[2014] UKFTT 163 (TC)
TC03301
Appeal number:
TC/2012/11050
STATUTORY SICK PAY –
whether Appellant entitled to statutory sick pay - whether absences of
Appellant from work comprised days of incapacity for work - Appellant's GP
certified Appellant as unfit for work - HMRC instructed doctors to give medical
opinion as to Appellant's fitness to work - failed to set out full extent of
duties performed by Appellant - appeal allowed
FIRST-TIER TRIBUNAL
TAX CHAMBER
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MRS RANO YASMEEN
MIAN
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Appellant
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- and -
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THE
COMMISSIONERS FOR HER MAJESTY’S
REVENUE &
CUSTOMS
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First Respondents
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- and -
ECLAT UK LIMITED Second Respondents
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TRIBUNAL:
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JUDGE EDWARD SADLER
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JOHN WOODMAN CA
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Sitting in public at Bedford Square on 17 December 2013
The Appellant was not
represented and did not appear
Miss L Ramsay, of the
Contributions and Employer Office of HM Revenue and Customs, for the First
Respondents
The Second Respondents were
not represented and did not appear
© CROWN COPYRIGHT
2014
DECISION
Introduction
1.
This is an appeal by Mrs Rano Yasmeen Mian ("the Appellant")
against a decision of The Commissioners for Her Majesty's Revenue & Customs
("HMRC") dated 30 May 2012. That decision was made under section 8
of the Social Security Contributions (Transfer of Functions, etc) Act 1999.
The decision was that the Appellant was not entitled to Statutory Sick Pay
("SSP") for the period of the Appellant's absence from work for
sickness beginning on 26 August 2011 and ending on 9 March 2012. In
consequence the Appellant's employer, Eclat UK Limited ("the
Employer"), was not liable to pay the Appellant SSP.
2.
The grounds of the decision made by HMRC were that the doctor appointed
by HMRC for the purpose of determining whether she was capable of performing
the duties of her employment was of the opinion that she was capable of
performing those duties. The Appellant requested a review of that decision,
and (after taking a further medical opinion) HMRC upheld their decision in
their letter to the Appellant dated 24 October 2012. On 19 November 2012 (and
therefore within the 30 day period for making an appeal) the Appellant appealed
to this tribunal against that decision. The Appellant's appeal is made under
section 11 of the Social Security Contributions (Transfer of Functions, etc)
Act 1999.
3.
When the hearing of the Appellant's appeal was called neither the
Appellant nor the Employer (which was Second Respondent in the appeal
proceedings) was present. The Appellant had notified the tribunal office that
she would rely on the documents supplied to HMRC in the course of this matter.
The Employer had not replied to any correspondence from the tribunal office.
We were satisfied that both those parties had been notified of the hearing, and
that it was in the interests of justice to proceed with the hearing in their
absence under Rule 33 of The Tribunal Procedure (First-tier Tribunal (Tax
Chamber) Rules 2009.
4.
The issue we have to decide is whether, in the terms of the SSP
legislation (set out below), the relevant period of absence of the Appellant
from work comprised a period of incapacity for work, that is, a period when the
Appellant was incapable by reason of some form of illness or disablement of
doing the work which the Appellant could reasonably be expected to do under her
contract of service.
5.
It is our decision to allow the Appellant's appeal. From the evidence
before us we find that the Appellant made a credible case that she could not,
by reason of illness or disablement, carry out the duties required of her by
her contract of service. HMRC sought to refute the Appellant's case by seeking
their own medical opinion on the point. However, in instructing the doctors on
whose opinion HMRC relied in reaching their decision, HMRC failed to explain
certain of the duties of the Appellant which were, or were likely to be,
material to the medical condition which the Appellant claimed rendered her
incapable of working. HMRC's case that the Appellant was not entitled to SSP
cannot therefore be relied on.
The relevant legislation
6.
