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THE SOCIAL SECURITY COMMISSIONERS
Commissioner’s Case No: CSIB/721/04
SOCIAL SECURITY ACT 1998
APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW
COMMISSIONER: L T PARKER
Appellant: Respondent: Secretary of State
Tribunal: Aberdeen Tribunal Case No:
DETERMINATION AND DECISION OF SOCIAL SECURITY COMMISSIONER
1. I grant the application for leave to appeal and, with the consent of the applicant and the respondent, treat and determine the application as an appeal. The decision of the tribunal sitting in Aberdeen on 14 July 2004 (the tribunal) is wrong in law. I therefore set its decision aside and remit the case for rehearing by a new tribunal.
2. The appellant was in receipt of incapacity credits. He did not attend a medical examination on 10 September 2003. In response to an enquiry he advised that he had not attended for examination because he did not receive any notification to attend. On 23 September 2003 a decision maker (DM) decided that he had not shown good cause for failing to attend the medical examination and should be treated as capable of work from 11 September 2003 so that, on supersession for a relevant change of circumstances, he was no longer entitled to incapacity credits.
3. At the tribunal, an alternative argument put on his behalf was that he was addicted to drugs at the relevant time of the appointment and the effect of his medical condition was such that he had good cause for failing to attend the examination.
The tribunal decision
4. The tribunal confirmed the adverse decision under appeal. Its reasoning was as follows:-
“In terms of the legislation (Reg 8 Social Security (Incapacity for Work)(General) Regulations 1995) however the material question is whether or not written notice of the time and place of the examination was sent at least 7 days beforehand. The tribunal accepted the evidence at Document 6 that a letter was sent on 14/08/2003 …..the question therefore is whether or not the Appellant showed good cause for failure to attend…… Good cause is not defined in the legislation although it is incumbent upon the Tribunal to take into account amongst other things the Appellant’s health and disability, which we did. …..Although the only evidence of interference with the mail was the Appellant’s unsupported assertions, we took the view that even if it was true that the mail went missing from time to time and that this letter was one of those removed the Appellant appeared to be aware of that risk and took no relevant precautions to ensure he received important mail. Many addicts use devices such as diaries, written notes or reminders from friends to ensure that they remember to attend. In all the circumstances we found that the Appellant had failed to discharge the burden of proof and had not established good cause.”
The statutory provisions
5. Regulation 8 of the Social Security (Incapacity for Work)(General) Regulations 1995 reads:-
“Person may be called for a medical examination
8.—(1) Where it falls to be determined whether a person is capable of work, he may be called by or on behalf of a doctor approved by the Secretary of State to attend for a medical examination.
(2) Subject to paragraph (3) where a person fails without good cause to attend for or submit himself to such an examination, he shall be treated as capable of work.
(3) A person shall not be treated as capable of work under paragraph (2) unless written notice of the time and place for the examination was sent to him at least 7 days beforehand, or unless he agreed to accept a shorter period of notice.”
6. Section 7 of the Interpretation Act 1978 states:-
“Where an Act passed after the commencement of this Act authorises or requires any document to be served by post, whether the expression ‘serve’, or the expression ‘give’ or ‘send’, or any other expression is used, then, unless the contrary intention appears, the service shall be deemed to be effected by properly addressing, prepaying, and posting a letter containing the document, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.”
Appeal to the Commissioner
7. The appeal is supported by the Secretary of State and I consider that support is correct. The claimant’s representative would like me to decide the appeal myself. However, on balance, I consider that the Secretary of State should be given the chance to produce further information. I regret the stress this will occasion to the claimant and the expense of a rehearing; however, public money is also involved in the payment of benefit.
The meaning of “sent” in regulation 8(3) of the Social Security (Incapacity for Work)(General) Regulations 1995
8. The tribunal correctly recognised that there were two separate stages; the first is whether regulation 8(3) is satisfied and, only if yes, does one address regulation 8(2) and ascertain if there is nevertheless good cause. The burden to establish “good cause” lies on the appellant if that stage is reached.
