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THE SOCIAL SECURITY COMMISSIONERS
Commissioner’s Case No: CSIB/148/05
SOCIAL SECURITY ACT 1998
APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW
COMMISSIONER: D J MAY QC
Appellant: Respondent: Secretary of State
Tribunal: Glasgow Tribunal Case No:
DECISION OF SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the appeal tribunal given at Glasgow on 3 November 2004 is erroneous upon a point of law. I set it aside. I remit the case to a freshly constituted appeal tribunal for a rehearing.
2. This appeal came before me for an oral hearing on 23 August 2005. After argument it was adjourned until Wednesday 28 September 2005 for further information to be produced by the Secretary of State. The hearing was reconvened on that date. The claimant was represented by Miss Gillies of the Partick Housing Association Limited. The Secretary of State was represented by Mr Bartos, Advocate, instructed by Mr Brown, Solicitor, of the Office of the Solicitor to the Advocate General.
3. The claimant has appealed to the Commissioner against the decision of the tribunal which disallowed his appeal from the decision of the Secretary of State issued on 17 March 2004. They found that the claimant does not qualify for any points in the personal capability assessment and is not entitled to national insurance credits from 17 March 2004.
4. The grounds of appeal are set out at page 187 and page 188. In respect of the first ground of appeal the claimant did not insist in the part of it which was related to the rejection of a submission outlined in paragraphs 4 to 7 of the written submission at pages 58 and 59. Further the claimant did not insist in the ground in so far as it related to the activity of lifting and carrying. The claimant did however insist in it in relation to the activity of sitting in respect of which Miss Gillies said the descriptors (b) and (c) were asserted to apply.
5. To place this ground of appeal and Miss Gillies’ submission in context, the activity of sitting is described in the Social Security (Incapacity for Work)(General) Regulations 1995 in Part I of the Schedule to the Regulations as being:
“Sitting in an upright chair with a back, but no arms”.
As originally drafted descriptors 3(b), (c), (d) and (e) were:
“Cannot sit comfortably for more than [ten minutes, thirty minutes, one hour and two hours] without having to move from the chair”.
By virtue of the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996 (SI 1996/3207), regulation (2)(11)(b)(i) the words:
“because the degree of discomfort makes it impossible to continue sitting”
were added to each descriptor with effect from 6 January 1997.
6. She said that the tribunal states:
“The amendments in question clarified the respective tests and did not prejudice the appellant”.
However she submitted that they failed to provide adequate reasons for this conclusion. Her submission was that this amendment was ultra vires. Miss Gillies submitted that the purpose of the amendment was adverse to the claimant in that the test became harder to pass. It was her submission that the description by the Department of the amendment being neutral given to the Social Security Advisory Committee and the description given to them of the nature of the amendment were misleading. That was in her submission apparent from what was said about the activity in its unamended form by Mr Commissioner Walker QC in CSIB/12/96, paragraphs 4 to 6. It was her submission that by virtue of being misled the Committee did not call for a referral and in these circumstances the regulation was ultra vires. She drew support from that proposition from a decision of Mr Commissioner Henty in CIB/1239/04. Mr Bartos submitted that the tribunal did not err in law by applying the amended version of the regulations. It was his submission that they were not ultra vires. I find myself in agreement with that submission.
7. I accept that Miss Gillies has provided authority for her decision in terms of the decision of Mr Commissioner Henty, in CIB/1239/04. He held that regulation 2(11)(b)(i) of the 1996 regulations to which I have referred were ultra vires in relation to the amendment. At paragraph 7 of his decision he said:
“The tribunal should therefore have considered the descriptor without the offending words in brackets”.
8. The basis for doing so appears to have been done by what he conceived to be the effect of the decision in Howker v the Secretary of State for Work and Pensions R(IB) 3/03. He said:
“5. … However they, carefully looked at sitting, and decided that he only qualified under 3(e) – cannot sit comfortably for more than 2 hours without having to move from the chair [because the degree of discomfort makes it impossible to continue sitting]. The words in brackets had been added to descriptors 3(b), (c), (e) and (d) by Reg 2 (11)(b)(i) of the 1996 Amendment Regulations. In Howker (supra) the Court of Appeal held, when considering regulation 27 of the 1995 Regs substituted by reg 2(9) of the 1996 Regs, decided that it was ultra vires and struck down the words I have underlined because the statutory instrument had not complied with the correct Parliamentary procedure. The relevant amendment, in this case, was not made by para 2(9) but by para 2(11)(b)(i). In CIB/0884/03, the Commissioner held that the Howker principle was equally applicable to Reg 2(11)(a)(iii) of the 1996 Regs. I confess I can see no reason for distinguishing this case from that. In my view, the principle is clearly equally applicable here. Para 3(b)(c)(d) and (e) must therefore be construed without the offending words in brackets, [because the degree of discomfort makes it impossible to continue sitting].
