CIS/4772/2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the Secretary of State’s appeal.  I set aside the decision of the Romford appeal tribunal and I refer the case to a differently constituted tribunal for determination.

REASONS

2.	I held an oral hearing of this appeal at which the Secretary of State was represented by Mrs Jill Swainson of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions.  The claimant neither appeared nor was represented.  I am very grateful to Mrs Swainson for her helpful submissions.

3.	The first question that arises on this appeal is whether I have jurisdiction to determine it.  Section 14(10) of the Social Security Act 1998 provides:

“No appeal lies under this section without the leave - 

(a)	of the person who constituted, or was the chairman of, the tribunal when the decision was given or, in a prescribed case, the leave of such other person as may be prescribed; or

(b)	subject to and in accordance with regulations, of a Commissioner.”

For the purpose of section 14(10)(a), regulation 58(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 provides:

“Where in any case it is impractical, or it would be likely to cause undue delay for an application for leave to appeal against a decision of an appeal tribunal to be determined by the person who was the chairman, or in the case of an appeal tribunal that has only one member, of that tribunal or if the President considers it necessary or expedient for the purpose of supervising panel members or in the monitoring of decision-making by panel members, the application shall be determined by a legally qualified panel member.”

In relation to section 14(10)(b), it is necessary for me to refer only to regulation 9(1) of the Social Security Commissioners (Procedure) Regulations 1999, which provides:

“An application to a Commissioner for leave to appeal against the decision of an appeal tribunal may be made only where the applicant has sought to obtain leave from the chairman and leave to appeal has been refused or the application has been rejected.”

3.	In this case, a legally qualified panel member who was not the tribunal when the decision was given has purported to give the Secretary of State leave to appeal.  She did not state on what basis she had the power to grant leave to appeal.  The question arises whether that grant of leave was valid or should be presumed to be valid.  A similar situation arose in CIB/227/00, where the Commissioner held that the grant of leave was invalid because the chairman granting leave had not referred to regulation 58(6) and not explained why it applied.  The Commissioner in that case then granted leave to appeal herself.  Regulation 58(6) has been amended since that case was decided but Mrs Swainson accepted that the amendment made no difference to the point in issue in this case.

4.	Mrs Swainson submitted that CIB/227/00 was wrongly decided.  She raised three grounds.  Firstly, she argued that there is no rule of law that requires a tribunal chairman to refer to regulation 58(6) when purporting to act under it.  It has never been suggested that tribunals must refer to section 12 of the Social Security Act 1998 every time they consider an appeal under that section or that a Commissioners must refer to section 14 of that Act whenever they hear appeals under that section.  Indeed, in tribunals there is much to be said for not citing legislation more extensively than necessary.  However, at least one regional chairman used regularly to write a reference to the predecessor of regulation 58(6) under his signature when considering an application under that provision.  That seems to me to have been a commendable practice because it served to show that he had addressed his mind to the criteria allowing him to consider the application and it served as a partial explanation for his signature appearing on the grant or refusal of leave rather than that of the chairman of the original tribunal although, of course, it did not show that he had applied the criteria correctly.  On the other hand, whether it was essential, given that there is no other provision under which he could have been acting, seems to me to depend on the answer to Mrs Swainson’s second point.

5.	The explanation for the Commissioner’s decision in CIB/227/00 was that she did not consider there to be any presumption that the chairman granting leave to appeal was acting lawfully.  Mrs Swainson’s second ground for submitting that that case was wrongly decided was that there was such a presumption.  The Secretary of State’s representative in CIB/227/00 had relied upon Regina v. Inland Revenue Commissioners, Ex parte T. C. Coombs & Co [1991] 2 A.C. 283 for the proposition that there was a presumption of validity.  That case was concerned with a notice issued by a tax inspector under section 20(3) of the Taxes Management Act 1970 with the consent of a general commissioner as required by section 20(7).  Such a notice could require the person named in it to make available for inspections documents which “in the inspector’s reasonable opinion” contained information as to a taxpayer’s tax liability.  The relevant notice was addressed to a firm of stockbrokers and referred to documents relating to certain companies.  The stockbrokers produced some evidence that the taxpayer was not associated with those companies and sought judicial review of the notice, asking for it to be quashed.  The revenue said that they could not disclose the information leading them to believe the documents were relevant to the taxpayer’s tax liability for reasons of confidentiality but that the information had been laid before the general commissioner.  The stockbrokers argued that, in view of the failure of the revenue to produce any evidence, they had discharged the burden of proving that the inspector had not had a reasonable opinion.  The House of Lords held that there was a presumption that the general commissioner’s consent had been given on the basis that he had been satisfied that the inspector reasonably held the opinion that the documents might be relevant to the taxpayer’s tax liability, but that the presumption could be displaced by evidence that the inspector could not reasonably have held such an opinion.  In the particular case before them, they held that the failure of the revenue to give evidence could be credibly explained by a duty of confidentiality and that it had not been shown that it was unreasonable for the inspector to hold the opinion that the documents might contain information relevant to the taxpayer’s tax liability.

