GE-v-Department for Social Development (ESA) [2013] NICom 41

 					Decision No: C3/13-14(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 15 December 2009

	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 15 December 2009 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 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. 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.

3.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to employment and support allowance (ESA), for a particular period, 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

4.	The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 10 June 2009, which decided that: 

(i)	grounds existed to supersede an earlier decision of the Department 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 4 June 2009. 

5.	The appeal was received in the Department on 15 June 2009. On 20 September 2009 the decision dated 10 June 2009 was looked at again but was not changed. On 10 December 2009 the decision dated 10 June 2009 was revised. As the decision as revised was not more advantageous to the appellant the appeal continued.

6.	Following an earlier postponement, the substantive appeal tribunal hearing took place on 15 December 2009. The appellant was present and was represented. The Department was represented by a Departmental presenting officer. The appeal was disallowed and the appeal tribunal confirmed the decision dated 10 June 2009 as revised on 10 December 2009.

7.	On 21 May 2010 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service. On 14 July 2010, the application for leave to appeal was refused by the legally qualified panel member. 

Proceedings before the Social Security Commissioner

8.	On 9 September 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners. The appellant was now represented by Mr Breslin of the Law Centre (Northern Ireland). On 9 November 2010 observations on the application for leave to appeal were sought from Decision Making Services (DMS). On 11 November 2010 further correspondence in connection with the application for leave to appeal was received and was shared with DMS on the same date. 

9.	Written observations were received on 3 December 2010. In these initial observations, Mr Toner, for DMS, opposed the application on the grounds cited by Mr Breslin. The written observations were shared with the appellant and Mr Breslin on 6 January 2011. On 4 February 2011 written observations in reply were received from Mr Breslin. 

10.	On 1 September 2011, Mr Breslin and Mr Toner were asked to provide an additional submission on the following questions:
‘1.	 that you consider the case CE/1222/2010 and advise whether in your view it has any bearing on how the tribunal considered descriptor 17 “coping with change”;

2.	 that you consider the case CE/917/2010 and advise whether it has any bearing on whether the tribunal misdirected itself in respect of activity 3 “bending or kneeling”.’

11.	Further submissions in response to this request were received from Mr Toner on 9 September 2011 and from Mr Breslin on 22 September 2011. 

12.	Following an earlier unavoidable delay, on 10 February 2012 I directed an oral hearing of the application. The oral hearing took place on 23 March 2012. The appellant was represented by Mr Breslin and the Department by Mr Toner.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions. There then followed a delay in the promulgation of this decision occasioned by the fact that one of the issues which arise in this appeal was under consideration by me in another appeal. It is the policy of the Social Security Commissioners to hold or ‘stay’ parallel cases in these circumstances. 

Errors of law

13.	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.

14.	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?

15.		On behalf of the appellant Mr Breslin has submitted that the decision of the appeal tribunal was in error of law on the basis of the following submitted grounds:

(i)	The appeal tribunal did not give adequate reasons for removing six points awarded to the appellant under Activity 17(c).

(ii)	The appeal tribunal did not give adequate reasons when considering the question of “reasonable regularity” in relation to the descriptors of walking, standing and sitting and bending or kneeling.

(iii)	The tribunal failed to use its inquisitorial functions by failing to address a statement in the report of the examination conducted by the healthcare professional, when he/she stated: 

“I accept that doing certain activities repeatedly may be challenging due to clients reported severe lethargy”

(iv)	The appeal tribunal’s reasons in relation to the appellant’s variable condition are insufficient to explain that a ‘broad approach’ was taken.

(v)	The appeal tribunal misdirected itself in relation to the ‘… statutory test outlined in Activity 3, Bending and Kneeling’.

(vi)	The appeal tribunal did not afford the appellant a fair hearing by not allowing his representative an opportunity to represent him at the tribunal hearing.  

16.	Mr Breslin developed arguments in relation to each of these grounds in his case summary and oral arguments at the oral hearing of the application. 

17.	As was noted above, in detailed written observations on the application for leave, Mr Toner opposed the application on all of the grounds cited by Mr Beslin. Mr Toner expanded on his initial written submissions at the oral hearing of the application. 

18.	I begin by considering the first ground cited by Mr Breslin namely that the appeal tribunal ‘… did not give adequate reasons for removing the six points awarded to the appellant under Activity 17(c)’. At page 23 of the report of the medical examination conducted by the healthcare professional, conducted on 16 April 2009, the healthcare professional recorded that:

‘I feel this man will have mild/mod problems coping with change, due to clients [sic] varying levels of fatigue – would need to rest prior to attending an appointment.’      

