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Neil,
From our Social Security Law CD-Rom.
CIB/908/2003
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Liverpool appeal tribunal, held on 7 February 2003 under reference U/06/070/2002/00916, is not erroneous in point of law.
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 district chairman of tribunals. The Secretary of State does not support the appeal.
The issue
3. I am amazed that the district chairman granted leave in this case. I do not make a habit of insulting the arguments put by representatives on behalf of claimants, but the ground of appeal in this case is absolute rubbish.
4. The claimant was accepted as incapable of work and entitled to incapacity credits on and from 21 January 1999. In 2002, he was sent a self-assessment questionnaire. He did not return it. He says he did not receive it. Anyway, he was sent for a medical examination and report. The medical adviser found no disablement relevant to the personal capability assessment. The Secretary of State accepted that report and decided that the claimant was no longer incapable of work on and from 24 June 2002. The standard score sheet used by decision-makers is at page 54. It records in bock capitals: ‘NO IB50 RETURNED’. The claimant questioned the decision and a decision-maker undertook a reconsideration. The officer used a printed form to record the outcome. It is at page 57. The form assumes that a self-assessment questionnaire has been completed. The officer amended the form by deleting the words: ‘ completed an Incapacity for Work Questionnaire on …’, but did not delete the words: ‘I have checked the … IB50 …’. The claimant’s representative argues that the reference to a document that does not exist is a fatal flaw in the decision so that the claimant’s appeal should have been allowed by the appeal tribunal.
5. What rot. For a start, the failure to delete the reference to IB50 is obviously an oversight. What is more, it is not an oversight in the decision that was under appeal. The score sheet for that decision makes clear that the decision-maker knew that the claimant had not completed an IB50. To be technical, the oversight occurred in a decision that was a refusal to revise the earlier decision. A refusal to revise is given under section 9 of the Social Security Act 1998. And there is no right of appeal against it – see the wording of section 12(1) of that Act, which limits the right of appeal to decisions made under sections 8 and 10.
6. The tribunal was right to reject this argument.
The duration of the medical examination
7. Although the point is not raised on appeal to the Commissioner, there was a complaint against the medical adviser on the ground that the interview and examination lasted only 17 minutes. So what? The length of an interview and examination is not relevant in itself. The issue is whether it is properly conducted. If in a particular case it can be done properly in 17 minutes, why should the doctor spend longer on it? There is nothing in this case to suggest that the interview and examination were not properly conducted. The tribunal was entitled to rely on the report as the basis for its decision.
Summary
8. I dismiss this appeal. I am sorry if the claimant’s representative takes exception to the way I have expressed this decision. I understand that representatives have to do the best for their clients. But there are limits. Representatives have a wider responsibility than just to their clients. That is recognised by lawyers, who owe a duty to the courts before whom they appear. Representatives before tribunals and Commissioners should accept the same discipline. Neither tribunals nor Commissioners should be troubled by arguments like the one advanced on this appeal.
Edward Jacobs
Commissioner
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