6.	In the course of giving the leading speech, Lord Lowry referred to an argument that the general commissioner’s decision to give consent to the notice being issued could have been attacked as wall as or instead of the inspector’s notice.  He said, at 303G to 304B -

“If the commissioner’s consent could have been quashed in this case, it would have been on the same ground that would have caused the notice to be ultra vires but, assuming the commissioner’s function under section 20(7) to be judicial, a challenge to his decision would in addition have to meet the argument that a judicial decision, if otherwise competent, will not be quashed for unreasonableness or for want of evidence not apparent on the face of the record: see Rex (Martin) v. Mahoney [1910] I.R. 695; Rex v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128 and Rex v. Northumberland Compensation Appeal Tribunal, Ex part Shaw [1952] 1 K.B. 338.  Of course, different considerations could arise if the commissioner’s decision were to be attacked on other grounds, such as want of jurisdiction, bias or disregard of natural justice.

The Commissioner deciding CIB/227/00 relied on that last sentence when taking the view that it was not to be presumed that a legally qualified panel member was acting lawfully in considering an application for leave to appeal against a decision of different tribunal.  With respect, I do not read Lord Lowry as saying that there was no presumption that a judicial body was acting within jurisdiction.  Rather, he appears to have been suggesting that, on a challenge to a judicial decision on the ground of want of jurisdiction, there could be circumstances where the decision could be quashed for unreasonableness or want of evidence not apparent on the record.  In any event, he did not say that different considerations would always arise on a challenge for want of jurisdiction.  It must depend on the context.

7.	It was not in dispute in Ex parte Coombs, that a presumption of regularity may be rebutted.  Lord Lowry cited, at 300D, Earl of Derby v. Bury Improvement Commissioners (1869) L.R. 4 Exch. 222 in which it was said that –

“… in the absence of any proof to the contrary, credit ought to be given to public officers, who have acted prima facie within the limits of their authority, for having done so with honesty and discretion” (my emphasis).  

It seems to me that, in the present context, a legally qualified panel member is to be presumed to be acting within the power conferred by regulation 58(6) in the absence of any evidence to the contrary and that not referring expressly to that provision does not by itself amount to sufficient evidence to rebut the presumption.  However, it does not follow that CIB/227/00 was wrongly decided.  In that case, the Commissioner was referred to a general practice in the Appeals Service of referring all applications for leave to appeal to full-time legally qualified panel members.  Mrs Swainson said that she was unaware of there being any such practice but submitted that, if there were one, it would be unlawful as the legislation stood at the time relevant to the Commissioner's decision in that case because it was necessary to consider the practicality of a part-time chairman considering the application on a case-by-case basis.  That may explain the Commissioner’s decision because it is arguable that evidence that there is a practice that is plainly inconsistent with regulation 58(6) would make it as likely that the full-time panel member was acting in accordance with the practice as with the legislation, so that the presumption there would otherwise be that the full-time legally qualified panel member had acted within regulation 58(6) was undermined in any case where the tribunal consisted of a part-time panel member.

8.	However, regulation 58(6) has now been amended by the introduction of the alternative ground for an application to be considered by a panel member who did not constitute, or preside over, the tribunal whose decision is being challenged where “the President considers it necessary or expedient for the purpose of supervising panel members or in the monitoring of decision-making by panel members [for] the application [to] be determined by a legally qualified panel member”.  It is at least arguable that the practice of the Appeal Service, which I too understand to exist, is now lawful, although the question is not free from doubt.  Happily, I do not consider it necessary either to decide whether there is any settled practice in the Appeals Service whereby all applications for leave to appeal from decisions made by tribunals consisting of, or presided over by, part-time panel members are considered by full-time panel members or, if so, whether the practice is lawful.

