28 March 2008.  The appellant was present, and was accompanied by his niece.  The appeal was disallowed.

12.	On 19 September 2008 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.

13.	On 25 September 2008, the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

14.	On 24 October 2008 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).

15.	On 15 September 2008 observations were sought from Decision Making Services (DMS) and these were received on 15 January 2009.  In these initial observations DMS opposed the application on the grounds cited by the appellant.

16.	Observations were shared with the appellant on 24 March 2009.

17.	On 3 April 2009, correspondence was received in OSSC from an office of the Citizens Advice Bureau (CAB), in connection with the relevant application for leave to appeal.

18.	Following an exchange of correspondence, it was confirmed, on 20 May 2009, that an officer of the CAB was now acting as representative for the appellant.

19.	On 29 September 2009 further submissions were received from the appellant’s representative in connection with the application for leave to appeal.  In these further submissions, the appellant’s representative identified a further ground on which it was submitted that the decision of the appeal tribunal was in error of law.

20.	The further submissions from the appellant’s representative were shared with DMS on 2 October 2009.

21.	On 9 October 2009 a further submission was received from DMS in reply to the submission which had been received from the appellant’s representative.  In this further submission, DMS resiled from their earlier opposition to the application and now supported the application on two identified grounds.

	Errors of law

22.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

23.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
	Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	The submissions of the parties

24.	In the initial application for leave to appeal to the Social Security Commissioner, the appellant had submitted that he was not fit for work, that he would be a liability to himself and other people at work as he is ‘drink’ dependent, and that he cannot go out as he takes panic attacks.

25.	In their written observations on the initial application for leave to appeal, DMS opposed the application on the grounds cited by the appellant.

26.	In a further submission prepared by the appellant’s new representative, the CAB, it was submitted that the decision of the appeal tribunal was in error of law as it had failed to consider the potential impact of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.  In making this submission, the appellant’s representative relied on my decision in C5/08-09(IB).

27.	In the further observations, made in reply to the submissions of the appellant’s representative, DMS supported the application on the regulation 27 ground.  Further DMS submitted that the decision of the appeal tribunal was in error of law as it had not dealt adequately with the supersession issue.

	The potential application of regulation 27

28.	In C5/08-09(IB), at paragraphs 42-45, I set out the following in connection with regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, at paragraphs 42 to 45:

‘42.	The personal capability assessment is an assessment of the extent to which a person who has some specific disease or bodily or mental disablement to perform certain of the activities as prescribed - section 167A(1), 167C(1) and (2) Social Security Contributions and Benefits (Northern Ireland) Act 1992.

43.	The prescribed activities are to be found in Parts I and II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

44.	The appeal tribunal’s decision in connection with that issue was that the application of relevant descriptors to relevant activities means that the appellant scored 12 points.  The appellant, therefore, failed to satisfy the personal capability assessment in that he was not incapable, by reason of some specific disease or bodily or mental disablement, to perform certain of the activities as prescribed in the relevant legislation.

45.	Having determined that the claimant is not incapable of work in accordance with the personal capability assessment the appeal tribunal was under a duty to consider whether any of the exceptional circumstances set out in regulation 27 applied to the appellant so that he could be treated as incapable of work.’

	Further, at paragraphs 52 to 55, I stated:

	‘52.	As was noted above, the primary issue before the appeal tribunal was whether the appellant was incapable of work in accordance with the personal capability assessment.  Having done so, and determined that the appellant was not so incapable, the appeal tribunal was under a duty to consider whether the appellant satisfied any of the exceptional circumstances set out in regulation 27 applied to him.  That required the appeal tribunal to acknowledge, in its statement of reasons, that the application of regulation 27 was considered by the appeal tribunal.  It required the appeal tribunal to make sufficient findings of fact in connection with those exceptional circumstances.  In the instant case that would have involved findings in fact in connection with the timing of any medical intervention ie within three months of the date on which the doctor examines him.  More importantly, it would have involved the making of sufficient findings in fact as to whether any medical intervention amounted to ‘a major surgical operation or other major therapeutic procedure’.  Finally, the issue having been raised by the appellant, in his letter of appeal, and in his oral evidence to the appeal tribunal, the appellant was entitled to know, through the statement of reasons, what was the appeal tribunal’s determination in connection with the potential application of regulation 27, and the reasons for its conclusions in connection with it.  As was noted above, the statement of reasons for the appeal tribunal’s decision is silent on all aspects of regulation 27.

