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[2003] UKSSCSC CSIB_377_2003 (18 November 2003)

 


DECISION OF SOCIAL SECURITY COMMISSIONER

1. The decision of the appeal tribunal (the tribunal) held on 21 March 2003 in Glasgow is in error of law, for the reasons given below. I set it aside and substitute my own decision acting under s.14(8)(a)(ii) of the Social Security Act 1998:-

"The decision of an adjudication officer (AO) in or around the end of November 1996 that the claimant then satisfied the all work test (AWT), now called the personal capability assessment (PCA), for the purposes of an award of incapacity credits is superseded. The Secretary of State received medical evidence in terms of regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (the decisions regulations) and on application of the PCA, the claimant does not reach the required number of points to satisfy that test from and including 11 July 2002."

Background

2. A claim was made for incapacity credits from and including 29 July 1996. The matter was then for the Secretary of State but entitlement depended on whether the claimant was incapable of work according to the incapacity benefit rules introduced on 13 April 1995. The applicable test was initially called the AWT and is now called the PCA. Until the changes introduced by the Social Security Act 1998, the Secretary of State continued to decide whether the claimant was entitled to have earnings credited but determinations on incapacity for work were made by an AO and were conclusive on that preliminary question. Now, however, the Secretary of State is the formal decision maker (DM) for all purposes.
3. The only evidence of a decision in the appellant's case, prior to the decision on appeal to the tribunal, is a computer print out referring to a decision of 7 August 1996, against a code number which has been identified as expressing a decision of an AO/DM to the following effect:-

"Incapacity benefit disallowed – incapacity accepted, however, customer had failed to satisfy the second contribution condition. National Insurance (Incapacity) Credits were awarded."

4. There are three medical reports on file, each from a medical adviser (MA) who examined the appellant on behalf of the adjudicating authority. The report from MA1 is dated 29 November 1996, that of MA2 is dated 17 September 1997 and that of MA3 dated 2 July 2002. There is no record of any decision subsequent to the advice given by MA1 and MA2 until the DM's decision of 11 July 2002.
5. The advice of MA1 was that the appellant satisfied no points with respect to physical descriptors under Part I of the Schedule (the schedule) to the Social Security (Incapacity for Work) (General) Regulations 1995 (the regulations) but that he satisfied 13 descriptors under Part II of the schedule. It followed that this took points arising under the mental health descriptors well over the requisite threshold of 10 points. MA1 had observed the appellant as "anxious and agitated" with "difficulty keeping hands still". However, the box "no significant change anticipated" was not ticked but rather the box indicating a fresh referral in six months. MA1's diagnosis was "nerves/anxiety".
6. MA2 on 17 September 1997 diagnosed "anxiety/depression". The advice now was that 10 mental health descriptors applied, although again no physical ones. The pen picture, however, recorded by MA2 was of an appellant with "good eye contact and rapport". Again, the advice was for a future reference. MA2 would have had available a general practitioner's report dated 20 June 1997 which listed no mental health diagnosis.
7. In the appellant's IB50 (the questionnaire) dated 25 April 2002, the appellant gave details of physical problems such that, if accepted, he would have attained 60 points under the schedule. He also said that he was on antidepressants and described his mental health difficulties. MA3 on 2 July 2002 listed "chronic low back and neck [pain?], anxiety and duodenal ulcer". He observed the appellant as "relaxed and alert" and it was MA3's opinion that only 3 mental health descriptors were satisfied, giving 3 points, which did not reach the necessary score of 10 for mental health problems. Like MA1 and MA2, MA3 considered that no physical descriptors were relevant.
8. The opinion of MA3 was followed by a DM, who gave the adverse decision under appeal to the tribunal on 11 July 2002. This determined that the appellant did not satisfy the PCA from the same date and therefore the DM:-

"superseded the decision of the AO dated 7 August 1996 awarding national insurance credits. This is because the Secretary of State has received medical evidence following examination by an approved doctor since that decision was given. The date of the medical examination was 2 July 2002."

9. The appeal to the tribunal received 24 July 2002 said that the appellant was not fit for work and referred first to his back and neck pain which "is really killing me" and then to his feelings of panic when mixing with people.
10. At his tribunal hearing, the appellant was present and represented by Mrs Craig, from the Tollcross Housing Association, who has represented him throughout. The representative firstly put a preliminary point, that the supersession decision under appeal was invalid in purporting to supersede an AO decision dated 7 August 1996. The tribunal, after recess, rejected that point. The representative then submitted that several mental health descriptors applied. The tribunal questioned the appellant on his mental health and about his physical difficulties. The tribunal confirmed the adverse decision under appeal to it.

