Decision No:  C12/09-10(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 29 October 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.

2.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

3.	The decision of the appeal tribunal dated 29 October 2008 is in error of law.  The error of law identified will be explained in more detail below.

4.	Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

5.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

6.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

7.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to incapacity benefit (IB) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

Background

8.	The decision under appeal to the appeal tribunal was a decision of the Department, dated 7 January 2008, which decided that:

(i)	grounds existed to supersede an earlier decision of an appeal tribunal, dated 27 June 2000, and which had awarded an entitlement to IB, from and including 13 March 2000; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 7 January 2008.

9.	On 8 February 2008 the decision dated 7 January 2008 was looked at again but was not changed.  The appeal was received in the Department on 26 February 2008.

10.	The substantive appeal tribunal hearing took place on 29 October 2008.  The appellant was present, and was accompanied by a representative.  The appeal was disallowed.  On 2 February 2009 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.  On 12 February 2009 the application for leave to appeal was refused by the legally qualified panel member (LQPM). 

Proceedings before the Social Security Commissioner

11.	On 11 March 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.

12.	On 16 April 2009 observations were sought from Decision Making Services (DMS) and these were received on 13 May 2009.  In these observations DMS opposed the application on the grounds cited by the appellant but DMS submitted, however, that the decision of the appeal tribunal was in error of law on the basis of its failure to address the issue of supersession.  Observations were shared with the appellant on 28 May 2009.

Errors of law

13.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

14.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(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 submissions of the parties

15.	In the application for leave to appeal to the LQPM, the appellant submitted that the decision of the appeal tribunal was in error of law as:

(i)	she did not feel that the LQPM looked at all of the evidence in that he did not mention letters of support from her general practitioner (GP) which commented on her mental health; and

(ii)	the appeal tribunal had misapplied certain of the mental health descriptors.

16.	In the further application for leave to appeal to the Social Security Commissioner the appellant submitted that the decision of the appeal tribunal was in error of law as the appeal tribunal did not properly explain how it found that she did not frequently panic when this was explained to them, and her GP supported this.

17.	In their written observations on the application for leave to appeal, DMS opposed the application on the grounds cited by the appellant, but also submitted that the decision of the appeal tribunal was in error of law on the basis of its failure to address the issue of supersession.  In making this submission, DMS relied on my decision in C12/08-09 (IB).

Analysis

The appeal tribunal’s assessment of the evidence which was before it

18.	In the record of proceedings for the appeal tribunal hearing, at the section headed ‘Documents Considered’ it is recorded that the appeal tribunal had before it:

‘Tribunal submissions, 2 Disability Living Allowance letters and 2 letters from Dr Leggett, General Practitioner (May and October 2008)’

19.	In the file of papers, which are before me, I have copies of all of the documentation referred to in the record of proceedings.

20.	The two letters from Dr Leggett are, in fact, dated 21 May 2008 and 27 October 2008.  The wording of both letters is very similar.  The letter dated 21 May 2008 reads, in part, as follows:

‘TO WHOM IT MAY CONCERN

This patient is registered with Donard Group Practice.  I can confirm that she has been attending me suffering from a significant depressive illness.  She requires Effexor 150 mg b.d and suffers from poor concentration, fatigue, sleep disturbance and difficulty coping with stress.

I certainly dont [sic] feel she is fit for work.  Her symptoms have been present since 1991 and are likely to persist long term. …’

	The letter dated 27 October 2008 is virtually identical in wording, except that the following sentence has been added:

‘She is also troubled by arthritis particularly affecting the right knee.’

21.	What did the appeal tribunal make of this evidence?  In the statement of reasons for the appeal tribunal’s decision, the following is recorded:

‘This 42 year old lady was, according to the submission, unfit for work in 1998 by reason of whiplash and low back pain.  Later (…) to Urinary Tract Infections (UTI’s).  The Appellant and her representative however indicated that only the mental health descriptors were in dispute and set out the contested descriptors.  Two letters handed in from Dr Leggett, General Practitioner refer to her depression since 1991 and one letter refers to arthritis of right knee as well.

We noted the IB113 Tab 2 dated 03.04.2007 and that this was Dr Sherrard rather than Dr Leggett.  Paragraph 2 refers to “hearing loss of right ear, recurring cystitis and presumably depression” referring to long term medication for depression.  There’s very little else to assist the Tribunal.

The Appellant confirmed that she had received no psychiatric input for some years (possibly six).  She had not been seen for 5 months at the time of IB113.’

	Thereafter, the statement of reasons sets out an analysis of the descriptors which the appeal tribunal thought were or were not satisfied in the appellant’s case. 

22.	In C16/08-09(DLA), I said the following, at paragraph 54:

‘…there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.”