53.	Having found that the appeal tribunal was under a duty to consider whether any of the exceptional circumstances set out in regulation 27 applied to the appellant and, having failed to consider that regulation, explain in its statement of reasons that it has so considered it I find that the decision of the appeal tribunal is in error of law.

54.	I would note, at this stage, that in the majority of cases in which an appeal tribunal is considering whether the appellant is incapable of work in accordance with the personal capability assessment, the further issues of whether he also satisfies the exceptional circumstances in regulation 27, will not be relevant.  Nonetheless, it will be safest and best practice for appeal tribunals to note that the regulation was considered.  I am aware that many LQPMs of appeal tribunals have aide-memoirs to assist in ensuring that all issues in connection with personal capability assessment appeals have been considered.  In my view, such aide-memoirs should also contain a reminder to consider regulation 27.  Where a statement of reasons for the appeal tribunal’s decision is requested it will also be safest and best practice to make a reference therein that the application of regulation 27 was considered but was discounted.  That will not be an onerous duty for appeal tribunals.  Where regulation 27 is not relevant a simple statement to that effect is sufficient.

55.	Where, of course, regulation 27 has a potential relevance there is a greater duty on the appeal tribunal to consider that application, as indicated in paragraph 52 above.’

29.	In a written submission, the appellant’s CAB representative submitted that the appeal tribunal erred in law by failing to consider the potential impact of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended

30.	In written observations on the application for leave to appeal to the Social Security Commissioner, prepared after receipt of a submission from the appellant’s new CAB representative, DMS stated the following:

‘Since the Department’s observations in this case were prepared on 15 January 2009, the responsibility of a tribunal in considering the application of regulation 27 has been the subject of unreported Northern Ireland decision C5/08-09(IB).  This decision is dated 05 May 2009.  In paragraph 52 Commissioner Mullan stated:-

“…the primary issue before the appeal tribunal was whether the appellant was incapable of work in accordance with the personal capability assessment.  Having done so….the appeal tribunal was under a duty to consider whether the appellant satisfied any of the exceptional circumstances set out in regulation 27 applied to him.  That required the appeal tribunal to acknowledge, in its statement of reasons, that the application of regulation 27 was considered by the appeal tribunal.”

	In paragraph 54 Commissioner Mullan while acknowledging that in the majority of cases where the tribunal is considering whether a claimant is incapable of work in accordance with the personal capability assessment the further issue of whether the exceptional circumstances are satisfied would not be relevant, nevertheless concluded that it would be best practice for the tribunal to record in its statement of reasons that it considered regulation 27 but discounted it.

	He went on to state, in paragraph 55:-

“Where, of course, regulation 27 has a potential relevance there is a greater duty on the appeal tribunal to consider that application, as indicated in paragraph 52 above.”   

In applying this decision to the facts of (the claimant’s) case, as the tribunal referred in its reasons to (the claimant’s) uncertainty about returning to work due to his alcohol usage, I would submit that this is an indication regulation 27 was potentially relevant.  Therefore I would submit that in the light of paragraphs 52 and 55 quoted above the tribunal erred in law and would agree with (the claimant’s representative) in relation to this issue.’

31.	I am in agreement with both parties to the proceedings that there was sufficient evidence before the appeal tribunal for the appeal tribunal to consider whether any of the exceptional circumstances set out in regulation 27 applied to the appellant.  As I noted in C5/08-09(IB), that required the appeal tribunal to acknowledge, in its statement of reasons, that the application of regulation 27 was considered by the appeal tribunal.  It required the appeal tribunal to make sufficient findings of fact in connection with those exceptional circumstances, after having undertaken a rigorous assessment of the evidence which was before it and relevant to the exceptional circumstances.

32.	Having found that the appeal tribunal was under a duty to consider whether any of the exceptional circumstances set out in regulation 27 applied to the appellant and, having failed to consider that regulation, and explain in its statement of reasons that it has so considered it I find that the decision of the appeal tribunal is in error of law.