19.	On page 22, the healthcare professional ticked the box opposite the following descriptor:
‘Cannot cope with minor, unforeseen changes in routine (such as an unexpected change of the timing of an appointment on the day it is due to occur), to the extent that overall, day to day life is made significantly more difficult.’ 

20.	On 4 June 2009 the decision-maker accepted the opinion of the healthcare professional and determined that descriptor (c) of activity 17 applied to the appellant. In Part 2 of Schedule2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, descriptor (c) of activity 17 attracts a score of six points. As this was the only activity under which the decision-maker determined that the appellant scored points, that score was insufficient, though, for the decision-maker to make a determination that the appellant had limited capability for work - Regulation 19(3) of the Employment and Support Allowance Regulations (Northern Ireland), as amended.

21.	In the statement of reasons for its decision, the appeal tribunal recorded the following:

‘With regard to the mental health test again we would rely on the findings, observations and opinions of the Healthcare Professional in this case. The Appellant may suffer bouts of fatigue which impact on his daily living but we can find no evidence of any mental, cognitive or intellectual defects which would warrant any points in respect of the test. The Appellant carries out some domestic tasks such as helping with the dinner preparation, washing dishes, shopping and emptying the bin. He can look after his own personal care, drives a car, uses a computer, follow television programmes and attend appointments all independently. On examination the Healthcare Professional found reduced eye contact and facial expression together with a flat affect. However the Appellant was able to give a history of his condition and appeared relaxed at the examination. Any impairment the Appellant experiences is entirely due to reduced energy levels rather than any mental, cognitive or intellectual defect. We have examined all of the areas in all of the categories that make up the mental health test and are satisfied that the Department’s assessment is correct and we confirm same with the exception of the points awarded for “coping with change”. We are satisfied, on the evidence, that the Appellant is capable of coping with minor unforeseen changes in routine. There is certainly no evidence that overall day to day life is made significantly more difficult by any such changes. We have accordingly removed those points. The Appeal must accordingly be disallowed. In coming to this decision we have taken into account the variability of the Appellant's condition and the need to assess the descriptors on the basis of reasonable regularity.’

22.	In YK-v-Department for Social Development (ESA) ([2012] NICom 350 C16/11-12(ESA)), I said the following, at paragraphs 15 to 23 of my decision:

Analysis of the relationship between regulation 19 and Schedule 2 of the Employment and Support Allowance Regulations (Northern Ireland) 2008

15.	In a series of cases the Judges of the Upper Tribunal have analysed the relationship between regulation 19 and Schedule 2 of the Employment and Support Allowance Regulations 2008 in Great Britain. The wording of regulation 19 and Schedule 2 of the Employment and Support Allowance Regulations 2008 is identical to the equivalent regulation and Schedule to the Employment and Support Allowance Regulations (Northern Ireland) 2008, and as set out above. The decisions of the Upper Tribunal Judges were set out and analysed in some detail by Mr Young in his thorough and helpful submission. I set out the relevant passages from those decisions in order to draw these to the attention of appeal tribunals and decision-makers.  

16.	In KN -v- Secretary of State for Work and Pensions (ESA) ([2011] UKUT 229 (AAC), Upper Tribunal Judge Wikeley stated the following, at paragraphs 29 to 32 of his decision:

‘29.	It is worth highlighting in this context an important difference between the rules governing incapacity benefit and the ESA regime.  
30.	In incapacity benefit cases the physical health descriptors apply only to an incapacity arising “in respect of a disability... from a specific bodily disease or disablement”, whilst the mental health descriptors apply solely to “a disability... from some specific mental illness or disablement” (Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311), reg. 25(3)).  This provision undoubtedly poses some difficulty with complex conditions such as chronic pain syndrome (see e.g. CIB/5435/2002).
31.	The rules for ESA are different. Regulation 19(5) of the Employment and Support Allowance Regulations 2008 (SI 2008/794) provides as follows:
“(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.”

32.	There is, therefore, no artificial partitioning in the legislation requiring mental health descriptors to be scored only in relation to mental health conditions and physical descriptors only being applicable to physical conditions.  It may be, of course, that as a matter of evidential weight a tribunal is not satisfied that a physical condition gives rise to a score for a mental health descriptor, or vice versa, but the linkage is possible in appropriate cases.’
 