23.	In the instant case, I am presuming that the letters from Dr Leggett were submitted to the appeal tribunal on the basis of its relevance to the issues arising in the appeal or on the basis that it provided supportive evidence on the other submissions concerning the appellant’s potential entitlement to IB.

24.	The appeal tribunal was under a duty to indicate what it made of that documentation in relation to its determination of the issues arising in the appeal.  More particularly, the appeal tribunal was under a duty to explain what it made of the evidence from Dr Leggett, in both letters which were before it, and which indicated that the appellant had been attending Dr Leggett ‘suffering from a significant depressive illness’.  The appellant was entitled, in my view, to an explanation as to why the appeal tribunal rejected this evidence concerning ‘a significant depressive illness’.

25.	In this regard, the statement that ‘There’s very little else to assist the Tribunal’ in the statement of reasons is difficult to understand.  I am unsure whether the appeal tribunal was concluding that the medical evidence which was before the appeal tribunal was neither of significance nor of sufficient weight to support any alternative conclusions by the appeal tribunal. Clearly, however, that evidence had a potential relevance to the issues arising in the appeal, and the appeal tribunal has not provided an adequate explanation as to why it considered that the relevant evidence did not have any particular relevance or was of little assistance.
 
26.	Having found that the appeal tribunal was under a duty to explain, in its statement of reasons, what it made of evidence which was pertinent to the issues arising in the appeal, I find that the decision of the appeal tribunal is in error of law.

The supersession issue

27.	In the written observations on the application for leave to appeal to the Social Security Commissioner, DMS stated the following:

‘Although (the claimant) has not identified any errors in the tribunal decision I would submit that the tribunal has erred in law in that it has failed to deal with the issue of supersession.  In paragraph 52 of unreported decision C12/08-09(DLA) Commissioner Mullan held:

“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.”

In this case one of the questions for consideration was whether or not the decision maker had grounds to supersede the decision of a previous appeal tribunal, dated 27 June 2000, which found Mrs B to be incapable of work.  The question was not addressed either in the statement of reasons or the decision notice; therefore I would submit that in line with C12/08-09(DLA) the tribunal has erred in law.’

28.	In C3/09-10(IB), I clarified the context of my decision in C12/08-09(DLA).  At paragraphs 26 to 41, I stated: 

‘26.	It is important that my comments at paragraph 52 of C12/08-09(DLA) are seen in the context of the remainder of that decision.

27.	In that case, the social security benefit under consideration was disability living allowance (DLA).  The decision under appeal to the appeal tribunal was a decision in which a decision-maker decided to supersede an earlier decision of the Department and, further, decided that the appellant was not entitled to any rate or component of DLA, from a specific date.  The earlier decision of the Department had included an award of entitlement to DLA.

28.	The decision-maker had determined that the evidence available to him suggested that there had been an improvement in the appellant’s care needs sufficient to amount to a relevant change of circumstances, since the earlier decision had been made, and satisfying regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

29.	The decision-maker had determined that there was also sufficient evidence to further decide that the appellant did not satisfy the conditions of entitlement to either component of DLA from and including a specific date.

30.	The decision-maker had also set out the legal basis upon which entitlement to DLA was removed from a specific date (‘the effective date of supersession’).

31.	In C12/08-09(DLA), at paragraphs 33 to 36, I set out the duties of the appeal tribunal with respect to the decision-making process:

	’33.	Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 24 March 2007, had grounds to supersede the earlier decision of the Department, dated 29 November 1996.

	34.	If the appeal tribunal determined that the decision-maker, on 24 March 2007, did not have grounds to supersede the decision dated 29 November 1996, then that latter decision would continue to have effect.

	35.	If the appeal tribunal determined that the decision-maker, on 24 March 2007, did have grounds to supersede the decision dated 29 November 1996, then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

	36.	Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.’

32.	The approach taken by the appeal tribunal in C12/08-09(DLA) was in error in the following way.  Neither the decision notice prepared by the LQPM of the appeal tribunal, nor the statement of reasons for the appeal tribunal’s decision, dealt with the issue of supersession to any degree of sufficient detail.  As I noted at paragraphs 44 to 45:

	’44.	What the decision notice and statement of reasons does tell the appellant is that the appeal tribunal has determined and agrees that the appellant should not have an entitlement to either component of DLA from a specific date, and then something of the evidential basis for its conclusions on that issue.

	45.	What the decision notice and statement of reasons does not inform the appellant is:

(i)	that the appeal tribunal has addressed the issue of whether the Department had a legal and evidential basis for reconsidering and changing its earlier decision; and

(ii)	the effective date from which any new decision should take effect.’

