My client was thought to have a heart condition and was taking lots of cardiac medication. Then the tests showed negative. So he has considerable breathing and circulatory symptoms but no diagnosis (as yet).

I argued on appeal that purely because it was undiagnosed the symptoms of his condition (whatever it may be when finally diagnosed) were unknowable if placed under the additional stress of going to work, and so he should be exceptionally circumstanced (if that's possible) under Regulation 27 of the IFW regs. The tribunal handily ignored the argument.

Leave to appeal granted, the one problem being that although the statement of reasons does not explicitly address reg 27 it implicitly does (albeit mainly by reference to the PCA).

Does anyone have any caselaw or ideas?

Andrew
I think that as long as reg 27 was put at issue before the tribunal as evidenced in the record of proceedings or in your written submission you should be able to argue that any failure (as evidenced in the statement of reasons) by the tribunal to deal with the argument, is an error of law.

The only problem I can forsee is that the tribunal may not have to directly refer to reg 27 as long as it was obvious from the terms of the statement that it did in fact consider the issue of exemption.

Regards
Paul

To avoid confusion I should be more clear in my terminology. For exemption read exceptiional circumstances.

In terms of case law, the most significant recent decision concerning reg 27 IFW Regs is the "Howker" Court of Appeal decision, R(IB)1/03:
http://www.dwp.gov.uk/advisers/docs/commdecs/03_04/ib_303.asp
This held that the 1996 amending reg 27 was ultra vires. The Court of Appeal held that old form of reg 27(b) remains in place subject to the earlier "Moule" judgment which remains in place i.e. Secretary of State decision makers rather than a BAMS doctor, should decide on the old form of reg 27(b) is met on the facts of any case.

Although reg 27(b) refers to "some specific disease", I don't feel the fact that no specific diagnosis has been made as to what your client is actually suffering from is in itself a problem. What you would need is medical confirmation of what symptoms he has, their severity,and that it is medically accepted he is physically sick.

In terms of successfully pursuing a SSC appeal, it sounds like you need to highlight that the tribunal were in error by not considering all the issues raised by the appeal i.e. reg 27. It would be an issue " raised by the appeal " even if you just raised it first verbally at the appeal hearing
(see What is the inquisitorial function of the tribunal? section of rightsnet's At the Tribunal Q&A:
http://www.rightsnet.org.uk/cgi-bin/publisher/search.cgi?dir=qandas&template=listtemp.htm&page_option=1&page=tth-5a

This should be clear if you referred to reg 27 in any written submission to the tribunal. If not, any verbal points you made should be recorded in the tribunal's Record of Proceedings. This is normally readily available on request from the Appeals Service, and is always useful to ask for in addition to a full written reasons statement.

Thank you both very much for your helful replies.

Tue 13-Apr-04 11:18 AM by jean

Andrew's case has come back from the Commissioners and the decision - CIB/0026/2004 - is available on the OSSC website.


A summary of the decision will be published in briefcase soon.

Thanks Andrew.