R(IB) 2/01

Mr. M. Rowland	CIB/4118/1998
16.2.00
Incapacity for work - failure to attend a medical examination - whether burden of proof that notice of the examination had been sent lies on the Secretary of State 
The claimant was in receipt of income support on grounds of incapacity.  The Benefits Agency made arrangements for her to attend for medical examination on 4 July 1996 and on 28 November 1996 but on both occasions she did not do so.  The adjudication officer made a decision that she be treated as capable of work from and including 29 November because she had failed without good cause to attend or submit to medical examination on 28 November.  The claimant appealed to a social security appeal tribunal, stating that she had not received the notification of either of the appointments and suggesting that they might have been sent to her old address, which she had left in February 1996.  The adjudication officer made a submission to the tribunal asserting that notice of the second appointment had been sent to the claimant at least seven days before 28 November, but did not provide any evidence of this.  The tribunal rejected the appeal and the claimant appealed to a Commissioner.  As at the date of the adjudication officer’s submission to the Commissioner, no new decision had been made as to the claimant’s capacity for work and so she continued to be treated as capable. 
Held, allowing the appeal, that:
1.	the burden of proving good cause, under regulation 8(2) of the Social Security (Incapacity for Work) (General) Regulations 1995, for failure to attend a medical examination lay on a claimant;
 2.	it was therefore for a claimant to prove non-receipt of an appointment notice that had actually been sent but the burden of proving that the notice had actually been sent lay on the adjudication officer;
3.	a notice was not sent to a person if it was sent to the wrong address and, in any case where the claimant raised a question whether a notice had been sent, which included most cases where it was asserted that a notice had not been received, the adjudication officer was obliged to present evidence to the tribunal that it had been sent to the correct address;
4.	the tribunal had erred in law by making a decision not supported by any evidence that the notice of the second appointment had been sent to the correct address;
5.	the period to which a decision that the claimant be treated as capable of work under regulation 8(2) related ended immediately before the date from which a new claim or application for review was effective and the Secretary of State should consider treating a letter of appeal against a decision under regulation 8(2) as constituting a fresh claim or application for review, or else advising the claimant that such a claim or application needed to be made.
The Commissioner referred the case to another tribunal.

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	This is an application by the claimant for leave to appeal against a decision of the Whittington House social security appeal tribunal dated 24 November 1997, whereby they dismissed her appeal against a decision of an adjudication officer that she be treated as capable of work from and including 29 November 1996 because she had failed without good cause to attend or submit to a medical examination on 28 November 1996.  The decision was ostensibly made in respect of “incapacity credits” but it had a more immediate practical effect upon her entitlement to income support.  Both parties have given their consent to my treating the application as the appeal, if I am minded to grant leave.  
2.	Regulations 8 and 9 of the Social Security (Incapacity for Work) (General) Regulations 1995 provide:
“8. (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 of the examination was sent to him at least seven days beforehand, or unless he agrees to accept a shorter period of notice.  
9.	The matters which are to be taken into account in determining whether a person has good cause under regulations 7 or 8 (failure to provide information or attend a medical examination) shall include-
(a)	whether he was outside Great Britain at the relevant time;
	(b)	his state of health at the relevant time; and
    	(c)	the nature of any disability from which he suffers.”
It is claimed by the adjudication officer (now replaced by the Secretary of State) that appointments were arranged for the claimant to attend for medical examination on 4 July 1996 and on 28 November 1996.  When she had attended neither, the claimant was asked to give an explanation.  She said that she had not received notice of either examination.  The adjudication officer rejected that assertion and gave the decision under regulation 8(2) that the claimant should be treated as capable of work.  She appealed in a document dated 31 December 1996 in which she said:
“I have never received any, I repeat any such notification in connection to attend to medical examinations on the 4 July 1996 and 20 November 1996.  If I did receive your appointments, then of course I would have attended without fail.  I have requested your Department, on several occasions to send me copies of these two appointments, but for some reason, no one seems to know how and where they were sent.  They may have been sent to my old address, but I have not lived there since February 1996.”
The adjudication officer made a submission to the tribunal in the standard form, stating:
“8.	[The claimant] states that she did not receive any notification for a medical appointment on two occasions i.e. 4 July 1996 and 28 November 1996.  However, she does not state that she has had a problem with her post and she did receive the disallowance notice without any problem.  I submit that she has failed to prove good cause.