17.	In KP -v- Secretary of State for Work and Pensions (ESA) ([2011] UKUT 216 (AAC)), (to be reported as [2012] AACR 5), in a decision promulgated the day after that in KN above, Upper Tribunal Mesher stated the following, at paragraphs 19 to 20:

19.	I do not accept the submission for the Secretary of State, in the written submission of 12 January 2011 and repeated by Mr Cooper at the oral hearing, that there can only be qualification for a descriptor under Part 2 if the relevant problems stem from a mental health problem, whether existing completely independently or resulting itself from a physical disablement. I fear that that submission did not get much further than the assertion that that had to be so because the descriptors under Part 2 referred to limitations on activities that stemmed from mental health problems. The problem with that submission is that some of the descriptors in Part 2 refer to things that could also stem from physical problems. It was also thought necessary in some instances to make a specific reference to mental illness or disablement, sometimes of a specific kind (see, for example, paragraphs 15, 16 and 19), which points against the existence of the general condition put forward for the Secretary of State.

                             20.	It seems to me first that the contrast between the headings to Parts 1 and 2 of Schedule 2 is very significant. The heading “Physical disablement” points to the underlying cause of the effect on physical function tested in the descriptors in Part 1. The heading “Mental, cognitive and mental function assessment” points to the nature of the function that is affected, regardless of the underlying cause, suggesting that if one of those functions is affected in a way that meets the terms of a descriptor there is no need to embark on the horrendously difficult task of separating out mental and physical origins. Second, the terms of regulation 19 of the ESA are very significant. Regulation 19(5) merely provides that there is qualification for points under the whole of Schedule 2 only if the incapability to perform the activity in question arises from some specific bodily disease or disablement, some specific mental illness or disablement or from the treatment of such conditions by a medical practitioner. There was the plain opportunity to connect Part 1 to physical disease or disablement and Part 2 to mental illness of disablement, which was not taken. In my judgment, the Secretary of State’s submissions involve the adding of words to the ESA Regulations that are not there. That could be justified only in cases of manifest absurdity or mistake or where there was a clear intention in the context of the Regulations as a whole that there should be an interpretation to that effect. The circumstances fall a long way short of that. Accordingly, in my judgment, if the tribunal was considering paragraph 14 of Schedule 2, it failed to give an adequate reason for not looking further at its conditions.’

18.	In CE/175/2011, Upper Tribunal Judge Parker, accepted, at paragraph 19 of her decision, the reasoning of Judge Mesher in KP, as set out above. That reasoning was also accepted by Upper Tribunal Judge Jupp at paragraphs 11 and 12 of her decision in CE/433/2011.   

19.	The decisions in KN and KP were referred to by Upper Tribunal Judge Ward in his own decision in RM v Secretary of State for Work & Pensions ([2011 UKUT 454 (AAC)). He added the following, at paragraphs 10 to 13:

‘10.	Much of the relevant part of the regime for employment and support allowance has been adopted from the previous statutory regime of incapacity benefit.  Regulation 19 of the 2008 Regulations is to a large extent a direct lift from the equivalent provisions of the Social Security (Incapacity for Work)(General) Regulations 1995/311 (“the 1995 Regulations”).  It is not necessary to set the legislation out verbatim. However, as Judge Mesher noted, there was a clear opportunity in regulation 19(5) to limit part 2 to conditions arising from some specific mental illness or disablement, which was not taken.  Such a link existed in regulation 25(3) of the 1995 Regulations and, when so much was carried across from regulation 25 to regulation 19, I can only conclude that the omission of the link was deliberate.  This is particularly so as the link in the 1995 Regulations had been specifically created by an amending regulation (the Social Security (Incapacity for Work)(Miscellaneous Amendments) Regulations 1999/3109), thus the significance of the point under the 1995 Regulations was there to be seen  and, if thought fit, the point adopted, but it was not.

11. 	I accept that the wording of regulation 19(3) which sets out, in three sub-paragraphs, points thresholds before limited capability for work can be established does so in terms that suggest that there might be a difference between part 1 and part 2 (as there was for incapacity benefit) but in fact as the position is that the 15 point target can be met either from part 1, or from part 2, or from parts 1 and 2 together, it is presently a distinction without substance.  Insofar as it has a purpose, it is in my view to facilitate (in the sense that it would make for a simpler legislative amendment) the process, should it be desired at a future date, of setting different points targets in respect of descriptors under part 1 and part 2.  However, there is as they stand a distinction between the two parts as their cross headings  “Physical Disabilities” and “Mental, Cognitive and Intellectual Function Assessment” proclaim and that distinction might itself be a reason why it might be thought appropriate to set different points thresholds under the various sub-paragraphs of regulation 19(3).  It does not follow from that distinction (even with the help of the structure of points thresholds retained by regulation 19(3)) that part 2 is concerned with assessing such functions only insofar as problems with them arise from a specific mental illness or disablement.
12.	In my view the meaning of the legislation is plain, rather than ambiguous or obscure.  Nor does it lead to absurdity, in that in the case of conditions such as chronic fatigue syndrome and ME there may be sound practical reasons for considering the functional difficulties experienced by a claimant, rather than having to explore elusive questions as to whether the source of that limitation is mental or physical in origin.  Thus the test for permitting reference to Hansard as set out in Pepper v Hart [1992] UKHL 3; [1993] AC 593 in my view is not met.  The other material provided does not contain anything providing material assistance, nor do the extracts from Hansard provided to me in any event contain any clear statement directed to the very issue.

