R(IB) 1/01

Mr. M. Rowland	CIB/111/1998
16.2.00
Medical examination - claimant not attending cancelled examination - whether “fails ... to attend ... an examination”
The claimant was called for examination on 18 February 1997. This was the sixth examination arranged for him. He requested a postponement because he had the opportunity of treatment abroad and was told that the appointment would be cancelled. The adjudication officer then decided that he had failed to attend for examination without good cause and was to be treated as capable of work under regulation 8(2) of the Social Security (Incapacity for Work)(General) Regulations 1995. The tribunal decided good cause had not been shown and dismissed the appeal.  The claimant appealed to the Commissioner, contending he could not fail to attend a cancelled examination and complaining that he had been refused benefit on subsequent claims.
Held, allowing the appeal, that:
1.	once the medical examination had been cancelled, it was impossible for the claimant to fail to attend it;
2.	a decision under regulation 8(2) terminated the existing period of incapacity for work and had effect until the effective date of a new claim. It also, for 26 weeks,  prevented  a claimant from being treated under regulation 28(2) of the same regulations as incapable of work pending assessment under a new claim.
The Commissioner substituted his own decision that the claimant was not to be treated as capable of work from 19 February 1997 on the ground of failure to attend or submit to medical examination on 18 February 1997.

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	This is an appeal, brought by the claimant with the leave of the tribunal chairman, against the decision of the Colwyn Bay SSAT, dated 8 July 1997, whereby they dismissed the claimant’s appeal against a decision of an adjudication officer to treat the claimant as capable of work from and including 19 February 1997 because he had failed without good cause to attend or submit to a medical examination on 18 February 1997.  I held an oral hearing at which the claimant appeared in person and the adjudication officer was represented by Mr. Huw James, solicitor, as agent for the Solicitor for the Departments of Social Security and Health.  Mr. James asked that the adjudication officer have the opportunity to comment on issues raised at the hearing and I have therefore received further submissions from both parties.
2.	Regulation 8 of the Social Security (Incapacity for Work) (General) Regulations 1995 provides:
“(1)	Where a question arises as to whether a person is capable of work, he may be called by or on behalf of a doctor approved by the Secretary of State to attend for a medical examination.
(2)	Subject to paragraph (3) where a person fails without good cause to attend for or submit himself to such an examination, he shall be treated as capable of work.  
(3)	A person shall not be treated as capable of work under paragraph (2) unless written notice of the time and place for the examination was sent to him at least seven days before hand, or unless he agrees to accept a shorter period of notice.”
3.	The facts of the case are not in dispute.  The claimant was called for a medical examination on 18 February 1997, the requisite notice having been given.  This was the sixth medical examination arranged for him.  On page 15 of leaflet IB202, it was said:
“If you are unable to attend the medical examination, and you let us know in advance, we can arrange another appointment for you.  But if you ... do not attend the medical examination without letting us know, you could lose your benefit.”
The claimant telephoned the Benefits Agency Medical Service, in Cardiff, and told the person who answered that he had the opportunity of treatment abroad and wished the medical examination to be postponed.  He was told that it would be cancelled.  He then bought his flight tickets two days later.  The case was referred to an adjudication officer who decided that the claimant had failed to attend the examination without good cause.  The tribunal’s reasons for dismissing the appeal were clearly set out:
“8.	We accepted [the claimant’s] evidence that he did not purchase a flight ticket until after the cancellation of the appointment and that he was not told by the Benefits Agency officer taking the message over the telephone on the 11 February 1997 that there might be any adverse consequence of his cancellation of the examination.  We do not accept however, that that constitutes good cause for his failure to attend the examination.
9.	[The claimant] gave evidence that no time limit had been placed on his attendance at the spa by his holistic practitioner and that had anyone expressed to him the importance of his attending the examination, he would have cancelled his visit to the spa.
10.	We accepted the representation of Mr. Wilson [the presenting officer] that the necessity to attend for examination is explained in the claimant pack presented to each incapacity benefit claimant.  We consider that [the claimant] should have acquainted himself with the contents of the pack and the actions required of him to qualify for benefit.  We also consider that having failed to attend for examination on a previous five occasions for various reasons, [the claimant] should have given priority to the appointment which had been arranged at his request after the 17 February 1997.  He had arranged to be outside Great Britain after he had received proper notification of the time and place of examination and he therefore failed on a balance of probabilities to prove that he had good cause for failing to attend the examination.  The appeal is therefore dismissed.”