9.	[The claimant] failed to attend/submit to the examination on 28 November 1996 and has not shown good cause for the failure.  I submit that a notice of the time and the place of the examination was sent/given to [the claimant] at least seven days before 28 November 1996.” 
3.	The claimant did not request an oral hearing.  She said on form AR4:
“I would have wanted very much to attend my hearing, but as it is so far away, and [sic] cannot guarantee early return to collect the children from school etc.”
The decision notice of the tribunal suggests there was a “paper hearing” but the tribunal file contains a copy of a notice sent to the claimant telling her that her case had been listed for hearing at 15.30 on 24 November 1997.  If she was sent the notice, it is perhaps not surprising that she did not attend the hearing given what she had previously written and the fact that she lives in Enfield whereas the tribunal hearing was in central London.
4.	The tribunal gave the following summary of grounds for dismissing the appeal:
“The tribunal found the facts as shown in the summary of facts with the papers and considered that the appellant had failed to show good cause for her failure to attend the medical examination within the terms of reg. 9 of the regs. below referred to.  Consequently the terms of reg. 8 of the Social Security (Incapacity for Work) (General) Regulations 1995 applied and the appellant was to be treated as capable of work from and including 29 November 1996.”
5.	On 8 December 1997, the claimant wrote, saying:
“With reference to your decision notice in respect to my appeal, held on the 24 November 1997, I wish to appeal yet again against this decision.  
My previous reports, letters and the various documents from my GP and Consultant still stands.
You have mentioned on all your documentations and your summary of grounds, that I failed to attend the medical examinations on the dates in question.
This is what you are basing your facts and decision on.  I must stress once again and I have mentioned to you time and time again that I have requested copies of how and where these medical examination appointments were sent to me, as I have never ever received any of them.”
Not having received any response, she wrote again on 1 April 1998. On 11 May 1998, a full‑time chairman decided not to set aside under regulation 10 of the Social Security (Adjudication) Regulations 1995 the decision of the tribunal.  On 20 May 1998 the claimant wrote again, applying for leave to appeal, which was refused by the original tribunal chairman on 30 May 1998.  The claimant was informed of that refusal on 23 September 1998 and she promptly renewed her application to a Commissioner.
6.	The first issue that arises on this application is a procedural one.  The claimant did not obtain a full statement of the tribunal’s decision and so has been unable to submit one with her application for leave to appeal.  That is not fatal to her application if an error of law can be demonstrated despite the lack of a full statement (see CIS/3299/1997 and CIB/4189/1997, to be reported as R(IS) 11/99).  In this case, the adjudication officer refers to CDLA/5793/1997 and submits that the claimant’s letter of 8 December 1997 should have been treated as an application for leave to appeal and should have been taken also as a request for a full statement because it raised an issue not fully explained in the summary of grounds or other documents in the case.  However, the adjudication officer then says that he does not support the claimant’s application because the tribunal reached a decision that they were entitled to reach on the evidence before them and for which they gave an adequate explanation.  Those two submissions seem to me to be inconsistent.  In CIS/3299/1997 and CIB/4189/1997, at paragraph 8, I said:
“... if the ‘summary of grounds’ in fact contains everything that the parties could properly have expected from a full statement of the tribunal’s decision, as is often the case, a failure of the chairman to issue a document formerly identified as a full statement when there is a duty to provide a full statement, will not, in my view, render the decision of the tribunal erroneous in point of law.”
Therefore, I agree with the adjudication officer that, if the tribunal’s decision was justified by the evidence and the summary of grounds did not disclose any error of law and did provide an adequate statement of the tribunal’s reasons, the tribunal’s decision in the present case would be unassailable.  However, it cannot properly be said in the same breath that the letter of 8 December 1997 raised an issue not adequately covered in the summary of grounds and that the summary of grounds provided an adequate statement of the tribunal’s reasons.  I accept the adjudication officer’s first submission that the summary of grounds did not adequately explain why the tribunal had rejected the claimant’s case that she had not received notice of the examination and that the letter of 8 December 1997 should therefore have been treated as a request for a full statement.  In those circumstances, their failure to provide a full statement is a procedural error which is itself sufficient to render the tribunal’s decision erroneous in point of law.  
