Decision reviewing entitlement to IB made 19/1/98 (when SSAA 1992 applied)- IB stopped. Claimant on IVB since 1990. Therefore this was the first time he had been subject to the AWT (Reg 31(1) of IB Transitional Regs).

Don't ask how or why this appeal is still alive.

The power of the AO to conduct the review is in Sec 25 of SSAA 1992. A ground needs to be made out- the only possible one would be change of circs.

I am wondering if anyone can tell me what the change of circumstances in such a case would be? Clearly client never before subject to the AWT (due to above Transitional Reg). Is the change of circumstances the fact that he is now subject to AWT and has failed the test?

In days gone by, spent in another life, we used to use the old sec 25 regs to good effect in appeals - many an over enthusiastic AO would omit to follow the regs in their eagerness to disallow benefit on the grounds of some very iffy AWT medicals...........

If the review decision you are speaking of was the one in Jan 98, then that would have been under Sec 25 - as I remember, under those regs the AO had in practice to make two decisions - the first identifying the grounds for the review: only when he had identified those grounds could he then go on to actually reviewing the claim and producing a decision.

As both decisions are appealable, the AO (as was) has to specify in writing exactly what evidence/grounds he had to initiate the review - (without that one didn't know what one was appealing against). Without that protection, we would have had AO's reviewing cases at random ad infinitum etc..........

Thinking aloud, if this review was carried out after the client had attended an AWT medical and failed to get the requisite 15 points, then not meeting the requirements for an ongoing award of IB would be the change of Circs the AO would need to produce two decisions - (1) change of circs triggers review (2) failure of AWT triggers loss of IB. However, if it was carried out before being subject to an AWT medical, then it is difficult to see on what grounds he did so - unless he had other evidence. Merely becoming subject to the new AWT regs at the time wouldn't have been grounds.

As this is a case that pre-dates the introduction of reg 6 (2) (g), I wonder whether the decision-maker has satisfied the burden of proof. The mere production of a report would not be enough.

CIB/3899/1997 might be useful.

.....and can he produce all the paper evidence needed to support his case, given the length of time involved - thinking of the BA's eagerness to shred things after 18 months or so.......

Thanks for answers.

CIB/3899/1997 looks particularly good. I was already looking at the issue of burden of proof.

Medical is not very adequate- guys problem is Irritable Bowel Syndrome. Approved Doctor simply ticks "No problem with continence" on IB85 and gives absolutely no reasons why this view is taken. Also IB85 did not ask the correct question about exemptions following Howker so cannot see how AO can show he discharged burden of saying the exemption does not apply. In these circumstances I think we will argue that report not an adequate basis on which to conclude he failed AWT.

Also it does seem clear from CIB/3899/1997 that the change of circs is the carrying out of the medical (and or the adverse assessment of the test itself). Therefore we are not arguing about the ground itself to conduct the review but rather whether it has been shown that the outcome of the review is correct.

Thanks again.

In CIB/3899/1997, Commissioner Mesher also reminds us that “...adjudication officers have access to skilled advice on the law. They cannot expect to be treated too tenderly by appeal tribunals if they take a legally wrong approach to a case."