6. Does this matter? In my view, the words in brackets I have struck out do sensibly alter the meaning of the descriptor in question. Those words, in my view, connote a high degree of discomfort which means that, albeit maybe only temporarily, the claimant cannot continue to sit. The words of the descriptor, without the offending words, in my view, connotes some lesser degree of discomfort which, while not making continued sitting actually impossible, necessary she means that the act of moving from the chair affords some relief. There is a difference between not being able to continue sitting comfortably and not being able to continue sitting because the discomfort makes it impossible”.
9. CIB/0884/2003 how reported as R(IB) 3/04 was a decision of Mr Commissioner Jacobs. In dealing with the scope of Howker, Mr Commissioner Jacobs said:
“5. Howker v Secretary of State for Work and Pensions is reported as R(IB) 3/03. It is a decision of the Court of Appeal that concerned the amendments made, with effect from 6 January 1997, by the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996 to the Social Security (Incapacity for Work) (General) Regulations 1995. The Court decided that the amendment made to regulation 27(b) of the 1995 Regulations was made without compliance with the statutory machinery and so was of no force or effect. The basis of the Court’s decision was that the Department of Social Security (now the Department for Work and Pensions) had misled the Social Security Advisory Committee by describing the potential effect of the proposed amendment as ‘neutral’ whereas in fact its potential effect was ‘adverse’ to claimants.
6. The actual decision in Howker is limited to regulation 27(b). That is clear from the judgments and the terms of the Court’s Order. However, Mr Lewis conceded, and I accept, that the reasoning on which the Court’s decision was based could apply to other amendments.
The amendment with which this case is concerned relates to the activity of remaining conscious. This activity is governed by paragraph 14 of the Schedule to the 1995 Regulations. As originally enacted, it was defined as:
‘Remaining conscious other than for normal periods of sleep.’
7. By virtue of regulation 2(11)(a)(iii) of the 1996 Regulations, the definition was changed to:
‘Remaining conscious without having epileptic or similar seizures during waking moments.’
8. The Department described the potential effect of this amendment to the Social Security Advisory Committee as ‘neutral’. Mr Lewis submitted that the issue for me was whether that was an accurate description of the effect of the amendment. If it was not and its effect was potentially adverse to claimants, it was covered by the reasoning in Howker. I accept that Mr Lewis correctly identified both the issue I have to decide and its significance.
9. I am sure that the effect of the amendment was potentially adverse to claimants. The amended version was limited to epileptic and similar seizures. There is an issue about whether similarity is determined by reference to the origin or the effect of the seizures. And, if the latter, there is an issue as to how the effects are defined. But whatever the scope of the amended definition it must be narrower than the original version, which covered any loss of or alteration to consciousness when awake. I am not sure that Mr Lewis formally conceded this point, but he certainly acknowledged its validity in the course of our discussion.
10. So, I am satisfied that the Social Security Advisory Committee was misled by the description of the potential effect on claimants of the proposed amendment. The reasoning of the Court of Appeal in Howker therefore applies to it.
11. I suspect that the effect of the proposed amendment was not intended to be adverse in terms of the policy underlying the provision as originally enacted. In other words, the proposed wording reflected what the activity was always intended to cover. But that is not the test. The test is whether the change in the terms of the legislation was adverse. Whatever the activity may originally have been intended by the policy-makers to cover, it was not so drafted by the Department’s lawyers.
12. My decision is that the amendment to the definition in paragraph 14 of the Schedule to the 1995 Regulations was made without proper compliance with the statutory machinery of referral to the Social Security Advisory Committee. It was, as a result, of no force or effect. The claimant’s capacity for work has to be determined under the terms of paragraph 14 as originally enacted”.
