PB-v-Department for Social Development (IB) [2010] NICom 39

Decision No:  C5/10-11(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 24 September 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 24 September 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 is evidence relevant to the issues arising in the appeal, including the oral evidence of the appellant, to which I have not had access, and 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 his 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 14 April 2008, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, dated 10 October 2007, and which had awarded an entitlement to IB, from and including 14 August 2007; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 14 April 2008.

9.	An appeal against the decision dated 14 April 2008 was received in the Department on 18 June 2008.

10.	The appeal tribunal hearing took place on 24 September 2008.  The applicant attended and was represented.  The appeal tribunal disallowed the appeal, and confirmed the decision dated 14 April 2008.

11.	On 3 December 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 9 December 2008, the application for leave to appeal was refused by the legally qualified panel member.

Proceedings before the Social Security Commissioner

12.	On 6 April 2009, 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.

13.	On 24 June 2009 observations were sought from Decision Making Services (DMS) and these were received on 20 July 2009.  DMS opposed the application on one of the grounds cited in the application for leave to appeal, supported the application on another cited ground, and identified a further basis upon which it was submitted that the decision of the appeal tribunal was in error of law.

14.	Observations were shared with the appellant and his representative on 27 July 2009.  On 20 August 2008, the appellant’s representative submitted that consideration would have to be given to the Departmental appeal submission which was before the appeal tribunal.

15.	On 10 September 2009 a further submission was received from the appellant’s representative in reply to the Department’s written observations on the application.

Errors of law

16.	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.

17.	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

The submissions of the parties

18.	In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative submitted that the decision of the appeal tribunal was in error of law in that:

(i)	the appeal tribunal failed to adjourn the appeal or to refer the appellant for an independent medical examination; and

(ii)	the appeal tribunal appeared to have dealt only with the exceptional circumstances provisions and failed to consider the ‘vision’ descriptor when this was put at issue in the appeal.

19.	In their written observations on the application for leave to appeal, DMS opposed the application for leave to appeal on the basis of part of the first cited ground in the application but supported the application on the basis of the second cited ground.  DMS also supported the application on the basis of a further identified ground which related to how the appeal tribunal dealt with the supersession issue.

Analysis

(i)	The ‘vision’ descriptor

20.	In the appeal submission, prepared for the appeal tribunal hearing, at Tab No. 2, there is a copy of an ‘Incapacity for Work Questionnaire’.  At page 13 of this questionnaire, the appellant has recorded that:

‘My eye sight is very poor without contact lenses.  I have a sinius [sic]/dental problem on my left side which makes my eye sensitive to wearing a contact lense [sic], sometimes it is too sore to tolerate the lense [sic] so I need to leave it out so I cannot see very well with not having a lense [sic] for my right eye.’

21.	In the record of proceedings for the appeal tribunal’s decision it is recorded that the appellant’s representative had submitted that:

 ‘… Vision is only descriptor in issue.

However also submits that in this case the Tribunal should consider exceptional circumstances:  Substantial risk criteria …’

22.	In the statement of reasons for the appeal tribunal’s decision, the following is recorded:

‘In this case the only descriptor in issue at hearing was vision.  We were asked to consider an award on the basis of exceptional circumstances - non functional descriptor.  It was maintained by and on behalf of the Appellant that his condition is such that there would be a substantial risk to his mental or physical health if he were found capable of work.  We were asked to accept that the normal descriptors are not appropriate to this case …

… The overall conclusion was that vision was satisfactory with lens.  The Examining Medical Officer was quite clear that none of the exceptional circumstances maintained by the Appellant were applicable.  We see no reason, in the absence of medical evidence to the contrary, to disagree with the Examining Medical Officer’s professional opinion.’

23.	In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative has submitted that:

‘… The appeal tribunal appears to have only dealt with the exceptional circumstances - no functional descriptor despite the fact that the appellant’s representative submitted that the vision descriptor was an issue in the appeal …’

24.	In response to this ground DMS has submitted that:

‘It is clear from the record of proceedings that (the claimant) asked that the tribunal consider the ‘vision’ descriptor as well as the exceptional circumstances (regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995).  It is also clear from the statement of reasons that the tribunal has only considered whether the exceptional circumstances applied and it did not consider the relevant descriptor.  I would therefore agree that the tribunal has erred in law as contended.’

25.	As was noted above I am of the view that it was the appellant’s representative rather than the appellant himself who made the relevant submissions to the appeal tribunal.  Nonetheless, I am satisfied that the submissions were to the effect that the appeal tribunal should consider:

(i)	whether the appellant satisfied the personal capability assessment, and in giving consideration to that question should concentrate on whether any of the descriptors relating to the activity of ‘vision’ in Part I to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, applied to the appellant; and

(ii)	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, applied to the appellant.

26.	I am in agreement with both parties to the proceedings before me that the appeal tribunal has confined itself to consideration of the second issue raised by the appellant’s representative, and has failed to give consideration to the first issue.

27.	The issue having been raised by the appellant meant that the appeal tribunal was under a duty to consider it.  That required the appeal tribunal to acknowledge, in its statement of reasons that the issue was considered by the appeal tribunal.  It required the appeal tribunal to indicate what it made of the evidence concerning the issue, and having assessed that evidence, make sufficient findings of fact in connection with the issue.  Finally, the issue having been raised by the appellant, in his claim form to benefit, and in his oral evidence to the appeal tribunal, the appellant was entitled to know, through the statement of reasons, what was the appeal tribunal’s determination in connection with the issue, and the reasons for its conclusions in connection with it.