13.	Consequently the First-tier Tribunal created a barrier to the claimant’s ability to meet descriptors 14, 15 and 18 which was not justified by the 2008 Regulations.’

20.	In his written observations on the application for leave to appeal, Mr Young made reference to the decision of Upper Tribunal Judge May QC in RA v Secretary of State for Work & Pensions (ESA) ([2010] UKUT 301 (AAC). At paragraph 10 of that decision, the judge stated that:

‘Schedule 2 is in two parts Part 1 relates to physical disabilities and part 2 relates to mental disabilities.  The activity of remaining conscious during waking moments is in part 1 and is accordingly related to physical disablement.  The claimant in these circumstances requires to establish that his incapacity to perform any descriptor in activity 11 is caused by a specific bodily disease or disablement which is physical.   It does not appear to me that on the evidence accepted by the tribunal the claimant has established as a matter of fact a specific physical disablement which would allow for the satisfaction of a points scoring descriptor in relation to activity 11. That is sufficient to dispose of the appeal.  It was not necessary in these circumstances to go into the meaning of involuntary episodes of lost or altered consciousness.’

21.	Further, at paragraph 12, he added:

12.	Employment Support Allowance is as set out in paragraph 10 above related to incapacity to perform as an activity arising from specific bodily disease or disablement or specific mental illness or disablement or as a direct result of treatment provided for them.  The activities are also as indicated clearly categorised into physical or mental.  These distinctly different statutory provisions have to be applied in relation to their own terms.’

22.	Mr Young is correct to submit that the reasoning of Upper Tribunal Judge May QC in RA appears to run contrary to the alternative reasoning of five other decisions of Upper Tribunal Judges in Great Britain, beginning with KN and KP and ending with RM. He is equally correct, however, to submit that the question of the relationship between regulation 19 and Schedule 2 to the Employment and Support Regulations 2008 was considered in some significant detail in KP which, as a decision which is to be reported, must be given considerable weight. Further the reasoning of Upper Tribunal Judge Mesher in KP has been approved of by three other Upper Tribunal Judges in separate decisions, including RM¸ where, once again, there was detailed analysis. 

23.	Accordingly, I conclude that to the extent that the decision in RA conflicts with the reasoning in KP and KN, as approved of in RA, I accept and prefer the reasoning in those latter decisions. Further, I agree with that reasoning and adopt and apply it as representing the correct legal analysis of the relationship between regulation 19 and Schedule 2 of the Employment and Support Allowance Regulations (Northern Ireland) 2008. Further, and while accepting that many decisions of appeal tribunals at first-tier level in Northern Ireland were being made at a time when the legal principles set out above were being developed at second-tier appellate level and the relevant reasoning may not have permeated to appeal tribunals and found their way into submissions made by the Department for individual appeals, I would exhort appeal tribunals to give careful consideration to, and apply those principles when determining appeals where the issue is relevant.’     

23.	How do the principles in KP apply in the instant case? It seems to me that it is arguable the approach which the appeal tribunal has adopted to the application of the activities and descriptors in Part 2 of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, is that the potential application of the Part 2 of Schedule 2 activities and descriptors is predicated on a demonstration of impaired mental, cognitive or intellectual function. There are statements with the reasons for the appeal tribunal’s decision – ‘the mental health test’ and ‘… we have examined all of the areas in all of the categories that make up the mental health test’ – which would suggest that this is the approach which the appeal tribunal has taken. If that was the approach, then the line of reasoning, starting with KN and KP, and culminating in RM, confirms that this was the incorrect approach to take. 

24.	I am satisfied, however, and on balance, that the appeal tribunal did consider whether the appellant’s problems with fatigue, identified by the healthcare professional as the precipitating factor for the potential application of a Schedule 2, Part 2 descriptor, did impact on his ability to function. The appeal tribunal did accept that the appellant suffered from ‘… bouts of fatigue which impact on his daily living.’ The appeal tribunal concluded, however, that despite this, the appellant was capable of coping with ‘… minor unforeseen changes in routine’ and did not accept that ‘… overall day to day life is made significantly more difficult by such changes’. On balance, that is a conclusion which the appeal tribunal was entitled to reach and, accordingly, I do not accept that the appeal tribunal erred in how it considered the potential application of descriptor 17(c).

