JW-v-Department for Social Development (ESA) [2011] NICom 221
Decision No:  C1/10-11(ESA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 6 May 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 6 May 2010 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

2.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made further findings of fact.  The fresh findings in fact are outlined below.

3.	My substituted decision is that the appellant has limited capability for work in accordance with the work capability assessment and is entitled to employment and support allowance (ESA) from and including 8 December 2009.  I am unaware as to whether there have been any further claims to ESA by the appellant since 8 December 2009 and, if so, what the outcome of those claims might have been.  If there have been subsequent awards then this decision is treated as having been paid on account of such awards.

	Background

4.	The decision under appeal to the appeal tribunal was a decision of the decision- maker of the Department, dated 8 December 2009, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department and which had awarded an entitlement to ESA; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 8 December 2009.

5.	An appeal against the decision dated 8 December 2009 was received in the Department on 17 December 2009.  On 17 February 2010 the decision dated 8 December 2009 was looked at again but was not changed.

6.	The substantive appeal tribunal hearing took place on 6 May 2010.  The appellant was not present, the appellant having indicated by return of Form Reg2(i)d, on 8 March 2010 and received in the Appeals Service (TAS) on 11 March 2010.  The appeal was disallowed and the appeal tribunal confirmed the decision dated 8 December 2009.

7.	On 18 August 2010 an application for leave to appeal against the decision of the appeal tribunal was received in TAS.  On 25 August 2010, the application for leave to appeal was allowed by the legally qualified panel member (LQPM).  In allowing the application, the LQPM identified the following point of law:

‘Whether the Statement of Reasons of 7/8/10 adequately explains the tribunal’s decision.’

	Proceedings before the Social Security Commissioner

8.	On 14 September 2010 the appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 4 November 2010 observations were sought from Decision Making Services (DMS) and these were received on 23 November 2010.  In these observations, Mr Young, for DMS opposed the appeal on the grounds cited by the appellant.  The written observations were shared with the appellant on 2 December 2010.  On 23 March 2011 Mr Young was asked to provide further observations on a specific question.  These further submissions were received on 6 April 2011.

	Errors of law

9.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

10.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	Why was the decision of the appeal tribunal in the instant case in error of law?

	The relevant legislative background

11.	Section 1(1)-(4) of the Welfare Reform Act (Northern Ireland) 2007 provides that:

‘1(1) An allowance, to be known as an employment and support allowance, shall be payable in accordance with the provisions of this Part.

(2) Subject to the provisions of this Part, a claimant is entitled to an employment and support allowance if he satisfies the basic conditions and either—

(a) the first and the second conditions set out in Part 1 of Schedule 1 (conditions relating to national insurance) or the third condition set out in that Part of that Schedule (condition relating to youth), or

(b) the conditions set out in Part 2 of that Schedule (conditions relating to financial position).

(3) The basic conditions are that the claimant—

(a) has limited capability for work,

(b) is at least 16 years old,

(c) has not reached pensionable age,

(d) is in Northern Ireland,

(e) is not entitled to income support, and

(f) is not entitled to a jobseeker's allowance (and is not a member of a couple who are entitled to a joint-claim jobseeker's allowance).

(4) For the purposes of this Part, a person has limited capability for work if—

(a) his capability for work is limited by his physical or mental condition, and

(b) the limitation is such that it is not reasonable to require him to work.’

12.	Section 8(1) of the Welfare Reform Act (Northern Ireland) 2007 provides that:

‘8(1) For the purposes of this Part, whether a person's capability for work is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to work shall be determined in accordance with regulations.’

13.	Regulation 19(1)-(6) of the Employment and Support Allowance Regulations (Northern Ireland) 2008 provides that:

‘19(1) For the purposes of Part 1 of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.

