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You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> [2009] NISSCSC C12_08_09(IB) (09 June 2009) URL: http://www.bailii.org/nie/cases/NISSCSC/2009/C12_08_09(IB).html Cite as: [2009] NISSCSC C12_08_09(IB), [2009] NISSCSC C12_8_9(IB) |
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[2009] NISSCSC C12_08_09(IB) (09 June 2009)
Decision No: C12/08-09(IB)
Background
Proceedings before the Social Security Commissioner
Errors of law
"(i) making perverse or irrational findings on a matter or matters that were material to the outcome ('material matters');
(ii) failing to give reasons or any adequate reasons for findings on material matters;
(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv) giving weight to immaterial matters;
(v) making a material misdirection of law on any material matter;
(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings;
Each of these grounds for detecting any error of law contains the word 'material' (or 'immaterial'). Errors of law of which it can be said that they would have made no difference to the outcome do not matter."
The error of law in the present case
'Appeal disallowedDepartment correct to supersede the decision awarding credits on the basis of a change of circumstances. Appellant is not incapable of work and not entitled to Incapacity Credits from and including 15.6.07.
Thereafter, there is no reference, in the statement of reasons for the appeal tribunal's decision, to the fact that the decision under appeal was a decision dated, 15 June 2007, in which a decision-maker of the Department decided to supersede an earlier decision of the Department dated 28 September 2006 which had awarded entitlement to IB credits from and including 8 May 2006. The decision-maker, on 15 June 2007, also decided that the appellant was not entitled to IB credits from and including 15 June 2007.
'41. Regulation 6(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, reads as follows:'Supersession of decisions6.(1) Subject to the following provisions of this regulation, for the purposes of section 10, the cases and circumstances in which a decision may be superseded under that section are set out in paragraphs (2) to (4).'
42. Regulation 6(2)(g) reads as follows:'(g) is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision) and where, since the decision was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Incapacity for Work Regulations from a doctor referred to in paragraph (1) of that regulation;'43. Regulation 6(2)(g) was introduced through amendments introduced in 1999 through the Social Security and Child Support (Decisions and Appeals) (Amendment No. 2) Regulations (Northern Ireland) 1999, as amended. The purpose of the amendment was to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession. Previously, case-law had held that the obtaining of a new medical opinion did not itself amount to a change of circumstances justifying a supersession on that ground R(IS) 2/97 and R(DLA) 6/01.
44. While regulation 6(2)(g) has been, since its introduction, the principal basis on which decisions relating to IB have been superseded, it is important to note that this does not mean that there cannot be a supersession on any other ground contained in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. It is possible to supersede, for example, on the basis that there had been a relevant change of circumstances, under regulation 6(2)(a)(i). To do so would require the decision-making authority to identify the relevant change of circumstances, and the date from which the supersession took effect.
....
49. As has already been noted, in an IB case, it is possible to supersede a decision awarding entitlement to the benefit, on the basis that there had been a relevant change of circumstances, since the decision was made. Such a supersession would be made under the legislative power given in regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.
50. To supersede on this basis would require the decision-making authority, in this case the appeal tribunal:
(i) to identify what the relevant change of circumstances was; and(ii) identify the date from which the supersession took effect.
51. It is my view that the appeal tribunal made an error in identifying the correct ground for supersession. The legislative provisions which make provision for the supersession of decisions, and the date from which a supersession decision should take effect, namely Article 11 of the Social Security (Northern Ireland) Order 1998 and regulations 6 and 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, are complex. There is a temptation to assume that the natural ground on which a supersession decision has been made is 'change of circumstances'.
52. The cases and circumstances under which a decision may be superseded are more varied than 'change of circumstances', however, and specific provisions have been included to deal with discrete situations, such as supersessions in respect of IB. The appeal tribunal was given clear guidance by the decision-maker, and the appeals writer, on the apposite legislative basis on which the supersession decision was undertaken. It is essential that appeal tribunals are satisfied that the correct ground has been identified, and that the supersession decision takes effect from the correct date.
53. Even if the appeal tribunal had in mind that the correct ground for supersession was a relevant change of circumstances, under regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, it has not explained what that change was and, more importantly, why the change and, by implication the supersession, took effect from the identified date ie 18 July 2007. Accordingly, even if the appeal tribunal was not in error by failing to identify the correct ground for supersession, it was in error in following through with the ground which it did identify.'
43. In the present case, it is arguable that the appeal tribunal had in mind, and intended to apply, the regulation 6(2)(a)(i) 'change of circumstances' ground, as an alternative to the regulation 6(2)(g) ground, which had formed the basis of the decision under appeal. To support that argument, the appeal tribunal, in the SORs, has indicated that it is of the view that there has been a relevant change of circumstances, namely an improvement in the appellant's 'condition'. Further, a change of circumstances is mentioned in the appeal tribunal's decision notice.44. I am not convinced, however, that the appeal tribunal did intend to apply the regulation 6(2)(a)(i) 'change of circumstances' ground, as an alternative to the regulation 6(2)(g) ground. Change necessarily involves comparison of the circumstances as they were at the time of the original decision and circumstances at the date of the supersession decision. There is no further explanation, in the SORs, for example, as to how such a comparison was made.
