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Neutral Citation Number:
Reported Number:
File Number:	CIS 2699 2001
Appellant:
Respondent:
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	07/07/2003
Date Added:	29/07/2003
Main Category:	Income support and state pension credit
Main Subcategory:	applicable amounts
Secondary Category:	Incapacity benefits
Secondary Subcategory:	medical evidence
Notes:	Incapacity for work - deemed incapacity - retrospective medical evidence produced after date of decision The claimant had been in receipt of income support at a reduced rate as an asylum seeker. He was granted exceptional leave to remain on 9 July 2000 and on 24 August 2000 he claimed income support at the full rate, including a disability premium, backdated to 9 July 2000. On 30 August 2000 a decision-maker decided that he was entitled to increased income support only from 24 August 2000 and that he was not entitled to a disability premium because he had not been submitting medical certificates in support of a claim for incapacity benefit before 25 May 2000. On 13 September 2000 the claimant appealed, producing with his appeal retrospective evidence of incapacity for work. The appeal tribunal confirmed the decision and declined to deal with the disability premium, which they considered would have been the subject of a separate decision by the incapacity benefit section of the Benefits Agency. The Secretary of State supported the claimant's appeal to the Commissioner, submitting that the tribunal had erred in failing to deal with the disability premium, and that the claimant was entitled to a disability premium. Under the current form of paragraph 12(1)(b) of Schedule 2 to the Income Support (General) Regulations (paragraph 12(1)(b)) the claimant's entitlement to disability premium depended upon deemed incapacity for work under regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995 for a minimum of 364 days. The condition for deemed incapacity was the production of evidence of incapacity in accordance with the Social Security (Medical Evidence) Regulations 1976 ("the Medical Evidence Regulations"). It had been established in R(IS) 8/93 that retrospective medical evidence was acceptable for the purposes of regulation 2(1) of the Medical Evidence Regulations in its form before 13 April 1995 and specifically for entitlement to disability premium under the version of paragraph 12(1)(b) then in force. The question for the Commissioner was whether that legislation in its current form and regulation 28 could be satisfied by the production of retrospective medical evidence. Held, allowing the appeal, that: 1. It was clear from the wording of regulation 2(1)(d) of the Medical Evidence Regulations that that regulation in its current form could be satisfied in respect of periods prior to the coming into existence or the putting forward of the evidence in question (paragraphs 13-14); 2. there was nothing in the wording of the present form of paragraph 12(1)(b) to exclude the use of retrospective evidence (paragraph 15); 3. regulation 28 could in its terms be applied to any period for which the question of deemed incapacity for work needed to be decided and retrospective evidence of incapacity was therefore acceptable where a past period was in issue (paragraphs 19-21); 4. however, the evidence of incapacity was produced after the date of the decision under appeal to the tribunal and, since the physical production of evidence was the key circumstance for the purposes of regulation 28, both the tribunal and the Commissioner were prevented by section 12(8)(b) of the Social Security Act 1998 from taking it into account (paragraphs 26-33); 5. The Commissioner set aside the tribunal's decision and referred the case to the Secretary of State for consideration of a revision of the decision of 30 August 2000 under regulation 3(4A) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Note: On 22 January 2004 the Secretary of State informed the Commissioner that the decision of 30 August 2000 had been revised, so as to increase the amount of income support entitlement from 24 August 2000 by the inclusion of the disability premium in the claimant's applicable amount. The Commissioner issued a final decision, dated 23 January 2004, to the effect that the appeal against the decision of 30 August 2000 had lapsed.
Decision(s) to Download:	R(IS) 4_04 bv.doc