(2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

(3) Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against any descriptor listed in that Schedule, the claimant obtains a total score of at least—

(a) 15 points whether singly or by a combination of descriptors specified in Part 1 of that Schedule;

(b) 15 points whether singly or by a combination of descriptors specified in Part 2 of that Schedule; or

(c) 15 points by a combination of descriptors specified in Parts 1 and 2 of that Schedule.

(4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.

(5) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises from—

(a) a specific bodily disease or disablement;

(b) a specific mental illness or disablement; or

(c) as a direct result of treatment provided by a registered medical practitioner for such a disease, illness or disablement.

(6) Where more than one descriptor specified for an activity apply to a claimant, only the descriptor with the highest score in respect of each activity which applies is to be counted.’

	Analysis

14.	I begin my analysis by stating that I disagree with the decision of the appeal tribunal in relation to one issue alone.  That disagreement is sufficient, however, for me to find that the decision of the appeal tribunal is in error of law.  I would note, however, that I cannot find fault with the remainder of the appeal tribunal’s decision.  Further, having examined the grounds on which the appellant has submitted that the decision of the appeal tribunal is in error of law, I am satisfied that no error of law can be identified from those grounds.

15.	Attached to the original appeal submission as Tab No 1 is a copy of a ‘Limited Capability for Work Questionnaire’, completed by the appellant on 25 August 2009, and received in the Department on 27 August 2009.  In this questionnaire the appellant is asked to give details as to how her illnesses affects her ability to perform various activities.  In short, the purpose of the questionnaire is to enable the appellant to provide evidence which might be utilised, together with other evidence, by the decision-maker to decide whether the appellant had limited capability for work in accordance with the work capability assessment.  At page 23 of the questionnaire, the appellant is asked to answer certain questions about ‘Propriety of your behaviour with other people’.  These questions are designed to provide evidence as to whether any of the descriptors associated with Activity 20 in Part 2 of Schedule 2 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, might apply to the appellant.  The appellant is instructed that what is meant by ‘Propriety of your behaviour with other people’ is ‘… behaving in a way that could upset other people’.  The appellant indicated that:

•	sometimes other people get upset with her because of the way she behaves

•	she gets so upset by little things or by the way other people behave that it affects her daily routine

•	little things did not lead her to behave in a violent way.

16.	The appellant adds the following to these responses at page 23 of the questionnaire:

‘I would be in tears most of the time.  If anyone says some we [sic] simple thing not meaning any harm I would cry for no reason.’

17.	It is important to note that the questions which are asked in the ‘Limited Capability for Work Questionnaire’ are not accurately reflective of the wording of the activities and descriptors in Schedule 2 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.  The wording in the legislation is complex and I can understand how the Department would not wish to inflict those complexities on claimants unfamiliar with the details of the tests for benefit entitlement.

18.	Also attached to the appeal submission is a copy of the report of a medical examination conducted by a healthcare professional on 17 November 2009.  The report is set out in a template Form ‘ESA85’.  Activity 20 from Part 2 of Schedule 2 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, is dealt with at pages 24 and 25 of the form.  On page 24 the full details of activity 20 and its associated descriptors are set out and the examining healthcare professional is given the opportunity to give an opinion as to which descriptor applies.  In the instant case, the healthcare professional has chosen descriptor 20(g) which means that none of the other descriptors apply.  More significantly, descriptor 20(g) attracts no points.

19.	At page 25 of the form, the healthcare professional is asked to provide evidence to support the choice of activity outcomes in connection with both activities 20 and 21.  Evidence is to be provided under three headings:

•	Prominent features of functional ability relevant to daily living
•	Relevant features of clinical examination
•	Summary of functional ability

20.	In the instant case, page 25 of the form is completed as follows:

Prominent features of functional ability relevant to daily living

Sees family daily, granddaughter stays at weekends
Can go to local shop + see GP alone
Fells anxious in crowds + would feel impatient in queues etc due to anxiety
No disruptive behaviour	
Relevant features of clinical examination