9.	Mrs Swainson’s third submission is relevant to that explanation.  She submitted that the Commissioner deciding CIB/227/00 erred in granting leave herself given the terms of regulation 9(1) of the Social Security Commissioners (Procedure) Regulations 1999.  Certainly, if the decision of the full-time panel member was invalid and needed replacing and if regulation 9(1) is construed literally, the Commissioner had no power to grant leave herself because the Secretary of State’s application to the chairman of the tribunal had not been refused or rejected.  Instead, it was necessary for her to refer the case for consideration by a panel member afresh.

10.	Such a procedure would obviously have been a complete waste of time, because even if the panel member had refused leave to appeal, the application could then have been renewed before a Commissioner who would ultimately have to consider whether the tribunal’s decision was erroneous in point of law, which was the point she was already about to determine.  That is a powerful indication that such a procedure was not intended.  It seems to me that the key to the approach that should be taken by a Commissioner in a case like this is that it is no part of the function of a Commissioner to review a decision granting or refusing leave to appeal.  It is important to bear in mind that a decision of a panel member to grant or refuse leave to appeal does not determine the rights of any party to the proceedings.  (By contrast, a refusal of leave by a Commissioner does.)  If a panel member refuses leave to appeal and the application is renewed to a Commissioner, there is nothing to be gained by the Commissioner considering whether or not the application was properly considered by the panel member.  He or she just considers the merits of the renewed application.  Similarly, it is my view that, if leave is granted, a Commissioner should just consider the merits of the appeal.  Therefore, although section 14(10) requires a Commissioner to be satisfied that leave to appeal has been granted either by a panel member with jurisdiction to do so or a Commissioner, if leave to appeal has been granted by someone who, prima facie, had power to grant it, the Commissioner is not required to consider whether the power was properly exercised.

11.	In the present case, it has not been suggested that the person who granted leave was not a full-time panel member and there is no evidence to displace the presumption that she was.  If I am right in understanding the Appeals Service to have a practice whereby all applications for leave to appeal against decisions by part-time panel members are considered by full-time panel members, it may be that I should presume that the application in this case was considered in accordance with that practice.  However, now that regulation 58(6) has been amended, the practice, if it exists, is not so obviously unlawful as it was at the time material to the decision in CIB/227/00.  The full-time panel member is to be presumed to have considered that she was entitled by the legislation to act in accordance with that policy and, as it was not unreasonable for her to do so, her decision must be presumed to be valid for the purposes of this case.  Moreover, as Mrs Swainson submitted, she might have considered that it was impractical or would have caused undue delay for the application to be referred to the part-time panel member, particularly as the Secretary of State had already had to wait four months for a statement of the tribunal’s reasons to be issued and then, having applied for leave to appeal within the one month allowed, had had to send a reminder after three months before receiving the decision on the application.  I am therefore not satisfied that the grant of leave in this case was invalid.  Accordingly, I have jurisdiction to consider this appeal and I will turn to the facts of the case.

12.	The case has a long history and it is complicated by the fact that the way that income support was administered, before the introduction of jobseeker’s allowance in 1996, was not entirely in accordance with the legislation.  Entitlement to income support was subject to a condition that a person was available for, and actively seeking, work unless the claimant was exempted from that condition.  One principal ground for exemption was that the claimant was incapable of work.  A person who was incapable of work for a long time was also eligible to have a disability premium included in his applicable amount so that he received a higher rate of benefit.  Income support for those subject to the condition they were available for, and actively seeking, work was administered quite separately from income support for those not subject to such a condition.  This distinction was not to be found in the legislation and it resulted in people moving from one category to the other being obliged to make new claims for benefit rather than merely having their entitlement reviewed and revised.

13.	The claimant had been in receipt of income support since 1985 on the basis that he was incapable of work.  In due course, he became entitled to include the disability premium in his applicable amount.  After nearly ten years, an adjudication officer decided that the claimant was no longer incapable of work and, instead of reviewing and revising the claimant’s award so as to continue it at a different rate, he terminated it with effect from 10 January 1995.  The claimant appealed unsuccessfully to a tribunal and then appealed to a Commissioner.  Meanwhile, under protest, he declared himself available for, and actively seeking, work and made a new claim for benefit from 30 June 1995.  Benefit was paid from that date but on the basis that the claimant was not entitled to include the disability premium in his applicable amount.  The claimant asked for the claim to be backdated to 10 January 1995.  An adjudication officer refused that request.  The claimant appealed and, on 20 March 1996, a tribunal allowed his appeal and held that the claim should be taken to have been made on 10 January 1995.  They recorded that the claimant maintained that he was incapable of work and entitled to include the disability premium in his applicable amount but they said that those issues were not before them.  In the interim notice of award issued to the claimant, the tribunal said:

“The issues of further entitlement and quantum are referred back to the adjudication officer and, in default of agreement, the issues will come back to the tribunal for decision.”