9. However, regulation 8(3) itself involves two steps. They arise from the terms of section 7 of the Interpretation Act 1978 set out above which, because of the lack of any specific provision in the legislation as to when appointment notifications under regulation 8 are “sent”, provides the relevant framework for the word “sent” in regulation 8(3).
10. As noted by Deputy Commissioner Wikeley in CIB/1381/2003, in order to take the benefit of the first presumption under section 7, that service is deemed to be effected by properly addressing, pre-paying and posting the notice, the Secretary of State has the task of proving that all has been done. As the Secretary of State concedes in the present case, the tribunal did not properly consider whether the Department had in fact fulfilled its obligation to show correct despatch. The tribunal relied on the SL1 form at page 6 of the appeal documents. As the Secretary of State now points out, the necessary information is not clearly logged on that and there is no explanation in the written submission to the tribunal as to what the various entries mean. The Department must send along an officer to give evidence on this at the new hearing otherwise the DM will have failed to discharge the burden of proof in relation to the requirements of regulation 8(3). As the tribunal did not adequately deal with this having regard to the evidence available to it, it erred in law. It was not helped by the lack of a presenting officer at its own hearing.
11. Even if the DM proves to the new tribunal that written notice of the time and place of the examination was conveyed to the appellant, which despatch was in compliance with the strict terms of the first presumption under section 7, a second point then arises under regulation 8(3). Is it open to the appellant to show that, despite proper despatch, regulation 8(3) is nevertheless not satisfied (so that issues of good cause under regulation (2) are not reached) because he is able to prove that he did not receive the letter or not within the relevant time limits?
12. In CIB/1381/2003, Deputy Commissioner Wikeley left open the following question: is “sent” in the context of regulation 8(3) limited to the meaning of “despatched” (so that only the first presumption under section 7 is important), or does it connote “delivered” with the result that the second presumption in section 7 also comes into play? If the latter, this means that service is normally deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of the post but the appellant has the opportunity to prove that in fact he never received it.
13. It is unsurprising that Deputy Commissioner Wikeley left the point open because, in the particular circumstances of regulation 8, if the claimant is able to establish that he never received the notification, then in any event this is likely to constitute “good cause”; therefore, whether or not “sent” means “received” and not merely “despatched”, so that the appellant has the benefit of the second presumption under section 7, is somewhat academic. However, it can make a difference, as on the findings of the tribunal. In effect, the tribunal found that even if the appellant never received the notice, he had not demonstrated “good cause” for that circumstance. However, if “sent” means “received”, then the consideration of “good cause” is never reached if the conditions of regulation 8(3) are not satisfied because of actual (albeit negligent) non-receipt. Deliberate non-receipt would not, of course, satisfy a claimant’s onus.
14. The Secretary of State has drawn my attention to a decision of Mr Commissioner Angus, CIB/4512/2002, where the Secretary of State conceded that the use of the word “sent” in regulation 8(3) attracts the second presumption in section 7 of the Interpretation Act 1978; if, when a tribunal weighs the evidence, the appellant proves that the letter was not in fact delivered to him in the ordinary course of post, or at all, then the notice has not been “sent” as required by regulation 8(3). If, of course, the appellant does not so satisfy the tribunal, he still has the opportunity to prove “good cause” on the basis of his medical condition or of any other reason which might cause a reasonable person in his circumstances to fail to attend. The tribunal erred by conflating the two separate issues, firstly that of whether the appellant had been sent the appropriate written notification and secondly had he shown “good cause” for failing to attend the examination; “good cause” is irrelevant to the first which is solely an issue of evidence as to the probability of non delivery.
15. The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them. Although the claimant has been successful in his appeal limited to issues of law, the decision on the facts in his case remains open.
L T PARKER
Date: 16 December 2004