DM-v-Department for Social Development (ESA) [2013] NICom 17

Decision No:  C3/12-13(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 13 October 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal from the decision of a tribunal sitting at Belfast on 13 October 2011.  Leave to appeal was granted by the legally qualified member (LQM) of the tribunal.

2.	An oral hearing of the appeal has not been requested and I consider that the appeal may properly be determined without a hearing.

3.	For the reasons I give below, I disallow the appeal.

REASONS

	Background

4.	The appellant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from and including 4 February 2011 by reason of fatigue, hypertension and panic attacks.  The Department issued a questionnaire for him to complete on form ESA 50, which he returned on 30 March 2011.  He was subsequently asked to attend a medical examination on 24 May 2011.  On the basis of all the evidence the Department decided that the appellant scored no points on the work capability assessment.  The Department superseded the decision awarding ESA disallowing entitlement from and including 8 July 2011.  The appellant appealed.

5.	The tribunal hearing the appeal decided that the appellant did not score any points on the work capability assessment and disallowed the appeal.  The appellant requested a statement of reasons for the tribunal’s decision.  He then applied for leave to appeal to the Social Security Commissioner on the grounds that:

	(i)	the tribunal did not adequately explain its choice of descriptors;

	(ii)	the tribunal should have taken into account the degree of pain required to perform any of the relevant activities;

	(iii)	the tribunal made inaccurate findings of fact;

	(iv)	the tribunal has misinterpreted the statutory criteria applying to loss of consciousness.

6.	In granting leave the LQM has stated as a point of law:

“Whether the tribunal has erred in law by failing to provide a sufficient statement of reasons for its conclusion or has otherwise erred in law (as the appellant claims) misinterpreting certain aspects of statutory criteria”.

7.	The LQM granted leave to appeal on 29 March 2012.  On 3 May 2012 a copy of his determination was issued to the appellant.

	The tribunal decision

8.	In its decision the tribunal listed the appellant’s disabilities as hypertension, fatigue, left shoulder pain, occasional right-side flare-ups of sciatica, a bowel prolapse, a hernia, reduced hearing and anxiety/stress.  The tribunal then sought evidence from the appellant on his ability to perform the physical activities of walking, standing/sitting, bending/ kneeling, reaching, lifting/moving, manual dexterity, hearing, continence and consciousness.  The tribunal further sought evidence on learning/comprehension, execution of tasks, coping with change, coping with social situations, awareness of hazards, memory/concentration, sustaining personal action and getting about.  The tribunal also considered the exceptional circumstances provisions.  On the basis of the evidence the tribunal found that the appellant did not meet any of the statutory criteria for awarding points under the limited capability for work assessment and nor did he meet the exceptional circumstances conditions.

	Submissions

9.	The appeal was received by the Office of the Social Security Commissioners on 22 May 2012.  The appellant states as his grounds of appeal that:

	(i)	the award of nil points for a number of descriptors was inconsistent with the fact that the appellant has a number of serious health problems which affect his day-to-day activities;

	(ii)	the award of nil points was based on the tribunal’s misinterpretation of the statutory tests, including the issue of whether the activity could only be performed with pain;

	(iii)	certain aspects of the record of proceedings were inaccurate;

	(iii)	x-rays confirm that he has degenerative change in the cervical spine;

	(iv)	the tribunal should have awarded points under “Lost or altered consciousness” as he fell asleep during the day.

10.	The Department was directed to make observations on the grounds of appeal.  Mrs O’Connor responded for the Department.  She opposes the appeal.

11.	She submits that the question for the tribunal to decide was whether the appellant had limited capability for work in accordance with section 8(2) of the Welfare Reform Act (Northern Ireland) 2007 and regulation 19 of the Employment and Support Regulations (Northern Ireland) 2008.  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 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 (the ESA Regulations).  To have limited capability for work the appellant had to score 15 points whether for physical disabilities, mental, cognitive and intellectual function assessment or a combination of both.  The tribunal awarded the appellant a score of 0 points and decided that he was not entitled to ESA from and including 8 July 2011.