7.	There seems to me to be a further error demonstrated on the papers, despite the lack of a full statement, because I am not satisfied that the tribunal’s decision was justified by the evidence before them.  The burden of proving “good cause” for failure to attend a medical examination lay on the claimant and so it was for her to show non‑receipt of notices that had actually been sent to her.  However, the burden of proving that the relevant notice was in fact sent to her lay on the adjudication officer.  A notice is not sent “to” a person if it is sent to the wrong address.  Most claims that a notice has not been received raise the question whether the notice was sent.  In the present case, the claimant expressly raised the question whether the notice had been sent to the right address.  In those circumstances, it was clearly incumbent on the adjudication officer to produce evidence to prove that the notice had been sent to the correct address.  The bare assertion in the submission to the tribunal that the notice had been sent was not enough (although it might have been adequate if receipt of the notice had not been denied).  The only documentary evidence attached to the submission was a copy of the original decision under appeal, which included another bare assertion, and a form IB86 which said nothing about the notice at all.  
8.	It is also arguable that there is yet another error of law revealed by the papers, despite the lack of a full statement.  It is arguable that the summary of grounds reveals an error in the tribunal’s approach because the way the grounds are worded suggests that the tribunal had regard only to the matters set out in paragraphs (a), (b) and (c) of regulation 9, whereas it is quite clear from the opening words of that regulation that the matters to be taken into account “shall include” those set out in those paragraphs but are not confined to them.  On the other hand, it might be said that the summary of grounds was only ambiguous and I need not pursue this issue further, although I draw attention to the fact that paragraph 7 of the standard submission to the tribunal did not make it clear that matters other than those contained in paragraphs (a), (b) and (c) of regulation 9 might be taken into account.  
9.	For the reasons I have given, I am satisfied that the tribunal’s decision is erroneous in point of law and that the claimant has challenged it promptly.  Accordingly I am satisfied that there are special reasons for admitting this application, notwithstanding the failure to apply within the specified time (which 
never started to run) to the tribunal chairman.  I admit the application for consideration, I grant leave to appeal and I allow the appeal.  I refer the case to an appeal tribunal, constituted under regulation 36 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 and consisting of members who were not members of the tribunal that sat on 24 November 1997, for determination.
10.	One further matter arises in this case.  It was apparent from the claimant’s correspondence that she had not again been found to be incapable of work since the tribunal’s decision and also that she wished to be.  The adjudication officer has confirmed that at the date of his submission no further decision had been made as to the claimant’s capacity for work.  He also correctly submitted that a further medical examination could have been arranged if the claimant had made a fresh claim for benefit (or, if she remained entitled to income support even when found capable of work, an application for review).  In other words, the effect of the decision under regulation 8(2) was to terminate the existing period of incapacity for work for the purposes of all benefits currently being claimed but it did not prevent the claimant from raising afresh the question of her capacity for work in the context of a new claim or application for review.  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 determination under regulation 8(2), and, indeed, most other determinations, relates ends immediately before the date from which a new claim or application is effective.  For any period within 26 weeks of the decision under regulation 8(2), the claimant would not have had the benefit of regulation 28(1) of the 1995 Regulations (under which a person is usually treated as capable of working pending assessment under the all work test) unless either of the conditions of regulation 28(2)(b)(i) or (ii) was satisfied (i.e. if the claimant suffered from a new disease or disability or could show a worsening of the former disease or disablement) but, if the claimant had been found to satisfy the all work test, there is no reason why effect should not have been given to that decision from the beginning of the period in respect of which the new claim, or application for a review could properly have been made.  In those circumstances, I would suggest that in most cases the Secretary of State should, on receipt of a letter of appeal against a decision given under regulation 8(2), either treat the letter as being also a new claim or application for revision or supersession) or should make it clear to the claimant that such a new claim or application should be made if he or she wishes to receive benefit in the event of the appeal being unsuccessful.  Leaving a claimant in ignorance of the need to make a new claim or application in order to protect his or her position does not seem to me to be acceptable.  Literature supplied when a claimant appeals under the Social Security Act 1998 may now be sufficient for this purpose but, if the claimant in the present case is unsuccessful in her appeal to the tribunal, the Secretary of State should consider whether the claimant’s letter of appeal to the tribunal, dated and apparently received on 31 December 1996, should be treated as a claim or application for review in respect of income support and the crediting of contributions.  

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