10. In response to Miss Gillies’ submission, Mr Bartos referred me to a decision of Mrs Commissioner Jupp in CIB/0511/2005. In that decision Mrs Commissioner Jupp dealt with the activity of sitting and in particular what was said by Mr Commissioner Henty at paragraphs 5 and 6 of his decision. She went on to say:
“27. Whilst I accept what Mr Commissioner Henty said in paragraph 6 of his decision set out in paragraph 22 above, what, with respect, he did not say was there is a difference between “not being able to continue sitting comfortably without having to move from the chair” and “not being able to continue sitting because the discomfort makes it impossible” (my emboldening in each case). I cannot see any difference between “without having to move from the chair” as in both cases, a claimant will find it essential to move from the chair. As expressed in the Notes for the Social Security Advisory Committee that was the intention, which is not in itself conclusive, but in my view the amendment was correctly advised to the Committee as neutral. There was therefore no error by the tribunal in its treatment of the descriptor, but as already confirmed, I accept the submission by the Secretary of State’s representative that the tribunal should have given the claimant an opportunity to comment on the discrepancy between its observation and her own submission. The new tribunal will therefore have no need to disregard the wording added by the 1996 Regulations, although in my view they add nothing other than clarification”.
11. It can thus be seen that the vires of the amending regulations in relation to the descriptors in respect of the activity of sitting was determined by Commissioners Henty and Jupp, on their respective and different views, of the advice given to the Committee in respect of the effect of the amendment by the Department that it was neutral. That approach was consistent with the approach taken by Mr Commissioner Jacobs in paragraph 8 and 11 of his decision as to the basis of the Court’s decision in Howker. It was also an approach which was adopted by Mr Deputy Commissioner Gamble in paragraph 8 of CIB/2821/2004. For reasons which will become apparent I disagree with Mr Commissioner Jacobs view in paragraphs 8 and 11 of his decision in relation to the test to be applied following upon Howker. It thus follows that I consider the approach of the other Commissioners in the cases I have referred to were flawed and in error.
12. The mischief in these cases has been caused by a misapprehension as to the basis upon which the Court of Appeal decided Howker. In my view the paraphrase of what Mr Commissioner Jacobs said was the Court’s decision in Howker in paragraph 5 of his decision was incomplete and accordingly inaccurate. The leading opinion in that case was given by Lord Justice Peter Gibson and his views were agreed by the other members of the Court, Lord Justice Mance and Lady Justice Hale (as she then was).
13. The basis of the Court of Appeal’s decision was somewhat narrower than that suggested by Mr Commissioner Jacobs. Howker concerned a radical amendment to regulation 27 of the regulations. The original version of the regulation is set out in paragraph 3 of Lord Justice Peter Gibson’s opinion and the amended version in paragraph 17.
14. Lord Justice Peter Gibson also set out the statutory scheme for consultation with the Social Security Advisory Committee in paragraphs 7 to 13.
15. Paragraphs 7 to 13 were in the following terms:
“7. Sections 170 – 174 Social Security Administration Act 1992 (“the 1992 Act”) contained further provisions governing the procedure for making and amending regulations. By section 9 Social Security Act 1980 the Social Security Advisory Committee (“the Committee”) was constituted. This is an independent advisory committee, described by the Commissioner (in paragraph 13 of his decision) as “a body of people of great distinction and experience in public life generally, and in particular on social issues”.
8. Section 170(1) of the 1992 Act provided for the continuation in being of the Committee:
‘(a) to give (whether in pursuance of a reference under this Act or otherwise) advice and assistance to the Secretary of State in connection with the discharge of his functions under the relevant enactments ... ‘
The relevant enactments include the Social Security Contributions and Benefits Act 1992 and the 1992 Act. By section 170 (4):
‘The Secretary of State shall furnish the Committee with such information as the Committee may reasonably require for the proper discharge of its functions.’
9. Section 172 (1) of the 1992 Act provides, so far as material:
(b) to section 173 below,
where the Secretary of State proposes to make regulations under any of the relevant enactments, he shall refer the proposals, in the form of draft regulations or otherwise, to the Committee.’
10. By section 173 of the 1992 Act, so far as material:
‘(1) Nothing in any enactment shall require any proposals in respect of regulations to be referred to the Committee ... if –
(a) it appears to the Secretary of State that by reason of the urgency of the matter it is inexpedient so to refer them; or
(b) the [Committee has] agreed that they shall not be referred.
