THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSIB/169/05

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  D J MAY QC

Oral Hearing

Appellant:  					          Respondent:  Secretary of State

Tribunal:  Glasgow			     Tribunal Case No:  

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that decision of the tribunal given at Glasgow on 21 December 2004 is erroneous upon a point of law.  I set it aside.  I remit the case to a freshly constituted appeal tribunal for a rehearing.

2.	This appeal came before me for an oral hearing on 2 November 2005.  The claimant was represented by Mr Craig of the Queen’s Cross Housing Association Limited.  The Secretary of State was represented by Mr Brown, Solicitor, of the Office of the Solicitor to the Advocate General.  After hearing submissions, I continued the appeal to 7 November 2005 for further submissions.  When the hearing reconvened on 7 November 2005, Mr Craig moved for an adjournment, principally upon the basis that the claimant had obtained legal aid to obtain an opinion of junior counsel on the issues raised in the appeal.  Mr Brown indicated that he had no strong views on whether to adjourn or not.  In the event I refused the motion for adjournment.  I consider that the issues in the appeal were capable of being properly focused and argued before me without adjournment.  I then heard argument on the appeal.

3.	The claimant has appealed to the Commissioner against the decision of the tribunal given at page 73.  It is in the following terms:

“Appeal is Disallowed

The decision of the Secretary of State issued on 02/06/04 is Revised

The appellant attains 3 points for walking and 3 points for incontinence together with the 3 mental health points awarded by the decision maker the net result of 6 points and fails the Personal Capability Assessment”.

4.	The tribunal had in issue before it the following descriptors 1(c), 2(c), 3(c), 4(d), 5(b), 6(b), 7(c), 8(c) and (d), 9(b), 13(b), (c) and (d), 16(b), (e), 17(c), (e), and (f) and 18(a) contained in the schedule of the Social Security (Incapacity for Work)(General) Regulations 1995.  The tribunal also had in issue before it the provisions of regulation 10(2)(e)(viii) of the same Regulations.  Regulation 10(2)(e)(viii), and either the activity or descriptors referred to in 3(c), 6(b), 8(c) and (d), 13(b), (c), and (d) of the schedule have all been the subject of amendment by virtue of the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996 (SI 1996/3207), these amendments were introduced with effect from 6 January 1997.

5.	The tribunal recorded in their statement of reasons:

	“1.	Mr Steven Craig, [the claimant’s representative], lodged a written submission of the basis of Howker.  We intimated we would consider the unamended criteria for the relevant descriptors, and did so.  He also submitted [the claimant’s] alcohol problem brought her within the terms of Reg 10(2)(viii) (sic) as amended of the Social Security (Incapacity for Work)(General) Regulations 1995, saying her problem amounted to a sever (sic) mental illness with the consequences set out in that regulation, and she should thus be exempt from the Personal Capability Assessment”.

6.	It was accepted by both parties to the appeal that the tribunal erred in law by considering the unamended criteria for the relevant descriptors without the amended descriptors having been declared to be ultra vires.  I agree.  It is not for tribunals at their own hand and without amendments to regulations having been found ultra vires to ignore what Parliament has enacted.  To do so constitutes an error in law and on these grounds the decision of the tribunal requires to be set aside.  It should be noted that before the tribunal Mr Craig did not argue that regulation 10(2)(e)(viii) as amended by the 1996 regulations was ultra vires.  The tribunal applied the amended version of that regulation

7.	For the sake of completeness, it should be noted that Mr Craig did not insist on his first ground of appeal which is contained at page 84 and is in the following terms:

	“…Firstly, the tribunal does not address the contention that the decision under appeal was technically invalid for lack of a personal capability assessment; …”.

That concession in my view was properly made.

8.	The second ground of appeal was in the following terms:

	“…secondly it does not address it does not address part 8 of that same submission, where it was submitted that the computerised unsigned IB85 form does not constitute evidence for disallowance. …”.

9.	In the event Mr Craig accepted before me that the decision of Mr Commissioner Bano in CIB/3743/2004 was correctly decided.  He accepted that the lack of a signature in a computer generated report is not fatal to the admissibility of that report.  In the event his position adopted before me was related to the reliability rather than the admissibility of the content of that report.  I consider that concession is properly made.  It is also consistent with the submission of the Secretary of State. 

