AR-v-Department for Social Development(IB) [2010] NICom6

 		Decision No: C2/10-11(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 30 January 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 30 January 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.	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.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to incapacity benefit (IB) remains to be determined by another appeal tribunal. The newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.  

Background

7.	This application has a detailed and complicated background. 

8.	On 29 March 2007, a decision-maker of the Department made a decision which superseded an earlier decision of the Department, dated 21 October 2005 and which, in turn, had awarded entitlement to IB credits, from and including 7 October 2005. Further it was decided that the appellant was to be treated as capable of work from and including 17 March 2007. The basis of the supersession was that the appellant had failed to return an IB50 questionnaire. The appellant did not appeal this decision. 

9.	The appellant made a further claim to IB, which was received in the Department on 27 April 2007. On 23 May 2007, a decision-maker of the Department made a decision which is set out at Tabs No 3 and 3A of the appeal submission. The basis of the decision was the application of regulation 28 of the Incapacity Benefit (General) Regulations (Northern Ireland) 1995. There is no evidence that the applicant was ever offered appeal rights in connection with this decision.

10.	The Department then requested that the appellant complete an IB50 questionnaire which was received in the Department on 15 June 2007, together with a statement from the appellant’s general practitioner (GP). 

11.	On 21 August 2007, the appellant was examined by a medical officer of the Department. On 29 August 2007 a decision-maker decided that the appellant was not entitled to IB from and including 11 April 2007. The appeal was received in the Department on 28 September 2007. The decision dated 29 August 2007 was reconsidered on 12 November 2007 but was not changed.

12.	The appeal tribunal hearing took place on 30 January 2008. The appellant was present, as was his father. The appeal tribunal noted that it had before it:

(i)	written submission;

(ii)	copy GP notes and records;

(iii)	copy letter from GP dated 29.1.08

13.	The appeal tribunal disallowed the appeal, and made a decision that the appellant was not entitled to IB from and including 11 April 2007. 

14.	On 21 May 2008 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service (TAS). The ground cited was that the appeal tribunal had failed to take into account medical evidence from the appellant’s consultant. The appellant noted that although this evidence was obtained after he was refused the benefit it related to his circumstances prior to the appeal. 

15.	On 5 June 2008, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

Proceedings before the Social Security Commissioner

16.	On 8 July 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC). The ground cited in the application was the same ground which had been cited in the application for leave to appeal which was before the LQPM.

17.	On 20 August 2008, the legal officer directed that the appellant be asked to identify the medical evidence which he had submitted that the appeal tribunal had not taken into account. On 9 September 2008 a reply was received from the applicant to which was attached various items of medical evidence. As an aside, quite clearly some of this evidence was not before the appeal tribunal, as it post-dated the decision of the appeal tribunal hearing.

18.	On 2 October 2008 observations were sought from Decision Making Services (DMS) and these were received on 17 October 2008. DMS opposed the application. Observations were shared with the appellant on 5 November 2008. On 27 November 2008 further submissions in reply were received from the applicant. On 2 December 2008, these submissions in reply were shared with DMS. On 6 December 2008, further submissions were received from DMS who continued to oppose the application. These further submissions were shared with the applicant on 10 December 2008. On 21 December 2008, a further letter, with attachments, was received from the applicant.  

19.	On 26 June 2009, I directed an oral hearing of the application. The oral hearing took place on 11 November 2009. At the oral hearing, the appellant represented himself and the Department was represented by Mr Toner of the DMS. Gratitude is extended to both the appellant and Mr Toner for their constructive observations, comments and suggestions.

Errors of law

20.	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.

21.	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 error of law in the instant case

22.	Article 13(8)(b) of the Social Security (NI) Order 1998 provides – 

‘(8) In deciding an appeal under this Article, an appeal tribunal – 

(a)……….

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.’

23.	Article 13(8)(b) exhorts appeal tribunals to concentrate on the decision under appeal, and, more particularly, the date of the decision under appeal. The applicability of Article 13(8)(b) has to be considered, however, in the context of the social security appellate structure. It is inevitable that the appeal tribunal hearing will take place at a date later to the date of the decision under appeal. In the majority of cases, the date of the appeal tribunal hearing will be at least some months after the date of the decision under appeal and, in some rare instances, may take place at a date some years after the date of the decision under appeal. 

