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You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> [2003] NISSCSC C10/03-04(IB) (4 November 2003) URL: http://www.bailii.org/nie/cases/NISSCSC/2003/C10_03-04(IB).html Cite as: [2003] NISSCSC C10/03-04(IB), [2003] NISSCSC C10/3-4(IB) |
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[2003] NISSCSC C10/03-04(IB) (4 November 2003)
Decision No: C10/03-04(IB)
"It is arguable that the decision was wrong in law, because the relevant form IB85 may not have been a reliable basis for the Department to supersede its decision of 31 January 2002, as the form has been modified by the use of correction fluid (contrary to the policies of the Social Security Agency and Medical Support Services)."
"The Department asked for and received an extension in the time for making observations in this case as I considered that it was necessary to obtain the original case papers before making any comment on the merits of the appeal. Among other things, I was concerned about the lines that appear in box 63 of the photocopy of form IB85 – tab 4 of the tribunal appeal papers refers.
Having received those papers, I would draw the Commissioner's attention to the original form IB85 (now enclosed). The Commissioner will note that correction fluid has been used on pages 1, 5 (bottom of page), 7 (box 10) and 24 (box 63) of the form. The use of correction fluid to correct, amend or alter a report runs contrary to the policies of the Social Security Agency and Medical Support Services. This matter has been brought to the attention of the management of Incapacity Benefits Branch and Dr McV... of Medical Support Services.
While it has not been possible to establish where this breach occurred, (Dr McV... for example has advised that Dr G…, the author of the report, has left Northern Ireland), I am assured that this is very much a one-off incident and that staff have been reminded against the use of correction fluid.
There is no indication in the reasons for the tribunal decision that it was aware that correction fluid had been used on the report. If it had known, it should have at least investigated the propriety of those alterations. As it did not do so, I submit that there has been an inadvertent breach of the rules of natural justice and that the tribunal's decision is erroneous in law.
In the circumstances, the Department would concede that the IB85 is not a reliable basis upon which to substantiate its' (sic) decision dated 31 January 2002. Since there is little realistic prospect of resolving this matter, I would therefore respectfully ask the Commissioner to allow the appeal."
"As the Department concedes that the IB85 is not a reliable basis upon which to supersede the decision of 31 January 2002 and as a new tribunal would have to consider [the claimant's] condition as at that date I respectfully suggest that there would be little purpose in remitting the case back to a different tribunal. I suggest that the appeal should be allowed and benefit awarded. The Department may then make arrangements for [the claimant] to be examined by another MSS doctor with a view to considering supersession from a current date."
(signed): John A H Martin QC
Chief Commissioner
4 November 2003