CIS/3781/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Sutton appeal tribunal dated 16 April 2002 and I refer the case to a differently constituted tribunal (which must include both a legally qualified panel member and a medically qualified panel member) for determination.

2.	I direct the Secretary of State to arrange for the claimant to be called under regulation 8 of the Social Security (Incapacity for Work) Regulations 1995 for a medical examination before the tribunal sits and to make a written submission to the tribunal as to the claimant’s capacity for work in the light of the report given following that examination.  It is necessary for the Secretary of State to consider the claimant’s capacity for work at, and possibly before, 18 October 2001, the date of the decision under appeal to the tribunal.  Appropriate instructions should therefore be given to the examining medical officer.  The Secretary of State’s submission to the tribunal should also identify the date from which the decision under appeal is effective.

REASONS

3.	The claimant had appealed to the tribunal against a decision revising or superseding – it is not clear which because the submission to the tribunal refers to a “review” – an award of income support on the ground that the claimant had ceased to care for an invalid and determining that he was not entitled to income support.  The tribunal recorded that the claimant –

“did consider that he was incapable of work but had not applied for Incapacity Benefit, or income support on the grounds of incapacity, as his GP had refused to issue him with a medical certificate confirming incapacity.”

4.	As the Secretary of State concedes, the tribunal erred in implicitly considering that it was necessary for the claimant to “claim” income support specifically on the ground of incapacity or provide a medical certificate.  Once the claimant had raised the question of incapacity as a ground for challenging the removal of his income support (which he did in his notice of appeal to the tribunal), it was necessary for the tribunal to determine whether he fell within the scope of paragraph 7 of Schedule 1B to the Income Support (General) Regulations 1987 as amended.  In practical terms that meant deciding whether the personal capability assessment was satisfied (see the Schedule to the 1995 Regulations) which required the case to be adjourned to a tribunal consisting of a legally qualified panel member and a medically qualified panel member (see regulation 36(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999).  It would also have been desirable to arrange for a medical examination.  The only effect of the lack of a medical certificate was that it was unlikely that the claimant would be treated under regulation 28 of the 1995 Regulations as incapable of work until an assessment was carried out.

5.	 The claimant has objected to the suggestion I made when granting leave to appeal that I should allow the appeal solely on the above ground.  He raises further arguments as to the status of the tribunal and alleging bias.  However, applying the principle omnia praesumuntur rite esse acta, it is to be presumed that a person purporting to sit as a legally qualified panel member has been properly appointed to the panel constituted under section 6 of the Social Security Act 1998 and is not biased, unless there is evidence to the contrary.  There is no evidence in this case to rebut that presumption.  In any event, the only remedy I could provide if it were shown that a legally qualified panel member had not been properly appointed or was biased would be to set aside the tribunal’s decision, which is what I am doing in this case on another ground.  A Commissioner has no power to make an award of damages.  The claimant has also requested that I provide certain information to him.  I decline to do so.

(signed)	MARK ROWLAND
Commissioner
24 January 2003