Pleasant
Cooperative
No abnormal behaviour
No irritability or psychotic features	
Summary of functional ability

Customer feels anxious in crowds + is weepy at times but no abnormal/unpredictable behaviour described
She has good family relationships + enjoys being with her family and would be very aware of her own mood/behaviour
None of these descriptors apply here

21.	At paragraph 7 of the statement of reasons for the appeal tribunal’s decision, the LQPM reviews the evidence contained within the report of the examination conducted by the healthcare professional.  That review includes the conclusions and findings of the healthcare professional in connection with the potential application of any of the descriptors associated with activity 20, and as set out above.  Although it is nowhere stated, I am assuming that the appeal tribunal accepted those conclusions and findings and agreed with the opinion of the healthcare professional that descriptor 20(g) was the relevant descriptor.  That is confirmed by the ticking of the appropriate box by the LQPM on the ‘score-sheet’ associated with the appeal tribunal’s decision notice.  The LQPM undertakes a more detailed analysis of activities 18 and 19 in connection with which scoring descriptors had been applied.

22.	Looking at the descriptors associated with activity 20 in Part 2 of Schedule 2 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, I can understand why the healthcare professional, the decision-maker and the appeal tribunal all agreed that none of the descriptors 20(a) to (e) of activity 20 applied to the appellant.  Those descriptors are concerned with, inter alia, ‘unpredictable outbursts of aggressive, disinhibited, or bizarre behaviour’ with associated disruptive effects, and ‘completely’ or ‘strongly disproportionate reaction to minor events or criticism’.  There is no evidence which was before any of the decision-makers below, or before me to suggest that any of the descriptors 20(a) to (e) of activity 20 applied to the appellant.

23.	I wonder, however, why more detailed consideration was not given to the potential application of descriptor 20(f) particularly in light of the appellant’s evidence as set out on page 23 of the ‘Limited Capability for Work Questionnaire’.  It is the failure of the appeal tribunal to consider, in more detail, the possible application of descriptor 20(f) which renders its decision, in my view as being in error of law.

	My decision 

24.	Regulation 19(1)-(2) of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, provides that:

‘19(1) For the purposes of Part 1 of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.

(2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.’

25.	I find that the appellant has a mental disablement such as to trigger the potential application of activities and descriptors in Schedule 2 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, ie a consideration as to whether she is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.  That mental disablement is anxiety and depression following a family bereavement.  I accept the appellant’s evidence set out at page 23 of the Limited Capability for Work Questionnaire completed by her on 25 August 2009.  I find that the appellant has been honest and truthful in the completion of that questionnaire.  I find that sometimes other people get upset with her because of the way she behaves; that she gets so upset by little things or by the way other people behave that it affects her daily routine; and that little things did not lead her to behave in a violent way.

26.	I conclude that the appellant satisfies descriptor (f) in activity 20 in Part 2 of Schedule 2 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, in that she frequently demonstrates a moderately disproportionate response reaction to minor events or to criticism but not to such an extent that she cannot manage overall day to day life when such events or criticism occur.

27.	Descriptor (f) in activity 20 attracts six points.  I add those six points to the 12 points which were awarded by the decision-maker and confirmed by the appeal tribunal in connection with descriptor (d) of activity 18 and descriptor (c) of activity 19.  Accordingly, the appellant scores 18 points which satisfies the scoring threshold for the limited capability for work test as set out in regulation 19(3)(b) of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.

	Disposal

28.	The decision of the appeal tribunal dated 6 May 2010 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

29.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made further findings of fact.

30.	My substituted decision is that the appellant has limited capability for work in accordance with the work capability assessment and is entitled to ESA from and including 8 December 2009.  I am unaware as to whether there have been any further claims to ESA by the appellant since 8 December 2009 and, if so, what the outcome of those claims might have been.  If there have been subsequent awards then this decision is treated as having been paid on account of such awards.

(signed):  K Mullan

Chief Commissioner

2 November 2011