SY-v-Department for Social Development (ESA) [2016] NICom 33

Decision No:  C8/15-16(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 18 February 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This is a claimant’s appeal from the decision of an appeal tribunal sitting at Belfast.

An oral hearing of the appeal has not been requested.

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

REASONS

	Background

1.	The appellant claimed employment and support allowance (“ESA”) from the Department for Social Development (“the Department”) from 10 January 2013 by reason of Lyme Disease.  On, or around, 4 February 2013 the appellant completed and returned a questionnaire to the Department regarding her ability to perform various activities.  On 22 March 2013 a health care professional (“HCP”) examined the appellant on behalf of the Department.  On 6 April 2013 the Department considered all the evidence and determined that the appellant did not have limited capability for work (“LCW”) from and including 6 April 2013, and made a decision superseding and disallowing the appellant’s award of ESA.  She appealed. 

2.	The appellant moved to Leeds, England, in November 2013.  She engaged in correspondence with the Appeals Service about which authority had jurisdiction over her case in the circumstances.  On 14 October 2014 a tribunal consisting of a legally qualified member (“LQM”) and a medically qualified member proceeded to determine the appeal by way of a hearing on the papers in the absence of the appellant.  However, the appellant had not consented to her appeal proceeding in her absence and the LQM subsequently set aside the tribunal’s decision.  She obtained representation through Leeds CAB.  The appellant sent further documentary evidence to the tribunal and consented to the new appeal being determined by way of a paper hearing in her absence.  The appeal was newly considered by a tribunal on 18 February 2015.  The tribunal disallowed the appeal.  The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 13 April 2015.  The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal.  Leave to appeal was granted by a determination issued on 10 June 2015.  The issue on which leave to appeal was granted was whether the tribunal’s statement of reasons was adequate with regard to regulation 29 of the Employment and Support Allowance Regulations (NI) 2008.  On 9 July 2015 the appellant submitted her appeal to a Social Security Commissioner. 

	Grounds

3.	The appellant, represented by Leeds CAB, submits that the tribunal has erred in law on the basis that:

(i)	it made inadequate findings of fact and wrongly stated that there was no link between Lyme Disease and chronic fatigue syndrome/fibromyalgia and ignored evidence to this effect;

(ii)	it made an error of fact regarding an award of disability living allowance (DLA) mobility component;

(iii)	it wrongly ignored letters from the appellant’s specialist and her General Practitioner (GP);

(iv)	it incorrectly ignored regulation 29 as there was enough evidence to show that the appellant would be at risk of substantial harm.

4.	The Department was invited to make observations on the appellant’s grounds.  Mr Toner of Decision Making Services (DMS) responded on behalf of the Department.  He submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the appeal. 

	The tribunal’s decision

5.	The tribunal had documentary evidence before it which included the Department’s submission, a letter from a senior occupational therapist, a letter from the applicant’s GP, and a submission on behalf of the applicant prepared by her representative, Mr Wheeldon of Leeds CAB.  The applicant had indicated that she was content for the tribunal to proceed in her absence.  The Department was represented on the day of hearing by Ms Rodgers.  The tribunal accepted that it had jurisdiction in the case and proceeded to determine it on the documentary evidence before it. 

6.	The tribunal noted that the activities in dispute were Activity 1 (“Mobilising”), Activity 4 (“Picking up and moving”), Activity 6 (“Making oneself understood through speaking”), and Activity 14 (“Coping with change”).  The tribunal noted that it had not been asked to consider regulation 29 (exceptional circumstances).  The tribunal reviewed the evidence.  In relation to Mobilising it found that the HCP’s evidence indicated that functional ability was only minimally impaired.  It relied on evidence that upper limb function was normal to find that the applicant would be able to pick up and move light objects.  The tribunal found no evidence to support the submission that the applicant had difficulty making herself understood through speech. In relation to “Coping with change” the tribunal found no evidence of a mental disablement beyond seasonal affected disorder and noted that the HCP stated that mental state examination was “normal”.  In disallowing the appeal, the tribunal further observed that regulation 29 exceptional circumstances had not been raised in the appeal or the written submission, or by any of the evidence. 

	Relevant legislation

7.	ESA was established under the provisions of the Welfare Reform Act (NI) 2007 (“the 2007 Act”).  The core rules of entitlement were set out at sections 1 and 8 of the 2007 Act.  These provide for an allowance to be payable if the claimant satisfies the condition that he or she has LCW.  The ESA Regulations provide for a specific test of LCW.  In particular, regulation 19(2) provides for a LCW assessment as 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 of the ESA Regulations, or is incapable by reason of such disease or bodily or mental disablement of performing those activities.  Where a claimant does not satisfy the requirements of regulation 19, regulations nevertheless provide for a claimant to be treated as having LCW in exceptional circumstances.  Regulation 29 of the ESA Regulations provides for the exceptional circumstances as follows:

29	Exceptional circumstances

(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant. 

	(2) Subject to paragraph (3) this paragraph applies if-

…
(b) the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work. 
		
		(3) … not relevant

	Assessment

8.	The appellant has been granted leave to appeal by the LQM on one ground.  Turning to her other outstanding grounds of application, she submits that there have been inadequate findings of fact about chronic fatigue syndrome – taking issue with the tribunal’s assertion that “there is no medical evidence that Lyme Disease causes depression or chronic fatigue syndrome or chronic pain syndrome, so far as we are aware and none has been presented”.  Mr Wheeldon seeks to rebut this statement, relying on evidence in the form of entries in NHS Choices, and the GP’s evidence.  Mr Wheeldon’s submission is that the tribunal has doubted the appellant’s account of her symptoms, and that there can be no reason for this apart from the tribunal’s above assertion. 