(2) Where by virtue only of subsection (1)(a) above the Secretary of State makes regulations without proposals in respect of them having been referred, then, unless the [Committee] agrees that this subsection shall not apply, he shall refer the regulations to [it] as soon as practicable after making them.
(3) Where the Secretary of State has referred proposals to the Committee ... , he may make the proposed regulations before the Committee have made their report ... only if after the reference it appears to him that by reason of the urgency of the matter it is expedient to do so.
(4) Where by virtue of this section regulations are made before a report of the Committee has been made, the Committee shall consider them and make a report to the Secretary of State continuing such recommendations with regard to the regulations as the Committee thinks appropriate; and a copy of any report made to the Secretary of State on the regulations shall be laid by him before each House of Parliament together, if the report contains recommendations, with a statement –
(a) of the extent (if any) to which the Secretary of State proposes to give effect to the recommendations; and
(b) in so far as he does not propose to give effect to them, of his reasons why not.’
11. Section 174 provides, so far as material:
‘(1) The Committee shall consider any proposals referred to it by the Secretary of State under section 172 above and shall make to the Secretary of State a report containing such recommendations with regard to the subject-matter of the proposals as the Committee thinks appropriate.
(2) If after receiving a report of the Committee the Secretary of State lays before Parliament any regulations or draft regulations which comprise the whole or any part of the subject-matter of the proposals referred to the Committee, he shall lay with the regulations or draft regulations a copy of the Committee’s report and a statement showing –
(a) the extent (if any) to which he has, in framing the regulations, given effect to the Committee’s recommendations; and
(b) in so far as effect has not been given to them, his reasons why not.’
12. The Committee’s staff consists only of a small permanent secretariat. The Committee members in practice are accustomed, and expect, to rely on the information and assistance provided by officials of the Department in relation to the detail and intended effects of any proposal the Department puts before them.
13. The procedure adopted by the Committee and the Department is that the Department refers proposed amendments to regulations to the Committee on an informal basis so that the Committee has the opportunity to decide whether it wishes the proposed amendments to be referred formally to it under section 172 or whether it agrees under section 173 that they should not be referred. The practice of the Department, when presenting packages of regulations to the Committee, is to describe each item proposed and, at the Committee’s request, to add an indicator to show whether the item is technical, neutral, adverse or beneficial. Of those indicators, “neutral” means:
‘The amendment has an effect in changing the wording but only to clarify its meaning to what it was always believed to have meant. This may arise because lawyers have realised it could mean something different. However, no one will lose or gain, the amendment simply secures what has always been the interpretation of the present wording.’
In contrast “adverse” means:
‘This is used when existing claimants will lose money in future. It may only involve a few people and the loss may be of money they clearly should not have had – but there is a loss.’”
16. In respect of regulation 27, Mr Commissioner Howell QC, whose decision it was that was appealed to the Court of Appeal in that case, made the following findings in paragraph 34 of his decision. There, Mr Commissioner Howell found:
“(1) The Committee members were materially misled by what they were told by the departmental officials about the proposed amendment of regulation 27. In particular they were misled by the statements made in Mr Axton’s letter of 28 October 1996 and the explanatory memorandum on “Proposal 11: [neutral amendment]”, telling them that the purpose and effect of the amendment was only to cope with the procedural consequences of transferring the decision on exemption from the all work test to an adjudication officer instead of a doctor in the wake of the decision in ex parte Moule, and that the changes were “neutral” in their effect on claimants in that no existing entitlement under the regulation would be taken away.
(2) Those statements were untrue, and obviously so to anyone who looked at the old exempting conditions in conjunction with the new ones. The decision to remove the old regulation 27(b) as a separate head of exemption cannot have been other than deliberate, to take away an existing basis of entitlement actually being awarded on the opinion of the department’s own doctors.
(3) Those statements were made by the departmental officials responsible for them with the intention that the Committee should act on them in deciding whether or not to give their agreement that a reference and report on the proposed amendment was not necessary; and were made with a view to securing such agreement.