10.	Mr Craig submitted that I should remit the case to a freshly constituted appeal tribunal with directions.  Mr Brown on the other hand in his submission submitted that I should make the decision that the tribunal should have made based upon their findings in fact.  However, I do not accept that this is a course which I could properly take.  The tribunal in relation to the activities and descriptors which had been amended applied the unamended version to the facts.  Also as will become apparent, I have determined that the amendments are not ultra vires.  Thus the findings in fact are related to the wrong version of the regulations.  I am not prepared, as urged by Mr Brown, to take a pragmatic view on this matter, particularly as there are issues relating to the reliability of the examining medical practitioner’s report.  In these circumstances, I remit the case to a freshly constituted appeal tribunal for a rehearing.

11.	In doing so I direct that tribunal to note that except for the issue of the reliability of the examining medical practitioner’s report, the other issues raised in the grounds of appeal to the Commissioner have been withdrawn by the claimant.  I direct them that the absence of a signature to the examining medical practitioner’s report is not fatal to that report.  It is a valid and admissible report.  In respect of its reliability, the freshly constituted tribunal will however note what was said by Mr Commissioner Howell QC in paragraph 3 of CIB/0511/2005.  

12.	In respect of the amendments to the activities and descriptors which had been amended by the 1997 regulations and the amendment to regulation 10(2)(e)(viii).  Mr Craig submitted that I should not direct the tribunal in relation to whether these regulations were ultra vires but that I should simply set out the basis upon which the tribunal should approach the issue of vires.  I asked him to cite authority for the proposition that a tribunal could determine the vires of regulations.  He was unable to do so.  At paragraph 33 of the opinion of Lord Justice Peter Gibson in R(IB) 4/03 (Howker) and on the authority referred to therein, namely CAO v Foster [1993] AC754 per Lord Bridge, it was indicated that the Commissioners had jurisdiction to determine the vires of the regulations.  However nowhere in the authorities is that power extended to tribunals.  It is not necessary for me to determine in this case whether they have such power upon the basis that I am entitled to give the freshly constituted tribunal to whom I have referred the case directions on the vires of the regulations in issue.  This I do.  

13.	It was the submission of Mr Craig that he was not seeking to advance the proposition that the amendment to descriptor 6(b) was ultra vires.  He indicated that he would be content with a direction by me that it was not ultra vires and this direction I give.  He accepted that the amendment to that activity 13 was unrelated to any factual issue in this case.  I am satisfied that the tribunal should apply that activity as amended.  The amendment in my view is not ultra vires. 

14.	Mr Craig submitted that the amendments to descriptors 3(b) and 6(b) were ultra vires, Mr Brown submitted they were not.  I had in CSIB/148/05 made a decision in which I held that the amendments to the descriptors in activity 3 (sitting) were not ultra vires for the reasons set out in paragraph 23.  I circulated CSIB/148/05 to parties.  This decision on the issue of the amendments to the descriptors on this activity should be read in the context of what I said in CSIB/148/05 in which I set out the relevant statutory provisions, facts in relation to the constitution and procedures before the Social Security Committee and the purposes of the procedures before them.  I also set out my analysis of the relevant authorities.  It is not necessary for me to repeat in full here what I said there.  I adopt it.  However for the sake of clarity of this decision I record my conclusion in paragraph 23 of CSIB/148/05 where I said:

	“In the instant case as opposed to regulation 27 which was dealt with by the Court of Appeal in Howker, the regulation had not been substantially re-drafted.  There were simply additional words placed at the end of the existing activity.  It is quite apparent from the information placed before the Committee that the Department for Work and Pensions considered that there was ambiguity in relation to the interpretation to be placed upon it which was contrary to what they considered the intention of the regulation was and was inconsistent with it.  Perusal of CSIB/12/96 would appear to confirm that as the Commissioner and the tribunal whose decision was appealed to him appear to have taken a different view as to the scope of the relevant descriptors.  It was thus apparent that the Department were seeking to eliminate the scope for ambiguity in the regulations.  The description of the effect of the ambiguity as being neutral was an opinion expressed by the Department.  It was not a conclusive statement of fact as the effect of a change in legislative provision can always be a matter of debate.  The context of the word ‘neutral’ was fully explained to the Committee in paragraph 3.4 of the minutes of the meeting.  The Committee had before it the information that they required to make up their own minds as to whether to make a reference.  It is clear from the minutes that in relation to the activity of consciousness, they specifically questioned the Department as to the effect and significance of the proposed amendment.  They did not do that to the activity of sitting.  The question before me is not whether I consider the effect of the amendment to be neutral.  It is whether the Secretary of State was in breach of his duty under section 170(4) by providing incorrect information with the result that the Secretary of State and Parliament did not obtain the Committee’s advice.  I cannot say on the information before me that that was the position in the instant case.  It is quite clear that if in practice the application of the activity had been inconsistent due to ambiguity that a redrafting of the activity to make its scope clearer might result in a claimant not being able to take advantage of the ambiguity.  That in my view is something which would be patently obvious to the Committee whose composition is noted in Mr Commissioner Howell QC’s decision as having been a distinguished one.  Even if the opinion of the Department on the effect of the amendment as being neutral had been incorrect, which I do not accept, my assessment of the significance of such a failure would be that as the Committee were experienced in social security matters, the could on the information before them, make up their own minds on the effect of the amendment.  They would also be sufficiently warned if they saw fit to raise the matter with the Department at the meeting between them and to take the matter further by having a formal referral if that appeared appropriate for them to do.  They took neither of these courses.  The proposed amendments to the activity of sitting and the information provided to the Committee was significantly different from the clearly misleading and inaccurate information of a material nature which had been provided in respect of regulation 27.  Thus having regard to the approach laid down by the Court of Appeal at paragraphs 36, 37 and 40 in Howker, I have reached the conclusion that the regulation is not ultra vires.  I consider in these circumstances that there is no substance in the first ground of appeal.

15.	Mr Craig did not accept that I had correctly decided that appeal and preferred to rely on what was said by Mr Commissioner Henty in CIB/1239/2004 which he urged me to follow in the instant case.  Whilst Mr Craig submitted that what was put to the Committee in respect of regulation 27 was more misleading than what was said in relation to the descriptors pertaining to activity 3, it was his position that the amendment was adverse and that accordingly to describe it as ‘neutral’ was misleading.  I was his submission that in these circumstances the regulation is ultra vires.  Mr Brown on the other hand submitted that he considered that the approach set out by me in paragraph 23 of CSIB/148/05 was correct and that accordingly, following that decision, the amendments to the descriptors in activity 3 were not ultra vires.  I was not persuaded by the submission of Mr Craig and adhere to the views which I expressed in CSIB/148/05 for the reasons expressed therein.  

16.	Mr Craig submitted that the amendments to descriptors 8(b) and 8(c) were ultra vires.  This was based upon the submission that the description of the amendments as being neutral was misleading when they were adverse.  Mr Brown in his submission submitted that Mrs Commissioner Jupp in CIB/3397/2004 and Mr Deputy Commissioner Gamble in CIB/2821/2004 found the amendments not to be ultra vires.  In my view the amendments to the activity of lifting and carrying and consequently descriptors 8(b) and (c) are not ultra vires.  I consider that the same considerations apply to those relating to activity 3 and the relevant descriptors for the reasons I have set out in CSIB/148/05.  It follows that that the basis upon which I reach that conclusion are for the reasons advanced in paragraph 23 of CSIB/148/05 and not for the reasons set out by Mrs Commissioner Jupp and Mr Deputy Commissioner Gamble I have set out my disagreement of their reasoning in paragraphs 11 and 23 of CSIB/148/05.  However I consider that they came to the correct conclusion.

17.	Mr Craig submitted, contrary to what he had submitted to the tribunal, that the amendment to regulation 10(2)(e)(viii) was ultra vires.  It was his submission that the expansion of the sub-paragraph to include a definition of what severe mental illness encompassed was a substantial re-writing of the test for that aspect of the provisions contained in regulation 10.  It was his submission that the effect was adverse to the claimant and was restrictive of his entitlement.  It was his submission that whilst the extent to which the Committee was misled was not as obvious as was the case with regulation 27(b); the Committee were misled nonetheless.

