[2005] UKSSCSC CIB_297_2005 (18 May 2005)

PLH
Commissioner's File:  CIB 297/05

	SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  	Incapacity Benefit	
Appeal Tribunal: 	Darlington 	
Tribunal Case Ref:		
Tribunal date:	16 November 2004	
Reasons issued:	16 December 2004	

     1.     	This claimant’s appeal is dismissed, as in my judgment there was no error of law in the decision of the Darlington appeal tribunal consisting of the chairman Mr B Wake sitting alone on 16 November 2004, when the claimant’s appeal against a revised decision holding him disentitled to incapacity benefit from 18 January 2003 on the ground that he had been working was dismissed.  
     2.     	The facts found by the tribunal were that the claimant, a man now aged 53, was a self‑employed businessman, the sole proprietor of a business known as “K & J Travel” at all material times from the date of his incapacity benefit claim on 18 January 2003 to 31 May 2003.  From 1 June 2003 the business was taken over by a limited company, K & J Travel Coaches Ltd, of which the claimant was one of the directors along with his wife and son.  The business of the firm and the company throughout was running a coach service, partly under contract to Durham County Council for the transport of children and vulnerable adults.  It was not in dispute that the claimant was taken ill and admitted to hospital on two occasions over this period.  He was first in hospital from 18 to 22 January 2003 following a fall, and admitted again for another four days following a stroke from 1-5 April 2003.  The evidence was that he had not been in good health and had been suffering from hypertension for some time before his stroke.  
     3.     	Following his second hospital admission the claimant applied on 17 April 2003 for incapacity benefit to commence from three months before that date (the maximum period of backdating), giving as the causes of his incapacity the accident, hypertension and stroke.  He declared perfectly openly that he had been continuing his usual occupation as a self‑employed coach operator and driver up to the present time at the date of signing the form, stating that he had been doing this from 1990 and his normal hours of work were 40 per week.  Astonishingly, at no point on the form was he asked to say whether he was actually doing any work in the period for which he was claiming to be incapacitated through sickness, or if so how much he was doing.  He was initially awarded incapacity benefit on this claim from 18 January 2003. 
     4.     	That award was later removed in its entirety after an investigation into the business and the activities of the claimant himself over the material period.  A revised decision removing the entitlement was given on 6 January 2004, and confirmed on different grounds in a further departmental decision of 15 February 2004.  The (revised) reason relied on for the removal was that the award of incapacity benefit had been made to him in ignorance of the material fact that he had been working all along in the management of his business, and the work he had done did not qualify as exempt.  Consequently he fell to be treated under regulation 16 Social Security (Incapacity for Work) (General) Regulations 1995 SI No. 311 as capable of working, by virtue of having actually worked in the benefit weeks for which he was claiming.  
     5.     	The single issue of fact which the tribunal had to determine, on the claimant’s appeal against that decision, was whether his activities in the period for which he claimed incapacity benefit from 18 January 2003 onwards amounted to “work” for the purposes of regulation 16, or not.  The outcome of the case depended entirely on that single question.  The tribunal chairman recorded that the claimant’s contention was that he was not working at the relevant time, in that:
“It was contended on behalf of [the claimant] that although up to 18 January 2003 he worked for 40 hours a week, from 18 January 2003 his duties were negligible and more of an advisory role than otherwise.  What he did fell within the de minimis principle, namely that the work he did was no more than trivial or negligible and could be discounted.”
     6.     	As the chairman entirely correctly directed himself at the start of his statement of reasons  issued to the parties on 16 December 2004 (page 219 of the appeal file), that single issue of fact was conclusive of the case one way or the other.  Under regulation 16 a person is to be treated as capable of work on each day of any week commencing on a Sunday during which he does work to which the regulation applies.  There was no contention before the tribunal at any stage that the facts of this case brought the claimant within any of the exceptions, such as that for “exempt work” under regulation 17, and regulation 16(2) makes it clear that the regulation applies to any work whether or not undertaken in expectation of payment, subject again to exemptions which did not apply in the present case: so the only possible argument was whether what he did had been so trivial as not to be taken into account as “work” at all.
     7.     	Having heard evidence and oral argument at some length as demonstrated by his contemporaneous record of proceedings at pages 217 to 227 of the tribunal file, the chairman decided that issue of fact against the claimant.  He said he did not find him a convincing witness and considered he had exaggerated the effects of his stroke, which on the evidence was a minor one.  The claimant had been unwilling to leave his son to run the business instead, as he had doubts about his ability.  The chairman concluded that:
“I was satisfied from the evidence both oral and written that [the claimant] did not relinquish the reins and was effectively in full control of the company with all that that involved as well after as before 18 January 2003 although it may well be that during the periods of his hospitalisation and particularly in the few days immediately after he had his stroke he did not work, as [his GP] put it ‘in his usual fashion’.  It may well be that during his period on holiday he was not working the full 40 hours per week that he formerly had worked but I found that he was directing the affairs of the undertaking throughout.  I did not accept that he had not taken any monetary reward either as sole proprietor or by way of Director’s fees or salary but that is not strictly relevant in the light of regulation 16(2).  …
