Janicki v Revenue & Customs [2011] UKFTT 165 (TC) (09 March 2011)

[2011] UKFTT 165 (TC)

TC01034

Appeal number: TC/2009/16778

Statutory Sick Pay – whether employee incapable of work under contract of service – conflict between results of medical examination and sickness notes issued in UK and Poland – on facts, medical report more persuasive – held that no entitlement to SSP for relevant periods – appeal dismissed

FIRST-TIER TRIBUNAL

TAX

HENRYK JANICKI Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY’S

REVENUE AND CUSTOMS Respondents

TRIBUNAL: JOHN CLARK (TRIBUNAL JUDGE)

CAROLINE DE ALBUQUERQUE

Sitting in public at Holborn Bars, 138-142 Holborn, London EC1N 2NQ on 17 February 2011

The Appellant in person by telephone for parts of the hearing

Steve Duke, officer of HM Revenue and Customs, for the Respondents

DECISION

1. This appeal concerns Mr Janicki’s claims to Statutory Sick Pay for the periods 3 January 2008 to 13 February 2008 and from 13 March 2008 to 2 July 2008. He objected to his employer being involved in the proceedings, and the employer did not seek to contest his objection. As a result the employer did not participate in the proceedings. However, the employer had provided information in the course of correspondence, and that evidence was available to the Tribunal.

2. As Mr Janicki is currently living in Poland, he was unable to attend the hearing. It was therefore arranged that he would participate in the proceedings by telephone; a Polish interpreter was present for the duration of the hearing. As it would have been prohibitively expensive for Mr Janicki to remain on the telephone for the whole of the proceedings, we arranged that he would make an initial statement by phone, and then call back after 30 minutes. As the hearing was not completed by then, we arranged for him to make a later call at the point when we expected to be able to announce our decision. When he made this final call, we announced the result to him and to the Respondents (“HMRC”).

The facts

3. The evidence consisted of three binders of correspondence, including Mr Janicki’s letters setting out the basis for his claims to SSP for the relevant periods. In addition, after we had announced our decision, Mr Janicki referred to other documentation which was not included in the binders and had not been provided to use; we comment on this below. On the basis of the evidence, we find the following facts.

4. Mr Janicki started work with an employer named Holroyd Howe Ltd on 11 July 2005. His normal working days were Monday to Friday. He was paid on the 28th of each month. He last worked before going off sick on 20 December 2007, and first reported his sickness on 21 December 2007. He eventually resigned from his employment on 3 July 2008.

5. His initial notification to HMRC that his employer was refusing to pay SSP was made on 14 March 2008. On the same day, HMRC issued form SSP to him and to his employer. Mr Janicki completed the form, providing the requested information. The employer did not return the form to HMRC.

6. HMRC sent a further request to Holroyd Howe Ltd, but were then informed that the employer was now part of Baxterstorey Ltd, and the request was redirected. Baxterstorey Ltd informed HMRC that they had paid some SSP, but were doubtful of Mr Janicki’s incapacity as he had given various reasons for being sick and had sent sick notes from varying doctors in Poland. They indicated that they had tried to arrange a medical, but alleged that Mr Janicki had refused to return from Poland to attend.

7. HMRC issued a request to Medical Services on 2 September 2008 for their opinion on Mr Janicki’s incapacity. Copies of all Mr Janicki’s sick notes and details of his sickness were included with the request.

8. An appointment was made for Mr Janicki to attend a medical on 11 November 2008 but he was unable to make arrangements to take up the appointment and informed HMRC that he needed to be given two weeks’ notice of appointment in order to make the necessary arrangements. A further appointment was arranged for 30 January 2009, and the information concerning this was faxed to Mr Janicki on 16 January 2009.

9. The medical examination took place on 30 January 2009. Mr Janicki was reimbursed the cost of travel between the airport and the Medical Examination Centre, but the cost of his flights between Poland and the UK was not reimbursed.

10. Following the medical examination, Medical Services expressed their opinion that for the period in question Mr Janicki had been capable of carrying out the work required in his occupation. The opinion given by Dr Lydford Davis stated the following conclusion:

“Based on the evidence obtained today, for these two periods, significant disability or functional impairment is unlikely.”

11. In the light of this opinion, HMRC issued a formal decision to Mr Janicki on 27 July 2009 advising that he was not entitled to SSP from 21 December 2007 to 3 July 2008. Mr Janicki disputed this decision, asking how, a year after his illness had begun, Medical Services could reach the opinion that he had not been capable of doing his job.

12. After reconsideration HMRC referred Mr Janicki’s case back to Medical Services on 14 August 2009 for a second opinion. HMRC provided details of the comments which Mr Janicki had made.

