CL-v-Department for Social Development (ESA) [2012] NICom 280
Decision No:  C6/10-11(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 24 June 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 24 June 2010 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant was not entitled to employment and support allowance (ESA), from and including 18 December 2009, is confirmed.

	Background

2.	The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 18 December 2009, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, dated 2 December 2009, and which had awarded an entitlement to ESA, from and including 16 July 2009; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 18 December 2009.

3.	The appeal was received in the Department on 11 January 2010.  On 28 February 2010 the decision dated 18 December 2009 was looked at again but was not changed.

4.	The substantive appeal tribunal hearing took place on 24 June 2010.  The appellant was present and was represented by Mr Cunningham of the Citizens Advice organisation.  The Department was not represented.  The appeal was disallowed.  The appeal tribunal confirmed the outcome decision under appeal namely that the appellant did not have an entitlement to ESA from and including 18 December 2009.  In so doing, however, the appeal tribunal differed from the decision-maker in determining the scores to be ascribed as part of the assessment of the extent to which the appellant was capable of performing the activities prescribed in Schedule 2 of the Employment and Support Allowance Regulations (Northern Ireland) 2008.

5.	On 12 November 2010 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.  On 22 November 2010 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 is adequate or not’

	Proceedings before the Social Security Commissioner

6.	On 20 December 2010 the appeal was received in Office of the Social Security Commissioners and Child Support Commissioners.  On 9 March 2011 observations were sought from Decision Making Services (DMS) and these were received on 5 April 2011.  In these observations, Mr Young, for DMS opposed the appeal on the grounds cited by the appellant.

7.	In the meantime, and with the provision of the appropriate authority, the appellant changed her representative from the Citizens Advice organisation to McGuigan Solicitors.  The written observations were shared with the appellant and her new representative on 28 April 2011.  On 7 June 2011 I directed an oral hearing of the appeal.  The oral hearing was first listed for 10 August 2011 but that hearing had to be cancelled for unavoidable reasons.  A further oral hearing was arranged for 27 September 2011 but, on 1 September 2011 further correspondence was received from the appellant’s representative to indicate that the appellant did not wish to proceed with an oral hearing of her case.  Clarification was then sought with the appellant’s representative as to whether the appellant wished to continue with her appeal to the Social Security Commissioner.  On 6 September 2011 the appellant’s representative confirmed that the appellant wished the appeal to proceed on the basis of the papers which were then before me.

	Errors of law

8.	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.

9.	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.”

	Was the decision of the appeal tribunal in the instant case in error of law?

	The submissions of the parties

10.	The appellant’s representative has submitted that the decision of the appeal tribunal was in error of law on the basis of the following cited grounds:

‘I believe there was a failure to state reasons for the decision.  The LQM in the statement of reasons dismisses the findings of Dr R’s ESA113, stating the “General Practitioner’s replies are not supported by the records provided.”  This is not so as the records does mention ‘gout, hypothyroidism, MST - to control severe pain, Gabapentin – to try and control the fibromyalgia pain, Crestor tabs 5mg causing tiredness all the time.’

	We submit that all the above comments are relevant to what Dr R mentioned in the ESA113, and that the LQM failed to explain why these comments were dismissed.

	C 003/06-07(IB) states – “tribunal can accept and/or reject parts of a medical report provided their reasons for doing so are clearly explained”.

	This did not happen.’

11.	As was noted above, in the written observations on the appeal, Mr Young, for DMS opposed the appeal on all of the submitted grounds.

	Analysis

12.	The reference to ‘Dr R’s ESA113’ is to a document which was attached to the original appeal submission as Tab No 2.  Dr R is the appellant’s general practitioner (GP) and was forwarded a copy of a template Form ESA113 to complete as part of the decision-making process by the Department.  The record of proceedings for the oral hearing of appeal record the appellant’s representative, Mr Cunningham, as stating that he relied ‘… on Dr R’s ESA 1113’. Later in the record of proceedings, it is recorded that Mr Cunningham made the following submission:

‘General Practitioner says unfit for work and has better insight than health care professional into her condition.’

13.	As the completed form was part of the evidence which was before the appeal tribunal, and as there were specific submissions made in connection with what was set out by the GP, the appeal tribunal was under a duty to assess that evidence and set out its conclusions with respect to that assessment.  In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal sets out the following:

‘Dr R last saw Appellant on 3.7.2009 and simply states “very significant PMH all enclosed.  All enclosed.”  With the ESA113 is a computer printout of 8 pages of General Practitioner notes (records which do not anywhere refer to the disputed activities in the Work Capability Assessment, plus the General Practitioner’s opinion of Appellant’s ability to walk, rise from sitting, pick up and move objects, use her hands, continence and initiating or completion, simple task).  The General Practitioner is supposed to answer this from his knowledge of the patient but the General Practitioner’s replies are not supported by the records (from 1997) he has provided.  The General Practitioner’s answers are also not backed up by any finding on clinical examination and we prefer the detailed report of the health care professional.  The General Practitioner also says she “may need company” to travel to the medical examination centre by public transport or taxi but does not give any reasons for this.  Instead, in the “7 Additional Information” box, he simply states.  “the lady is not in my opinion capable of working …’ This of course is not the issue.  The issue is how many points she can score in the Work Capability Assessment if she scores 15 points or more she is unfit for work.  If she scores fewer points than 15, she is not unfit for work.’