24.	It is equally often the case that the appellant, or any representative whom the appellant might have and, in rare instances, the Department, as the other party to the proceedings, may also have, between the date of the decision under appeal and the date of the appeal tribunal hearing, sought to adduce further evidence considered to be relevant to the issues arising in the appeal. Moreover, the appeal tribunal itself has the legislative power, under regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, to adjourn an appeal tribunal of its own motion for the purpose, for example, of production of additional evidence. 

25.	In oral hearings, where the appellant is in attendance, the appeal tribunal will also usually hear the oral evidence of the appellant given, therefore, at a time which post-dates the decision under appeal. 

26.	In short, therefore, an appeal tribunal may find that there is before it evidence which post-dates the decision under appeal. The question arises, therefore, as to how the appeal tribunal should deal with such evidence in light of the rule set out in Article 13(8)(b) of the Social Security (NI) Order 1998.

27.	In R(DLA) 2/01, Commissioner Jacobs considered how disability appeal tribunals (as they then were) should consider evidence which post-dated the decision under appeal, in light of a then extant rule in section 33(7) of the Social Security Administration Act 1992. Section 33(7) provided that a disability appeal tribunal should ‘… not take into account any circumstances not obtaining at the time when the decision appealed against was made.’ 

28.	In R(DLA) 2/01, the date of the decision under appeal was 15 September 1998. The appeal tribunal hearing took place on 18 February 1999, when the appeal tribunal had before it oral evidence from the appellant that he had had a serious operation in January 1999, and also had before it a letter from the appellant’s GP, dated 3 November 1998. The statement of reasons for the appeal tribunal’s decision recorded, in two separate places, that ‘we hear’ the case on the basis of the evidence which was before the adjudication officer on 15 September 1998.

29.	At paragraph 9 of the decision, Commissioner Jacobs noted that:

‘… In the case of a claim for a Disability Living Allowance, the jurisdiction {of an Appeal Tribunal} is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

30.	In relation to the case before him, Commissioner Jacobs found that the appeal tribunal appeared wrongly to have limited itself to the evidence which was before the adjudication officer. In relation to the evidence which post-dated the decision under appeal, and which was before the appeal tribunal, Commissioner Jacobs noted, at paragraph 11:

‘The claimant told the tribunal that his disablement at the time of the hearing was the same as that at the date of the adjudication officer’s decision. The tribunal’s statement records that the claimant had had a serious operation on 8 January 1999 and was now recovering. Although the statement does not say this in so many words, the implication is that although the claimant was recovering from his operation, he was nevertheless worse than he had been at the date of the adjudication officer’s decision. That may have been correct. However, that did not mean that by appropriate questioning the tribunal could not have obtained relevant evidence from the claimant as to his condition at the relevant time, perhaps by comparison with his condition at the date of the hearing. The tribunal was not entitled to reject the claimant’s oral evidence on the ground that it was not before the adjudication officer. The same point applies with greater force to the claimant’s evidence in his letter of appeal to the tribunal which was written about two weeks after the adjudication officer’s decision. This evidence was also covered by the tribunal’s blanket rejection.’

31.	In R(DLA) 3/01, Commissioner Jacobs considered the effect of section 12(8)(b) of the Social Security Act 1998, the equivalent in Great Britain to Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, in light of his comments in R(DLA) 2/01. At paragraph 58 he stated:

‘Section 12(8)(b) limits an appeal tribunal’s jurisdiction by preventing it taking into account a fresh circumstance. It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal. I stand by the statement of law that I set out in [R(DLA) 2/01] para.9 … In relating later evidence to the time of the decision, the claimant’s evidence is admissible, although it will, like all evidence, have to be weighed by the appeal tribunal.’ 

