MG-v-Department for Social Development (ESA) [2012] NICom 331

 				                             Decision No: C8/12-13(ESA)	

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

	Application by the claimant for leave to appeal
	and appeal to a Social Security Commissioner
	on a question of law from a Tribunal’s decision
	dated 11 November 2011

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 11 November 2011 is in error of law. The error of law identified will be explained in more detail below. 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.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access. An appeal tribunal which has a medically qualified panel member (MQPM) is best placed to assess medical evidence and address medical issues arising in an appeal. Further, there may be further findings of fact which require to be made and I do not consider it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination. 

3.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

4.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to employment and support allowance (ESA) remains to be determined by another appeal tribunal. In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.  

Background

5.	The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 4 April 2011, which decided that: 

(i)	grounds existed to supersede an earlier decision of the Department, dated 28 October 2010, and which had awarded an entitlement to ESA, from and including 5 October 2010; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 4 April 2011. 

6.	The appeal was received in the Department on 12 April 2011. On 10 June 2011 the decision dated 4 April 2011 was looked at again but was not changed.

7.	An appeal tribunal hearing took place on 2 August 2011. That appeal tribunal, by way of a ‘paper hearing’ disallowed the appeal. Subsequently, an application was made to have the decision of the appeal tribunal held on 2 August 2011 set aside. The basis of the application was that the appellant had, in fact, requested an oral hearing of her appeal. In support of the application to have the decision of the appeal tribunal set aside, the appellant adduced evidence from her representative, the Citizens Advice organisation. That evidence included an entry from the case records from the Citizens Advice organisation’s; ‘Case Recording System’ to which I will return below. On 10 October 2011 the legally qualified panel member (LQPM) set aside the decision of the appeal tribunal held on 2 August 2011 accepting that the appellant had, in fact, requested an oral hearing of her appeal. 

8.	The substantive appeal tribunal hearing took place on 11 November 2011. The appellant was present, and was represented by the Citizens Advice organisation. The appeal was disallowed and the appeal tribunal confirmed the decision dated 4 April 2011.

9.	On 29 December 2011 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service (TAS). On 13 January 2012, the application for leave to appeal was refused by the LQPM. 

Proceedings before the Social Security Commissioner

10.	On 8 February 2012 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 30 April 2012 observations were sought from Decision Making Services (DMS) and these were received on 17 May 2012. In these observations, Mr McKendry, for DMS, supported the application on the grounds cited by the appellant. The written observations were shared with the appellant and her representative on 28 May 2012.

Errors of law

11.	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.

12.	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?

13.	In the set of papers which is before me is a copy of a medical report from a consultant rheumatologist dated 7 June 2011. There is a date-stamp on this medical report indicating that it was received in TAS on 30 June 2011. It is now clear that this medical report was adduced by the appellant in support of her appeal. As was noted above, in connection with the application to have the decision of the first appeal tribunal set aside, the appellant submitted evidence from the ‘Case Recording System’ of the Citizens Advice organisation. This record indicates that the appellant had sought advice from the Citizens Advice organisation in connection with her appeal and records, inter alia, the following:

‘Client required help completing Appeal form. Brought letter from Dr Whitehead dated 7.6.11 in support of her appeal.’

14.	The letter dated 7 June 2011, which is date-stamped as having been received in TAS on 30 June 2011, is signed by Dr Whitehead.

15.	The record of proceedings for the appeal tribunal hearing which took place on 11 November 2011 records that the appeal tribunal had before it the ‘Submission Papers’. Thereafter there is no reference in the remainder of the record of proceedings or in the statement of reasons for the appeal tribunal’s decision to the medical report from Dr Whitehead, consultant rheumatologist, dated 7 June 2011.

16.	In the application for leave to appeal to the Social Security Commissioner, it has been submitted that the appellant’s representative, Ms Deans had submitted the letter dated 7 June 2011 from Dr Whitehead to the appeal tribunal. It is not clear to me whether there was a reference by Ms Deans to the previous submission of this evidence in connection with the first hearing of the appeal, subsequently set aside, or whether there was a renewed physical submission to the appeal tribunal on 11 November 2011. Although I cannot be certain, I suspect that the copy of the medical report which was submitted in connection with the first appeal tribunal hearing, received in TAS on 30 June 2011, was retained on the TAS file. Thereafter, the appeal tribunal on 11 November 2011 may have been ignorant to its actual existence.

