MN-v-Department for Social Development (IB) [2010] NICom 24

Decision No:  C4/10-11(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 25 November 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 25 November 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 is detailed evidence relevant to the issues arising in the appeal, including medical evidence, which requires further assessment, and 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 her entitlement to incapacity benefit (IB) credits 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 10 September 2008, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, dated 3 November 2007, and which had awarded an entitlement to IB credits, from and including 26 October 2007; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB credits from and including 10 September 2008.

9.	The appeal was received in the Department on 19 September 2008.

10.	On 27 October 2008 the decision dated 10 September 2008 was looked at again but was not changed.

11.	The substantive appeal tribunal hearing took place on 25 November 2008.  The appellant was present, and was represented.  The Department was represented by a Departmental presenting officer.  The appeal was disallowed.

12.	On 26 February 2009 an application for leave to appeal against the decision of the appeal tribunal was received in The Appeals Service.

13.	On 2 March 2009, the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

14.	On 15 April 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.

15.	On 5 June 2009 observations were sought from Decision Making Services (DMS) and these were received on 30 June 2009.  In these observations DMS opposed the application on the grounds cited by the appellant, but submitted that the decision of the appeal tribunal was in error of law on another identified ground.

16.	The observations from DMS were shared with the applicant and her representative on 1 July 2009.

17.	On 10 November 2009 I accepted the late application for special reasons.

18.	On 20 November 2009 further correspondence in connection with the application was received from the applicant and this was shared with DMS on 26 November 2009.

19.	On 2 December 2009 DMS indicated, by way of correspondence, that they did not have anything to add to the original observations on the application.

	Errors of law

20.	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.

21.	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 of law in the instant case

22.	In the application for leave to appeal to the Social Security Commissioner, the applicant has submitted that the appeal tribunal erred in law in that the appeal tribunal did not fully consider all of the medical evidence available to them.  In further correspondence, the medical evidence which was contended not to have been considered was stated to be evidence from her general practitioner (GP) which was submitted to the appeal tribunal.

23.	In the record of proceedings for the appeal tribunal hearing, under the heading ‘Documents Considered’ it is noted that the appeal tribunal had before it:

‘Scheduled documents.

Letter from Dr Millar dated 12.01.2008 with scan results x 5.’

24.	I have been provided with a copy of the correspondence from Dr Millar.  That correspondence reads, in part, as follows:

‘To whom it may concern,
This lady has a long history of back pain.  She has also had difficulties with neck and shoulder pain as well.
She is attending South Tyrone for physiotherapy at present.
Medication is a difficulty as she has a sensitive stomach.
I have included DEXA scan results and lumbar xrays which confirm osteopaenia and degenerative changes in the lumbar area.’

25.	Accompanying the correspondence was a series of reports which appear to be the results of x-rays and/or scans.  The first report reads, in part, as follows:

‘Lumbar Spine:

The bones are osteopaenic.  Degenerative changes are present throughout with disc space narrowing prominent at L1-L2 and L2-L3 and L3-L4 levels.  SI joints are normal.’

26.	The remaining reports (one of which appears to have been repeated) contain scan information, images, data and some commentary.

27.	How did the appeal tribunal assess this evidence?

28.	In the statement of reasons for the appeal tribunal’s decision, it is noted that:

‘… The Tribunal noted the contents of Dr Millar’s letter and the medication used and the x-rays and scan results.’

29.	Thereafter the statement of reasons assesses the evidence contained in a report of an examination by a medical officer of the Department, which the appeal tribunal accepted, and which, in its view, did not support any contention that the appellant would have problems with sitting, rising from sitting, using the stairs or walking.  The appeal tribunal than added:

‘The Tribunal did accept that prolonged standing could aggravate her back condition and that sometimes there would be difficulty bending and kneeling but found that these were the only restrictions supported by the medical evidence, having given careful consideration to the additional information provided.’

30.	In the written observations on the application for leave to appeal, DMS have suggested that in stating ‘…having given careful consideration to the additional information provided’, the appeal tribunal was referring to the information contained in the correspondence and reports from the appellant’s GP.

31.	In C8/08-09(IB), I stated, at paragraphs 60-61:

‘60.	The reason for my rejection of the DMS submission is that there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.

61.	In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

‘ … there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect.  It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason.  Indeed, it will sometimes be its duty to do so.  However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant.  It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short.  We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal.  That body must have regard to the whole of the evidence, including the medical evidence.  Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so.  Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.’’

