[2005] UKSSCSC CSIB_148_2005 (03 October 2005)

Factual and Procedural Background

The Appellant appealed to the Commissioner against a tribunal decision that disallowed his appeal from a decision by the Secretary of State dated 17 March 2004. The tribunal had found that the Appellant did not qualify for points in the personal capability assessment and was not entitled to national insurance credits from that date. The appeal concerned the interpretation and validity of amendments to certain descriptors related to the activity of sitting within the Social Security (Incapacity for Work)(General) Regulations 1995, as amended by the 1996 Regulations.

The appeal was heard orally on 23 August 2005 and reconvened on 28 September 2005 for further information. The Appellant was represented by Attorney Gillies of Company A and the Secretary of State by Attorney Bartos, instructed by Attorney Brown.

The Commissioner found the original tribunal's decision erroneous on a point of law and set it aside, remitting the case to a freshly constituted tribunal for rehearing.

Legal Issues Presented

1. Whether the amendments made by the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996 to the descriptors relating to the activity of sitting were ultra vires (beyond the powers) due to misleading the Social Security Advisory Committee about the nature and effect of those amendments.
2. Whether the original tribunal erred in rejecting the evidence of the Appellant's General Practitioner on inadequate grounds.
3. Whether the tribunal erred in failing to adequately address inconsistencies and errors in the Medical Assessor's report, particularly those arising from computer-generated content.

Arguments of the Parties

Appellant's Arguments

• The amendment to the sitting descriptors was ultra vires because the Social Security Advisory Committee was misled into believing the amendment was neutral when it was in fact adverse to claimants, making the test harder to pass.
• The tribunal failed to provide adequate reasons for concluding that the amendments did not prejudice the Appellant.
• The tribunal improperly rejected the Appellant's GP's evidence on speculation without proper basis.
• The Medical Assessor's report contained inconsistencies and errors, including contradictions regarding the condition of the Appellant's right leg and issues arising from computer-generated phrasing, which the tribunal failed to address properly.

Secretary of State's Arguments

• The tribunal did not err in applying the amended version of the regulations as the amendments were not ultra vires.
• The description of the amendments as neutral was accurate and not misleading to the Social Security Advisory Committee.
• The tribunal was correct in its preference for the Medical Assessor's report over the GP's evidence.
• The tribunal should have given the Appellant an opportunity to comment on discrepancies but overall there was no error in the treatment of the descriptors.

Table of Precedents Cited

Court's Reasoning and Analysis

The Commissioner began by examining the first ground of appeal concerning the vires of the 1996 amendments to the sitting descriptors. The court considered prior decisions, notably Howker, where amendments were struck down for misleading the Social Security Advisory Committee and thus breaching statutory consultation requirements.

The Commissioner reviewed the information presented to the Committee regarding the sitting amendments, including letters, notes, and minutes. Unlike the Howker case involving regulation 27, the sitting amendments were minor clarifications rather than substantive re-drafts. The Committee had the opportunity to question the Department's description and did not seek a formal referral, suggesting they were not misled.

The Commissioner rejected the Appellant's argument that the amendments were ultra vires, finding that even if the Department's characterization as "neutral" was incorrect, the Committee was experienced and capable of assessing the amendments independently. The court concluded that the statutory procedure was properly followed and the amendments valid.

Regarding the second and third grounds, the Commissioner found that the tribunal erred in rejecting the GP's evidence on speculative grounds and failed to adequately address inconsistencies and potential errors in the Medical Assessor's report, particularly those arising from computer-generated content. The Commissioner emphasized the need for tribunals to carefully scrutinize such reports and ensure they represent considered clinical opinions.

Consequently, the Commissioner set aside the tribunal's decision and remitted the case for rehearing by a freshly constituted tribunal, directing that the amended sitting descriptors be applied and that attention be paid to the issues with computer-generated medical reports.

Holding and Implications

The appeal was succeeded. The Commissioner's ruling set aside the previous tribunal decision on the basis of legal error and remitted the case for rehearing before a new tribunal.

The Commissioner held that the 1996 amendments to the sitting descriptors were not ultra vires and should be applied in the rehearing. The tribunal must also give proper consideration to the evidence of the Appellant's GP and carefully scrutinize the Medical Assessor's report, particularly where computer-generated inconsistencies arise.

No new legal precedent was established beyond the application of existing principles from Howker and related cases. The decision primarily affects the parties by requiring a fresh determination of the Appellant's entitlement under the correct legal framework.