12.	Responding to the appellant’s first point Mrs O’Connor points to paragraph 11 of unreported decision C19/99(DLA) and she submits that the same principle can be applied to ESA ie it is not the diagnosis of a particular condition which is relevant, but the appellant’s ability to perform the prescribed activity.  She submits that the tribunal arrived at its decision after considering evidence, made relevant findings of fact, gave reasons which explain its decision and submits that there is no merit in the appellant’s first contention.

13.	Mrs O’Connor says that the appellant contended that the appeal tribunal erred by not considering his pain.  She submits that the impact of pain on a claimant’s ability to perform an activity was considered by Commissioner Howell in decisions CIB/13161/96 and CIB/13508/96.  At paragraph 41 he stated – 

“……the possibility of pain and fatigue and the increasing difficulty of performing a given activity on a repeated basis must in my judgement be taken into account by considering how far the claimant’s normal capabilities are impaired by comparison with those of a healthy person in normal working order.  Even a fit man will suffer fatigue and his knees will start to ache if you make him walk up and down stairs many times in succession.  The choice of descriptor should take into account whatever effects pain and fatigue may have on the claimant’s ability to perform the task, so far as they are beyond the normal by reason of his specific disability”.

14.	She submits that the same principle applies when considering entitlement to ESA.  However, she further submits that the reasons for decision state that the tribunal considered these issues when considering the appellant’s ability to perform the relevant activities and accordingly submits that there is no merit in this point.

15.	Mrs O’Connor submits that while it is contended that there are inaccuracies/ misleading comments in the statement of reasons under certain activities, such as walking, standing/sitting, bending/kneeling and reaching the tribunal arrived at its decision after careful evaluation of all the evidence in this case, made findings of fact based on that evidence, dealt with all activities under dispute and gave reasons which clearly explained its decision.  She submits that the appellant’s points do not identify an error in the tribunal decision.

16.	Mrs O’Connor submits that while the appellant contends that his tendency to fall asleep during the day constitutes “lost or altered consciousness” for the purposes of activity 11.  In GB Upper Tribunal decision CE/1548/2011, Judge Jacobs considered the issue of whether a claimant who suffered from sleep apnoea came within the scope of activity 11.  He stated – 

“The issue is whether Mr B experiences involuntary episodes of lost or altered consciousness during waking moments by reason of his sleep apnoea.  The sleep apnoea only takes effect during sleep.  By definition, it does not have any effect when he is awake.  So, Mr B’s sleep apnoea does not directly affect his capability for work.  What it does is to interrupt his sleep, leaving him unrefreshed and liable to fall asleep the next day.  What affects him is the natural tiredness that he experiences during the day.  I do not consider that natural tiredness, even as a result of a medical condition is appropriately described as involuntary in this context.  It is something that we all experience and can control.  We have to force ourselves to stay awake and alert when driving, even when we feel drowsy.  We have to force ourselves to stay awake and concentrate during a long meeting in a stuffy room.  Once a person is aware of the risk, they are capable of remaining alert.  Also I do not consider that natural tiredness disrupts awareness or concentration in this context.  A person who is asleep is not aware and cannot concentrate.  But the activity assumes that the episode disrupts awareness or concentration.  That is not a natural way to describe the effect of sleep.  Finally, I do not consider that natural tiredness fits well under the heading of ‘remaining conscious during waking moments’.  That seems to me to assume that someone is affected while otherwise awake.  Activity 11 would not only apply if it covers falling asleep while awake.  That seems a contradiction under this activity”.

17.	In view of the above she submits that there is no merit in the appellant’s point that his tendency to fall asleep comes within the definition of lost or altered consciousness for the purposes of activity 11 remaining conscious during waking moments.