The legislation relating to SSP is primarily found in the Social
Security Contributions and Benefits Act 1992 ("SSCB Act 1992"). The
entitlement to SSP arises under section 151 SSCB Act 1992, the relevant parts
of which provide:
(1) Where an employee has a day of
incapacity for work in relation to his contract of service with an employer,
that employer shall, if the conditions set out in sections 152 to 154 below are
satisfied, be liable to make him, in accordance with the following provisions
of this Part of this Act, a payment (to be known as "statutory sick
pay") in respect of that day.
…
(4) For the purposes of this Part of this
Act a day of incapacity for work in relation to a contract of service means a
day on which the employee concerned is, or is deemed in accordance with
regulations to be, incapable by reason of some specific disease or bodily or
mental disablement of doing work which he can reasonably be expected to do
under that contract.
7.
The first of the qualifying conditions referred to in section 151(1)
SSCB Act 1992 is set out in section 152 SSCB Act 1992 in the following terms:
(1) The first condition is that the day
in question forms part of a period of incapacity for work.
(2) In this Part of this Act "period
of incapacity for work" means any period of four or more consecutive days,
each of which is a day of incapacity for work in relation to the contract of
service in question.
8.
The Appellant's case relates to the question of whether her period of
absence from work comprised a period of incapacity for work. The Appellant
contends that this was so: HMRC contend that since, according to the medical
opinion obtained by them, the Appellant was capable of performing the duties
required under her contract of employment, her absence was not a period of
incapacity for work, and this first condition of entitlement to SSP was
therefore not satisfied.
9.
The remaining conditions which must be satisfied before an entitlement
to SSP arises are not in dispute between the parties and we need therefore make
no reference to them. There are provisions which govern the amount of SSP
payable by reference to the employee's normal weekly earnings, but again that
is not a matter in dispute in the present case. Similarly there is no dispute
about the statutory limitations on entitlement (broadly, SSP cannot be claimed
for the first three qualifying days of incapacity for work, nor for a period
exceeding 28 weeks).
10.
Regulations deal with such matters as the notice which the employee must
give to the employer of the employee's day of incapacity for work, the
provision of information as to the incapacity and its duration, and the
provision of medical information in the terms of a doctor's statement or certificate
in a prescribed form.
11.
Although in most cases it is the employer who pays SSP to his sick
employee, it is an officer of HMRC who, as provided in section 8(1)(f) Social
Security Contributions (Transfer of Functions, etc) Act 1999, must decide
whether in a particular case an employee has an entitlement to SSP.
The facts
12.
The Appellant was employed from 1 May 2009 by the Employer. She worked
three days a week. Her job description was as a beauty therapist. The
Employer informed HMRC that the duties of the Appellant's employment required
her to carry out beauty treatments on the Employer's customers (including
facial therapies, manicures and pedicures, massages (including full body
massages) and hair removal) and ancillary duties including reception work, ordering
supplies, maintaining notes of customers' treatment programmes and medical
histories, and cashing up at the end of the day.
13.
The Appellant's employment duties (again, as the Employer informed HMRC)
required her to stand up for lengthy periods and to bend over customers to
administer the beauty treatments and, for the massages, to bend over customers
and exert pressure with hands and arms. The equipment she had to operate was
either fixed or mounted on wheeled trolleys.
14.
The Employer kept a large and free-standing advertising board which each
day was placed on the pavement outside the premises where the Appellant
worked. She was expected to lift that advertising board and carry it out to
the pavement each morning at the start of business and to carry it back into
the premises at the end of the working day before locking up the premises.
15.
The Appellant's last day of work was on 24 August 2011. On 26 August
2011 she became sick, and the first working day when she was absent because of
sickness was 29 August 2011. She reported her sickness to the Employer on 30
August 2011.
16.
The Appellant consulted her general practice doctor on 26 August 2011.