14.	It is clear, therefore, that the appeal tribunal was aware of the requirement to address the evidence contained in the report from the appellant’s GP.  I begin with the appeal tribunal’s comments in latter part of the passage set out above which are, in part, related to the submission which was made by Mr Cunningham concerning the GP’s opinion that the appellant was unfit for work.

15.	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.’

16.	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.’

17.	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.’

18.	In GS v Secretary of State for Work and Pensions ([2010] UKUT 244 (AAC), CE/0313/2010), Upper Tribunal Judge Jacobs was considering the proper approach to the interpretation of the descriptors in Schedule 2 to the Employment and Support Allowance Regulations 2008, the Great Britain equivalent of the Employment and Support Allowance Regulations (Northern Ireland) 2008.  He began with the following general observations, at paragraph 4:

‘Employment and support allowance is a relatively new social security benefit that was created by the Welfare Reform Act 2007.  It is designed to replace incapacity benefit and income support on the basis of incapacity.  That is why it follows the model of jobseeker's allowance by providing two bases for entitlement: the claimant’s contribution record and the claimant’s financial position.  The provisions that I have to interpret apply to both.  Like incapacity benefit, the allowance deals with capacity for work.  Unlike that benefit, it distinguishes between limited capability for work (section 8) and limited capability for work-related activity (section 9).  This case concerns the former and particularly Schedule 2 to the Employment and Support Allowance Regulations 2008.  My reasoning applies equally to the latter and Schedule 3 to those Regulations.’

19.	Thereafter, at paragraph 11, he set out the following:

‘11.  In R(IB) 2/03, I considered a similar issue in relation to incapacity benefit.  I undertook a functional and a linguistic analysis of the legislation, in each case considering the issue both in principle and on the authorities.  The core of my reasoning was in paragraph 7:

‘The personal capability assessment is divided into two sections.  One deals with physical disabilities, the other with mental disabilities.  The activity of rising from sitting falls within the former.  That section consists of a variety of activities that deal with different functions of the body.  It is obviously designed to test in a systematic, analytical way the claimant’s various physical disabilities.  The scores attached to each disability, when added together, indicate the extent of the claimant’s physical capacity for work.  It is, therefore, to be expected that each of the activities will concentrate on different parts of the anatomy so as to isolate, as far as possible, the claimant’s ability in respect of each.’

20.	Accordingly the test to be applied by the appeal tribunal was not a test of whether she should return to work but a test as to whether, for the purposes of the relevant legislative background, as set out above, the applicant has limited capability for work.  In the statement of reasons for its decision, the appeal tribunal states that ‘…The issue is how many points she can score in the Work Capability Assessment if she scores 15 points or more she is unfit for work.  If she scores fewer points than 15, she is not unfit for work.…’  That is not a wholly accurate statement.  A more accurate statement is that if the appellant scores less than 15 points when the descriptors set out in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 were applied to her, she does not have limited capability for work in connection with the work capability assessment for the purposes of entitlement to ESA.  Nonetheless, I am of the view that the appeal tribunal was making the point that the test to be applied by it was not a test of whether she could return to work.  Equally, when the GP made the statement, in Form ESA113, that the appellant was not capable of working, he was, on the balance of probability, referring to the appellant’s ability to return to the working environment rather than giving an opinion as to whether the appellant satisfied the relevant work capability tests set out in the legislation noted above.  Accordingly, I am satisfied that the appeal tribunal’s application of the applicable legal rules and principles was accurate.

21.	I turn now to the appeal tribunal’s overall assessment of the evidence contained within the Form ESA113.  The appellant, through her representatives challenges the adequacy of the reasons provided by the appeal tribunal for rejecting the content of the relevant form and the opinions expressed by the GP therein.  It is important to note that the GP began the completion of the form by making a general statement as follows:

‘Very significant PMH all enclosed’

22.	I am certain that ‘PMH’ refers to ‘Previous Medical History’.  The GP has then attached an eight page extract from the appellant’s GP records setting out relevant medical history.  Thereafter the GP is asked to indicate whether the appellant has problems with certain activities of daily living and to give a brief explanation as to why the appellant would have such difficulties.  In the instant case, the GP has indicated problems with walking, rising from sitting, picking up objects, manual dexterity, continence, and initiating and completing simple tasks.

23.	The appeal tribunal has concluded that the responses which the GP has made are not supported by the contents of the computerised GP records which have been provided and are not supported by clinical findings on examination.  Further, the appeal tribunal states that it prefers the detailed report of the examination conducted by the healthcare professional as part of the decision-making process.  Earlier, the appeal tribunal indicated that it accepted the clinical findings on examination made by the healthcare professional.