(4) The misleading impression given by the written statements was not corrected by any adequate explanation of the substance of the change to regulation 27 in the course of the meeting itself: the reference to the removal of the “substantial risk” exempting condition recorded in the minute at paragraph 3.5 leaving the continuing, and misleading, impression that any person whose entitlement currently arose by reason of that provision would instead continue to be entitled under some other provision of the redrafted regulations, and that all was related to the procedural changes necessary following the High Court decision.
(5) The Committee members with entire propriety and good faith accepted and acted on the misleading statements and assurances made to them, and gave their agreement on that basis.
(6) Finally, I consider it the proper inference to draw from the Committee’s obvious concern as shown by minutes 3.4 and 3.5, the factual explanation given by Mr Smith’s letter shortly after the event which I accept as accurate, and what in fact happened over proposal 26 (severe disablement allowance, the one amendment described to them as “adverse”), that they would not have acted as they did if the amendment to regulation 27 removing the exempting condition of which most advantage had been taken by claimants had been correctly presented to them as the adverse amendment it was, but would then have required it to be the subject of a reference and report along with proposal 26; and I so find”.
17. These findings were accepted by the Court of Appeal.
18. In paragraph 33 of his opinion, Lord Justice Peter Gibson found that the Commissioner has jurisdiction to make a determination of the vires of secondary legislation. In dealing with the validity of the amended version at regulation 27, Lord Justice Peter Gibson said:
“35 I come next to the question whether in the context of the statutory scheme what occurred in the present case rendered the making of regulation 27 by the Secretary of State invalid. Mr Drabble has concentrated attention on the role of the Committee in the statutory scheme and the part played by the Secretary of State through his officials in procuring the Committee’s agreement, thereby enabling the regulation to be made. In my judgment it is clear that notwithstanding the fact that the Committee’s role was, as its name implies, advisory, it was intended by the statutory scheme that the Committee’s advice on the proposed regulations would be received by the Secretary of State and laid before Parliament unless the Committee agreed to no reference to it. This is emphasised by the mandatory requirement in section 172(1) that the Secretary of State “shall” refer the proposals to the Committee and by the requirement, even in a case of urgency when the Secretary of State is empowered to dispense with a reference, to refer the regulations so made to the Committee as soon as practicable after they are made, and the obligation on the Secretary of State to explain to Parliament, if he proposes not to give effect to the Committee’s recommendations, his reasons why not. Plainly in the absence of the Committee’s agreement Parliament was intended to have the benefit of the Committee’s advice so as to be able to assess the new regulations.
36. In that context the agreement of the Committee not to have a reference to it of proposed regulations assumes importance. Further, Parliament plainly intended that the agreement of the Committee should be an informed agreement, and the obligation under section 170(4) on the Secretary of State to provide such information as the Committee reasonably requires is equally plainly relevant, provided that the Committee has so required. In my judgment in the agreed practice to which I have referred in paragraph 13 above the Committee can be taken to have made a requirement for the purposes of section 170(4). As the Commissioner said in paragraph 15 of his decision of the officials of the Department providing information and assistance in relation to the detail and intended effect of a proposal:
‘The Committee’s assumption that it can rely on these officials to provide full, balanced and objective information without relevant points being withheld or obscured is in my judgment an entirely proper one, wholly consistent with the intention of section 170(4). The Committee members should be able to rely implicitly and without question on the completeness of what they are told [by] those whose duty it is to assist them. It is quite inconsistent with the scheme of Part XIII of the Act for it to be thought otherwise.’”
He then went on to say:
“37. Where, as in the present case, the Secretary of State through his officials has misled the Committee by information which is obviously incorrect if comparison is made between the old regulation 27 and the new regulation 27, and thereby procured the Committee’s agreement to no reference, and where, as the Commissioner has found, the provision of the correct information would have led to a reference (or the withdrawal of the new regulation 27), and the Secretary of State proceeds to make the new regulation 27, it is manifest, to my mind, that the procedure intended by Parliament for the making of regulations has not been observed. That is so whether or not the officials acted innocently. There is nothing in the statutory provisions to suggest that Parliament would have intended so defective a procedure adopted by the Secretary of State, when matters were entirely under his control, to result in a valid regulation”.