13. On 21 August 2009 Medical Services confirmed the opinion which had been given following the medical examination made on 30 January 2009. Dr Shalom stated:

“I have looked at the information on file. I feel that Dr Lydford Davis’ opinion is reasonable and that significant disability was unlikely.

I would accept that he [ie Mr Janicki] was capable of his own occupation during the periods in question.”

14. In view of the second opinion from Medical Services and information given by Mr Janicki about the dates of sickness, HMRC issued a varied decision to Mr Janicki on 27 August 2009, informing him that he was not entitled to SSP from 3 January 2008 to 13 February 2008 and from 13 March 2008 to 2 July 2008. Mr Janicki then appealed against this decision and requested a review of his case.

15. A review was carried out and a letter was issued to Mr Janicki by HMRC on 30 September 2009 advising the outcome of the review. HMRC’s opinion was that the decision made on 27 August 2009 should be upheld. On 26 November 2009 Mr Janicki gave notice of appeal to the Tribunal.

The law

16. We do not find it necessary to set out the legislation transferring the functions in such cases to HMRC, or to the amendments to that legislation, the Social Security Contributions (Transfer of Functions) Act 1999, made by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (SI 2009/56). The provision directly in point in this appeal is s 151(4) of the Social Security Contributions and Benefits Act 1992 (“SSCBA 1992”). This is as follows:

“(4) For the purposes of this Part of this Act a day of incapacity for work in relation to a contract of service means a day on which the employee concerned is, or is deemed in accordance with regulations to be, incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do under that contract.”

Points put in correspondence by Mr Janicki

17. Mr Janicki’s main point made in the correspondence was that he could not understand how Medical Services could base an opinion on his capability a year after his sickness began. He questioned why SSP had been paid to him for the period between 13 March and 14 April 2008, when his condition had not altered from what it had been for the preceding period and remained unchanged for the following period. He also raised concerns that the history of his sickness had not been taken into account. His doctor in the UK had mentioned diabetes, but Mr Janicki maintained that he had never suffered from diabetes. He stated that he was sick through stress in his job, and raised questions of lack of equal opportunity and exploitation. He had been ill for one and a half months in 2007 and his employer had paid SSP for that period. He maintained that he had medical evidence stating that he had been incapable of work for the periods in question.

Arguments for HMRC

18. HMRC contended that two independent medical examiners considered that Mr Janicki to have been capable of work. The medical reports stated that significant disability or functional impairment was unlikely for the periods in question.

19. In the light of the independent medical opinions HMRC contended that, on the balance of probabilities. Mr Janicki was capable of working and was therefore not entitled to SSP.

Discussion and conclusions

20. The evidence discloses a degree of dispute between Mr Janicki and his employer relating to matters going beyond the question of non-payment of SSP for the relevant periods. We note that on 20 December 2007 Mr Janicki wrote to the Account Director (whom he described as the “Area Manager”) setting out a series of grievances relating to his employment. This was the day on which he went off sick. On 13 March 2008 he wrote again to the Account Manager expressing grievances, both appealing against a decision to issue him with a written warning and raising a series of grievances. This was also the date in March on which he went off sick, obtaining the first of his two sickness notes from his doctor in the UK.

21. Whatever grievances that Mr Janicki may have had in respect of his employment, the appeal before us is confined to the single issue whether he was, on the balance of probabilities, incapable by reason of some specific disease or bodily or mental disablement of doing work which he could reasonable be expected to do under his contract of service. This requires us to weigh the evidence provided by him against the evidence obtained by HMRC as to his medical condition.

22. As Mr Duke pointed out, in disputes of this nature there will inevitably be a delay between the disputed period of incapacity and the date of the medical examination by the independent medical examiner appointed by HMRC. The correspondence discloses that the employer did wish to have Mr Janicki examined by its independent doctors to provide a fair assessment, and stressed that this was covered within his terms and conditions of employment. The employer’s letter was written in May 2008, at a time when Mr Janicki was in Poland. No such examination took place, and an examination arranged by HMRC through Medical Services to take place in November 2008 had to be cancelled because it gave Mr Janicki insufficient notice for him to be able to travel to the UK from Poland. As a result the examination did not finally take place until 30 January 2009.

23. We consider that despite the delay, the medical evidence obtained as a result of the January 2009 examination was sufficient for the independent medical examiner to arrive at a reasonable conclusion as to Mr Janicki’s state of health for the periods 3 January 2008 to 13 February 2008 and from 13 March 2008 to 3 July 2008.