32.	The decisions in R(DLA) 2/01 and R(DLA) 3/01 were considered by Commissioner Brown in C24/03-04(DLA). In that case, the Commissioner stated, at paragraphs 6 to 8: 

‘6.	I shall deal first with the third ground of appeal.  The ground is based on the provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998.  That provision is as follows: -

“In deciding an appeal under this Article, an appeal tribunal –

a)	…

b)	Shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

7.	This is a mandatory provision.  It prevents the Tribunal from taking account of circumstances not obtaining at the date of the decision under appeal. It does not relate to evidence whenever it came into being, which is relevant to what the circumstances were up to the date of the relevant decision.  It does not prevent the Tribunal taking into account evidence obtained after the decision under appeal was made, for the purpose of drawing inferences as to the circumstances obtaining when or before the decision was made.  For example, if a claimant tells the Tribunal that his situation now is the same as it was at the date of the decision under appeal and produces evidence as to his present walking ability, why should that latter evidence if accepted not be used to determine the circumstances at the date of the claim? 

The Tribunal in deciding the appeal must not take into account circumstances which did not obtain at the time of the decision under appeal.  However, it is entitled to take account of any evidence which indicates what those circumstances were.

In this connection I would refer in particular to decision CDLA/4734/99, a decision of Mr Commissioner Jacobs in Great Britain.  As Commissioner Jacobs stated at paragraph 57 of that decision: -

“There is a difference between a circumstance and evidence of that circumstance.”

At paragraph 58 he stated: -

“Section 12(8)(b) [the Great Britain equivalent to Article 13(8)(b)] limits an Appeal Tribunal’s jurisdiction by preventing it taking into account a fresh circumstance.  It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal.  I stand by the statement of the law that I set out in CDLA/2934/1999, paragraph 9: -

“In the case of a claim for a Disability Living Allowance, the jurisdiction [of an Appeal Tribunal] is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The effect is also to limit the evidence that is relevant to the appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However, it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time, it is not admissible.””

8.	I can put the matter no better than Mr Commissioner Jacobs did in the above extract with the caveat as regards the final sentence in relation to which I would add only this, that the evidence may relate to the period over which the Tribunal has jurisdiction even though it also relates to a later time so long as it sheds light on the circumstances obtaining at the date of the decision under appeal …’

33.	Although, the principles in the cases cited above were in the context of disability living allowance they are applicable, in my view, to how appeal tribunals in social security appeals should address the issue of consideration of evidence which post-dates the decision under appeal.

34.	How were these principles applied in the instant case?

35.	As was noted above, the decision under appeal to the appeal tribunal was a supersession decision of the Department, dated 29 August 2007. The appeal tribunal hearing took place on 20 January 2008. 

36.	The record of proceedings for the appeal tribunal’s decision notes that the appeal tribunal had before it:

		‘Written submission.

		Copy General Practitioner’s notes and records.

Copy letter from General Practitioner (29.1.08).’

37.	I have been provided with a copy of the contents of the TAS administrative file. Attached to the record of proceedings is a bundle of documents headed by a letter from Belfast Health and Social Care Trust, Health Records Medico-Legal Section, dated 10 December 2007 and addressed to the appellant. Thereafter the bundle contains a series of medical reports and letters relating to the attendance of the appellant at physiotherapy. At the oral hearing of the application for leave to appeal the appellant confirmed to me that these documents were what the appeal tribunal referred to as ‘Copy General Practitioner’s notes and records’ and that it was these documents which were before the appeal tribunal. 

38.	This concession by the appellant settled the matter of the further materials which the appellant had forwarded to the OSSC as part of the proceedings before the Social Security Commissioner. As was noted above, some of these materials could not have been before the appeal tribunal, as they post-dated the date of the appeal tribunal hearing.

39.	As was noted above, the bundle of documents, classified by the appeal tribunal as ‘Copy General Practitioner’s notes and records’ contains a series of medical reports and letters relating to the attendance of the appellant at physiotherapy. The first document in the series is dated 25 October 2007 and is headed ‘Consent For Examination, Treatment or Care’. The second document contains the results of a physiotherapy assessment with detailed clinical findings on examination. The date of the assessment is stated to be 25 October 2007. There is also within the bundle details of subsequent attendances at the physiotherapy department, at regular intervals up to and including 6 December 2007. There is also within the bundle a copy of a referral letter to the physiotherapy department, from the appellant’s GP, dated 10 August 2007.      