19. In dealing with the basis upon which the Committee were misled, Lord Justice Peter Gibson said:
“14. By letter dated 28 October 1996 an official of the Department, Mr Axton, presented to the Committee the Department’s proposed amendments to the 1995 Regulations. In the letter it was said that the new regulations were “to restore the policy intention” following the decision in ex parte Moule and that the 1995 Regulations were redrafted to allow adjudication officers to consider medical evidence other than that of the Department’s examining doctor. In an Annex to a paper prepared for a meeting of the Committee on 6 November 1996 the Department said that the new provision was “more precisely defined to reflect the fact that it must be interpreted and applied by lay adjudicating authorities”. The indicator given to the proposed amendment to regulation 27 was “neutral”.
15. The meeting on 6 November 1996 was attended in force by officials of the Department. The Committee was not supplied with regulation 27 of the 1995 Regulations and so was not in a position to make a comparison with the proposed regulation 27. Nevertheless, paragraph 3.4 of the minutes records that members of the Committee queried whether the Department’s description of some of the amendments as neutral in effect was correct. In paragraph 3.5 it was recorded that Dr Sawney of the Department explained that those who fell into the category covered by regulation 27(b) of the 1995 Regulations would be covered by other provisions within the all work test.
16. The Committee decided to require a formal reference of one proposal concerning severe disablement allowance, which had the indicator “adverse”. That decision caused the Department not to proceed with that proposal. On 8 November 1996 the Committee was asked by the Department to confirm that it was content with the final draft of the proposals, and shortly after that the Committee did so confirm. The draft instrument was laid before Parliament and considered by the Joint Scrutiny Committee on Statutory Instruments which determined that the special attention of both Houses did not have to be drawn to the regulations. Both Houses then approved the regulations. In the House of Lords the responsible Government Minister, Lord Mackay of Ardbrecknish, said:
‘The amendment defines this “exceptional circumstance” provision more precisely in the light of the High Court judgment. But we are satisfied that it will not exclude anyone whom we originally intended to be covered. We are redefining the provision more precisely in the light of the court’s decision. But, as I said, it is not our intention that anyone who would have been covered originally should now be excluded.’
20. It can be seen from that that the original version of regulation 27 had not been before the Committee, that a query had been made in relation to whether the effects were neutral, and that it had been represented that those who fell into the category covered by regulation 27(b) of the 1995 regulations would be covered by other provisions within the statutory scheme. Thus the basis for the decision of the Court was not simply that the effect of the amendment regulation 27 was not neutral in circumstances where the opinion given to the Committee was that it was. It went much further than that as can be seen from what was said in Lord Justice Peter Gibson and the Court’s acceptance of the findings of Mr Commissioner Howell.
21. That the decision of the Court of Appeal was specifically related to regulation 27 and the circumstances pertaining thereto, is made clear in paragraph 40 of his decision where Lord Justice Peter Gibson said:
“40. Nor can I accept Mr Howell’s assertion that there is no rational basis for distinguishing between a misunderstanding by the Committee in agreeing to no reference as a result of incorrect information provided by the Secretary of State and any other misunderstanding. In my judgment it is plain that the Secretary of State has a crucial role in the statutory scheme; when, in breach of his duty under section 170(4), incorrect information is provided to the Committee with the result that the Secretary of State and Parliament do not receive the Committee’s advice which they would have received if correct information had been provided, that may well have consequences quite different from those where there has been a misunderstanding by the Committee for some other reason. I should make clear that I am not saying that the provision by the Secretary of State of any incorrect information will necessarily result in the invalidity of the consequent regulations. In each case an assessment has to be made of the significance of the failure. In the present case the Commissioner has made clear findings as to the consequences of what the Secretary of State, through his officials, did”.
Accordingly it is necessary in determining whether the material amendment to the regulation in this case was ultra vires to adopt the Court’s approach to the question.
22. At the reconvened hearing, the Secretary of State put before me what had been presented to the Social Security Advisory Committee by the Secretary of State in relation to the proposed amendment to the activity of sitting. First there was a letter dated 28 October 1996 from Mr Axton of the Department of Social Security to Mr Smith, the Secretary of the Social Security Advisory Committee. In so far as it was material to the proposed amendment which is at issue in this case, it was said in that letter:
“The package introduces the first changes to the legislation since the introduction of Incapacity Benefit in April 1995, and inevitably includes a number of minor tidying-up measures, including clarification of areas in which ambiguities have led to inconsistent application of the provisions. These include minor changes to the wording of some of the all work test descriptors”.