On 19 September 1996, the Commissioner allowed the claimant’s appeal in respect of the decision terminating the award of benefit from 10 January 1995 (CIS/7987/95).  He did not spell out the consequence of his decision and he made it clear that he was not determining the claimant’s entitlement from 10 January 1995.  However, the logical consequence of his decision that there had been no grounds for review of the claimant’s award from 10 January 1995 was that entitlement continued under the original award unless an adjudication officer reviewed it on some other ground.  It was no doubt with that in mind that the claimant was then paid the additional benefit due to him on the basis that he was incapable of work and entitled to include the disability premium in his applicable amount from 10 January 1995 to 29 June 1995. 

14.	That left the claimant dissatisfied with the amount of benefit paid to him from 30 June 1995.  The Benefits Agency took the view that, because the claimant was claiming as an unemployed person there was no question of him being regarded as incapable of work and therefore entitled to include the disability premium in his applicable amount.  Furthermore, the claimant had not produced any evidence of incapacity for work in connection with the claim made on 30 June 1995.  Because the claimant persisted, a decision to that effect was eventually issued on 26 October 1999 in order to enable the claimant to appeal to a tribunal and have the matter resolved there.  This approach can be justified as a decision refusing to review the award made on the claim dated 30 June 1995.  The application for review can be taken to have been made on the basis that there was an omission on the part of an officer of the Department of Social Security in failing to make an earlier decision on the claimant’s capacity for work, given the history of the case.  Thus, any decision could be effective from 30 June 1995.  The claimant duly appealed to the tribunal.

15	The tribunal reasoned that the claim made on 30 June 1995 was unnecessary, because the award ought merely to have been revised on 10 January 1995 and not terminated.  He then said:

“It is an established principle of social security law that people who sign on as unemployed while appealing a decision that they are incapable of work are not to be prejudiced by having done so, particularly where their appeals are subsequently successful.  This principle is even stronger in a case such as this where [the claimant] has been driven to make a claim by a failure to pay benefit which should have been lawfully due.”

He then pointed out that the claimant had now been accepted as being incapable of work up to 29 June 1995, which period included 13 April 1995 so that the claimant was entitled to the transitional provisions made when the Social Security (Incapacity for Work) Act 1994 came into force.  Finally, he referred to regulation 28(1) of the Social Security (Incapacity for Work) (General) Regulations 1995 and said that that had the effect that the claimant was to be treated as if he satisfied the all work test that had been introduced under the 1994 Act until a proper assessment had been carried out.  As the claimant had never been asked to attend an examination for the purposes of such an assessment, he was, the tribunal reasoned, still to be treated as incapable of work and therefore entitled to include the disability premium in his applicable amount.

16.	The Secretary of State raises a number of points.  Firstly, it is correctly pointed out that, if the transitional provisions were relevant, the tribunal should have referred to regulation 31 of the Social Security (Incapacity Benefit) (Transitional) Regulations 1995, which was applied to income support by regulation 30, instead of referring to regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995.  Secondly, it is submitted that there is no identifiable decision awarding benefit from 10 January 1995 to 29 June 1995.  I do not agree with that submission because, for reasons I have already explained, that benefit was awarded in consequence of the Commissioner’s decision dated 19 September 1996, which was, whether rightly or wrongly, taken to have overtaken the decision of the tribunal dated 20 March 1996.  Thirdly, it is submitted that the operative decision from 30 June 1995 is the decision awarding benefit from that date and this appeal is properly to be regarded as arising out of a refusal to review that decision.  I accept that submission.  The new claim ended the previous one, which was still under consideration at the time the new claim was made.  This may, however, turn out to be favourable to the claimant because it seems to me that the consequence is that regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995 applies in this case instead of the transitional provisions.  Regulation 30 of the Transitional Regulations applies regulation 31 only in respect of a person’s “continued enjoyment” of an advantage such as income support which, in my view, limits its effect to cases where there remains in force an award made before 13 April 1995.  Where a new claim is made, the question of a person’s incapacity for work arises afresh and regulation 28 of the General Regulations applies.  The reason why this may favour the claimant is that, while both provisions deem a claimant to be incapable of work until an assessment is carried out, regulation 31 of the Transitional Regulations was amended from 6 January 1997 to provide that a claimant should in fact have remained actually incapable of work.

