SC-v-Department for Social Development (ESA) [2013] NICom 48

 				Decision No: C11/12-13(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 14 March 2012

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s appeal from the decision of an appeal tribunal sitting at Belfast on 14 March 2012, with the leave of the legally qualified member (LQM) of the tribunal. 

2.	An oral hearing of the application has been requested. However, I consider that the appeal can properly be determined without a hearing. 

3.	I set aside the decision of the tribunal under Article 15(7) of the Social Security (NI) Order 1998 and I refer the appeal to a newly constituted tribunal for determination. 

REASONS

Background

4.	The appellant had claimed employment and support allowance (ESA) from the Department for Social Development (the Department) by reason of rheumatoid arthritis, ankylosing spondylitis, carpal tunnel syndrome, vibration white finger, and vertigo among other things. He was awarded ESA by a decision on 12 November 2009, but from the papers before me and before the tribunal it is unclear when the award began. Following a medical examination on 23 March 2010 the Department found that he satisfied the conditions of the work capability assessment. On 14 April 2011 the appellant completed and returned a questionnaire to the Department on form ESA50. On 22 July 2011 he was examined by a healthcare professional. On the basis of all the evidence, the Department superseded the decision awarding ESA and disallowed ESA from and including 3 September 2011. He appealed. 
5.	An appeal tribunal consisting of a LQM and a medically qualified member disallowed the appeal, awarding no points on the limited capability for work assessment (LCWA). The appellant requested a statement of reasons for the decision which was issued on 24 August 2012. On 24 September 2012 the appellant applied for leave to appeal to the Social Security Commissioner. By a determination issued on 8 October 2012 the LQM granted leave to appeal. In doing so, he has not specified the grounds on which he has granted leave. On 8 November 2012 the appeal was received by the Office of the Social Security Commissioners. 

Submissions

6.	Represented by Mr Hatton of Law Centre (NI), the appellant submits that the tribunal has erred in law on the grounds that:

(i)	the tribunal relied upon erroneous grounds for supersession;

(ii)	the tribunal failed to adequately consider the applicability of regulation 29 of  the ESA Regulations;

(iii)	the tribunal decision was not supported by evidence;

(iv)	the tribunal failed to resolve conflicts of evidence;

(v)	the tribunal failed to apply the test of “reasonable regularity”;

(vi)	the tribunal failed to correctly address Activity 14 of the LCWA.

7.	The Department was directed to make observations on the appeal. In response, Mr Collins for the Department did not support the appellant’s grounds at points (i)-(v), but he did support the ground at point (vi). 

Assessment

8.	The appellant has submitted a number of grounds in support of his application for leave to appeal. Among them is the contention that the tribunal has erred in law in relation to its application of the descriptors in the activity of “Coping with change”. The descriptors refer to changes in routine scheduled events such as a lunch break, or minor unplanned changes such as the timing of an appointment. In its reasons, the tribunal has said “he is able to cope with change as he can safely deal with events when driving”. The appellant submits that the descriptors seek to assess the person’s ability to cope with change to a specific event which the person has prior awareness of or which is part of their routine. He submits that driving ability is not an indicator of ability to deal with change in the manner that the relevant activity is seeking to address. 

9.	Mr Collins concurs that while the examples in the descriptors in the Activity are illustrative, the cognitive ability or reactive ability demonstrated by driving is not directly comparable with them and is not indicative of coping with change. He agrees with Mr Hatton that the tribunal has erred in law. In the event that I accept that there is an error of law in the tribunal’s decision he asks that the appeal should be remitted for further findings of fact. 

10.	I agree with the submissions of Mr Hatton and Mr Collins. The tribunal has not made an appropriate inference from the fact that the appellant can drive when it concludes that he does not fall into the descriptors within the “Coping with change” activity. The activity is not directed at how a claimant reacts to unanticipated events but how the claimant responds to changes in planned events. 

11.	As each of the parties has agreed that the decision contains an error of law, I set aside the decision of the tribunal and I refer the appeal to a newly constituted tribunal for determination.

12.	The new tribunal will need to assess the extent to which the appellant meets the descriptors in the disputed activities by reason of physical or mental disablement. 

	(Signed):  O Stockman

	COMMISSIONER

	26 June 2013