4.	However, as the claimant argued and the adjudication officer has accepted since the hearing before me, once the medical examination was cancelled it was impossible for the claimant to fail to attend it.  It is arguable that a person who says that he will definitely not attend an examination fails to “submit to” the examination even if, in the light of what he says, the appointment is cancelled, but that is not the position here and, in any event, it is also arguable that, in this context, a person fails to “submit to” an examination only if he attends the place of examination but then refuses to be examined.
5.	The adjudication officer rather plaintively submits “that the spirit of the law ... cannot be that a person can avoid ever having to be assessed under the all work test, simply by cancelling every appointment which is sent to him”.  In my view, the problem is not with the law but the way in which it is administered.  It cannot be fair to suggest in leaflet IB202 that a claimant will lose benefit only if he or she does not attend an examination “without letting us know” and then to take away benefit when the claimant has requested a postponement and been told that, at his request, the appointment will be cancelled.  A person who answers a telephone call from a claimant wishing to postpone an examination has no authority to decide whether the claimant has good grounds for the postponement.  He or she is instructed simply to cancel an appointment whenever a claimant requests a postponement and then refer the case to an adjudication officer (now a representative of the Secretary of State). If the instructions given to those answering the telephone at the Benefits Agency Medical Service were, at least in cases where there might be a question of the claimant not having good cause for the request for postponement, to note the request but leave the appointment open and warn the claimant that regulation 8(2) might be applied (and if IB202 was amended accordingly), the problem seen by the adjudication officer would be removed.  Also, as I have suggested, it is arguable that a person could be found to have failed to “submit to” an examination if he had said that he would definitely not attend an examination.  If that is right, an examination could safely be cancelled in those circumstances without prejudice to the application of regulation 8(2).
6.	Although it is not strictly a matter arising on this appeal, the claimant has complained that the decisions of the adjudication officer and the tribunal in this case have been relied upon to refuse him benefit on subsequent claims.  The adjudication officer has submitted that that would be wrong and that a decision under regulation 8(2) merely operates to terminate the existing period of incapacity for work.  It does not prevent the claimant from successfully opening a new period of incapacity for work by making a fresh claim, or in income support case where the claimant is entitled to benefit without being incapable of work, an application for review (now revision or supersession) which will require the arrangement of a further medical examination.  Regulation 19 of the 1995 Regulations provided:
“A determination whether a person is, or is to be treated as, capable or incapable of work, which is made for the purposes of determining his entitlement to any benefit, allowance or advantage, shall be treated as conclusive for the purposes of his entitlement to any other benefit, allowance or advantage in respect of any day or any period to which that determination relates” (my emphasis).
The period to which a decision under regulation 8(2), and, indeed, most other determinations,  relates ends immediately before the date from which a new claim or application is effective.  What the decision may do is prevent, for a period of 26 weeks, the claimant from being treated under regulation 28(1) as being incapable of work pending an all work test assessment but, if the claimant is found to be incapable of work when the assessment is made, benefit can be backdated to the beginning of the period covered by the new claim or application.  The adjudication officer has also provided a history suggesting that in fact the claimant was refused benefit on other grounds, namely that he had failed to complete questionnaires.  I am informed that the claimant’s case would be that those questionnaires were not completed because he had been advised that there was no point in doing so as the adjudication officer would inevitably have rejected the claim because the decision under regulation 8(2) was regarded as still subsisting.  If that is so, it may be necessary for decisions on those claims now to be revised.  There is also a decision of the Colwyn Bay social security appeal tribunal, dated 15 April 1999, which is not entirely explained.  The claimant has expressed a desire to appeal against that decision but I am not aware of any application for leave to appeal having being lodged.
7.	In the present case, I allow the claimant’s appeal.  I set aside the decision of the Colwyn Bay social security appeal tribunal dated 8 July 1997 and I give the decision which they should have given which is to allow the claimant’s appeal against the decision of the adjudication officer dated 4 March 1997.  The claimant did not fail to attend or submit to medical examination on 18 February 1997 and is therefore not to be treated as capable of work from and including 19 February 1997 on that ground.  I leave for determination by the Secretary of State all other questions arising in consequence of my decision. 

Date: 16 February 2000	(signed) Mr. M. Rowland
Commissioner