[2009] NISSCSC C9_08_09(IB) (19 March 2009)

Decision No: C9/08-09(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 21 November 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

2.	The decision of the appeal tribunal dated 21 November 2007 is in error of law. The error of law identified will be explained in more detail below.

3.	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. 

4.	I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.

5.	My decision is that the decision-maker on 22 August 2007, had grounds to supersede the decision dated 27 June 2001 awarding incapacity benefit (IB) from and including 17 May 2001. The appellant is not entitled to IB from and including 22 August 2007.

6.	Accordingly, although the appeal to the Social Security Commissioner succeeds, the practical outcome for the appellant, in terms of his entitlement to IB, is the same as that determined by the appeal tribunal.

Background

7.	The decision under appeal to the appeal tribunal was a decision of the Department, dated 22 August 2007, which decided that: 

(i)	grounds existed to supersede an earlier decision of the Department, dated 27 June 2001, and which had awarded an entitlement to IB, from and including 17 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 22 August 2007. 

8.	The appeal was received in the Department on 28 August 2007.

9.	On 9 October 2007, the decision dated 22 August 2007 was looked at again, but was not changed.

10.	The appeal tribunal hearing took place on 21 November 2007. The appellant was present and gave oral evidence. A presenting officer from the Department was also present.

11.	The appeal tribunal disallowed the appeal. 

12.	On 17 December 2007, an application for a statement of reasons (SORs) for the appeal tribunal’s decision was received in The Appeals Service (TAS).

13.	On 22 April 2008 the SORs were issued to the appellant. 

14.	On 22 May 2008, an application for leave to appeal to the Social Security Commissioner was received in TAS.

15.	On 17 June 2008, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

The proceedings before the Social Security Commissioner

16.	On 28 July 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners. In the application for leave to appeal the applicant submitted that the appeal tribunal’s decision was wrong, as: 

(i)	he had stipulated that no medical examination took place;

(ii)	he had seen the doctor but the doctor did not carry out a physical examination;

(iii)	this assertion was made to the appeal tribunal which did not give any reasons for not looking into the matter;

(iv)	the appeal tribunal had based its decision on a medical report which he had refuted;

(v)	accordingly, he had not received a fair hearing.

17.	On 22 October 2008, a further submission was received from the appellant.

18.	On 27 November 2008, I granted leave to appeal. The reason which I gave for granting leave was that an arguable issue arose as to whether the appeal tribunal identified the correct ground for superseding an earlier decision of the Department.

19.	Also on 27 November 2008, observations were sought from Decision Making Services (DMS) and these were received on 16 December 2008. DMS opposed the application, on the grounds cited by the appellant. 

20.	In relation to the ground identified by myself, DMS submitted that the decision-maker had utilised the ground set out in regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, as the basis of the supersession decision, dated 22 August 2007. The SORs for the appeal tribunal’s decision refers to a ‘relevant change of circumstances’ as the relevant ground to supersede, which, DMS submits, is suggestive that the ground identified by the appeal tribunal is that contained in regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended

21.	Nonetheless, it is submitted by DMS that it is ‘implicit from the actual decision notice that the scoring of points by the Department is a direct consequence of the receipt of the medical evidence following the medical examination. Based on this it is my submission that the tribunal has in fact identified the correct grounds for supersession’.

22.	The observations from DMS were shared with the appellant on 9 January 2009.

Errors of law

23.	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.

24.	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 error in the instant case

25.	A Tribunal of Commissioners in Great Britain, in R(IB) 2/04, undertook an extensive analysis of the legislative provisions relating to decision-making and appeals. In Great Britain these provisions are the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999, both as amended. In Northern Ireland these provisions are the Social Security (Northern Ireland) Order 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, both as amended. To all intents and purposes, the legislative provisions with respect to decision making and appeals in Great Britain and Northern Ireland are identical. 

26.	At paragraph 73, of R(IB) 2/04, in discussing the appeal tribunal’s powers with respect to supersession decisions:

‘… it follows from our reasoning … that the appeal tribunal has jurisdiction, on appeal, to decide whether the outcome arrived at by that decision (i.e. either to change or not to change the original decision) was correct. This will or may involve deciding (a) whether one of the statutory supersession grounds (whether the one relied upon by the decision-maker or not) applied and (b) if so whether the original decision ought to be changed.’

27.	The grounds upon which a decision can be superseded are to be found in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

28.	The decision under appeal to the appeal tribunal, in the present case, was a decision dated 22 August 2007. On that date, a decision-maker superseded an earlier decision of the Department, dated 27 June 2001, and which had awarded an entitlement to IB, from and including 17 May 2001. The decision dated 22 August 2007 went on to decide that the appellant was not entitled to IB from and including 22 August 2007.

