PMcL-v-Department for Social Development (ESA) [2015] NICom 39
Decision No:  C26/14-15(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 9 May 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 9 May 2014 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) 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 21 September 2012, which decided that as the Department had decided that the appellant did not have limited capability for work his award of incapacity benefit (IB) and income support (IS) did not qualify for conversion into an award of ESA from and including 9 October 2012.  The appeal was received in the Department on 12 October 2012.  On 29 May 2013 the decision dated 21 September 2012 was looked at again but was not changed.

5.	Following one earlier postponement and two adjournments, the substantive oral hearing of the appeal took place on 9 May 2014.  The appellant was present and was not represented.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the Departmental decision dated 21 September 2012.

6.	On 9 September 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 9 September 2014 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

7.	On 8 October 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  The appellant had nominated Mr O’Farrell of the Citizens Advice organisation as his representative.  On 29 October 2014 observations on the application for leave to appeal were sought from Decision Making Services (DMS) and written observations were received on 25 November 2014.  In these written observations, Mr Collins, for DMS, opposed the application on the grounds submitted on behalf of the appellant but supported the application on another ground.  Written observations were shared with the appellant and Mr O’Farrell on 25 November 2014.  On 28 November 2014 e-mail correspondence was received from the appellant’s representative which was shared with Mr Collins on 3 December 2014.

8.	On 25 February 2015 I granted leave to appeal.  In granting leave to appeal, I gave as a reason that an arguable issue arose as to whether the appeal tribunal had properly considered the potential application of Activity 17 in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.

	Errors of law

9.	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.  What is an error of law?

10.	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.”

	Analysis

11.	In the application for leave to appeal it had been submitted on behalf of the appellant that:

‘The Legally Qualified Member seemed to dwell upon whether or not I had previously come into conflict with the PSNI and in particular if I had ever been arrested.  It is not clear to me as to the relevance of this line of questioning and gave me the impression that I was effectively being interrogated or on trial.  Again, such an approach did not lend itself to the presentation of my case in a favourable manner.’

12.	In his written observations on the application for leave to appeal, Mr Collins has submitted:

‘Included with (the claimant’s) letter dated 08 September 2014 which forms the basis of his appeal to the Commissioner is a hand-written two page note of his recollections of a conversation which he states took place during the Hearing.  It recounts an exchange with the LQM regarding an incident which took place the day prior to the hearing when (the claimant) was apparently escorted from the tribunal venue by police following an alcohol related altercation.

While I cannot comment on (the claimant’s) recollection of, or perception of what was said, I note that the tribunal’s reasons contain the following conclusion:-

“The tribunal also noted the appellant’s evidence about difficulty about getting into fights in pubs, sometimes shouting at his family and recently being escorted from a hotel by police.  While accepting that these things happened, the tribunal concluded that such incidents would not bring the appellant and the category of aggressive or disinhibited behaviour as required by legislation.”

I would submit that the tribunal was considering the possible applicability of Activity 17 and as part of its inquisitorial function was entitled to question (the claimant) in relation to this issue and to use information relating to it in forming its conclusion.

However I would submit that it is less clear why the tribunal, having accepted that the incidents to which it referred above occurred, went on to conclude that they did not fall within the scope of Activity 17, descriptors (b) and (c) of which warrant 15 or 9 points respectively for either frequent or occasional uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.

A recent GB decision WC v The Secretary of State for Work and Pensions (ESA) [2014] UKUT 0363 (AAC) – which I accept is not binding in NI – gives some consideration to what can come within the scope of this descriptor.  (See, for example, paragraph 16.)

Given that the tribunal accepted (the claimant) had attended his GP in relation to recurrent depression and alcohol abuse and having accepted the occurrence of the above incidents I would submit that it should have elaborated on why his behaviour did not satisfy any of the descriptors.  I would submit that it appears to have simply dismissed the behaviour – with little investigation as to frequency and, for example, the nature of any outbursts - and without any meaningful explanation.’

13.	I agree with the submissions made by Mr Collins, and, for the reasons which have been set out by him, agree that the decision of the appeal tribunal is in error of law.  The reasons for the decision of the appeal tribunal are inadequate to explain why it concluded that none of the descriptors associated with Activity 17 in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, applied in the instant case.  In addition to the oral evidence of the appellant at the appeal tribunal hearing, there was evidence within the ESA50 questionnaire and in the report of an examination by an Examining Medical Practitioner (EMP) conducted in connection with a claim to disability living allowance which was pertinent to the potential application of the descriptors in Activity 17.  There was a duty on the appeal tribunal to assess that evidence and to indicate the outcome of that assessment to the required standard in the statement of reasons for its decision.

	The appellant’s other grounds for appealing to the Social Security Commissioner

14.	Having found that the decision of the appeal tribunal is in error of law on the basis of my analysis set out above, I do not have to consider the appellant’s other grounds for appealing.  I would indicate, however, that I would not have found the decision of the appeal tribunal to be in error of law on the other grounds cited on behalf of the appellant.

	Disposal

15.	The decision of the appeal tribunal dated 9 May 2014 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.

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

(i)	the decision under appeal is a decision of the Department, dated 21 September 2012, which decided that as the Department had decided that the appellant did not have limited capability for work his award of IB and IS did not qualify for conversion into an award of ESA from and including 9 October 2012;

(ii)	the Department is directed to provide details of any subsequent decision-making activity in connection with ESA and the outcome of any such decision-making to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent decision-making into account in line with the principles set out in C20/04-05(DLA);

(iii)	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; and

(iv)	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

27 July 2015