17.	In any event, it is clear that the appellant had undertaken to adduce medical evidence which she wished to submit in support of the issues arising in her appeal. Her representative submits that she went to her general practitioner with the specific purpose of obtaining supportive medical evidence. If the medical evidence was not before the appeal tribunal on 11 November 2011 because it had been retained on file and the appeal tribunal was in ignorance of it then I am satisfied that there has been a procedural irregularity capable of making a material difference to the outcome or the fairness of proceedings which amounts to an error of law. 

18.	If, as has been submitted by the appellant’s representative, there had been, on 11 November 2011, a further renewed physical submission of the relevant medical report, or if there had been a reference to that medical report in oral submissions to the appeal tribunal, then I conclude that the decision of the appeal tribunal is in error of law. As was noted above, there is no reference to the medical report in the record of proceedings for the appeal tribunal hearing or the statement of reasons for the appeal tribunal’s decision. Where an appellant or an appellant’s representative adduces evidence which is submitted to be specific to the issues arising in the appeal, then the appeal tribunal is under a duty to consider that evidence, assess that evidence in aggregation with all of the other evidence which is before it and set out what its assessment of that evidence is. In the instant case, the appellant’s representative submits that there was evidence within the report from Dr Whitehead which was relevant to the issue of whether the appellant could carry out or perform certain of the activities associated with the work capability assessment.

19.	I have considered the possibility that the appeal tribunal did undertake an assessment of the medical report from Dr Whitehead and rejected that evidence as part of the overall assessment of all of the evidence which was before it. In CT v Secretary of State for Defence ([2009] UKUT 167, CAF/0589/2009), Upper Tribunal Judge Jacobs said the following, at paragraph 31 of his decision:

‘If the tribunal has rejected evidence, it must be clear why. It may be self-evident that particular evidence was irrelevant or unreliable, but it is always good practice to deal with it expressly. Failure to do so all too often leaves the claimant dissatisfied and generates unnecessary applications for permission.’

20.	Those comments reflect my own remarks at paragraph 60 of C8/08-09(IB):

‘The reason for my rejection of the DMS submission is that there is a clear duty on the appeals tribunals to undertake a rigorous assessment of all the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal’

21.	Similarly in R2/04(DLA) a Tribunal of Commissioners had stated, at paragraph 22(5):

‘ … there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect.  It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason.  Indeed, it will sometimes be its duty to do so.  However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant.  It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short.  We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal.  That body must have regard to the whole of the evidence, including the medical evidence.  Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so.  Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.’

22.	Accordingly, if the appeal tribunal had rejected Dr Whitehead’s evidence, then given the appellant’s submission that it was relevant to the issues arising in the appeal, it was incumbent on the appeal tribunal to give an adequate explanation for that rejection. 

Disposal

23.	The decision of the appeal tribunal dated 11 November 2011 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. 

24.	I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. An appeal tribunal which has a MQPM is best placed to assess medical evidence and address medical issues arising in an appeal. Additionally, there may be further findings of fact which require to be made. Further I do not consider it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination. 

25.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

26.	The decision under appeal is a decision of the Department, dated 4 April 2011, which decided that: 

(i)	grounds existed to supersede an earlier decision of the Department, dated 28 October 2010, and which had awarded an entitlement to ESA, from and including 5 October 2010; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 4 April 2011. 

27.	Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 4 April 2011 had grounds to supersede the decision of the appeal tribunal dated 28 October 2010. The ground for supersession on which the decision-maker relied is to be found in regulation 6(2)(q) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, namely that since the decision the Department has received medical evidence from a healthcare professional approved by the Department, or made a determination that the claimant is to be treated as having limited capability for work in accordance with regulation 20, 25, 26 or 33(2) of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.

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

‘1(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.’

29.	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.’

30.	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.’

31.	If the appeal tribunal determines that the appellant does not have limited capability for work in accordance with the work capability assessment then it must then decide whether any of the exceptional circumstances set out in regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, apply to the appellant.

32.	It will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal. The appellant’s representative may wish to make a submission to the appeal tribunal, and adduce further evidence in connection with that submission, as to the potential application of regulation 29(2)(b) of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended. The Department may also wish to make comment on the potential applicability of this provision.

33.	It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it. 

	(Signed):  K Mullan

	CHIEF COMMISSIONER

	4 October 2012