40.	In the statement of reasons for the appeal tribunal’s decision, it is noted that:

‘The Tribunal is only permitted to take into account the circumstances at the date of the decision viz 29.8.07 (see Article 13(8) of the Social Security (N.I.) Order 1998 … He provided extracts from his General Practitioner’s notes most of which are dated after the decision was made and cannot be taken into account when deciding this appeal.’

41.	The appeal tribunal’s statement with respect to the effect of Article 13(8) of the Social Security (Northern Ireland) Order 1998 is correct although, more accurately, the reference should be to Article 13(8)(b). The second statement which is dismissive of the appeal tribunal’s power to consider the evidence which post-dated the decision under appeal is less accurate however.

42.	It is clear from the statement that the appeal tribunal, in deciding the issues arising in the appeal, did not consider the additional evidence which the appellant had provided. Although it is nowhere clearly stated, the appeal tribunal must have adopted the same approach to the further letter from the appellant’s GP, dated 29 January 2008, the date before the appeal tribunal hearing. 

43.	In my view, the principles set out in R(DLA) 2/01 and R(DLA) 3/01 concerning reliance on evidence which post-dates the decision under appeal, are not satisfied in the instant case. In my view, the appeal tribunal was not entitled to reject the evidence which post-dated the decision under appeal, in a peremptory fashion. The appeal tribunal was under a duty to determine whether the post-dated evidence relates to the period under its consideration. As was noted above, at paragraph 9 of R(DLA) 2/01, Commissioner Jacobs noted that:

‘… If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

44.	In the instant case, I cannot see, from the statement of reasons for the appeal tribunal’s decision, that the appeal tribunal had endeavoured to make findings concerning the relation of the evidence which post-dated the decision under appeal to the period under its consideration - that is the period up to the date of the decision under appeal. In the written and oral submissions on this issue, DMS has submitted that it could be implied from the appeal tribunal’s reasoning that it had assessed the evidence which post-dated the decision under appeal and had concluded that it could not be related to the period under its consideration. I am of the view that that conclusion cannot be derived from the appeal tribunal’s reasoning. The manner in which the evidence is rejected within the statement of reasons suggests to me that its relevance was not even considered by the appeal tribunal. 

45.	Although the physiotherapy evidence which the appeal tribunal supplied to the appeal tribunal post-dated the decision under appeal by a number of weeks, the fact that the referral to the physiotherapy department had been made during the period under consideration should, in my view, have led the appeal tribunal to consider whether the evidence was related. 

46.	The failure of the appeal tribunal to make specific findings concerning the relation of specific evidence which it rejected, in arriving at its decision with respect to the issues arising in the appeal, to the period under its consideration did not accord with the principles set out in R(DLA) 2/01 and R(DLA) 3/01, as approved in C24/03-04(DLA). Accordingly, the decision of the appeal tribunal is in error of law. 
     
47.	One further issue remains to be addressed. In the correspondence to OSSC, which followed on the application for leave to appeal to the Social Security Commissioner, the appellant made reference to possible confusion in relation to the date of a medical examination by a medical officer of the Department, as part of his claim to IB. This confusion had arisen because section 4.12 of the appeal submission referred to the medical examination having taken place on 2 August 2007. Further the hand-written date on the final page of the report of the medical examination itself, at Tab No 6 could be read as either 2 or 21 August 2007.

48.	At the oral hearing of the application for leave to appeal, and following clarification of what was set out in the statement of reasons for the appeal tribunal’s decision, the appellant accepted that the date of the medical examination was 21 August 2007, and that the appeal tribunal was aware of this. Further, the appellant accepted that the date of the decision under appeal was 29 August 2007.  

Disposal

49.	The decision of the appeal tribunal dated 30 January 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. 

50.	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. 

51.	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. 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

	18 January 2010