Second, there were notes for the Social Security Advisory Committee on proposed changes. The relevant one in this case was a proposal 13. This was in the following terms:
“SCHEDULE – DISABILITIES WHICH MAY MAKE A PERSON INCAPABLE OF WORK
The schedule to the Incapacity for Work (General) Regulations specifies the activities which comprise the All Work Test assessment. We propose to introduce minor amendments to some of the activities and descriptors in the schedule.
These proposals aid to remove areas of ambiguity, and, importantly, help to ensure uniform application of the test in line with the original intention.
For ease of reference, these amendments appear in the same order as the activities in the schedule, rather than as set out in the draft amending regulations.
Part I – Physical disabilities
Activity 3 – sitting in an upright chair [neutral amendment]
This activity is intended to measure the extent to which a person can sit comfortably before having to move from a chair, by which it is intended that the level the discomfort makes it impossible to continue sitting. The proposed amendment will clarify the position”.
Third, there was the proposed amendment as contained in the draft statutory instrument and fourthly the decision of Mr Commissioner Howell QC in CIB/4563/1998 which contained the minutes of the meeting between representatives of the Department for Work and Pensions and the Social Security Advisory Committee which are recorded in full at pages 290 to 292. Mr Bartos directed me to paragraph 3.4 of the minutes where it is recorded:
“Members queried whether the Department’s description of some of the amendments as neutral in effect was correct. The Secretary reminded the Committee that this categorisation had been agreed as applying where the proposed amendment confirmed current practice and was intended to prevent any other interpretation being placed on the regulation”.
He also pointed out that it was apparent from the minutes that the proposed amendment to the activity of consciousness had been raised by the chairman of the Committee but that none of the other proposed amendments to the activities and descriptors had been raised. The Committee had only sought a formal reference in relation to the proposal to restricting passporting criteria for the 80% disability test in severe disability allowance should be formally referred. Mr Commissioner Howell QC records the sequence of events after the meeting in relation to the passage through Parliament of the regulations in paragraph 26 and subsequent paragraphs of his decision which are recorded at page 292 to 294. It is not necessary for me to repeat them at length in this decision.
23. In the instant case as opposed to regulation 27 which was dealt with by the Court of Appeal in Howker, the regulation had not been substantially re-drafted. There were simply additional words placed at the end of the existing activity. It is quite apparent from the information placed before the Committee that the Department for Work and Pensions considered that there was ambiguity in relation to the interpretation to be placed upon it which was contrary to what they considered the intention of the regulation was and was inconsistent with it. Perusal of CSIB/12/96 would appear to confirm that as the Commissioner and the tribunal whose decision was appealed to him appear to have taken a different view as to the scope of the relevant descriptors. It was thus apparent that the Department were seeking to eliminate the scope for ambiguity in the regulations. The description of the effect of the ambiguity as being neutral was an opinion expressed by the Department. It was not a conclusive statement of fact as the effect of a change in legislative provision can always be a matter of debate. The context of the word ‘neutral’ was fully explained to the Committee in paragraph 3.4 of the minutes of the meeting. The Committee had before it the information that they required to make up their own minds as to whether to make a reference. It is clear from the minutes that in relation to the activity of consciousness, they specifically questioned the Department as to the effect and significance of the proposed amendment. They did not do that to the activity of sitting. The question before me is not whether I consider the effect of the amendment to be neutral. It is whether the Secretary of State was in breach of his duty under section 170(4) by providing incorrect information with the result that the Secretary of State and Parliament did not obtain the Committee’s advice. I cannot say on the information before me that that was the position in the instant case. It is quite clear that if in practice the application of the activity had been inconsistent due to ambiguity that a redrafting of the activity to make its scope clearer might result in a claimant not being able to take advantage of the ambiguity. That in my view is something which would be patently obvious to the Committee whose composition is noted in Mr Commissioner Howell QC’s decision as having been a distinguished one. Even if the opinion of the Department on the effect of the amendment as being neutral had been incorrect, which I do not accept, my assessment of the significance of such a failure would be that as the Committee were experienced in social security matters, the could on the information before them, make up their own minds on the effect of the amendment. They would also be sufficiently warned if they saw fit to raise the matter with the Department at the meeting between them and to take the matter further by having a formal referral if that appeared appropriate for them to do. They took neither of these courses. The proposed amendments to the activity of sitting and the information provided to the Committee was significantly different from the clearly misleading and inaccurate information of a material nature which had been provided in respect of regulation 27. Thus having regard to the approach laid down by the Court of Appeal at paragraphs 36, 37 and 40 in Howker, I have reached the conclusion that the regulation is not ultra vires. I consider in these circumstances that there is no substance in the first ground of appeal.