Appeal to the Commissioner

11. The claimant's representative appealed to the Commissioner on his behalf. The first ground is that the tribunal should not have confirmed an invalid supersession decision. The remaining three grounds of appeal all relate to an asserted failure by the tribunal to provide sufficient reasons.
12. The second ground of appeal focuses on what is described as the tribunal's reason for rejecting the appellant's evidence, which is its alleged inconsistencies. It is said that only two inconsistencies were mentioned by the tribunal and neither of them was justifiable. According to Mrs Craig, the first inconsistency relied on by the tribunal was:-

"… the absence of physical descriptors in the representative's submission compared with the appellant's description of physical disabilities in response to the tribunal's questions."

13. It is then submitted that the second inconsistency relied on by the tribunal was the appellant's statement that he did not go to the shops compared with a later statement that he bought petrol at a garage. It is suggested that the record of proceedings indicates that he had his father with him when he went to a garage and the correct inference is rather that it is his father who went into the shop and bought petrol. In any event, the third ground of appeal is that, if such inconsistencies undermined the credibility of the appellant, then the point should have been put to him or his representative for comment.
14. Finally, it is put that the tribunal considers that the appellant's condition has improved on the basis that he satisfies less descriptors than in previous reports, which is a circular argument. It is specifically suggested that:-

"The tribunal gives no other reasons for judging that the claimant had improved."

15. The written submission from the Secretary of State, which does not support the appeal, is extremely brief. I heard much fuller argument today.

Oral hearing

16. The case came before me for an oral hearing on 13 November 2003. This was at the direction of the Legal Officer following a request by Mrs Craig. As already noted, the appellant remains represented by Mrs Craig. The Secretary of State was represented by Mr Bartos, Advocate, instructed by Mr Crilly, Solicitor, of the Office of the Solicitor to the Advocate General. I am much indebted to them both. I address their arguments in the course of my own decision.

My conclusion and reasons

Correcting the supersession decision

17. The tribunal held that the decision being superseded:-

"… was the appropriate decision because it was a relevant decision awarding incapacity benefit or credits and also because it was the most recent decision which had changed the applicant's entitlement to benefit or credits."

18. Mr Bartos submits that the tribunal was correct, because the information in the papers referred to above at my paragraph 3 establishes the decision of 7 August 1996 as having the character which the tribunal found.
19. I am unable to accept this. At the relevant date, the Secretary of State made the award of credits. However, first it had to be determined that the claimant was incapable of work, according to the appropriate incapacity test. That matter was determined by an AO, although the person who made the decision dated 7 August 1996 doubtless wore the hats of both Secretary of State and AO.
20. Mr Bartos is correct that regulation 28 of the regulations is a deeming provision. Nevertheless, it has to be accepted first by the relevant adjudicating authority that the appropriate circumstances have arisen in which the appellant is to be treated as incapable of work. Moreover, such deeming subsists only until such time as the claimant has been assessed in accordance with the then AWT, now PCA. The evidence submitted by the Secretary of State is that the first medical report obtained was on 29 November 1996. Thereafter, the usual course of events was that an AO then determined that, on application of the AWT, the appellant actually satisfied it. That AO should have reviewed the previous determination of incapacity based on the application of regulation 28 and held that there had been a material change of circumstances within s.25 of the Social Security Administration Act 1992, warranting both review and revisal on that ground. The effect of the revisal would be a substituted decision that the appellant was incapable of work following assessment. Such an AO decision was necessary to underpin the continuing award of credits. The report of MA2, however, necessitated no change to the AO decision following a full assessment because the medical opinion remained the same: on application of the AWT, the appellant was incapable of work.
21. The law presumes that all acts have been done rightly and regularly unless evidence is adduced to the contrary. Under regulation 28 of the regulations, a person was entitled to be treated as incapable of work provided he continued to lodge medical evidence of such incapacity. There is no suggestion that from the end of 1996 the claimant was required to produce such evidence. Yet without a prior AO decision that he satisfied the AWT following assessment, any payment would have been erroneous. It must therefore be assumed that there was the relevant decision and that it was made by an AO. It would have been made in or around the end of 1996 and it is unnecessary that the specific date be identified.
22. It is this decision which required supersession because it was the underpinning determination on capacity for work which the DM in 2002 sought to alter.
23. Mrs Craig raised the necessary challenge at the hearing that the original decision under supersession had not been placed before the tribunal and, so far as she was able, identified the correct one. The reliance by Mr Bartos on CSIS/38/95 and CSJSA/558/01 is therefore misplaced.
24. However, there is no necessity for the Secretary of State to produce a copy of the decision under supersession. An adjudicating authority may change a decision, albeit that no copy of it can be produced and the precise date is not now ascertainable, provided that the probabilities establish the existence of such a decision. There is no advantage to the appellant if the original decision is produced, nor disadvantage if it is not, provided there is sufficient evidence of the terms of the decision and its approximate date. It is irrational if a subsequent supersession is impossible where the original decision under supersession is not produced. That will prejudice appellants who want DMs to take account of a change in their circumstances leading to increased entitlement.
25. However, I do not accept Mrs Craig's argument that the Secretary of State's decision was so defective in substance as to render it invalid. Its defect was a matter of form which could be corrected by the tribunal on appeal once there was confirmation that the last decision applying the AWT/PCA to the claimant and determining that he satisfied it, was one made by an AO in or around the end of 1996.
26. I adhere to the views I expressed in CSIB/420/02, applying the rationale of that decision mutatis mutandis to the facts of the present appeal:-