Her doctor issued over time a series of certificates advising that the
Appellant was not fit for work. The certificates covered the period beginning
26 August 2011 until mid-March 2012 (she was "signed off" by her GP
on 19 March 2012). The Appellant's condition in those certificates was
described as "backache, migraine and panic attacks". A medical
report from the Appellant's GP dated 6 December 2011 provides a diagnosis of
"back pain/panic attack", states symptoms to be "back pain after
lifting heavy board at work (accident at work)" and states that treatment
received is "physiotherapy, exercises at home as advised by
physiotherapist, and pain killers". The outlook for the Appellant's
condition is said to be "unpredictable at the moment because she is still
having back pain and getting more panic attacks".
17.
The Employer paid the Appellant £530 on 31 October 2011 and £163.60 on
30 November 2011.
18.
In response to HMRC's request as to the reason for non-payment of SSP,
the Employer advised HMRC in December 2011 that the Appellant had been absent
for sickness for a period longer than would be expected from HMRC guidelines
issued to employers; that the Appellant had been offered a welfare meeting, but
had not attended; and that the notes from the Appellant's GP were not helpful
and that the doctor was probably unaware of the nature of the Appellant's
duties at work.
19.
HMRC sought an independent medical opinion from the consultancy Medical
Services. The doctor providing the opinion examined the Appellant on 7
December 2011. On 11 January 2012 HMRC advised the Appellant and the Employer
that "it is Medical Services' opinion that [the Appellant] is capable of
work as a Beauty Therapist in the periods covered by the medical evidence
supplied. As a result of the Medical Services opinion, it would appear that
[the Appellant] is not entitled to SSP for the periods covered by medical
evidence supplied ..." We did not have in evidence either the information
or instructions given to Medical Services or a copy of their opinion.
20.
The Appellant wrote to HMRC on 31 January 2012 with further certificates
from her GP (until mid-February 2012 and describing her back pain and panic
attack illnesses in detail). She said that she had attended hospital because
of sharp pains in her head and neck and pain and numbness in her arm, and had
been referred for an MRI scan. On 16 February 2012 the Appellant had a
cervical spine MRI scan. The scan revealed some disc degeneration in the
spine, but no evidence of nerve root entrapment. The Appellant also had a
lumbar spine X-ray on 4 May 2012. The report from that X-ray specifies:
"Minimal scoliosis of the lumbar spine convex to the right is noted in the
lower lumbar region. No other abnormality is seen."
21.
From 16 February 2012 the Appellant had therapy for anxiety and
depression from the mental health services department of the North East London
NHS Foundation Trust.
22.
Throughout this period the Appellant had physiotherapy treatment for her
back condition and during part of the period she had physiotherapy for pain in
her neck.
23.
On 19 March 2012 the Appellant was "signed off" by her GP,
that is, certified as in fit condition to work, and she approached the Employer
with a view to returning to work. The Employer decided that she should not
return to work and subsequently the Appellant was dismissed from her employment
without returning to work.
24.
HMRC sought a further opinion from Medical Services. The doctor
concerned was sent a copy of the results of the MRI scan which had by then
taken place. He carried out an examination of the Appellant on 12 May 2012.
Following the examination Medical Services expressed the opinion that the
Appellant was capable of doing her work as a beauty therapist. We did not have
in evidence either the information or instructions given to Medical Services or
a copy of their opinion.
25.
In consequence of the opinion received by HMRC from Medical Services, on
30 May 2012 HMRC made their decision in these terms: "[The Appellant] is
not entitled to Statutory Sick Pay (SSP) from 26 August 2011 and that [the
Employer] is not liable to pay SSP for that period".
26.
The Appellant appealed in writing to HMRC against that decision on 22
June 2012. On 11 July 2012 the Appellant wrote to HMRC setting out in detail
the circumstances of her illnesses, and the tests and treatment she had
undertaken. She referred to the lifting of the heavy advertising board which
she carried in and out of the Employer's premises. In that connection she
submitted an undated statement of a Mrs C Puaar of Wanstead, which states:
"This is to confirm that on Wednesday 24 August
2011 I was [the Appellant's] last client at Pure Medispa, South Woodford. I
also confirm that she was working late by herself and there were no other
therapists in the salon at this time of the day above.
