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CIB/4961/1997

 

 

This decision has been reproduced in plain text only. If you wish to submit a copy of a decision as part of an appeal, please download a Word copy from the link below.

http://www.osscsc.gov.uk/aspx/view.aspx?id=1510



THE SOCIAL SECURITY COMMISSIONERS



Commissioner’s Case No: CIB/4961/1997



SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

SOCIAL SECURITY ACT 1998

APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL ON A QUESTION OF LAW



DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER JACOBS









Decision:

1. My decision is as follows. It is given under section 14(8)(a)(i) of the Social Security Administration Act 1998.

1.1 The decision of the Sutton Social Security Appeal Tribunal held on 25th March 1997 is erroneous in point of law.

1.2 Accordingly, I set it aside and, as I can do so without making fresh or further findings of fact, I give the decision that the tribunal should have given.

1.3 My decision is:

No grounds exist to review the decision of the adjudication officer dated 1st July 1992 awarding Invalidity Benefit to the claimant from and including 10th June 1992.

The appeal to the Commissioner

2. This is an appeal to a Commissioner against the decision of the Appeal Tribunal brought by the claimant with the leave of a Commissioner. The adjudication officer does not support the appeal.

The history of the case

3. On 3rd December 1996, an adjudication officer reviewed the last operative decision awarding benefit to the claimant and decided that from and including 29th November 1996 the claimant was no longer entitled to Incapacity Benefit. The reason for the decision was that the claimant was to be treated as capable of work under regulation 7(1) of the Social Security (Incapacity for Work) (General) Regulations 1995.

4. The claimant appealed against that decision to the tribunal. She did not attend, and was not represented, at the hearing of the appeal. The tribunal confirmed the adjudication officer's decision.

The application of regulation 7

5. Regulation 7 provides that a person who fails without good cause to provide the information required by a self-assessment of capacity questionnaire is to be treated as capable of work provided that two conditions are satisfied. Those conditions are that

“(a) at least 6 weeks have elapsed since the Secretary of State sent that person the first request for that information; and

(b) the Secretary of State has sent that person a further request at least 4 weeks after the first, and at least 2 weeks have elapsed since that further request was sent.”

6. The adjudication officer's submission to the tribunal was that self-assessment questionnaires were issued to the claimant on 17.10.96 and 14.11.96, and that the adjudication officer's decision terminating entitlement to Incapacity Benefit was given on 29.11.96.

7. If 17.10.96 is taken as Day 1, the second questionnaire was issued on Day 29 and the adjudication officer's was given on Day 44.

8. Certainly 6 weeks elapsed between Day 1 and Day 44, and 2 weeks elapsed between Day 29 and Day 44. However, was Day 29 “at least 4 weeks after” Day 1?

9. I issued a direction asking for submissions from the adjudication officer on these questions:

“Is Day 1 included in the reckoning? Is Day 29 included in the reckoning? There are authorities that decide that the words “at least” mean that there must be 4 clear weeks. Do they apply here?”

10. The adjudication officer's response was that “at least 4 weeks” should be given its normal meaning of at least 4 periods of 7 days. On this basis, taking 17.10.96 as Day 1, 4 weeks has elapsed by the end of 13.11.96 and the reminder, sent on 14.11.96, was sent at least 4 weeks after the first. I reject that submission.

11. Many expressions referring to time are used in legislation. When a piece of modern legislation uses expressions that have established meanings, I am entitled to assume that they bears those meanings unless the context otherwise requires.

12. There are many authorities on the meaning of “at least” and “after”. In one sense, they are all decisions that depend on the particular context in which the words were used. However, from those myriad instances a general principle has emerged, subject to the overriding consideration that the context must not require a different interpretation. The general principle is set out in paragraph 1132 of Volume 45 of Halsbury’s Laws of England (4th edition).

“When a period is fixed before the expiration of which an act may not be done, the person for whose benefit the delay is prescribed has the benefit of the entire period, and accordingly in computing it the day from which it runs as well as the day on which it expires must be excluded, and the act may not be done before midnight of that day.”

That passage was approved by the Court of Criminal Appeal in R. v. Long [1959 3 All England Law Reports 559 at page 560, with the exception of the words underlined which did not appear in the edition current in 1959. There is nothing in the context of this regulation, or the legislation in which it is contained, to require a different interpretation.

13. The time limits specified are to the benefit of the claimant. They must be complied with by the adjudication officer before a claimant can be treated as capable of work. If 17.10.96 and 14.11.96 are both excluded from the reckoning, the second questionnaire was not sent at least 4 weeks after the first. So, the conditions which permitted the claimant to be treated as capable of work were not satisfied. So, there were no grounds to review the decision awarding benefit to the claimant. The tribunal misinterpreted or misapplied regulation 7. This makes its decision wrong in law.

Proof of time limits

14. Even if the adjudication officer's interpretation of regulation 7 were correct, there are problems with the adjudication officer's decision. I dealt with this in my Direction to the adjudication officer.

“What the adjudication officer says to the tribunal is evidence. However, the officer may not have had personal knowledge of the issue of the forms and almost certainly had no personal recollection of this. The officer’s submission must have been based on the records. I assume that these took the form of computer records. Should the tribunal have asked for a copy of these records?

“Anyway, do the records show the date when a document was generated by a computer or the date when the document was sent? Is it possible to be sure that a document generated on a particular day was put into the external mail on that day? Often the mailing arrangements in offices mean that an item must be in the mail room by early afternoon if it is to be sent that day.”

15. The adjudication officer replied that she had not been able to obtain from the local office any details of the records kept and referred to in the adjudication officer's submission to the tribunal. However, she accepted that the record would show the date that the letter was generated by the computer and that it was not possible to be sure whether the letter was posted on the same day.

16. The burden was on the adjudication officer to show that the conditions on which regulation 7 depended were satisfied. The tribunal had to decide on the balance of probabilities on the basis of the evidence produced whether the document was posted on the day that it was produced. The tribunal did not investigate this matter and that is another error of law.

Summary

17. As I have decided that the tribunal's decision is erroneous in law, I must set it aside. I, therefore, have power either to refer the case to another tribunal or to give a decision myself, with or without further findings of fact. It is not necessary for me to make further findings of fact as I can give the decision which the tribunal should have given on its findings of fact. That decision is set out in paragraph 1.3.



Signed: Edward Jacobs
Commissioner

Date: 23rd September 1999