45. Even if the appeal tribunal had in mind that 'relevant change of circumstances' was the correct ground, it has not explained why the change and, by implication the supersession, took effect from the identified date ie 22 August 2007. Accordingly, even if the appeal tribunal was not in error by failing to identify the correct ground for supersession, it was in error in not following through with the ground which it did identify.
46. It is essential that appeal tribunals are satisfied that the correct ground has been identified, and that the supersession decision takes effect from the correct date. It is not enough, as DMS suggest in their submissions, that its implicit from the appeal tribunal's decision notice and SORs, that the correct ground for supersession has been applied. In this regard, I refer to my comments in C12/08-09 (DLA), at paragraphs 52 and 57:
'52. The appeal tribunal's duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it has done so. It is not sufficient for it to be, as DMS suggests, implicit from the appeal tribunal's documentation that the supersession issue was addressed. That consideration must be explicit from the decision notice, the statement of reasons or a combination of both. In the present case, I am of the view that it is not even implicit that consideration was given to the supersession issue.
57. DMS submits that it may have been preferable for the appeal tribunal to refer specifically to the grounds for supersession in the conclusion to its statement of reasons. It is not preferable but essential that it should do.'
The appellant's other grounds for appealing
'In the decision C14/03-04(IB) an issue arose at appeal where the claimant had passed several previous personal capability assessments, and asserted that her condition had not improved. In that decision the NI Commissioner held:
"12. I am not prepared to conclude that the Tribunal believed that the claimant had only succeeded previously in passing the personal capability assessment on appeal. It has recorded specifically that it has read the decision maker's decision. It appears much more likely to me that because it was hearing an appeal the Tribunal referred to a previous appeal. As regards the remaining part of ground 1 (that the Tribunal should have given consideration to seeking the medical evidence on which the previous award was based), that evidence not being already before it, I do consider that there is some merit. I do not say that the Tribunal in every case where there has been a previous award must adjourn or even consider adjourning to obtain earlier medical evidence. However, the claimant in this case was asserting that she was no better than she had been when last examined. It would have been helpful in this case and in other similar cases (where the grounds of appeal assert there has been no improvement since the last medical examination) if the report of that medical examination had been produced to the Tribunal. It is not, of course, necessary for the Tribunal to actually reach a conclusion as to whether or not there are any differences in the examination findings, nor indeed as to the medical opinions. The Tribunal's duty in looking at regulation 6(2)(g) is to determine, bearing in mind the burden of proof on a supersession whether or not the claimant is incapable of work. That does not entail making a comparison between two medical examinations even where the claimant contends that she has not improved. In this case, however, as the claimant did not have access to the relevant medical examination report and as she was obviously placing considerable reliance on the outcome of that examination, the Tribunal should have given consideration to whether it should adjourn in order to attempt to gain sight of the previous EMP report. .13. As I have mentioned previously I think it would be helpful, in cases where a claimant has asserted that the situation is no different than it was at the time of the previous examination, if the report of that previous examination could be put before the Tribunal."
"6.(1) Subject to the following provisions of this regulation, for the purposes of Article 11, the cases and circumstances in which a decision may be superseded under that Article are set out in paragraphs (2) to (4).
(2) A decision under Article 11 may be made on the Department's own initiative or on an application made for the purpose on the basis that the decision to be superseded
(g) is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision) and where, since the decision was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Incapacity for Work Regulations from a doctor referred to in paragraph (1) of that regulation;"
The burden of proving grounds for superseding an award of IB lies with the Department, and supersession is permitted by Regulation 6(2)(g). The GB Commissioner in the unreported decision CIB 1509/2004 considered how that regulation should be applied, paragraphs 7-10 refer. The Commissioner concluded that Regulation 6(2)(g) of the Social Security & Child Support (Decisions & Appeals) Regulations 1999 authorises a supersession procedure when evidence has been produced that may, or may not, show that the operative decision should be replaced and that the outcome is determined by the conditions of entitlement for an award. A condition of continuing entitlement is incapacity for work and I would submit that this is determined by the personal capability assessment which is the statutory test for assessing a claimant's capacity for work. Section 167C(5) of the Social Security Contributions & Benefits (NI) Act 1992 permits the Department to carry out the periodic re-assessment of claimants capacity for work:
"Personal capability assessments
167C
(5) The Department may, in the case of a person who for any purpose of this Act has been determined to be incapable of work in accordance with a personal capability assessment (including one carried out by virtue of this subsection), require the question whether the person is capable or incapable of work to be determined afresh in accordance with a further personal capability assessment."