"14. The Secretary of State in this case acted in all respects as he was required to do if he was considering a supersession of the decision of 8 April 1998. Between 1998 to 2001, the claimant had been held to satisfy the AWT/PCA under the relevant test applicable from 13 April 1995. Regulation 6(2)(g) could be used to supersede a determination of incapacity made under the post-1995 system in the circumstances set out in that sub-paragraph which the DM in his decision of 16 May 2001 followed. He then decided that the evidence no longer supported a finding of incapacity in the claimant's case, such a determination of incapacity being essential to underpin an on-going award of credits.

15. The present case is very different from CSIS/1298/01, on which the representative relies. In that case, the Secretary of State carried out a supersession of the claimant's benefit on the ground of a relevant change of circumstances and with effect from a particular date. The Secretary of State then suggested to the tribunal that the tribunal replace the supersession with a revision made effective from an earlier date which was what the facts on entitlement were said to justify. I decided that supersession and revision are entirely distinct and that as the DM had made the wrong choice of substantive decision, the tribunal could not thereafter carry out the right process on his behalf.

16. Here, the Secretary of State carried out a supersession of an award of incapacity credits and expressly did so under regulation 6(2)(g) because he had received medical evidence in the circumstances there set out and on assessment under the PCA considered that test was no longer satisfied. There was sufficient evidence to establish a valid supersession of what then underpinned the claimant's award, which was a continuing determination that he satisfied the relevant current incapacity test. The decision is irregular only in form in that the wrong date was given for the decision being superseded. But the essence of what was being determined remains constant viz. the continuing accuracy of the assessment of the claimant's capacity for work.

17. The claimant was not prejudiced in any way by the mistake in date. Unlike the circumstances of CSIS/1298/01, the nature of the way in which the running award was terminated was entirely apparent. The DM addressed the right issues, and used the right process of supersession. That he inserted the wrong date is a technicality. The Secretary of State handled all matters in exactly the same way as he would have done had the pro forma of 16 May 2001 correctly put 8 April 1998 rather than 14 April 1994 as the date of the decision requiring alteration. He did not seek thereafter to have the tribunal change the type of decision he made nor its effective date.

18. The Secretary of State's decision was undoubtedly defective so that the tribunal in confirming it without correction must be set aside as in error of law. However, it was not so wrong in substance that the only decision possible for the tribunal was that the Secretary of State's decision under appeal was of no effect. To the contrary, the Secretary of State's decision could be corrected in form by the tribunal which carried out a re-hearing on appeal."

27. Under s.14(8) of the Social Security Act 1998, the Commissioner can set aside the tribunal decision if satisfied that it is erroneous in point of law. I am so satisfied. The Commissioner then has power to give the decision which it is considered that the tribunal should have given if the Commissioner can make findings of fact and give a decision appropriate in the light of such facts.
28. For the reasons I shall set out in successive paragraphs, the tribunal made findings which a reasonable tribunal could have made with respect to the claimant's non-satisfaction of the PCA from the effective date. Furthermore, the evidence justifies supersession with respect to a different decision than that utilised by the AO. The tribunal had the power to correct the DM's defective exercise of the supersession process. The Commissioner, in turn, can give the decision which the tribunal should have given, by identifying the right decision under supersession and thereafter applying the tribunal's findings with respect to the assessment of the appellant under the PCA.

