[2006] UKSSCSC CIB_2221_2005 (11 January 2006)

CIB/2221/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the Incapacity Benefit Appeal Tribunal dated 18 April 2005 on case No. U/06/069/2005/00124 is not erroneous in law.

2.	The Secretary of State appeals, with the leave of the Chairman, against the tribunal’s decision that the claimant is incapable of work from and including  19 November 2004.  

3.	The facts of the case are adequately explained in the statement of the reasons for the tribunal’s decision.  That statement is in the following terms:-

	“- - - - - - - - -

	The appeal arose from a decision that the appellant was no longer incapable of work because she had failed to attend for the medical examination on 18.11.2004.  The power to make a decision of this kind is contained in Regulation 8 of the Incapacity for Work (General) Regulations.  This is referred to in the appeal papers and is summarised in section 5. 

	The tribunal accepts as fact that the appellant was sent written notice of an appointment on 17.11.2004.  On16.11.2004 she cancelled that appointment and another was arranged with her over the phone for 18.11.2004.  The tribunal was satisfied that the appellant was told she should attend on 18.11.2004 but is also satisfied that she was only told over the phone and written notice was not given.  The failure to give written notice means in the opinion of the tribunal, that regulation 8(3) of the Incapacity for Work (General) Regulations has not been satisfied and regulation 8(2) cannot, therefore, be relied on to treat the appellant as capable of work.  The tribunal does not agree with the submission writer that written notice was not required because the appellant had agreed to accept a period of less than 7 days.  

	The tribunal interprets regulation 8(3) as requiring written notice in every case of at least 7 days unless the appellant agrees to accept a shorter period of notice.  Agreeing to accept a shorter period of notice does not, in the opinion of the tribunal, remove the need for the notice itself to be in writing.  This interpretation is supported by the commentary in the 2004 edition of Non-Means Tested Benefits at page 699 which cites CIB/969/97 as authority.

	The tribunal  notes that the Appellant has now missed 5 appointments for various reasons between 8.4.2004 and 18.11.2004 inclusive.  This appeal was only concerned with the failure on 18.11.2004.  Because written notice of that appointment was not given – as it is acknowledged by the Secretary of State – Regulation 8(2) cannot apply to treat the appellant as capable of work because this is expressly subject to regulation 8(3) which contains the requirement of notice as understood by the tribunal.”.

4.	The Secretary of State’s grounds for appealing the tribunal’s decision to a Commissioner is on a short point of interpretation.  In the statement of grounds of appeal his representative says:-

	“When applying the provisions of Regulation 8 (regulation 8) of the Social Security (Incapacity for Work) (General) Regulations 1995 to treat someone as capable of work written notice, I submit, is not required if the person concerned agrees to accept a shorter period of notice.  In the present case the claimant was sent written notice of an appointment for the 17.11.04.  On the 16.11.04 she rang and cancelled the appointment and another was arranged for the 18.11.04.  It is my submission that the tribunal have incorrectly interpreted provisions of regulation 8 and in doing so have erred in law.”.

In a written submission of 19 September 2005 the Secretary of State’s representative confirmed that he had nothing to add to those grounds of appeal.  

5.	Regulation 8 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI1995 No. 311) is in the following terms:-

	“8(1)	Where it falls to be determined whether a person is capable of work, he may be called by or on behalf of a doctor approved by the Secretary of State to attend for a medical examination. 

	(2)	Subject to paragraph (3) where a person fails without good cause to attend for or submit themselves to such an examination, he shall  be treated as capable of work. 

	(3)	A person shall not be treated as capable of work under paragraph (2) unless written notice of the time and place for the examination was sent to him at least 7 days before hand, or unless he agreed to accept a shorter period of notice.”.

6.	The claimant’s observations on the appeal are directed to the question of whether or not she had good cause for failing to attend for examination on 18 November 2004, not to the narrow point of interpretation raised by the tribunal’s decision and the Secretary of State’s representative’s challenge to it.

7.	It is obvious from the incapacity benefit cases which I see from time to time that when a claimant who has been given notice of the time and place for a medical examination telephones the official concerned to say that he or she cannot attend on the appointed day it is the practice to arrange an alternative date there and then with the claimant and that it is also the practice, in some cases, to ask the claimant to agree to a date which is less than 7 days from the date of the phone call.  That seems to me to be a practical approach to the operation of regulation 8 which is beneficial to both the Department and to claimants.  However, I have decided, with some regret, that as paragraph (2) of regulation 8 is a provision which can operate to disentitle a claimant to benefit on grounds other than her known medical condition and as paragraph (3) protects such a claimant from the effects of misunderstandings about the date or place of the intended examination the regulation has to be interpreted strictly.  For that reason I think that the tribunal’s interpretation of paragraph (3) of the regulation is correct and that the provision for the claimant to agree to less than 7 days notice of the examination does not absolve the Department from giving her written notice of the examination.  I realise that the effect of that in a case such as this is inconvenient as it will not be possible for the Department to comply with paragraph (3) unless the day fixed for the examination is sufficiently far ahead of the phone call for the official concerned to be able to post a written notice which the claimant will receive not later than the morning of that day.

8.	For the foregoing reasons the appeal fails and my decision is in paragraph 1 above.

	(Signed)	R J C Angus
		Commissioner
	
	(Date)		11 January 2006