24. The Polish sick notes supplied by various doctors to Mr Janicki referred to varying health problems rather than one continuing form of sickness. The first refers to “colon irritable and chronic gastritis”. The second is for the same items. Together, these two certificates cover the period from 3 January 2008 to 13 February 2008. The next, issued by the same doctor for the period from 10 to 24 April 2008, was for irritable colon. The certificate for the period from April 24 to May 22 2008 was issued by a different doctor and gave the illness as “morbus ulcerosus duodendi”. The next, for the period from May 21 to June 3 2008, certified Mr Janicki as unfit for work on account of “infectio tr. respiratoria laryngotracyeitis”, and was issued by a different doctor described as a paediatrician. The certificate for the period from June 2 to July 2 2008 gave the diagnosis as “depression and fear syndrome”.

25. The first of the sick notes provided to Mr Janicki by his UK doctor was for the period of two weeks from 13 March 2008. The “Diagnosis” section is not legible, but there is an annotation at the top referring to “upset stomach”. The second sick note, from the same doctor, was for the period of two weeks from 27 March 2008. The diagnosis was “Feels low”. The notes referred to the diagnosis “causing absence from work”, but we observe that these sick notes do not refer to “incapacity for work” in the terms referred to by s 151 SSCBA 1992; we consider it desirable that UK sick notes to be used as the basis for claims to SSP should specifically refer to incapacity, instead of “absence from work”.

26. We find that the lack of a consistent thread of illness running through the period from 3 January 2008 to 3 July 2008 reduces the evidential weight of the certificates provided. Measured against the conclusions of the medical examination carried out by Medical Services in January 2009, which included a detailed record of Mr Janicki’s own account of his circumstances, together with detailed assessments of his capacities in respect of a wide range of physical and mental contexts, we do not consider that the certificates and sick notes provide sufficient evidence to conclude that Mr Janicki was incapable by reason of any of the complaints listed of carrying out work which he could reasonably be expected to do under his contract. We therefore find that the reports from Medical Services are the only persuasive evidence as to the extent of his capacity or incapacity for work.

27. For reasons which we set out below, we are issuing this decision as a full decision. As a result, it will be publicly available. Accordingly, we do not consider it appropriate to put on public record the notes as to Mr Janicki’s condition set out in the more detailed sections of the first report issued by Medical Services. We simply record that, on the basis of the detailed notes in the body of that report, we consider that the conclusion which we have quoted at paragraph 10 above is a reasonable conclusion for the examiner to have arrived at on the basis of the notes of the examination set out in the detailed sections of the report.

28. At the hearing, after we had retired to consider the evidence and arrive at our decision, we announced it in the following terms when Mr Janicki had rejoined the hearing by telephone:

“The Tribunal has considered the medical evidence provided to HMRC following Mr Janicki’s examination on 30 January 2009, and has compared this with the information shown on the various sick notes provided by doctors in the UK and in Poland during the period from January 2008 to July 2008. These sick notes set out details of various medical conditions, but they do not refer to a single disease or bodily or mental disablement. The Tribunal is therefore persuaded by the medical reports, and finds that Mr Janicki is not entitled to SSP for the relevant periods. His appeal is therefore dismissed.”

29. Following the announcement of our decision, Mr Janicki expressed his disagreement in strong terms. He raised a number of questions, and sought to refer to a letter which had not been included in the evidence or provided to the Tribunal. Having listened to his further representations, we indicated that as we had already announced our decision, we could not re-open the matter and that the appeal could only be decided on the basis of the evidence which had been put before the Tribunal. Mr Janicki indicated that he wished to appeal against our decision to dismiss his appeal, and we indicated that in order for this to be pursued, a full decision would be necessary and that we would therefore produce a full decision.

30. We also indicated to Mr Janicki that rights of appeal from this Tribunal are limited, and that permission to appeal has to be obtained. (This has to be done by use of the appropriate form.) An appeal may only be made if there is an error of law. Examples of mistakes that may mean the decision is wrong in law are given in the Guidance referred to in the final paragraph of this decision; Guidance notes on completing the application form for permission to appeal to the Upper Tribunal are also published on the Tribunal’s website.

General comment

31. In addition to the comments which we have made above relating to the wording of UK sick notes, we wish to comment on a wider issue. We feel it necessary to express our views on the use of this appeal procedure to resolve disputes of this nature. Unlike most of the appeals within this Tribunal’s jurisdiction, the dispute is not really between the Appellant and HMRC, but between the Appellant in his capacity as employee and his employer. We question whether this is the appropriate forum for resolution of disputes between employee and employer, particularly where (as here) there is a background of wider dispute between the parties as to employment-related matters. We consider that it would be far better to deal with this form of dispute as to eligibility to SSP by way of a less formal dispute resolution procedure, which might reduce the expense to HMRC and to the taxpayer of resolving a matter of concern to the immediate parties rather than to the wider public.

Summary of our decision

32. As confirmed at the hearing, we find that Mr Janicki is not entitled to SSP for the relevant periods, and his appeal is therefore dismissed.

33. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.

First-tier Tribunal (Tax)