The type of work in [his] case was responsibility for (whether as sole trader or director) actually running the operation.  The effort required was little short of the full normal duty.  I find it impossible to quantify for any given part of the relevant period exactly what hours were put in but I am satisfied that they would in aggregate not be less than 10 hours a week, namely a quarter of what [the claimant] said was his normal working week.  I therefore found that the work he did could not be described as ‘de minimis’ or ‘negligible’.”
On those findings, the appeal failed.
     8.     	Against that decision the claimant appealed on the grounds set out on his behalf by Ms J Burton, welfare rights officer with the Durham County Council, in the notice of appeal at page 214 of the appeal bundle, and was granted leave to appeal by a (different) tribunal chairman on the different ground, supported now by the Secretary of State, that “days in hospital are not adequately dealt with” in the tribunal chairman’s statement of reasons.  Taking first that further ground, which the Secretary of State’s written submission dated 10 March 2005 at page 224 reformulates by saying that the chairman ought to have made findings about the hours and days worked so as to see whether any week during which the claimant worked could fall within the “exempt work” rules in regulation 17, there is in my judgment no arguable point of law on which the claimant could succeed; and the grant of leave and the Secretary of State’s support of the appeal on that ground are misplaced.  
     9.     	In my judgment, both are obviously mistaken when one looks at the plain wording of the regulations.  Regulation 16(1) expressly provides that a person who does work to which the regulation applies is to be treated as capable of work on each day of the relevant week notwithstanding that he is within a list of categories that would otherwise fall to be treated as incapable:  one of those categories under regulation 12 is a person undergoing medical treatment as an in‑patient in a hospital.  Hence the fact that a person is in hospital for four days during what the tribunal otherwise finds on the facts, as here, to have been a continuous period of working cannot take him outside the effect of regulation 16.  As for regulation 17 there was no evidence before the tribunal to suggest that the various conditions as to notice and otherwise to enable the claimant’s working to count as “exempt work” were or could have been met, and as the tribunal chairman expressly recorded (and is in no way disputed by the claimant) it was not contended at any stage that any relevant exemption applied.  Consequently I fail to see how the Secretary of State’s suggested inquiries into hours and other regulation 17 details could have any bearing on what the tribunal had to decide.  
     10.     	As for the grounds put forward on behalf of the claimant, I am not persuaded that any arguable case in law against the tribunal chairman’s decision is identified there either.  The first point taken is that the tribunal ought to have made findings on the appellant’s actual capacity for work for each week in which he actually performed some; as at any rate around the time when he was in hospital “a common sense approach would indicate that the appellant would be incapable of work during this period”.  That ignores the express provision of regulation 16 that a person must be treated as capable of work throughout any week in which, as the tribunal here found, significant non‑exempt work was actually done, rendering any further inquiry into capacity in such a case superfluous.
     11.     	The second point is that having rejected part of the claimant’s evidence, it was inconsistent of the tribunal to use what he said against him on another point.  There is of course no conceivable error of law in a tribunal of fact finding that a witness is telling the truth in one part of his evidence but exaggerating in another, and this tribunal’s reasons for doing so are in my judgment clearly explained and unchallengeable.  
     12.     	The third point, not further elaborated, is an assertion that the tribunal wrongly placed the burden of proof on the appellant.  In my view there is no substance in this either.  It is clear from the passages already quoted from his decision that the tribunal chairman found himself affirmatively satisfied, on the evidence before him, that the claimant had in fact been working for not less than 10 hours in each of the benefit weeks for which he had claimed to be incapable of doing so, and that the “work” he was doing was not so insignificant that it could be disregarded.  Those positive findings showed conclusively that the department had been right to take the benefit away.
     13.     	The final point is the suggestion that as this case and another (unspecified) related case were heard on the same day and by the same chairman and the decision on this one had not been issued immediately, “using a common sense approach it could be perceived that the decision was influenced by the proceedings later that day”.  No further particulars to support this allegation or show in what way the decision is said to have been improperly affected by anything that happened later in the day are given, and I am not able to accept that this allegation as it stands provides any arguable ground for questioning the decision.  There is nothing to support any suggestion (if that is what is being hinted at) that the chairman improperly allowed matters outside the actual evidence in this case to influence his decision:  on the contrary, the statement of reasons in conjunction with his very full and careful contemporaneous note of the proceedings themselves shows in my judgment that the decision on the single issue of whether the claimant was working, in a non‑negligible sense, over the period he had claimed to be incapable of doing so was properly based entirely on the evidence adduced in the present case.  If the suggestion is that a legally qualified and experienced chairman should be regarded automatically as incapable of deciding a case objectively on the evidence merely because he happens to have another one involving the same claimant, without the need even to identify a point on which he is alleged to have gone wrong, I reject it as obviously unsound.
     14.     	For those reasons, I dismiss this appeal.  

(Signed)

P L Howell
Commissioner
18 May 2005