	The supersession issue

33.	In the written observations on the application for leave to appeal to the Social Security Commissioner, prepared after receipt of a submission from the appellant’s new CAB representative, DMS also stated the following:

‘I also note that on 15 January 2009 Commissioner Mullan issued unreported Northern Ireland decision C12/08-09(DLA).  This decision addressed the responsibility of a tribunal when considering the issue of supersession.  At paragraph 52 Commissioner Mullan stated:-

“The appeal tribunal’s duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it has done so…….That consideration must be explicit from the decision notice, the statement of reasons or a combination of both.  In the present case, I am of the view that it is not even implicit that consideration was given to the supersession issue.”

	At paragraph 58 Commissioner Mullan concluded:-

“The failure of the appeal tribunal to make explicit its determination, findings and conclusions on the supersession issue means that it is in error of law, and it is for that reason that it is set aside.”

In view of this decision and having looked again at both the tribunal notice and reasons for decision in the present case, it would appear that no consideration was given to the issue of supersession.  As Commissioner Mullan indicates at paragraph 56 of the above decision, if the tribunal agreed with the grounds, entitlement and effective date as outlined in the Department’s appeal submission … it would have been easy for it to have made reference to those submissions.  However in view of the complete lack of reference to the issue of supersession in either the tribunal notice or statement of reasons I would submit that this constitutes a further error in law.’

34.	In C3/09-10(IB), I clarified the context of my decision in C12/08-09(DLA).  At paragraphs 26 to 41, I stated:

‘26.	It is important that my comments at paragraph 52 of C12/08-09(DLA) are seen in the context of the remainder of that decision.

27.	In that case, the social security benefit under consideration was disability living allowance (DLA).  The decision under appeal to the appeal tribunal was a decision in which a decision-maker decided to supersede an earlier decision of the Department and, further, decided that the appellant was not entitled to any rate or component of DLA, from a specific date.  The earlier decision of the Department had included an award of entitlement to DLA.

28.	The decision-maker had determined that the evidence available to him suggested that there had been an improvement in the appellant’s care needs sufficient to amount to a relevant change of circumstances, since the earlier decision had been made, and satisfying regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

29.	The decision-maker had determined that there was also sufficient evidence to further decide that the appellant did not satisfy the conditions of entitlement to either component of DLA from and including a specific date.

30.	The decision-maker had also set out the legal basis upon which entitlement to DLA was removed from a specific date (‘the effective date of supersession’).

31.	In C12/08-09(DLA), at paragraphs 33 to 36, I set out the duties of the appeal tribunal with respect to the decision-making process:

	’33.	Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 24 March 2007, had grounds to supersede the earlier decision of the Department, dated 29 November 1996.

	34.	If the appeal tribunal determined that the decision-maker, on 24 March 2007, did not have grounds to supersede the decision dated 29 November 1996, then that latter decision would continue to have effect.

	35.	If the appeal tribunal determined that the decision-maker, on 24 March 2007, did have grounds to supersede the decision dated 29 November 1996, then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

	36.	Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.’

32.	The approach taken by the appeal tribunal in C12/08-09(DLA) was in error in the following way.  Neither the decision notice prepared by the LQPM of the appeal tribunal, nor the statement of reasons for the appeal tribunal’s decision, dealt with the issue of supersession to any degree of sufficient detail.  As I noted at paragraphs 44 to 45:

	’44.	What the decision notice and statement of reasons does tell the appellant is that the appeal tribunal has determined and agrees that the appellant should not have an entitlement to either component of DLA from a specific date, and then something of the evidential basis for its conclusions on that issue.

	45.	What the decision notice and statement of reasons does not inform the appellant is:

		(i)	that the appeal tribunal has addressed the issue of whether the Department had a legal and evidential basis for reconsidering and changing its earlier decision; and

		(ii)	the effective date from which any new decision should take effect.’

33.	In their written observations on the appeal in C12/08-09(DLA), DMS had submitted that while the appeal tribunal did not specifically refer to the grounds for supersession in the conclusion to its statement of reasons, and while it may have been preferable for it to have done so, in concluding that no award of DLA was appropriate it was implicit that the appeal tribunal considered that grounds for supersession existed to remove the award, namely a relevant change of circumstances.

34.	I rejected that submission from DMS, and concluded, at paragraph 48:

	‘The appeal tribunal was under a specific duty to determine whether the decision under appeal was correct.  As that decision was a supersession decision the duty was to determine whether there were grounds to supersede under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.’