24.	The appellant challenges the appeal tribunal’s conclusions that the responses of the GP in connection with certain activities are not supported by the contents of the computerised records which had been provided.  In particular, the appellant submits that there was evidence that she suffered from gout, hypothyroidism, and that she had been provided with medication to try to control the pain arising from fibromyalgia.

25.	The report of the examination conducted by the healthcare professional was attached to the original appeal submission as Tab No 3.  In the report all of the appellant’s relevant medical conditions are recorded by the healthcare professional together with her medication details of which are set out in a comprehensive list.  It was in the context of that information provided by the appellant that the healthcare professional undertook the medical examination, which, in turn, included the clinical findings which the appeal tribunal accepted.  The examination conducted by the healthcare professional also included an assessment of the appellant’s problems with the activities of daily living which the GP had noted in Form ESA113.  It cannot be said, therefore, that the appeal tribunal did not have knowledge or details of the totality of the appellant’s medical conditions or the treatments, including medication, in respect of those.

26.	I note, in addition, that the appellant does not challenge the appeal tribunal’s conclusions that the responses of the GP are not supported by relevant clinical findings on examination.

27.	Further, it is important to note that the contents of Form ESA113 were only part of the evidence which the appeal tribunal considered.  The evidence which was before the appeal tribunal included the oral evidence of the appellant.  Having assessed that evidence, in the context of the other evidence which was before it, the appeal tribunal concluded that her evidence was exaggerated.  In this context, Mr Young, in his written observations on the appeal makes reference to my own decision in C11/08-09 (IB), where I stated, at paragraphs 31 to 35:

‘31.	I should say, at the outset of the analysis of the adequacy of the appeal tribunal’s reasons, that the assessment of evidence is a matter for the appeal tribunal, and a Social Security Commissioner must be wary of interfering with the conclusions of an appeal tribunal based on its evidential assessment.

32.	In this regard, I would add that the assessment of the credibility of an appellant’s own evidence, given to an appeal tribunal, is for the appeal tribunal to make.

33.	In C14/02-03(DLA), Commissioner Brown, at paragraph 11, stated:

‘ … there is no universal rule that a Tribunal must always explain its assessment of credibility.  It will usually be enough for a Tribunal to say that it does not believe a witness.’

34.	Additionally, in R3/01(IB)(T), a Tribunal of Commissioners, at paragraph 22 repeated what the duty is:

‘We do not consider that there is any universal obligation on a Tribunal to explain its assessment of credibility.  We disagree with CSIB/459/97 in that respect.  There may of course be occasions when this is necessary but it is not an absolute rule that this must always be done.  If a Tribunal makes clear that it does not believe a claimant’s evidence or that it considers him to be exaggerating this will usually be sufficient.  The Tribunal is not required to give reasons for its reasons.  There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision.  It will, however, normally be a sufficient explanation for rejecting an item of evidence, including evidence of a party to an appeal, to say that the witness is not believed or is exaggerating.’

35.	This reasoning was confirmed in CIS/4022/2007.  After analysing a series of authorities on the issue of the assessment of credibility, including R3/01(IB)(T), the Deputy Commissioner (as he then was) summarised, at paragraph 52, as follows:

‘In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted.  As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately "the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it".’

28.	Mr Young also notes that these principles were endorsed by me in CMcB-v-Department for Social Development [2010] NICom 92 (IB), C1/10-11(IB), and by upper Tribunal Judge Wikeley in IP v Secretary of State for War and Pensions [2010] UKUT 97 (AAC).

29.	The appellant makes reference to the decision of the Deputy Social Security Commissioner in C3/06-07(IB) and submits that the comments of the Deputy Social Security Commissioner support her submission concerning the duties of an appeal tribunal when considering the contents of medical reports.  In respect of the citing of this case, Mr Young has submitted that:

‘The Commissioner indicated that the tribunal in that case gave no indication in its reasoning of why it preferred the EMP’S findings to the evidence given by the appellant.  No reference was made by the tribunal, for example, to the data from which the EMP drew his conclusions with respect to the mental health descriptors nor to the impression gained by the tribunal after questions it put to the claimant utilising the expertise of the medical member.  The Commissioner also highlighted other ambiguities in the tribunal’s reasons.

I submit that the tribunal in this case did give reasons why it did not accept the remarks of the GP in the ESA113 report and that it accepted the clinical findings of the health care professional.  It applied the correct test and explained why it awarded no points.

I do not think it could be said in this case that the tribunal accepted most of the GP report and allowed modification of it in some respects.  The tribunal made it clear that the GP’s answers were not backed up by clinical findings and that it accepted the clinical findings of the health care professional.  Conversely the tribunal did accept most of the health care professional’s report and gave reasons which why it did not agree with the award of 9 points based upon the health care professional’s findings on the activity of walking.’

30.	I accept Mr Young’s submissions in respect of the applicability of the decision of the Deputy Social Security Commissioner in C3/06-07(IB).

Disposal

31.	The decision of the appeal tribunal dated 24 June 2010 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant was not entitled to ESA, from and including 18 December 2009, is confirmed.

(signed):  K Mullan

Chief Commissioner

18 April 2012