25.	I address Mr Breslin’s grounds (ii) to (iv) together as they all are concerned with the proper approach to the applicability of activities or descriptors where the effects of a claimant’s disablement is variable. 

26.	In BC-v-Department for Social Development (ESA) ([2012] NICom 303 C5/12-13 (ESA)), I said the following, at paragraph 22 of the decision:

   The proper approach to the question of variability

		22. In C3/10-11(ESA), the then Chief Commissioner for Northern Irelandstated, at paragraphs 13 to 18 of his decision:

‘13.	Since this appeal was heard before the tribunal, a relevant case has been heard in the Upper Tribunal in Great Britain, namely, AF v Secretary of State for Work and Pensions (ESA) [2011] UKUT 61(AAC) in which Upper Tribunal Judge Turnbull dealt with a case which has some similarities to the present one.  In that case, as in the present one, the claimant also raised fibromyalgia as an issue in the case.  The first tier tribunal considered activity 3 – bending or kneeling – and compared the wording of the activity with activity 6 – bending and keeling, in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 (which were identical in form to the equivalent Northern Ireland Regulations).  It should go without saying that the present activity 3 under the Employment and Support Allowance Regulations (Northern Ireland) 2008 is also identical to activity 3 in the present Great Britain Regulations.

	     14.	At paragraph 10 of that decision Judge Turnbull, referring to the first tier tribunal’s decision, stated as follows:

		“10.	In relation to bending or kneeling, the Tribunal’s reasoning included the following:

“The tribunal notes the appellant’s representative’s submissions as to the need to take into account the appellant’s ability to repeatedly and reliably undertake such actions.  The tribunal rejects the submission to the effect that such considerations are a necessary aspect of assessment of this descriptor.  The tribunal notes that the descriptors under the previous incapacity benefit scheme specifically made provision for “sometimes” not being able to undertake the activity of bending and kneeling.  The present scheme has deliberately excluded the “sometimes” component of functioning in relation to bending, as well as recasting the descriptor as a whole.  In those circumstances the reasonable inference is that under the new scheme (ESA) the inability to repeatedly undertake the bending as set out in the descriptor has been deliberately excluded from the definition of the bending descriptor.””

	     15.	However, as Mr McKendry has submitted, Judge Turnbull held specifically that such reasoning was flawed as the judge stated as follows in the same decision:

		“11.	In my judgment the absence of the “sometimes” descriptor (6(c) of the incapacity for work descriptors) does not have the effect stated by the Tribunal.  It means merely that there is no descriptor under which the claimant can score points merely because he is sometimes unable to perform the relevant activity.  However, the need for the decision maker to take into account whether the claimant can perform the relevant activity with some degree of repetition (cf. in particular CIB/13161/96) in my judgment subsists in relation to the work capability assessment descriptors as in relation to the incapacity for work descriptors.  In particular, if the effect of performing the activity is likely to be to disable the claimant from performing it for a substantial period, that will need to be taken into account, both in relation to bending or kneeling and the other activities.  The only “sometimes” descriptors in the personal capability assessment were in relation to the activities of rising from sitting and bending and kneeling, but it has never been doubted that the need to take into account whether the activity can be performed with a degree of repetition applies to all the activities.

		12. A tribunal is of course unlikely to need expressly to consider this issue unless there is something in the facts which suggests that the claimant might not be able to perform the activity with some degree of regularity.  It is likely to arise, in particular, in cases such as those of chronic fatigue syndrome.  The Secretary of State submits that the Tribunal’s error in this case can have made no difference, in that there was no question of the Claimant satisfying any of the bending and kneeling descriptors in any event.  However, the effect of fatigue was a theme in the Claimant’s answers in the ESA 50 questionnaire, and had been relied on in the written and oral submissions.  I am unable to say that the Tribunal’s error could not have made a difference.”

       16.		Accordingly Mr McKendry submitted that AF v Secretary of State for Work and Pensions (ESA) [2011] UKUT 61 (AAC) copper fastens the ‘rationale’ behind previous incapacity benefit decisions where a claimant’s condition was variable and carries this principle forward to employment and support allowance.

	    17.	Mr McKendry accepted in the present case, as in the case of AF v Secretary of State, that the tribunal ought to have taken into account whether the particular activities can be performed with a degree of repetition and that, in light of the relevant issue of fibromyalgia in this case, the tribunal ought to have dealt with these issues using the broad brush approach as set out in R2/04(IB)(T).