32.	In the instant case, I cannot accept the submission from DMS that it can be implied or inferred from the appeal tribunal’s general statement concerning ‘additional information provided’ that the appeal tribunal considered and adequately assessed the specific evidence from the GP.  I would be more convinced if the additional information was by way of a very general factual report from the GP.  Rather, what was submitted to the appeal tribunal was such a factual report but accompanied by number of technical scan and x-ray reports. The significance of the reports containing the scan images, and accompanying data is very difficult for a lay person, such as myself, to interpret.  It may be the case that the appeal tribunal, which had as one of its panel members a medically qualified doctor did interpret the significance of the reports and, as a consequence, did not believe that they supported claimed limitations with certain of the physical activities associated with the personal capability assessment.  In my view, if the appeal tribunal did carry out such an evidential assessment it was under a duty to state that it did and outline the outcome of that assessment in the statement of reasons.

33.	The submission of the relevant evidence to the appeal tribunal meant that the appeal tribunal was under a duty to consider it.  That required the appeal tribunal to acknowledge, in its statement of reasons that the evidence was considered by the appeal tribunal.  It required the appeal tribunal to indicate what it made of the evidence, and the appellant was entitled to know, through the statement of reasons, what was the appeal tribunal’s determination in connection with the evidence, and the reasons for its conclusions in connection with it.

34.	Having found that the appeal tribunal was under a duty to consider the relevant evidence, and having failed to consider the evidence, 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

35.	In the written observations on the application for leave to appeal to the Social Security Commissioner, DMS stated the following:

‘In this case one of the questions for consideration was in relation to whether or not the decision maker had grounds to supersede the decision of 26 October 2007 giving entitlement to incapacity credits.  In deciding this question the tribunal had to decide if grounds existed, what were the grounds and what was the effective date.  It is my submission that grounds did exist, namely the receipt of medical evidence following an examination by a health professional (regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999) and that the effective date was the date of decision, 10 September 2008 (article 11(5) of the Social Security (Northern Ireland) Order 1998).  Having said that it is my submission that the tribunal has not addressed the issue of supersession either in the statement of reasons or the decision notice and in failing to do so has erred in law.

In paragraph 52 of unreported decision C12/08-09(DLA) Commissioner Mullan held:

“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.	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.’

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

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

‘Appeal Disallowed.  The appellant has scored 6 points in the personal capability assessment and is not incapable of work from and including 10/9/08.’

39.	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.

40.	Did the appeal tribunal deal adequately with the supersession issue?  It is marginal but my conclusion is that it did.  It recognised and confirmed the outcome decision under appeal.  While it would have been beneficial for the appeal tribunal to identify that the grounds to supersede were those found in regulation 6(2)(g) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, this is one of those cases where 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 is sufficient to confirm that the decision-maker had grounds, under regulation 6(2)(g), to supersede the earlier entitlement decision.

41.	In any event, and absent the error with respect to the evidential assessment set out above, if I had been wrong in respect of my conclusions with respect to the supersession issue, I would have been content 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.

	Disposal

42.	The decision of the appeal tribunal dated 25 November 2008 is in error of law.  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.	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 is detailed evidence relevant to the issues arising in the appeal, including medical evidence, which requires further assessment, and there may be further findings of fact which require to be made.  As was noted above, the significance of the reports containing the scan images, and accompanying data is very difficult for a lay person without the benefit of expert assistance to interpret.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

44.	The decision under appeal is a decision of the Department, dated 10 September 2008, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, dated 3 November 2007, and which had awarded an entitlement to IB credits, from and including 26 October 2007; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB credits from and including 10 September 2008.

45.	Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 10 September 2008 had grounds to supersede the decision of the appeal tribunal dated 3 November 2007.  The ground for supersession on which the decision-maker relied 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.

46.	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.

47.	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.

48.	If the appeal tribunal determines that the appellant is not incapable of work in accordance with the personal capability assessment then it must then decide whether any of the exceptional circumstances set out in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, apply to the appellant.  Guidance as to the approach to be taken to regulation 27 is to be found in R4/01(IB), C22/01-02 (IB), CIB/14667/1996, and CIB/1381/2008.

49.	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 adduce the same or further evidence in connection with the issues arising in the appeal.

50.	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

30 March 2010