I also confirm that I witnessed [the Appellant]
moving the advertising board from outside the salon to inside with great
difficulty. I could not assist due to my frozen shoulder but did question why
she was moving such a heavy object by herself which she was greatly struggling
with.
If you need any further clarification please do not
hesitate to contact me."
27.
On 18 July HMRC notified the Appellant that the information supplied by
her had not caused the officer to change her mind, and that the decision of 30
May 2012 still stood. The Appellant was told that she could ask for an
independent review of the decision or appeal to the tribunal.
28.
On 8 August 2012 the Appellant requested an independent review of the
decision.
29.
On 19 September the officer of HMRC who was to carry out that review
sent an internal memo to the officer who made the decision stating that certain
of the medical reports provided by the Appellant were not held on the file
previously sent to Medical Services. The reviewing officer asked the decision
officer to send the reports to Medical Services. In that memo the reviewing
officer also stated: "My other concern is the accuracy of the job
description that the Employer has provided for the Medical examiner - he does
not include the carrying of the advertising board when closing up at the end of
the day."
30.
There was no further medical examination of the Appellant.
31.
On 24 October 2012 the reviewing officer wrote to the Appellant to
inform her that the decision of 30 May 2012 that she was not entitled to SSP
was upheld. The reviewing officer stated that the additional medical reports
provided by the Appellant had been forwarded to Medical Services Scrutiny Panel
who had been asked to review all the information on their file, and they had
concluded that the Appellant could have had some limitation to doing her job
but it was unlikely to have lasted more than a few days.
32.
We had no evidence as to the instructions given to the Medical Services
Scrutiny Panel or of exactly what information was given to them. Nor did we
have in evidence the report which they provided to the reviewing officer.
33.
On 19 October 2012 the Appellant appealed to this tribunal against the
decision of HMRC.
Discussion and conclusion
34.
As mentioned, the issue we have to decide is whether the relevant period
of absence of the Appellant from her work was a period of incapacity for work
within sections 151 and 152 SSCB Act 1992. For that to be the case each day
within that period must be a day on which the Appellant was incapable by reason
of some specific disease or bodily or mental disablement of doing work which
she can reasonably be expected to do under her contract of service. If there
was such a period of incapacity for work the Appellant is entitled to SSP for
that period, subject to the rules relating to the maximum period of entitlement
and the rules relating to the amount which may be claimed.
35.
The Employer paid SSP to the Appellant for the first ten weeks of
absence. Her claim is therefore for the remaining 18 weeks of the 28 week
period which is the entitlement limit. That 28 week period began on 30 August
2011 and ended on 9 March 2012.
36.
The first matter to be determined is the scope and nature of the work
which the Appellant can reasonably be expected to do under her contract of
service. The duties of the Appellant's employment, according to the Employer,
are set out in paragraphs 12 and 13 above. This is the information which the
Employer supplied to HMRC in the course of their enquiries, and from the
internal memo disclosed in the evidence, it appears that this was the
information as to the Appellant's work which HMRC supplied to Medical Services
for the purposes of obtaining both the medical opinions HMRC sought as to the
capability of the Appellant to carry out her work (see paragraph 29 above).
37.
In our view the description by the Employer of the duties of the Appellant's
employment, on which, in turn, HMRC and Medical Services relied, was
inadequate. It extended to those duties which might normally be considered to
be within the scope of a job described as a beauty therapist. But it is clear
that the Appellant undertook other tasks, to do with the daily opening up for
business of the beauty salon premises, and closing them down for business,
which were physically far more demanding. In particular, the Appellant was
required, without assistance, to carry or drag out to the pavement and then, at
closing, back from the pavement and into the beauty salon, a heavy advertising
board. The statement of the salon customer, Mrs Puaar, which we have no reason
to doubt, makes it clear that this was the de facto responsibility of
the Appellant; that no other employee was available to assist the Appellant;
and that it was a very physically demanding task with which the Appellant
struggled. Mrs Puaar observed these matters on the day which proved to be the
last working day before the Appellant reported that she was unable to work.