29.	Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 22 August 2007, had grounds to supersede the earlier decision of the Department, dated 27 June 2001.

30.	If the appeal tribunal determined that the decision-maker, on 22 August 2007, did not have grounds to supersede the decision dated 27 June 2001, then that latter decision would continue to have effect.

31.	If the appeal tribunal determined that the decision-maker, on 22 August 2007, did have grounds to supersede the decision dated 27 June 2001, then the appeal tribunal could have gone on to consider entitlement to benefit. 

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

33.	In the written submissions, prepared for the appeal tribunal hearing, the appeals writer dealt with the supersession decision, in some considerable detail.

34.	Firstly, at paragraph 8 of section 4 of the written submissions, the appeals writer refers to the decision-maker having made a supersession decision, on 22 August 2007.

35.	Secondly, at paragraph 16 of section 5 of the written submissions, the appeals writer states that:

‘The law says that the Department may supersede a decision awarding incapacity benefit on receipt of medical evidence following an examination by a medical officer of the Department. In this case a report was received following an examination on 18 July 2007 and the Department, on consideration of all evidence, determined that [the claimant] is not incapable of work in accordance with the personal capability assessment.’   

Paragraph 16 of section 5 has a footnote added to it and the footnote reads:

‘The Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, regulation 6(1) and (2)(g)’

36.	The appeals writer is submitting that the decision dated 22 August 2007 was made under the provisions of regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

37.	At Tab 7 is a copy of the decision dated 22 August 2007. In the decision it is noted that:

‘I have superseded the decision of the Department dated 27/06/2001 awarding Incapacity Benefit from and including 17/5/2001. This is because the Department has made a determination that [the claimant] is no longer incapable of work from medical evidence received following an examination in accordance with regulation 8 of the Incapacity for Work Regulations.’

There is a further reference, in the decision, to regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

38.	In C7/08-09(IB), at paragraphs 41-44, I said the following about regulation 6(2)(g):

‘41.	Regulation 6(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, reads as follows:

	‘Supersession of decisions

6.—(1) Subject to the following provisions of this regulation, for the purposes of section 10, the cases and circumstances in which a decision may be superseded under that section are set out in paragraphs (2) to (4).’

42.	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;’

43.	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.

44.	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 would require the decision-making authority to identify the relevant change of circumstances, and the date from which the supersession took effect.’   

How did the appeal tribunal consider the supersession issue in the present case? 

39.	In the SORs for the appeal tribunal’s decision, it is noted that:

‘The decision under appeal is the Department’s decision dated 22 August 2007’.

40.	So far, so good, and an accurate description of what the appeal tribunal had to consider. The decision notice, however, reads as follows:

‘Appeal disallowed. There are grounds to supersede the decision awarding Incapacity Benefit being relevant change of circumstances [my emphasis] as the claimant scores 6 points only in accordance with the personal capability assessment. He is not therefore entitled to Incapacity Benefit from and including 22.8.07.’

41.	The supersession undertaken by the decision-maker of the Department, on 22 August 2007 was on the specific basis of the regulation 6(2)(g) power. The appeal tribunal’s decision, however, is formulated on the basis that the grounds for supersession were a relevant change of circumstances. Why is this difference important?

42.	In C7/08-09(IB), at paragraphs 49-53, I outlined the significance of identifying the correct ground:

‘49.	As has already been noted, in an IB case, it is possible to supersede a decision awarding entitlement to the benefit, on the basis that there had been a relevant change of circumstances, since the decision was made. Such a supersession would be made under the legislative power given in regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

50.	To supersede on this basis would require the decision-making authority, in this case the appeal tribunal: 

(i)	to identify what the relevant change of circumstances was; and 
(ii)	identify the date from which the supersession took effect.

51.	It is my view that the appeal tribunal made an error in identifying the correct ground for supersession. The legislative provisions which make provision for the supersession of decisions, and the date from which a supersession decision should take effect, namely Article 11 of the Social Security (Northern Ireland) Order 1998 and regulations 6 and 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, are complex. There is a temptation to assume that the natural ground on which a supersession decision has been made is ‘change of circumstances’. 

52.	The cases and circumstances under which a decision may be superseded are more varied than ‘change of circumstances’, however, and specific provisions have been included to deal with discrete situations, such as supersessions in respect of IB. The appeal tribunal was given clear guidance by the decision-maker, and the appeals writer, on the apposite legislative basis on which the supersession decision was undertaken. It is essential that appeal tribunals are satisfied that the correct ground has been identified, and that the supersession decision takes effect from the correct date.