Another issue arising in the appeal
'I agree that, apart from those few descriptors in which the word 'sometimes' appears, there is no specific requirement that a claimant must be able to perform the activity in question 'with reasonable regularity'. Nevertheless, a Tribunal must in my opinion have regard to some such concept in reaching their decision. The real issue is whether, taking an overall view of the claimant's capacity to perform the activity in question, he should reasonably be considered to be incapable of performing it. The fact that he might occasionally manage to accomplish it, would be of no consequence if, for most of the time, and in most circumstances, he could not do so. I consider, moreover, that this approach is broadly supported by the inclusion in a small number of the descriptors of the word 'sometimes'. The effect of the inclusion of this word is that, whereas in most cases a claimant who could perform the activity 'most of the time', but who sometimes was unable to do so, would normally not score any points, where these few descriptors are concerned he qualifies for a modest score. Accordingly, as I see it, there must be an overall requirement of 'reasonableness' in the approach of the Tribunal to the question of what a person is or is not capable of doing, and this may include consideration of his ability to perform the various specified activities most of the time. To that extent 'reasonable regularity' may properly be considered. On the further subject of a 'working situation', I agree that a Tribunal should not have regard to this factor; but should confine their considerations to the claimant's ability to perform the everyday activities specified in the descriptors.'
'The nature of the test to be applied in these cases is such that the Tribunal cannot examine each and every day in order to assess the Appellant's capabilities. We must adopt a broad approach when applying the test.'
' the question involves taking "a broad view of the matter" and making a judgment. The standard of motor abilities required by the cooking test is not so precise as to allow calibration by arithmetical formula.'
'Although we consider a broad approach to be justified, the words of the legislation cannot be ignored. In R(A) 2/74, the Chief Commissioner said, when remitting the case before him to another delegated medical practitioner:
"[I]n my judgment in answering the [statutory questions], 'regard must be paid to ... the claimant's requirements over a period of time'. I think that the delegate should take a broad view of the matter, asking himself some such question as whether in all the circumstances the words in the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts. These are matters for the good sense and judgment of the delegate."
It follows that, in those cases where relevant descriptors are expressed in terms that the claimant "cannot", rather than "sometimes cannot", perform the activity, one should not stray too far from an arithmetical approach that considers what the claimant's abilities are "most of the time" - the phrase used in C1/95(IB). Nevertheless, we agree that all the factors mentioned by counsel - the frequency of "bad" days, the length of periods of "bad" days and of intervening periods, the severity of the claimant's disablement on both "good" and "bad" days and the unpredictability of "bad" days - are relevant when applying the broad approach. Thus, a person whose condition varies from day to day and who would easily satisfy the "all work test" on three days a week and would nearly satisfy it on the other four days might well be considered incapable of work for the whole week. But a person who has long periods of illness separated by periods of remission lasting some weeks, during which he or she suffers no significant disablement, might well be considered to be incapable of work during the periods of illness but not to be incapable of work during the periods of remission, even if the periods of illness are longer than the periods of remission. Each case must be judged on its merits and we agree with the Commissioner who decided CIB/6244/1997 that there are some cases where a claimant can properly be regarded as incapable of work both on days when the "all work test" is clearly satisfied and on other days in between those days and that there are other cases where the claimant can be regarded as incapable of work only on "bad days", although we do not consider the distinction he drew between "variable" and "intermittent" conditions to be a helpful one.'
'The Appeal Tribunal did attempt to reach a conclusion based on the broad brush approach basis outlined in R(IB)2/99. A Tribunal is entitled to make a finding e.g. that on most days the claimant could walk in excess of 200 metres before stopping or severe discomfort without evidence expressly so stating. It must be permitted to exercise its judgment as to the true fact situation on the basis of the accepted evidence as a whole and may draw inferences from that accepted evidence. It is for the Tribunal, not for any witness, to make the necessary findings.'
Further, at paragraphs 25 to 26:
'25 As regards variable conditions such as the claimant's foot problem, we are largely in agreement with R(IB)2/99, a Great Britain Decision of a Tribunal of Commissioners, that the "broad approach" outlined therein is the only one which can sensibly be applied. We also, however, share the views expressed in that case decision at paragraph 15 thereof that " the words of the legislation cannot be ignored It follows that, in those cases where relevant descriptors are expressed in terms that the claimant "cannot", rather than "sometimes cannot" perform the activity, one should not stray too far from an arithmetical approach that considers what the claimant's abilities are "most of the time" ".
26. We also consider that certain factors mentioned in that decision are likely to be relevant in applying that approach though this list is neither prescriptive nor conclusive i.e. the frequency with which the relevant limitation(s) arise, for how long they last, the duration of periods when the limitation(s) are not present. We are less certain, however of the meaning or relevance of the phrase "the unpredictability of "bad" days" used in that decision. Adjudicators will simply have to try to determine the likely patterns of functional limitation. Uncertainty as to the possibility of a future recurrence would not of itself usually be enough to satisfy the test which must be satisfied on the balance of probability at the time of the decision maker's decision.'
'The real issue is whether, taking an overall view of the claimant's capacity to perform the activity in question, he should reasonably be considered to be incapable of performing it.'
The appeal tribunal's assessment of the evidence and findings in fact
Disposal
(signed) K Mullan
Commissioner
9 June 2009