38.
We conclude that moving this heavy board was work which the Appellant
could reasonably be expected to do under her contract of employment: it was, we
infer, a necessary part of opening up and shutting the beauty salon at the
beginning or end of each day which was part of the Appellant's job. The
Appellant made this assertion in the course of the lengthy correspondence in
this case, and the assertion was not challenged. In any event, it seems
entirely credible that the Appellant was expected to do this.
39.
Therefore, in answering the question whether the Appellant was incapable
by reason of illness of performing her work duties it is necessary to ask that
question by reference to that particular and physically-demanding task as well
as by reference to those tasks more obviously within the scope of the work of a
beauty therapist.
40.
This HMRC failed to do. We did not have in evidence the instructions or
brief which HMRC gave to Medical Services on the two occasions it sought a
medical opinion on the question of whether the Appellant was incapable by
reason of illness of doing work which she could reasonably be expected to do
under her contract of service. However, it is clear from the HMRC internal
memo that the reviewing officer was concerned that the matter had not been put
to Medical Services, since they had relied on the (more limited) description of
the work duties of the Appellant as supplied by the Employer.
41.
The two medical opinions obtained by HMRC could not therefore have
expressed a valid view on the question which had to be addressed in this case
and by reference to the particular circumstances of this case. If the illness
in relation to which a person claims SSP is back injury of some kind, it is highly
material in assessing the capacity of that person to work to take account of
work tasks which involve lifting and carrying a heavy item. Since those
opinions formed the basis of HMRC's decision given on 30 May 2012 it follows
that that decision is flawed because in the circumstances of the case it does
not answer the question which section 151 SSCB Act 1992 requires must be
answered.
42.
We cannot say from the evidence which HMRC put before us whether the
reviewing officer, in returning to Medical Services in October 2012, put this
issue to them. In any event, there was no further medical examination of the
Appellant by reference to the proper extent of the Appellant's duties. Having
identified material failings in the original decision, the proper procedure
which the reviewing officer should have followed was to set that decision aside
and begin the decision process afresh by reference to all the material factors.
43.
Having concluded for these reasons that we should disregard the decision
reached by HMRC in this matter, we must, in exercising our appellate
jurisdiction, decide whether, on the evidence before us, the Appellant has
established on the balance of probabilities that during the relevant period she
was incapable by reason of some specific illness or disablement of doing work
which she could reasonably be expected to do under her contract of employment.
44.
In our view the Appellant succeeds in her case. Her own GP certified
her condition as unfit for work throughout this period. She made several
hospital visits for her condition and underwent a series of tests which showed
some medical conditions or abnormalities relating to the spine. She had
physiotherapy treatment for both her back and her neck throughout the period.
Her condition may not have incapacitated her for the purposes of providing
beauty treatments (although certain of those treatments, and in particular
massage treatments, were physically demanding), but we accept that they could
have incapacitated her for heavy lifting, which, as we have found, formed part
of the work she was expected to do under her contract of employment.
45.
We therefore conclude that each day of absence from work by the
Appellant during the period until 9 March 2012 was a day of incapacity for work
in relation to her contract of service for the purposes of the SSP
legislation. Accordingly the Appellant is entitled to SSP for that period.
46.
We allow the Appellant's appeal.
Right to apply for permission to appeal
47.
This document contains full findings of fact and reasons for the
decision. Any party dissatisfied with this decision has a right to apply for
permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure
(First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be
received by this Tribunal not later than 56 days after this decision is sent to
that party. The parties are referred to “Guidance to accompany a Decision from
the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this
decision notice.
EDWARD SADLER
TRIBUNAL JUDGE
RELEASE DATE: 5 February 2014
