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An invitation to a health assessment must use language of a clear and unambiguous mandatory requirement to attend.

6th January, 2022

IG-C v. Department for Communities (ESA) [2021] NI Com 39

Background

The claimant claimed ESA due to needs arising from fibromyalgia. In February 2019, she was required to attend a health assessment, but did not attend. When the claimant did not respond to the Department’s request to explain her non-attendance, it decided that she had not shown good cause for her failure to attend. As a result, the Department decided that the claimant did not have limited capability for work and it superseded and disallowed her award of ESA. The claimant appealed to the tribunal, which disallowed her appeal. She appealed to the Social Security Commissioner.

Legal issue

The claimant’s appeal to the Social Security Commissioner focused on the language used in the letter inviting her to attend a health assessment.

The Employment and Support Allowance Regulations (NI) 2008 provide for a health assessment, known as a medical examination, as part of the ESA assessment process. The Regulations also provide for the consequences of a claimant failing to attend.

Regulations 23 and 24 state:

‘23 – (1) Where it falls to be determined whether a claimant has limited capability for work, that claimant may be called by or on behalf of a health care professional approved by the Department to attend for a medical examination.

(2) Subject to paragraph (3), where a claimant fails without good cause to attend for or to submit to an examination mentioned in paragraph (1), the claimant is to be treated as not having limited capability for work

(3) Paragraph (2) does not apply unless –

(a) written notice of the date, time and place for the examination was sent to the claimant at least 7 days in advance; or

(b) that claimant agreed to accept a shorter period of notice whether given in writing or otherwise.

24 The matters to be taken into account in determining whether a claimant has good cause under regulation 22 or 23 include –
(a) 
whether the claimant was outside Northern Ireland at the relevant time;
(b) 
the claimant’s state of health at the relevant time; and
(c) 
the nature of any disability the claimant has.’

    The language used in health assessment invitations was considered by the Commissioner in RS v. Department for Communities [2021] NI Com 4, which concerned a health assessment for the purposes of PIP. In RS, the Commissioner referred to an Upper Tribunal decision: IR v. Secretary of State for Work and Pensions [2019] UKUT 374. In that case, the Upper Tribunal decided that the letter inviting the claimant to a health assessment must use the language of clear and unambiguous mandatory requirement. The Commissioner also referred to PPE v. Secretary of State for Work and Pensions [2020] UKUT 59 which decided that the tribunal file must contain a copy of the letter sent to the claimant or a standard form and evidence that a letter in that form had been generated by the computer system and dispatched.

    In IG-C’s case, the standard letter of invitation to a health assessment included the following words:

    ‘We have arranged an appointment for you at: It is important that you attend. If you fail to attend your benefit may be affected.’

    The Department conceded that the wording used in this letter did not impose a legal requirement to attend a health assessment.

    Decision

    The Commissioner agreed that the standard letter of invitation issued to the claimant did not use language necessary to impose a legal requirement to attend the health assessment.

    At paragraph 25, the Commissioner stated:

    ‘…[R]egulation 23(2) makes it mandatory for the Department to decide that the claimant does not have limited capability for work where he or she fails to attend a medical examination without good cause. The letter inviting the claimant to the medical examination merely indicates that it is important to attend. It infers a discretionary consequence that ‘your benefit may be affected’. However, there is no discretion permitted to the Department in the circumstances. The letter therefore does not accurately spell out the serious legal consequences of non-attendance.’

    The Commissioner decided that the tribunal had erred in law. He set aside the decision of the appeal tribunal and made the decision it should have made.

    The Commissioner decided that the wording of the invitation letter to the claimant did not include clear and unambiguous language imposing a legal requirement on her to attend a health assessment. She could not, therefore, be treated as not having limited capability for work on the basis of her failure to do so.

    For a full copy of the Judgment: click here

    AO’G v. Department for Communities (PIP) [2021] NI Com 32

    Background

    The claimant was awarded DLA from 1993. In July 2017, he was invited to claim PIP. He initially responded to the invitation by informing the Department that he had permanently moved away from the UK.

    The Department wrote to the claimant in September 2017 to say that his DLA had been suspended and would be permanently terminated if he did not claim PIP by October 2017. The claimant submitted a claim for PIP at the end of September 2017. Initial efforts were made to arrange a health assessment for the claimant in the Republic of Ireland. However, by November 2018, he was back living in Northern Ireland and informed the Department accordingly. He was invited to attend a health assessment in December 2018, but did not attend. The Department asked the claimant to explain why he did not attend and he replied that he had been awarded DLA for life.

