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Neutral Citation Number:
Reported Number:	R(IB) 2 01
File Number:	CIB 4118 1998
Appellant:
Respondent:
Judge/Commissioner:	Judge M. Rowland
Date Of Decision:	16/02/2000
Date Added:	26/03/2002
Main Category:	Incapacity benefits
Main Subcategory:	attending medical examination
Secondary Category:
Secondary Subcategory:
Notes:	Incapacity for work - failure to attend a medical examination - whether burden of proof that notice of the examination had been sent lies on the Secretary of State The claimant was in receipt of income support on grounds of incapacity. The Benefits Agency made arrangements for her to attend for medical examination on 4 July 1996 and on 28 November 1996 but on both occasions she did not do so. The adjudication officer made a decision that she be treated as capable of work from and including 29 November because she had failed without good cause to attend or submit to medical examination on 28 November. The claimant appealed to a social security appeal tribunal, stating that she had not received the notification of either of the appointments and suggesting that they might have been sent to her old address, which she had left in February 1996. The adjudication officer made a submission to the tribunal asserting that notice of the second appointment had been sent to the claimant at least seven days before 28 November, but did not provide any evidence of this. The tribunal rejected the appeal and the claimant appealed to a Commissioner. As at the date of the adjudication officer's submission to the Commissioner, no new decision had been made as to the claimant's capacity for work and so she continued to be treated as capable. Held, allowing the appeal, that: 1. the burden of proving good cause, under regulation 8(2) of the Social Security (Incapacity for Work) (General) Regulations 1995, for failure to attend a medical examination lay on a claimant; 2. it was therefore for a claimant to prove non-receipt of an appointment notice that had actually been sent but the burden of proving that the notice had actually been sent lay on the adjudication officer; 3. a notice was not sent to a person if it was sent to the wrong address and, in any case where the claimant raised a question whether a notice had been sent, which included most cases where it was asserted that a notice had not been received, the adjudication officer was obliged to present evidence to the tribunal that it had been sent to the correct address; 4. the tribunal had erred in law by making a decision not supported by any evidence that the notice of the second appointment had been sent to the correct address; 5. the period to which a decision that the claimant be treated as capable of work under regulation 8(2) related ended immediately before the date from which a new claim or application for review was effective and the Secretary of State should consider treating a letter of appeal against a decision under regulation 8(2) as constituting a fresh claim or application for review, or else advising the claimant that such a claim or application needed to be made. The Commissioner referred the case to another tribunal.
Decision(s) to Download:	ib2_01.doc