24. Miss Gillies spoke to the second ground of appeal which was in the following terms:
“The tribunal rejects the evidence Provided by Dr Raeside, the appellant’s GP because it ‘formed the opinion that certain, at least, of Dr Raeside’s conclusions were based upon information provided to him by the appellant …’. This is speculation on the part of the tribunal : there is nothing in Dr Raeside’s letter to support this conclusion. In fact, the letter (p. 160) states quite clearly that the evidence given is based on the doctor’s knowledge and observations of the appellant. This speculation on the part of the tribunal is an inadequate basis for its preference of the Medical Assessor’s report over the GP’s evidence”.
Mr Bartos conceded this ground of appeal.
Perusal of Dr Raeside’s report, in my view gives substance to this ground of appeal, in the sense that it appears to be based on opinion and observation rather than what the claimant told him. I am of the view that the tribunal gave an insufficient and flawed basis for rejecting the GP’s evidence and thus erred in law.
25. The third ground of appeal is in the following terms:
“In answer to the submission that the Medical Assessor’s report contained inconsistencies, the tribunal speculates about the Medical Assessor’s meaning but does not adequately resolve the issue. The fact remains that in the ‘Medical Examination Findings’ the Medical Assessor (p.28) states that the appellant’s right leg is normal (‘all items in this section are normal’) and yet records at page 32 that the ‘right ankle shows swelling of acute gout with heat inflammation and exquisite tenderness”.
Mr Bartos conceded this ground of appeal.
There is substance in this ground. Perusal of pages 28 and 32 demonstrates that. Miss Gillies also pointed out to me that there were errors and inconsistencies in the report which she seemed to be suggesting was as a result of the computer generation of it. She pointed out to me the inconsistency in respect of Velcro fastening where it is said:
“Had no difficulty with Velcro fastening, but this was not consistent with other available evidence”.
She also pointed out that in respect of the claimant’s capacity to walk (at page 32) 800 metres was given as a consistent distance. She pointed out what was said by Mr Commissioner Howell QC in relation to computer generated incapacity reports in paragraph 3 of CIB/0511/2005. There he said:
“In addition, I accept the submissions of Ms Brayshaw that there were other apparent discrepancies and inconsistencies in the computerised medical examination report used in this case that ought to have been picked up and dealt with by the tribunal as well. The use of this system, in which statements or phrases appear to be capable of being produced mechanically without necessarily representing actual wording chosen and typed in by the examining doctor, obviously carries an increased risk of accidental discrepancies or mistakes remaining undetected in the final product. Tribunals ought in my view to take particular care to satisfy themselves that reports presented to them in this form really do represent considered clinical findings and opinions by the individual doctor whose name they bear, based on what actually appeared on examination of the particular claimant. Tribunals who fail to identify and deal with apparent discrepancies such as those shown up here run an obvious risk that their own consideration of the case may be criticised as insufficient, especially if standard phrases such as the wording this one used – ‘The tribunal preferred the evidence of the medical advisor which was based on clinical examination and findings.’ – are given as the reason for rejecting the claimant’s own account of his disabilities”.
I am rather inclined to agree that the tribunal’s reasoning for preference of the examining medical practitioner’s report in this case is insufficient.
26. Miss Gillies also submitted that she had made a submission to the tribunal that the claimant’s condition had not changed or improved since the previous personal capability assessment which he passed. It was her submission that the tribunal ought to have dealt with this. It is not necessary to deal with this ground of appeal in respect that the decision is set aside for other reasons. Whilst for the purposes of supersession under regulation 6(2)(g) this is not a material matter when assessing the evidence this assertion is one which has to be taken into account.
27. In remitting the case to a freshly constituted tribunal I direct them that the amended version of the activity of sitting is not ultra vires and in relation to computer generated reports they should have regard to what was said by Mr Commissioner Howell QC quoted above.
28. The appeal succeeds.
D J MAY QC
Date: 3 October 2005