    The Department decided that the claimant was not entitled to PIP as he had not attended a health assessment and had not provided a good reason for failing to do so. The consequence of the Department’s decision was that the claimant’s DLA award was terminated. The claimant appealed. His appeal was disallowed and he appealed to the Social Security Commissioner.

    Legal issue

    The claimant’s appeal hearing focused on two grounds of appeal. First, whether the claimant’s award of DLA for life in 1993 created a legitimate expectation that he would remain entitled for life and meant that it was unlawful for the Department to terminate his award. Secondly, whether the tribunal had established that the Department’s letter inviting the claimant to attend a health assessment used the language of clear and unambiguous mandatory requirement.

    On the first ground, the claimant argued that the letter he received in 1993 which awarded him DLA for life, gave rise to a legitimate expectation that he would remain entitled for life. He referred to section 71(3) of the Social Security Contributions and Benefits Act (NI) 1992 which provided for awards ‘for a fixed period or for life’. While he acknowledged that this section was subsequently amended by article 64(1) of the Welfare Reform and Pensions (NI) Order 1999 to ‘for a fixed period or for an indefinite period’, he argued that that amendment did not affect awards, like his, made before 12 January 2000. He argued that the termination of his DLA award, following his failure to attend a PIP health assessment, was therefore unlawful.

    The doctrine of legitimate expectation is explained in the case Bhatt Murphy (a firm), R (on the application of) v. The Independent Assessor [2008] EWCA Civ 755. In Bhatt Laws LJ refers to a statement of Simon Brown LJ in R v. Devon County Council ex parte Baker [1995] 1 All ER 73, which describes legitimate expectation as follows:

    ‘1. Sometimes the phrase [sc. legitimate expectation] is used to denote a substantive right: an entitlement that the claimant asserts cannot be denied him….[Various] authorities show that the claimant’s right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely. Then the administrator or other public body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duties imposed upon it. The doctrine employed in this sense is akin to an estoppel.’ [Emphasis added]

    The second ground of appeal, conceded by the Department, related to circumstances surrounding the claimant’s invitation to attend a health assessment.

    Regulations 9 and 10 Personal Independence Payment Regulations (NI) 2016 provide for a health assessment to be carried out in response to a claim for PIP and the consequences of the claimant’s failure to attend.

    Regulation 9 states:

    ‘Regulation 9 (1) Where it falls to be determined whether [the claimant] has limited ability or severely limited ability to carry out daily living activities or mobility activities, [the claimant] may be required to do either or both of the following-

    (2) Subject to paragraph (3), where [the claimant] fails without good reason to attend for or participate in a consultation referred to in paragraph (1), a negative determination must be made.

    (3) Paragraph (2) does not apply unless –

    (a) written notice of the date, time and, where applicable, place for the consultation is sent to [the claimant] at least 7 days in advance; or

    (b) [the claimant] agrees, whether in writing or otherwise, to accept a shorter period of notice of those matters.

    (4)…(5)’

    Regulation 10 states:

    ‘Regulation 10 The matters to be taken into account in determining whether [the claimant] has good reason under regulation….9(2) include –
    (a) [the claimant’s] state of health at the relevant time; and
    (b) the nature of any disability that [the claimant] has.’


      Decision

      On the legitimate expectation ground of appeal, the Commissioner reviewed the correspondence to the claimant which notified him of his DLA award. He noted that the correspondence did not in fact use the term ‘life award’. He also referred to the Social Security Administration (NI) Act 1992 which indicated that life awards, while ring-fenced to some extent, were subject to review. In the circumstances, the Commissioner decided that the notification of the award of DLA to the claimant did not amount to a clear and unambiguous representation that he would continue to enjoy DLA for life regardless of the circumstances. He therefore rejected the claimant’s argument based on legitimate expectation.

      The Commissioner accepted, however, that the tribunal had erred in law in relation to the claimant’s failure to attend the health assessment. The Commissioner noted that there was no evidence before the tribunal to confirm that the claimant had been called to attend a health assessment. There was no copy of the notice and no indication of whether the language used in the notice indicated a clear and unambiguous mandatory requirement to attend. The Commissioner decided that this did not satisfy the requirements of case law, in particular his decision in RS v. Department for Communities [2021] NI Com 4. The Commissioner set aside the tribunal’s decision due to these procedural failures.

      The Commissioner went on to decide the appeal. He decided that the Department had not established that the claimant failed to attend the health assessment without good cause. The claimant’s claim for PIP therefore remained outstanding. This had the further consequence that the decision to terminate his DLA award was void and of no effect.

      The claimant’s PIP claim would revert to the Department, which would likely issue a fresh invitation for the claimant to attend a health assessment.

      For a full copy of the Judgment: click here