35.	Finally I stated, at paragraph 52 that:

‘The appeal tribunal’s duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it has done so.  It is not sufficient for it to be, as DMS suggests, implicit from the appeal tribunal’s documentation that the supersession issue was addressed.  That consideration must be explicit from the decision notice, the statement of reasons or a combination of both.  In the present case, I am of the view that it is not even implicit that consideration was given to the supersession issue.

36.	It was in the context of the submission made by DMS, and my rejection of the argument that it could be implied from the appeal tribunal’s reasoning, that my comments at paragraph 52 were derived.

37.	As was noted above, where the decision under appeal is a supersession decision, it is important that the appeal tribunal considers whether the decision-maker had grounds to supersede, and to determine the effective date from which any supersession decision should take effect.  It is important to note that the grounds on which a decision may be superseded, under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, are varied.  Each ground will have its own requirements, legal and evidential.  Further, while most regulation 6 grounds have a general relevance to all social security benefit decision-making, some grounds will have a more specific relevance to decision-making in respect of particular social security benefits.

38.	For example, the principal ground for supersession in IB cases is to be found in regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. Regulation 6(2)(g) reads as follows:

‘(g) is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision) and where, since the decision was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Incapacity for Work Regulations from a doctor referred to in paragraph (1) of that regulation;’

39.	Regulation 6(2)(g) was introduced through amendments introduced in 1999 through the Social Security and Child Support (Decisions and Appeals) (Amendment No. 2) Regulations (Northern Ireland) 1999, as amended.  The purpose of the amendment was to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession.  Previously, case-law had held that the obtaining of a new medical opinion did not itself amount to a change of circumstances justifying a supersession on that ground – R(IS) 2/97 and R(DLA) 6/01.

40.	While regulation 6(2)(g) has been, since its introduction, the principal basis on which decisions relating to IB have been superseded, it is important to note that this does not mean that there cannot be a supersession on any other ground contained in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  It is possible to supersede, for example, on the basis that there had been a relevant change of circumstances, under Regulation 6(2)(a)(i).  To do so, however, would require the decision-making authority to identify the relevant change of circumstances, and the date from which the supersession took effect.

41.	Accordingly, depending on the ground relied on by the decision-maker, and the desired effect in respect of social security entitlement, the analysis of the supersession issue, including grounds, entitlement and effective date which may be required may vary.  It is arguable that in IB cases, the regulation 6(2)(g) ground is intrinsic to the benefit decision itself and that, subject to the necessary and sufficient fact-finding, a confirmation of the benefit decision by the appeal tribunal will be sufficient to confirm that the decision-maker had grounds, under regulation 6(2)(g), to supersede the earlier entitlement decision.  All will depend on the circumstances of each individual case, however.’

35.	How did the appeal tribunal address the supersession issue in the instant case?

36.	The decision notice for the appeal tribunal’s decision reads as follows:

‘Appeal Disallowed.  Claimant to be treated as not incapable of work from and including 9/1/08.’

37.	The statement of reasons for the appeal tribunal’s decision makes no reference to the decision under appeal or any further reference to the final outcome decision of the appeal tribunal.

38.	Did the appeal tribunal deal adequately with the supersession issue?  My conclusion is that it did not.  The decision under appeal to the appeal tribunal was a decision of the Department, dated 9 January 2008, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, dated 5 June 2001, and which had awarded an entitlement to IB, from and including 28 May 2001; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 9 January 2008.

39.	The statement of reasons and decision notice are sufficient to deal with the second part of the decision but not the first.  Having failed adequately to determine whether the decision-maker had grounds to supersede the earlier decision of the Department, the appeal tribunal erred in law.

40.	I would add, however, that absent the error in connection with the potential application of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, the error in connection with the supersession is one which I would have corrected.

	Disposal

41.	The decision of the appeal tribunal dated 28 March 2008 is in error of law.

42.	Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

43.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

44.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following.

45.	The decision under appeal is a decision of the Department, dated 9 January 2008, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, dated 5 June 2001, and which had awarded an entitlement to IB, from and including 28 May 2001; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 9 January 2008.

46.	It will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal.  The appellant’s representative may wish to make a submission to the appeal tribunal, and adduce further evidence in connection with that submission, as to the potential application of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

47.	It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed)  K Mullan

Commissioner

18 November 2009