53.	Even if the appeal tribunal had in mind that the correct ground for supersession was a relevant change of circumstances, under regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, it has not explained what that change was and, more importantly, why the change and, by implication the supersession, took effect from the identified date ie 18 July 2007. Accordingly, even if the appeal tribunal was not in error by failing to identify the correct ground for supersession, it was in error in following through with the ground which it did identify.’ 

43.	In the present case, it is arguable that the appeal tribunal had in mind, and intended to apply, the regulation 6(2)(a)(i) ‘change of circumstances’ ground, as an alternative to the regulation 6(2)(g) ground, which had formed the basis of the decision under appeal. To support that argument, the appeal tribunal, in the SORs, has indicated that it is of the view that there has been a relevant change of circumstances, namely an improvement in the appellant’s ‘condition’. Further, a change of circumstances is mentioned in the appeal tribunal’s decision notice.

44.	I am not convinced, however, that the appeal tribunal did intend to apply the regulation 6(2)(a)(i) ‘change of circumstances’ ground, as an alternative to the regulation 6(2)(g) ground. Change necessarily involves comparison of the circumstances as they were at the time of the original decision and circumstances at the date of the supersession decision.  There is no further explanation, in the SORs, for example, as to how such a comparison was made.  

45.	Even if the appeal tribunal had in mind that ‘relevant change of circumstances’ was the correct ground, it has not explained why the change and, by implication the supersession, took effect from the identified date ie 22 August 2007. Accordingly, even if the appeal tribunal was not in error by failing to identify the correct ground for supersession, it was in error in not following through with the ground which it did identify.

46.	It is essential that appeal tribunals are satisfied that the correct ground has been identified, and that the supersession decision takes effect from the correct date. It is not enough, as DMS suggest in their submissions, that its implicit from the appeal tribunal’s decision notice and SORs, that the correct ground for supersession has been applied. In this regard, I refer to my comments in C12/08-09 (DLA), at paragraphs 52 and 57:

‘52.	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.   

57.	DMS submits that it may have been preferable for the appeal tribunal to refer specifically to the grounds for supersession in the conclusion to its statement of reasons. It is not preferable but essential that it should do.’ 

The appellant’s other grounds for appealing

47.	In the application for leave to appeal, the applicant has submitted that the appeal tribunal’s decision is wrong, as: 

(i)	he had stipulated that no medical examination took place;

(ii)	he had seen the doctor but the doctor did not carry out a physical examination;

(iii)	this assertion was made to the appeal tribunal which did not give any reasons for not looking into the matter;

(iv)	the appeal tribunal had based its decision on a medical report which he had refuted;

(v)	accordingly, he had not received a fair hearing.

48.	The grounds cited by the applicant have to be seen in the context of the decision under appeal to the appeal tribunal. 

49.	The decision under appeal to the appeal tribunal was a decision of the Department, dated 22 August 2007, which decided that the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 22 August 2007. 

50.	As part of the decision-making process giving rise to the decision dated 22 August 2007, the applicant was sent for a medical examination by a medical officer of the Department. The relevant examination took place on 18 July 2007, and a report of the medical examination was included in the appeal submission, and accompanying papers, which were forwarded to the applicant, and which were available to the appeal tribunal. 

51.	An oral hearing of the appeal was conducted on 21 November 2007 in Ballymena. The applicant was present, as was a presenting officer of the Department. At the oral hearing, the applicant raised the issue of the conduct of the medical examination. The record of proceedings for the hearing note that:

	‘Claimant

	I appealed because decision is wrong. Wasn’t examined.

	(Chairman noted Box 10, 14, etc in IB85)’

52.	‘IB85’ is the medical report form utilised by a medical officer of the Department to record the outcome of a medical examination in connection with claims in relation to IB.

53.	The reason why the LQPM or chairman referred to Box 10 and 14 in Form IB85 is that these boxes are headed ‘Relevant features of clinical examination’.

54.	The appeal tribunal did consider the applicant’s assertion that he was not the subject of a physical examination when seen by a medical officer of the Department on 18 July 2007. In the SORs for the appeal tribunal’s decision it is noted that:

‘We find that the Claimant underwent a medical examination by the Departmental Medical Examiner on 18 July 2007 and that clinical findings were recorded on the basis of clinical examination. It is clear from the report that examination of spine, hips, knees, upper limbs was carried out as well as a mental state examination. We reject the Claimant’s assertion that he was not examined.’