Reliance by the tribunal on differences between the appellant's case as put forward by the representative compared with the appellant's own version

29. Mrs Craig and Mr Bartos were united in the submission that it was inappropriate for a tribunal to reject an appellant's evidence, based on alleged inconsistency between the representative's submission to it that only mental health descriptors were put in contention and the appellant's subsequent evidence about physical descriptors given as answers to the tribunal's questions in exercise of its inquisitorial function.
30. I do not accept this submission. In the first place, it represents a distortion of what the tribunal actually said. The difference was given as a reason for rejecting the evidence of the appellant, but another subsequent reason was the inconsistencies in the appellant's evidence which were then iterated. The tribunal did not in fact suggest that a difference between the representative and the claimant could constitute an inconsistency in the claimant's evidence.
31. I agree with Mr Bartos that, subject to limits of relevance and propriety, a representative has the discretion to present the case on behalf of the client in any way considered appropriate. There may be all sorts of tactical reasons for presenting a case in a particular way. Mrs Craig decided not to pursue physical descriptors at the hearing. She was entirely within her rights and I am not criticising her choice in any way. However, the tribunal had a situation where the appellant in his questionnaire maintained he had serious physical problems which would have reached 60 points but, on the basis of clinical findings and observations, MA3 did not accept this. The appellant also founded on such physical difficulties as his primary problem in his letter of appeal, yet his experienced and highly competent representative did not consider it appropriate to pursue that line further. I see nothing unfair in a tribunal considering that suggests a weakness in the reliability and credibility of the appellant's evidence, particularly in relation to his physical difficulties but also relevant to the accuracy of his evidence on his mental health problems. It was by no means the sole factor on which the tribunal relied in rejecting that evidence.
32. I am unable to conclude that the tribunal erred in law by drawing an adverse inference from the undoubted fact that the claimant's case prior to the hearing was very different from what was later presented by the representative. It was neither an improper nor irrational approach on the tribunal's part. However, if I am wrong on that, I agree with Mr Bartos that there is no error of law in any of the other reasons relied on by the tribunal to reject the appellant's case and that such reasons were sufficient to support its decision.

Inconsistencies

33. Mrs Craig submits that the tribunal gave only one example of an inconsistency and that this was not supported by the record of proceedings. The tribunal relied on the following:-

"… the appellant stated that he did not go to the shops and when pressed on that matter he stated that he had not been to the shops for years and could not remember the last time he had been in a shop. Later on, the appellant stated that when he drove his motor car, he went into the shop at the garage in order to purchase petrol."

34. Unlike Mr Bartos, I am able to read the Chairman's writing. I am also perhaps somewhat more sympathetic to the Chairman's difficulties when completing 12 pages of a manuscript while at the same time asking questions, controlling the proceedings and ensuring that all matters have been adequately covered, knowing that my own writing in such circumstances may be suspect. In any event, it seems clear to me that the Chairman records asking a question whether the appellant went to the garage and shop in the course of driving his car and that the recorded answer is "father with me".
35. Mrs Craig submits that all that is shown by such an answer is that his father accompanied him in the car but that it was his father who went into the shop. I take a different view. The Chairman is not required to note the evidence verbatim. From the tribunal's statement, it is clear that it understood the appellant's answer to mean that he personally went into the shop, albeit accompanied by his father. Moreover, that seems to me to be the inevitable inference from the answer as recorded. If the appellant meant that only his father entered the shop, one would expect him to say so in those terms and for the tribunal to record it. In any event, I accept Mr Bartos's argument that, if it is suggested that the appellant did not enter the shop with his father, then this clarification should have been raised specifically with the tribunal at the time. As the record stands, it is enough to justify the inference.
36. I also accept the contention of Mr Bartos that, contrary to Mrs Craig's submission, this was not the only inconsistency expressly relied on by the tribunal. It also referred to another one concerning difficulty in sitting. Therefore, there was sufficient and accurate reliance by the tribunal on inconsistency as one of its stated reasons for rejecting the appellant's case.