33.	In their written observations on the appeal in C12/08-09(DLA), DMS had submitted that while the appeal tribunal did not specifically refer to the grounds for supersession in the conclusion to its statement of reasons, and while it may have been preferable for it to have done so, in concluding that no award of DLA was appropriate it was implicit that the appeal tribunal considered that grounds for supersession existed to remove the award, namely a relevant change of circumstances.

34.	I rejected that submission from DMS, and concluded, at paragraph 48:

	‘The appeal tribunal was under a specific duty to determine whether the decision under appeal was correct.  As that decision was a supersession decision the duty was to determine whether there were grounds to supersede under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.’

35.	Finally I stated, at paragraph 52 that:

	‘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.

36.	It was in the context of the submission made by DMS, and my rejection of the argument that it could be implied from the appeal tribunal’s reasoning, that my comments at paragraph 52 were derived.

37.	As was noted above, where the decision under appeal is a supersession decision, it is important that the appeal tribunal considers whether the decision-maker had grounds to supersede, and to determine the effective date from which any supersession decision should take effect.  It is important to note that the grounds on which a decision may be superseded, under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, are varied.  Each ground will have its own requirements, legal and evidential.  Further, while most regulation 6 grounds have a general relevance to all social security benefit decision-making, some grounds will have a more specific relevance to decision-making in respect of particular social security benefits.

38.	For example, the principal ground for supersession in IB cases is to be found in regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  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;’

39.	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.

40.	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, however, would require the decision-making authority to identify the relevant change of circumstances, and the date from which the supersession took effect.

41.	Accordingly, depending on the ground relied on by the decision-maker, and the desired effect in respect of social security entitlement, the analysis of the supersession issue, including grounds, entitlement and effective date which may be required may vary.  It is arguable that in IB cases, the regulation 6(2)(g) ground is intrinsic to the benefit decision itself and that, subject to the necessary and sufficient fact-finding, a confirmation of the benefit decision by the appeal tribunal will be sufficient to confirm that the decision-maker had grounds, under regulation 6(2)(g), to supersede the earlier entitlement decision.  All will depend on the circumstances of each individual case, however.’

29.	How did the appeal tribunal address the supersession issue in the instant case?

30.	The decision notice for the appeal tribunal’s decision reads as follows:

‘Appeal Disallowed.  The Appellant fails to satisfy the conditions for the P.C.A. from and including 7/1/08.’

31.	The statement of reasons for the appeal tribunal’s decision makes no reference to the decision under appeal or any further reference to the final outcome decision of the appeal tribunal.

32.	Did the appeal tribunal deal adequately with the supersession issue?  My conclusion is that it did not.  The decision under appeal to the appeal tribunal was a decision of the Department, dated 7 January 2008, which decided that:

(i)	grounds existed to supersede an earlier decision of an appeal tribunal, dated 27 June 2000, and which had awarded an entitlement to IB, from and including 13 March 2000; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 7 January 2008.

33.	The statement of reasons and decision notice are sufficient to deal with the second part of the decision but not the first.  Having failed adequately to determine whether the decision-maker had grounds to supersede the earlier decision of the Department, the appeal tribunal erred in law.

34.	I would add, however, that absent the error in connection with the potential application of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, the error in connection with the supersession is one which I would have corrected.

Disposal

35.	The decision of the appeal tribunal dated 29 October 2008 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

36.	I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

37.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following.

38.	The decision under appeal is a decision of the Department, dated 7 January 2008, which decided that:

(i)	grounds existed to supersede an earlier decision of an appeal tribunal, dated 27 June 2000, and which had awarded an entitlement to IB, from and including 13 March 2000; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 7 January 2008.

39.	Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 7 January 2008, had grounds to supersede the decision of the appeal tribunal dated 27 June 2000.  The ground for supersession on which the decision-maker relied is to be found in regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, namely that since the decision awarding IB was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, from a doctor referred to in paragraph (1) of that regulation.

40.	The test of incapacity for work, applicable to the appellant, was the personal capability assessment.  The personal capability assessment is an assessment of the extent to which a person who has some specific disease or bodily or mental disablement to perform certain of the activities as prescribed - section 167A(1), 167C(1) and (2) Social Security Contributions and Benefits (Northern Ireland) Act 1992.

41.	The prescribed activities are to be found in Parts I and II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

42.	If the appeal tribunal determines that the appellant is not incapable of work in accordance with the personal capability assessment then it must then decide whether any of the exceptional circumstances set out in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, apply to the appellant.  Guidance as to the approach to be taken to regulation 27 is to be found in R 4/01(IB), C22/01-02 (IB), CIB/14667/1996 and CIB/1381/2008.

43.	It will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal.  The appellant’s representative may wish to make a submission to the appeal tribunal, and adduce further evidence in connection with that submission, as to the potential application of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

44.	It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed):  K Mullan

Commissioner

17 December 2009