55.	I agree with the appeal tribunal’s conclusions on the applicant’s assertion that he was not the subject of a physical examination as part of the medical examination which took place on 18 July 2007. In the report of the medical examination, on Form IB85, Boxes 10, 14 and 18 are all headed ‘Relevant features of clinical examination’. Each box is completed in some detail, and is clearly evidence that a comprehensive physical examination did take place. 

56.	Further, I am of the view that the appeal tribunal gave a detailed explanation as to why it was rejecting the applicant’s assertion that no physical examination took place. It is clear and obvious why the appeal tribunal concluded that an examination did take place, and its reasons for arriving at that conclusion are clearly set out. 

57.	Accordingly, I reject the applicant’s submission that he had not received a fair hearing of his appeal, on the basis of the rejection of his assertions with respect to the physical examination.

58.	The appeal tribunal accepted the clinical findings on examination, made by the medical officer of the Department, in the report of 18 July 2007, and based its conclusions on certain of its findings in relation to the relevant applicable activities and descriptors in connection with the personal capability assessment on those clinical findings. The appeal tribunal also went on to explain why it rejected certain of the evidence of the appellant.

59.	All evidential issues raised by the appeal, either expressly or apparent from the evidence, were fully examined by the appeal tribunal in conformity with its inquisitorial role. 

60.	It is important to note that the assessment of evidence is a matter for the appeal tribunal, and a Social Security Commissioner must be wary of interfering with the conclusions of an appeal tribunal based on its evidential assessment.

61.	In Quinn v Department for Social Development ([2004] NICA 22), the Court of Appeal emphasised that assessment of evidence and fact-finding role is one for the appeal tribunal. At paragraph 29, the Court stated:

‘It is clear that the Tribunal considered Dr Manley’s report since they refer to it in their findings and describe it as being less than helpful.  The challenge to the Tribunal’s attitude to the report cannot proceed on the basis that they ignored it; rather it must be either that they misconstrued it or they failed to give it sufficient weight.  As to the latter of these two possibilities it is of course to be remembered that a view of the facts reached by a tribunal can only be interfered with by the Court of Appeal in limited and well-defined circumstances.  Carswell LCJ described those circumstances in Chief Constable of the RUC v Sergeant A [2000] NI 261 at 273f as follows: -
 
“A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless— 
   
(a) there is no or no sufficient evidence to found them, which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR 697 at 699, per Lord Sutherland); or 

(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, per Viscount Simonds at 29 and Lord Radcliffe at 36.”’

62.	At paragraph 4 of R(DLA) 3/04, Mrs Commissioner Brown had made similar remarks: 

‘I should state at the outset that the weight to be given to any evidence is completely a matter for the Tribunal.  The weight to be given to an item of evidence is a matter of fact.  That means that I can disturb it only if that conclusion as to weight is one which no reasonable Tribunal could have reached.  Having examined Dr M...’s report I do not consider that the Tribunal’s conclusions as to the weight to be given to it are such as no reasonable Tribunal could have reached.’

63.	Accordingly, I reject the applicant’s submission that the appeal tribunal was in error in its reliance on the report of the medical examination undertaken by the medical officer of the Department. In any event, the appeal tribunal also relied on its assessment of the other evidence available to it, including its assessment of the appellant’s oral evidence. It found the appellant’s evidence to be somewhat exaggerated. It was entitled to arrive at that conclusion, it was not in error in so doing, and I have no basis to interfere with that assessment.   

Disposal

64.	My decision is that the decision-maker, on 22 August 2007, had grounds to supersede the decision dated 27 June 2001 awarding IB from and including 17 May 2001. The ground for supersession 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, namely that since the decision awarding IB was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, from a doctor referred to in paragraph (1) of that regulation.

65.	The test of incapacity for work, applicable to the appellant, was the personal capability assessment. 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.

66.	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.

67.	The appeal tribunal made sufficient findings of fact, all of which are wholly sustainable on the evidence and all of which are supported by relevant evidence. None of the appeal tribunal’s findings are irrational, perverse or immaterial. I have no hesitation in adopting the findings in fact made by the appeal tribunal.

68.	Adopting the findings of fact made by the appeal tribunal, the application of relevant descriptors to relevant activities means that the appellant scores 6 points. The appellant, therefore, fails to satisfy the personal capability assessment in that he is 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.

69.	The appellant is not, therefore, entitled to IB from and including 22 August 2007, which is the correct date from which the supersession decision takes effect.

							(signed):
Kenneth Mullan
Commissioner

19 March 2009  

C90809IB.KM