18.	The appellant was given an opportunity to comment on the Department’s observations.  He responded, reiterating his main grounds.  He further refers to descriptors set out in “ESA Factsheet 3” which, he says, states that six points are to be awarded to claimants who cannot “remain at a work station, standing or sitting, for more than an hour before having to move away due to discomfort/exhaustion.”  He submits that this descriptor applies to him exactly.

	Assessment

19.	The LQM has granted leave on the question of whether the tribunal has erred in law by failing to provide a sufficient statement of reasons for its conclusion or has otherwise erred in law (as the appellant claims) misinterpreting certain aspects of statutory criteria.

20.	I consider that the grounds advanced by the appellant are misconceived.  He submits that the award of zero points for activities, while he has significant health problems, is paradoxical.  However, the tribunal is merely applying the statutory test provided by the government.  The test assesses particular types of activity and awards points where there are functional limitations with those activities.  Where there are no functional limitations it is appropriate to select “None of the above apply” as the appropriate descriptor.  This is not incompatible with the appellant having any number of health problems which do not have a direct bearing on the applicability of the descriptor.  The tribunal has applied the test correctly.

21.	The appellant submits that the tribunal did not take his pain into account and disputes matters of evidence generally.  I accept that the issue of pain is a relevant factor.  However, it is a matter for evidence and it is clear that the tribunal heard the appellant give evidence of matters such as swollen feet on walking and sciatic pain on reaching.  The tribunal took that evidence into account when reaching a decision on the descriptors involved.  The tribunal is entitled to make its own findings of fact and I cannot interfere with the tribunal’s findings unless they are perverse, in the sense that no reasonable tribunal could have made the decision reached.  On the evidence before it, I cannot say that the tribunal has made a perverse finding.

22.	The appellant further argues that the “Standing/sitting” descriptor relating to a work station should have been applied to him.  I do not have sight of the document the appellant refers to as authority for this proposition – namely “ESA Factsheet 3”.  However, it appears to me that the form of the descriptor described in that document is the form which followed the statutory amendment to Schedule 2 of the ESA Regulations with effect from 28 March 2011.  By regulation 2 of the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-related Activity) (Amendment) Regulations (Northern Ireland) 2011, the amended provisions only apply to claimants who claim on or after 28 March 2011.  As the appellant made his claim for ESA on 4 February 2011, this provision was not in force in relation to his claim.

23.	The appellant submits that the tribunal’s reasons in relation to the “Reaching” descriptor are inadequate.  He submits that the tribunal has not explained how an x-ray report referring to degenerative change was insufficient to merit the award of points.  However, the fact of the matter is that an x-ray of any 60 year old man is highly likely to demonstrate degenerative change, due to the effects of aging and wear and tear.  Whereas “degenerative change” sounds fairly dramatic, the tribunal with its experience and expert medical member would have been well aware that there was nothing remarkable in the appellant’s x-ray report.  The issue here was that the appellant confirmed that he could perform the activity of reaching, but suggested that it could contribute to a flare-up of sciatica a day or two later.  He considers that the x-ray corroborated this.  However, there was nothing to suggest any link between the x-ray and the appellant’s ability to reach.  In any event, the main reason for the tribunal’s finding on “Reaching” is clearly the appellant’s own statement that he could perform the activity.

24.	On the issue of sleep and consciousness, the relevant activity is headed “Remaining conscious during waking moments”.  It is long established that the heading to each activity is integral to understanding the scope of the descriptors within it, as stated by Commissioner Brown in C2/98(IB) and Chief Commissioner Martin in C31/98(IB).  Whereas those cases applied to IB, they are equally applicable to ESA.  The correct approach to the activity excludes considerations of periods of normal sleep.  Falling asleep during the day does not equate to loss of consciousness.

25.	For these reasons, I consider that the appellant has not made out his case that the tribunal has erred in law and I disallow the appeal.

(signed):  O Stockman

Commissioner

28 February 2013