        18.	In my view Mr McKendry is correct in his submissions …’

27.	In the instant case there was evidence before the appeal tribunal that the nature of the appellant’s medical condition was such that there was variability in his ability to carry out certain activities. In the questionnaire which was completed by the appellant on 12 March 2009 the appellant makes numerous references to the variable effects of his medical condition. At page 9 of the report of the medical examination conducted by the healthcare professional, conducted on 16 April 2009, the healthcare professional recorded that:

‘I accept that doing certain activities repeatedly may be challenging due to clients [sic] reported severe lethargy.’

28.	It is not clear whether the ‘activities’ referred to by the healthcare professional were the three activities of walking, stand and sitting and bending or kneeling with which pages 8 and 9 of the report form are concerned or all of the activities associated with the personal capability assessment. I am of the view that the healthcare professional was restricting his/her comments to the three specific activities. Elsewhere in what is a report completed in a considerable degree of detail he/she had the opportunity to add additional comments but refrained from so doing. 

29.	In the record of proceedings for the appeal tribunal decision, the appellant is recorded as giving evidence concerning the variable nature of his medical condition. In the statement of reasons for its decision and under the heading of ‘Walking’ the appeal tribunal noted that comments of the healthcare professional concerning the challenging aspect of performance of certain activities due to severe lethargy and adds ‘However he did not elaborate further’. The appeal tribunal has also recorded the following statement:

	‘In coming to this decision we have taken into account the variability of the Appellant’s condition and the need to assess the descriptors on the basis of reasonable regularity.’   

30.	While it is arguable that the appeal tribunal might have been more pro-active in investigating the variable nature of the effects of the appellant’s medical condition, I am satisfied that, on balance, the approach of the appeal tribunal to the issue of variability is in keeping with the principles set out in BC above. Accordingly I do not agree that the decision of the appeal tribunal is in error on the basis of this submitted ground.

31.	Mr Breslin’s fifth ground for seeking leave to appeal was on the basis that the appeal tribunal misdirected itself in relation to the ‘… statutory test outlined in Activity 3, Bending and Kneeling’. 

32.	Activity 3 of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, as they applied to the appellant at the date of the decision under appeal, read as follows:

     ‘Bending or kneeling	(a) cannot bend to touch knees and straighten up again. 

			(b) Cannot bend, kneel or squat, as if to pick up a light object, such as a piece of paper, situated 15 cm from the floor on a low shelf, and to move it and straighten up again without the help of another person.

			(c) Cannot bend, kneel or squat, as if to pick up a light object off the floor and straighten up again without the help of another person.

			(d) None of the above apply.’

33.	Descriptor (a) attracted 15 points, (b) 9 points, (c) 6 Points and (d) 0 points.

34.	In SC v Secretray of State for Work and Pensions (ESA) ([2011] UKUT 48 (AAC)), Upper tribunal Judge Turnbull considered the equivalent wording of Activity 3 in the Employment and Support Regulations 2008, as amended. He stated the following, at paragraphs 10 to 28:

10.	The activities and descriptors comprised in the work capability assessment (“the WCA descriptors”) are set out in Schedule 2 to the Employment and Support Allowance Regulations 2008 (“the 2008 Regulations”). Descriptors 3(b) and (c) are as follows:

“(b)	cannot bend, kneel or squat, as if to pick up a light object, such as a piece of paper, situated 15 cm from the floor on a low shelf, and to move it and straighten up again without the help of another person.

(c)	cannot bend, kneel or squat, as if to pick up a light object off the floor and straighten up again without the help of another person.” 

11.	Descriptor 3(b) is worth 9 points and descriptor 3(c) is worth 6 points. 

12.	By reg. 19(4) of the 2008 Regulations: 

“In assessing the extent of a claimant’s capability to perform any activities 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.” 

13.	The Secretary of State submits that descriptors 3(b) and (c):

“consider the activity of bending and/or kneeling as if to pick something off the floor or a low shelf, using supports such as furniture if required but without dependence on another person for support to straighten up again …..” (my emphasis). 

It is therefore submitted by the Secretary of State that the Tribunal did not go wrong in holding that the fact that the Claimant may have needed to hold on to or push up on something did not bring her within either of the descriptors.” 

14.	Descriptor 6(b) in the Schedule to the Social Security (Incapacity for Work)(General) Regulations 1995 (which I shall refer to as “IfW descriptor 6(b)”) is as follows:
“cannot either bend or kneel, or bend and kneel, as if to pick up a piece of paper from the floor and straighten up again.”

15.	It has been held that in applying IfW descriptor 6(b) one must disregard support or assistance which can be gained from holding or leaning on an object such as furniture (CSIB/12/96; CIB/2945/2000; CIB/4300/2003). However, in contrast with WCA descriptors 3(b) and (c), there is no express statement in IfW descriptor 6(b) that assistance from another person must be disregarded. 