28.	Having found that the appeal tribunal was under a duty to consider a relevant issue, and having failed to consider that issue, and explain, in its statement of reasons, that it has so considered it, I find that the decision of the appeal tribunal is in error of law.

(ii)	The adjournment issue

29.	In the application for leave to appeal, the appellant’s representative submitted that the tribunal:

‘… appears to have rejected the appellant’s evidence on the basis that no medical evidence was offered to support his contentions and that he did not furnish a report from the Consultant Ophthalmic Surgeon.  The tribunal failed to make adequate findings why this evidence was not available and give the appellant an opportunity explain [sic] its absence to request an adjournment to submit said evidence.’

30.	In short, the appellant’s representative is submitting that the appeal tribunal should have given consideration to an adjournment of the appeal.

31.	An appeal tribunal 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.  Such an adjournment might be for the attendance of an appellant or other witness, or for the production of additional evidence.  A decision by an appeal tribunal as to whether or not to adjourn is one within its own judicial discretion.

32.	As was indicated by Mrs Commissioner Brown at paragraph 16 of C6/05-06(IB):

“I do not consider that the tribunal need even consider adjourning unless there is something to indicate that the appeal should not be heard on the papers.  It therefore follows that unless there is some such indication the tribunal need not consider adjourning and need not refer to having considered adjourning …  If there is no indication that determination on the papers would not lead to a fair hearing the tribunal need not adjourn nor even consider adjourning.”

33.	In C7/08-09(IB), I stated, at paragraph 62:

‘62. Appeal tribunals should, of course, consider critically the issue of adjournment.  The appeal tribunal should first ask whether the evidence to be obtained is necessary and if so whether it is likely to assist in determining the matter when the case comes back.  The precise nature and relevance of the additional evidence should be identified.  Only if the evidence is material to the issues arising in the appeal, and not presently available to the appeal tribunal, should an adjournment to obtain that evidence be considered.  Appeal tribunals should also take into account the opportunity which the parties had to obtain the evidence, the need to avoid delays to others and whether there is a reasonable prospect of obtaining the evidence. …’

34.	Further, an appeal tribunal has the power, under Article 20 of the Social Security (Northern Ireland) Order 1998, as amended, to refer a claimant for a medical examination and report ‘… as appears necessary for the purpose of providing an appeal tribunal with information for use in determining an appeal’.

35.	In the instant case, I am of the view that the appeal tribunal’s decision to proceed to determine the appeal on the basis of the evidence before it was rational, and one which it was entitled to make.  The appellant was represented at the oral hearing of the appeal by an experienced representative.  That representative could, if he had been of the opinion that further medical evidence from the appellant’s consultant ophthalmic surgeon, was relevant to the issues arising in the appeal, either have arranged for the production of such a report, or made an application to the appeal tribunal for an adjournment for the purpose of obtaining such a report.  Accordingly, I find no error on the part of the appeal tribunal in relation to this cited ground.

(iii)	The supersession issue

36.	In the written observations on the application for leave to appeal to the Social Security Commissioner, DMS submitted that:

‘In unreported Northern Ireland decision C12/08-09(DLA) Commissioner Mullan addressed the responsibility of a tribunal to explicitly consider the issue of supersession.  At paragraph 52 he stated:-

“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……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.”

Commissioner Mullan went on at paragraph 57 to emphasise that it is essential for a tribunal to refer to the grounds for supersession.  In the present case the tribunal had the benefit of the Department’s submission which at paragraph 15 stated the Department’s decision had been superseded following receipt of a medical report after (the claimant) was examined by a medical officer of the Department on 13 February 2008.  The submission directed the tribunal to the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999, regulation 6(1) and (2)(g).  (Regulation 6(2)(g) allows for the supersession on receipt of medical evidence following an examination by a medical officer as stated in the submission.)

The tribunal notice in (the claimant’s) case states:-

“Appeal disallowed.
Appellant is not entitled to Incapacity Benefit from and including 14.4.08.”

As can be seen the issue of supersession has not been referred to.  Similarly in the tribunal’s statement of reasons there is no mention of supersession.  Consequently I would submit that the tribunal erred in law as it has failed to address the issue of supersession.’

37.	Part of the reason for the delay in dealing with this application was that in another appeal before me I was clarifying what I had said about the supersession issue in IB cases.  In C3/09-10(IB), I stated, at paragraphs 32 to 41:

‘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.’

38.	Did the appeal tribunal deal adequately with the supersession issue?  It is marginal but my conclusion is that it did not.  The decision under appeal to the appeal tribunal was a decision of the Department, dated 14 April 2008, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, dated 10 October 2007, and which had awarded an entitlement to IB, from and including 14 August 2007; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 14 April 2008.

39.	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.

40.	I would note, however, that absent the error with respect to how the appeal tribunal dealt with the ‘vision’ descriptor, I would have been content to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given, and correct the error with respect to supersession.

Disposal

41.	The decision of the appeal tribunal dated 24 September 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.

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

43.	The decision under appeal is a decision of the Department, dated 14 April 2008, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, dated 10 October 2007, and which had awarded an entitlement to IB, from and including 14 August 2007; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 14 April 2008.

44.	Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 14 April 2008, had grounds to supersede the decision of the appeal tribunal dated 10 October 2007.  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.

45.	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) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

46.	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.

47.	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 R4/01(IB), C22/01-02(IB), CIB/14667/1996 and CIB/1381/2008.

48.	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.

49.	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

6 May 2010