18.	Mr Brown, on the other hand, submitted that there was no question of the Social Security Committee being misled in relation to regulation 10 as they had been in respect of regulation 27.  He submitted that regulation 27 had been completely re-written and that the Committee had not been provided with the original version of the regulations which was sought to be amended.  However he submitted that in respect of regulation 10(2)(e)(viii) the Social Security Committee had three relevant documents before it.  It had first a letter from Mr Axton dated 28 October 1996 at pages 230 and 231 of the papers.  In that letter it is indicated that a set of draft regulations was enclosed.  That was the second of the relevant documents it had put before it.  Mr Brown submitted that the amendments to regulation 10 were shown at pages 253 and 254 where it is quite clear what amendment was proposed, particularly having regard to the notes to the proposed amendments, which was also put before the Committee.  At proposal 5c of that document it is recorded:

“c.		[neutral amendment]	
	A person will automatically satisfy the all work test if a Benefits Agency doctor certifies that he suffers from one of the serious conditions listed in regulation 10(2)(e).  A slight amendment to this provision is introduced following a decision of the High Court that the binding nature of the doctor’s opinion in the context of a similar provision is not permitted by the enabling powers under which the provisions were made (see proposal 11 below).”	

Proposal 11 was in the following terms:

	“PROPOSAL 11	[neutral amendment]	

	Exceptional Circumstances

	Regulation 27 contains a beneficial provision under which people who have failed to satisfy the all work test may nevertheless be treated as incapable of work if one of the prescribed exceptional medical circumstances apply.  Application of the provision is conditional on the opinion of the Benefits Agency’s examining doctor that one of the circumstances applied.  The High Court decided in a case heard on 11 September that the binding nature of the Benefits Agency doctor’s opinion in the application of this provision was not permitted by the enabling powers under which the provisions were made.

	The provisions have been re-drafted, along with the similar provision in regulation 10(2)(e), to restore the policy intention in the light of the Court’s decision.  The new provision is more precisely defined to reflect the fact that it must be interpreted and applied by lay adjudicating authorities.  Although they will still be required to consider the opinion of the Benefits Agency doctor they will also be able to take into account other medical evidence which the claimant may produce.”

It was Mr Brown’s submission the crucial words in the proposal are those where it says:

	“The new provision is more precisely defined to reflect the fact that it must be interpreted and applied by lay adjudicating authorities”.

19.	Mr Brown went on to submit that the definition of severe mental illness had been the subject of discussion at the meeting of 6 November 1996.  These minutes recorded:

	“3.2 Members noted that the IB amending regulations included a definition of ‘severe mental illness’ in the list of severe conditions conferring automatic exemption from the all-work test (AWT).  Dr Sawney explained that this definition, which had been developed following wide consultation with interested groups such as the Royal College of Psychiatrists, was currently contained in guidance.  The need to prescribe the definition in regulations arose from a recent High Court decision that regulations could not make the opinion of the BAMS doctor binding of the Adjudication Officer (AO), and reflected the fact that the provision would now need to be interpreted and applied by lay adjudicating authorities.”

20.	I am persuaded by Mr Brown’s submission.  It is not established that the Committee was misled in relation to the amendment of regulation 10(2)(e)(viii) in the manner it was in respect of regulation 27.  I am satisfied that the Committee had before it all the information that it required in relation to that specific regulation to make up its own mind on the effect of the proposed amendment and what action to take on it.  It was clearly discussed at the meeting between the Committee and the representatives of the Secretary of State.  The minute quoted above demonstrates beyond doubt that the Committee were made aware of what the Secretary of State intended by the amendment.  The intention stated was of the extension of the existing statutory provision in sub-paragraph (viii) by defining severe mental illness in consequence of the decision in Moule necessitating the amendment at the commencement of sub-paragraph (e).  On the face of it that expression of intention was supportable on the facts.  The Committee had sufficient expertise and information to determine whether it accepted the stated intention.  I therefore hold that on the test I set out in CSIB/148/05, where I followed the Court of Appeal in Howker, the Secretary of State was not in breach of his duty under section 170(4) with the result that the Secretary of State or Parliament did not obtain the Committee’s advice.  In these circumstances, the amendment to the regulation is not ultra vires.  The tribunal are accordingly directed to apply the amended version of the regulation.

21.	The appeal succeeds.

						(Signed)
						D J MAY QC
						Commissioner
						Date:  8 October 2005