16.	In my judgment, in respectful disagreement with the Secretary of State’s submission in this appeal, an ability to perform descriptors 3(b) or (c) which can be achieved only by holding on to or pushing up on an object such a piece of furniture must (save to the extent indicated in paras. 27 and 28 below) be disregarded. My reasons are as follows.

17.	First, the natural starting point is in my judgment that aids, whether human or non-human, should not be taken into account. That is because WCA descriptors 3(b) and (c) are a test of the claimant’s ability to bend, kneel or squat, which involve primarily the use of the legs and back. 

18.	As regards non-human aids, a person with very strong arms might well be able, whatever the degree of disability in his legs or back, to pick up a piece of paper from the floor if a suitable piece of furniture were available. But the descriptors would then not really be a test of his ability to bend, kneel or squat, but of the strength of his arms. That is a point which has been regarded as important in relation to similar questions which have arisen in relation to IfW descriptors. In CIB/614/98, for example, Mr Commissioner Howell held that reg. 25(2) of the 1995 Regulations did not require use of crutches to be taken into account in assessing a claimant’s ability to rise from sitting, because the wording of the activity and its descriptors make clear that what is being tested is the ability to rise to an upright position without the use of arms and shoulders. 

19.	As regards assistance from another person, again, a very strong assistant might enable a claimant, almost regardless of the degree of his disability, to perform the stated activities. But the test would then become one not of the claimant’s ability to bend or kneel, but of the ability and strength of the assistant. Even in the absence of the express exclusion the natural assumption would therefore in my judgment be that that such assistance should not be taken into account. 
	
20.	Secondly, if the intention of the draftsman had been that use of items such as furniture should be taken into account (i.e. should not be disregarded), it is in my view very unlikely that descriptors 3(b) and 3(c) would have been drafted in the way they are. As I have said, had the descriptors been silent in relation to the use of aids, whether human or non-human, the natural meaning would have been that both must be disregarded. Had the intention been that (a) use of furniture should be taken into account, but (b) help from another person should not, the obvious way of drafting the descriptors would have been expressly so to state. It would have been odd to leave the former consequence to be implied simply from the express disregard of help from another person. In my judgment the purpose of expressly excluding help from another person was merely to make it clear (I accept unnecessarily) that such help cannot be taken into account, not to imply that use of furniture can be taken into account. 

21.	Thirdly, if it had been intended that use of furniture should be taken into account, one would have expected the draftsman at least to specify what sort of furniture (or other object) is assumed to be available. 

22.	Fourthly, a piece of furniture will not necessarily in fact be available to someone who wants to pick up, say, a piece of paper from the floor, whether at home or at work. True, he could no doubt, without bending down, manoeuvre the piece of paper in to a position where there is furniture available, but I do not see why one should assume that furniture is necessarily available. 

23.	Fifthly, reg. 19(4) of the 2008 Regulations (the equivalent of reg. 25(2) of the 1995 Regulations), in stating that a claimant is required to be assessed “wearing or using any aid or appliance which is normally worn or used”, does not in my judgment require it to be assumed, in relation to the activity of bending or kneeling, that an item of furniture is conveniently present on which to lean or push on. It in my judgment refers only to portable aids which can be “worn” or “used”, in the ordinary sense, and is not capable of referring to items such as furniture. 

24.	In my judgment one does not get much help from examining the extent to which other WCA descriptors specify what aids or support must be taken into account. As regards walking, the activity is described as “walking with a walking stick or other aid if such aid is normally used”. It is therefore made explicit that certain non-human aids such as a stick are to be taken into account, and in my view it is clearly implicit that support or assistance from another person cannot be taken into account. 

25.	In relation to standing and sitting, WCA descriptors 2(a) (standing for more than 10 minutes), 2(c) (rising from sitting) and 2(d) (moving from one seated position to another) all expressly require physical assistance from another person to be disregarded, but (like descriptors 3(b) and (c)) say nothing about whether holding on to or pushing up on furniture can be taken into account. Bizarrely, descriptor 2(e) (standing for more than 30 minutes) does not even say that assistance from another person must be disregarded, although that must in my view be implicit. 

26.	I would make the following qualifications to the view which I expressed in para. 16 above. 

27.	First, it is in my judgment implicit, in relation to both descriptors 3(b) and 3(c), that one can take into account such assistance as a claimant may gain from using his hands to steady himself or push up on the floor. A floor will necessarily always be present, and it would be unrealistic to presuppose a bending/kneeling/squatting exercise which outlaws use of the floor. 