17.	I am not aware of any overarching general principle of the type on which the tribunal relied, although I accept that the exercise of rights of appeal ought not in themselves cause disadvantage to a claimant.  In fact, regulation 8(2) of the Income Support (General) Regulations 1987 provided that a person was not to be required to be available for work while an appeal was pending against a decision that he was not incapable of work and that should have been applied in the present case.  However, the person was not treated as incapable of work while the appeal was pending and so was not entitled to include the disability premium in his applicable amount (unless entitled to do so on grounds other than incapacity) during that period, although, of course, if the appeal was successful, arrears would then be paid.  In respect of the period up to 29 June 1995, that has now happened and it seems to me that all these considerations are now irrelevant.  The simple question for the tribunal was whether, from 30 June 1995, the claimant was entitled to include a disability premium in his applicable amount.

18.	The only basis upon which a disability premium could be applicable to the claimant was that paragraph 12(1)(b) of Schedule 2 to the Income Support (General) Regulations 1987 applied to him on the ground that he was, or was to be treated as, incapable of work.  (I take the amendment from 2 October 1995 to have been merely a clarification.)  The claimant would be regarded as incapable of work only if he satisfied what was then the all work test.  However, he would be treated as incapable of work if regulation 28(1) of the Social Security (Incapacity for Work) (General) Regulations 1995 applied to him.  This brings me to the Secretary of State’s principal ground of appeal.

19.	It has always been the Secretary of State’s contention that the claimant has not produced adequate medical evidence.  The Secretary of State complains that the tribunal did not consider that argument.  I accept that the tribunal did err in that respect, although he was not helped by the adjudication officer’s failure to explain in the submission to the tribunal why such medical evidence was necessary.  The explanation is that regulation 28(1) applies only if the conditions set out in paragraph (2) are met.  Regulation 28(2)(a) is a condition -

“that the person provides evidence of his incapacity for work in accordance with the Social Security (Medical Evidence) Regulations 1976 (which prescribe the form of doctor’s statement or other evidence required in each case)”.

The tribunal appears completely to have overlooked that provision.

20.	I am not aware of any evidence having been submitted in connection with the claim for benefit made on 30 June 1995.  However, it has long been accepted that medical evidence may be provided retrospectively and so it is still open to the claimant to provide evidence now, provided the evidence falls within the terms of regulation 2 of the Social Security (Medical Evidence) Regulations 1976 and is relevant to the period before 8 October 1999 when the relevant decision was made by the adjudication officer.  Some evidence was provided in connection with the appeal to the tribunal in 1995.  That evidence was criticised by the Commissioner in his decision in 1996.  It is to be noted that a certificate issued under regulation 2(1)(a) or (b) must be given in accordance with the relevant rules in Part I of Schedule 1 or Part I of Schedule 1A, as the case may be, and on the appropriate form.  The rules in Part I of the Schedules are quite strict.  On the other hand, regulation 2(1)(d) provides that –

“where it would be unreasonable to require a person to provide a statement in accordance with sub-paragraphs (a) to (c), [a claimant may provide] such other evidence as may be sufficient to show that he should refrain (or should have refrained) from work by reason of some specific disease or bodily or mental disablement”.

I draw attention to the fact that the evidence must be sufficient to show that the claimant should have refrained from work, which is not necessarily the same as evidence that he was actually incapable of work or that he would have satisfied a personal capability assessment.  Regulation 2(1)(d) enables a decision-maker to accept a doctor’s statement that is not made entirely in accordance with regulation 2(1)(a) to (c) or to accept evidence that is not in the form of a doctor’s statement at all.  In an appropriate case, a decision-maker is entitled to accept a claimant’s own oral or written evidence.  In the present case there is some evidence in a letter dated 17 June 2000 which is not at the moment related to the period before 8 October 1999 but could be supplemented.

21.	Mrs Swainson asked me to give a final decision in this case to the effect that the claimant is not to be treated as having been incapable of work since 30 June 1995.  Some doubt was expressed by the tribunal as to whether the claimant was actually incapable of work.  However, the letter dated 17 June 2000 has become available since than and the claimant cited ill health as the reason for not appearing before me.  Furthermore, the need to produce further evidence at the hearing before me was not made clear to him.  In all the circumstances, I consider that the claimant should be given one further opportunity to produce evidence as to his medical history over the last six years and to give evidence in person to a tribunal sitting near his home.  Accordingly, I give the decision set out in paragraph 1 above.

(signed)	M. ROWLAND
Commissioner
23 October 2001