Credibility

37. I do not accept Mrs Craig's third ground of appeal that such inconsistencies, if the tribunal was later to infer that they undermined the credibility of the appellant, should first have been put for comment to the appellant and his representative before any such inference was drawn.
38. The tribunal is in no way required to put, for earlier comment, every inference it later draws. Such a process would entirely stultify the tribunal system. What is required is that there is no breach of natural justice.
39. As was said by May LJ in the decision of the Court of Appeal in Baron v Secretary of State for Social Services (reported as an appendix to R(M)6/86) (Baron) in a judgement with which the other members of the Court agreed:-

"I do not think there was any obligation on [the tribunal] … to intersperse in their examination of him, or to put to him at the end of their examination that they were not minded to accept that which he was telling them. That was the very issue which they had to determine. They had under the Adjudication Regulations to give reasons for it. They did determine that particular issue and they gave reasons for it. In my judgement there was no absence of natural justice or lack of fairness – put it how one will – in the alleged failure of the [tribunal] to put to the applicant at least that he was exaggerating, or at worst that he was telling untruths. I do not think there was any such obligation on the [tribunal] in the circumstances of the instant case."

40. Where the adverse implications for the claimant's case might not immediately strike either him or his representative, then it may be contrary to the rules of natural justice to decide the case without the party being given the opportunity of rebuttal. This could arise, for example, when the inference is taken on account of special knowledge or expertise on the tribunal's part, for example with respect to the effect of medication. It might be necessary to mention a point which is not obvious as a matter of common sense, at least to a representative, unless the matter is articulated. But where the representative reads or hears the evidence which the tribunal later infers is inconsistent (and ex hypothesi such inference is rational), this is not a new point. It does not therefore require being drawn specifically to the attention of the parties.
41. As Mr Bartos submitted, and I agree, a tribunal could never actually reach a decision if it forever had to intimate its proposed decision to the claimant and the claimant's representative. As said by the Court of Appeal in Baron, in its statement is the time for a tribunal to give its reasons why it does not accept the accuracy of the appellant's story. This tribunal gave such sufficient reasons.

Improvement in the appellant's condition

42. Mr Bartos points out that it is not necessary to show improvement in the appellant's condition since the prior determination of incapacity because a change of circumstances is not the only foundation for supersession. In the special case of incapacity, where the Secretary of State receives medical evidence in terms of regulation 6(2)(g) of the decisions regulations, this provides a ground to supersede.
43. With respect to Mr Bartos, this is only half the picture. Supersession is discretionary, both under s.10 of the Social Security Act 1998 and under regulation 6 of the decision regulations. In the instant case, the Secretary of State must demonstrate firstly, the ground for supersession (and that has been done, utilising regulation 6(2)(g)). Then the Secretary of State must demonstrate secondly, on the balance of probabilities, that from the effective date of the supersession the appellant is capable of work on application of the PCA.
44. This evaluation is made having regard to the totality of available, relevant evidence. In appropriate cases, this includes prior medical evidence. A tribunal must then explain why, if so, the claimant now fails. It could be, for example, that the tribunal considers that the favourable earlier assessments were made in ignorance or mistake of fact, or based on inferences which were either irrational or, alternatively, reasonable ones but which the present adjudicating authority would not now draw for the stated reasons, or that there has been an improvement since then.
45. This tribunal chose to rely on improvement. In this respect, I do not accept Mrs Craig's submission that the tribunal gave no reason for judging that he had improved, other than that he satisfied less descriptors than earlier.
46. The claimant had a mental health condition which by its nature may improve. It can be inferred that the earlier medical advisors anticipated that there might be such improvement because neither doctor ticked the box, "no significant change likely". The medical observations of the appellant changed markedly over the three reports and each successive MA found that the appellant had improved to a degree.
47. The tribunal specifically preferred the medical evidence in the case and said why so. This implicitly included the findings on physical examination and the medical conclusions set out in the three MA reports as applicable at their relevant dates. Evaluation of the evidence and determination of the merits is the tribunal's exclusive function. Having so weighed the evidence, the tribunal could accept the descriptors identified in the most recent report as accurately representing the appellant's condition at the effective date of the supersession.

Summary

48. I set aside the tribunal's decision for error of law but without benefit to the appellant. There is no remit to a tribunal and my substituted decision is as set out in paragraph 1 above.

(signed)

L T PARKER

Commissioner

Date: 18 November 2003