28.	Secondly, there is the question of what significance should be attached to the fact that, in descriptor 3(b), the “light object” is notionally situated “15 cm from the floor on a low shelf”. On balance, I think that one is required to take into account such assistance as the claimant may gain from leaning/pushing on that notional shelf itself. The counter-argument is that the only purpose of the reference to the shelf is to indicate how far from the ground the light object is to be found. However, the notional exercise involves not only picking up the light object, but also moving it, and it seems unrealistic to judge a person’s ability to pick up an object from a shelf, and move it, and straighten up again, without ignoring possible use of the shelf itself to steady oneself or push up on. It does not seem to me that, realistically, one would need to know anything about the precise characteristics of the particular shelf in order to apply the notional test. However, I do not think that this descriptor requires the further assumption that there are necessarily further shelves above the “low shelf”, which are therefore also available to be used. The only assumption required is in my judgment that that one low shelf is present. 

35.	Upper Tribunal Judge Turnbull has set out in some considerable detail the reasons for his overall conclusion that ‘… an ability to perform descriptors 3(b) or (c) which can be achieved only by holding on to or pushing up on an object such a piece of furniture must … be disregarded.’ I agree with that reasoning and the judge’s overall conclusions. 

36.	In the instant case, the appeal tribunal recorded the following in the statement of reasons for its decision:

‘The Appellant acknowledged at the hearing that, depending on the day, he could pick up a light object from the floor with the support of a chair. Given the above findings we see no reason why this activity would present any difficulties to the Appellant.’ 

37.	In the record of proceedings for the appeal tribunal hearing, the appeal tribunal has recorded the following:

		‘Bending or Kneeling

I can bend forward but feel that I’m passing out. Yes I could pick up something from the floor with support from chair. Depends on the day whether I need help from another person.’

38.	I am satisfied that the statement of ‘Yes I could pick up something from the floor with support from chair’ was in response to a direct question to that effect. 

39.	It is clear to me that the conclusion that the questions which were asked in connection with the activity of bending or kneeling and the acceptance of the appellant’s statement concerning his ability to pick up something from the floor with support from a chair, means that the appeal tribunal had in mind the incorrect test concerning a claimant’s ability to perform the descriptors associated with the activity of bending or kneeling. As Upper Tribunal Judge Turnbull concluded, ‘…an ability to perform descriptors 3(b) or (c) which can be achieved only by holding on to or pushing up on an object such as a piece of furniture must … be disregarded.’   

40.	In his further written submissions on the applicability of SC in the instant case, Mr Toner sought to distinguish SC from the instant case. His reasoning is as follows. Mr Toner referred to the additional sentence in the statement of reasons - ‘Given the above findings we see no reason why this activity would present any difficulties to the Appellant.’  He thought that ‘the above findings’ were the findings of the healthcare professional on medical examination of the appellant that the appeal tribunal had accepted in general terms. Given that the healthcare professional had given the opinion that the appellant would have no difficulty with the activity of bending or kneeling (presumably on the proper application of the activity) then the appeal tribunal’s reasoning could be argued to be sound. With respect to that submission, I cannot accept it. I am of the view that the appeal tribunal had formed an improper and incorrect interpretation of what was the test for the application of the activity of bending or kneeling. The appeal tribunal had, erroneously, assessed that test as incorporating assistance from items of furniture. In applying the test in that manner, the appeal tribunal erred in law. 

41.	Mr Breslin’s final ground for seeking leave to appeal was based on a submission relating to the fairness of the proceedings. More specifically, Mr Breslin submitted that the appellant’s representative was told to be quiet during the course of the proceedings and that the appellant was informed that certain documentary evidence which he wished to adduce did not have a relevance in Northern Ireland. Having found that the decision of the appeal tribunal is in error of law for the reasons set out above, I am not required to explore this ground in any further detail. I understand that a formal complaint about the conduct of the hearing has been made to the President of Appeal Tribunals for Northern Ireland.        

Disposal 

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

43.	The decision under appeal is a decision of the Department, dated 10 June 2009, which decided that: 

(i)	grounds existed to supersede an earlier decision of the Department 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 4 June 2009. 

44.		Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 10 June 2009 had grounds to supersede the earlier decision of the Department. 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 health care 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.

45.	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.’

46.	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.’

47.	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.’

48.	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.

49.	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 Department is directed to provide an additional submission which sets out details of any subsequent claims to ESA and the outcome decisions on those claims. The appeal tribunal is directed to take any evidence of subsequent claims to disability living allowance into account in line with the principles set out in C20/04-05(DLA). 

50.	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

	26 June 2013