9.	However, the issue before the tribunal was not the diagnosis or origin of any medical condition which the appellant might suffer from but rather the functional limitations which result from it.  Whether there was a causative link between Lyme disease and chronic fatigue syndrome does not really advance that aspect of the case.  The letter of the senior occupational therapist confirmed that there had been a positive test for Lyme disease.  The GP letter reported a diagnosis of chronic fatigue syndrome. I do not consider that it was necessary for the tribunal to conclude whether there was any connection between the two diagnoses. 

10.	Mr Wheeldon submits that the rejection of the connection appears to be the only reason for the tribunal doubting the appellant’s account of her symptoms.  However, in the absence of the appellant’s oral evidence, the tribunal reviewed the documentary evidence before it.  It found that the evidence of the Chronic Fatigue Syndrome (CFS) clinic post-dated the decision under appeal and did not deal with the appellant’s function at that time.  It relied upon a factual report prepared for DLA indicating that the appellant could sometimes manage a 10 minute walk to Tesco and the report of the HCP which reported no abnormal findings in the low back and lower limbs.  I further observe that, while not referred to by the tribunal, the appellant had stated in her ESA50 questionnaire that “most days … distances over 200m would require use of a walking stick”.  It does not appear to me that the tribunal judged the issue of Mobilising as a matter of credibility as such, but that it simply made a decision in accordance with the best evidence before it. 

11.	With regard to the evidence, Mr Wheeldon submits that the tribunal erred in assuming that the GP meant that the appellant walked to Tesco without stops, or without regard to the effects of such a walk.  He submits that the senior occupational therapist’s letter post-dated the decision, but nevertheless gave evidence of circumstances which had been obtaining since the date of the decision under appeal.  I cannot fault the tribunal for not looking behind the documentary evidence of the GP.  The report before it could only be taken at face value in the absence of any contrary evidence or submission that it should not be relied upon.  Furthermore, despite its date, the tribunal had regard to the senior occupational therapist’s report, but found that it was based on the appellant’s own account of her functional limitations, rather than clinical findings, and reduced the weight given to it primarily for that reason. I do not consider that it is arguable that the tribunal has made irrational findings based on either piece of evidence. 

12.	In respect of “Mobilising”, Mr Wheeldon submits that the tribunal made a material error of fact when it stated that the appellant had been awarded the care component of DLA but not the mobility component.  His point is valid to a limited extent.  The appellant was awarded the low rate of the mobility component of DLA, as evidenced by the decision notification of 19 April 2013.  However, it seems clear that in the context of “Mobilising”, the tribunal had in mind the high rate of the mobility component when it made its statement of reasons.  It might reasonably be considered that there is some overlap between the conditions of entitlement to high rate mobility component and the physical activity of “Mobilising”.  Had the tribunal overlooked or been mistaken as to an award of high rate mobility component, there would be force in Mr Wheeldon’s submission.  However, I do not consider that the award of low rate mobility component would have had a bearing on the question of whether the descriptors within the “Mobilising” activity were satisfied.  In particular, the broad requirement of entitlement to low rate mobility component is that the claimant can walk, but requires guidance or supervision in order to take advantage of the faculty of walking out of doors.  An award of low rate mobility component is not indicative of any physical restriction in mobilising, and in terms of ESA is more akin to the mental disablement activity of “Getting about”.  I do not accept that the tribunal has materially erred in law as alleged.  I do not grant leave to appeal on the outstanding grounds in the application. 

13.	The ground on which the LQM has granted leave to appeal is on the issue of the tribunal’s approach to regulation 29 of the ESA Regulations. Mr Wheeldon submits that the tribunal has erred in respect of failing to apply regulation 29 of the ESA Regulations to the case, while accepting that it was not explicitly referred to in the appeal.  He submits that the symptoms of fatigue and pain indicated that there was a substantial risk to the appellant’s health if not found to have LCW.  He relies on the decision of Judge Gray in the Upper Tribunal in KB v Secretary of State for Work and Pensions [2014] UKUT 303 (referred to as CE/4094/2013). Judge Gray had approved other decisions of the Upper Tribunal to the effect that whether regulation 29 should be applied depended on all the circumstances of the case. 

14.	I agree with the view of Judge Gray in the Upper Tribunal, to the effect that whether regulation 29 should be considered will depend on all the circumstances.  I take the view that in order for the circumstances to require a tribunal to consider regulation 29, where it is not expressly raised, it should be obvious from the evidence that by reason of some specific bodily or mental disablement there would be a substantial risk to the appellant’s health if she were found not to have LCW.  In such cases, a tribunal may well be required to explore the issue further (see Mongan v Department for Social Development [2005] NICA 16, paragraph 17).

15.	The tribunal had evidence that the appellant experienced pain and fatigue.  At the height of her case, these are temporary symptoms of her physical disablement.  I do not consider that there was any evidence before the tribunal of any substantial risk to the appellant’s physical health in the sense that her medical condition would be worsened if she were found not to have LCW.  The tribunal had considered that she was capable of performing the various physical functions in the descriptors, which implies that the appellant should have been capable of these with a reasonable degree of repetition.  A further implication is that the tribunal found that any pain or fatigue would not have been on a level such as to prevent her performing the various functions assessed by the LCW Assessment.  It does not appear to me that there was evidence before the tribunal which would have compelled a conclusion that regulation 29 was satisfied.  I do not consider that the tribunal erred in law by failing to consider regulation 29 on the evidence before it. 

16.	 I fully appreciate that there were practical difficulties for the claimant, now living in Great Britain, which prevented her from attending a tribunal in Northern Ireland.  It is always helpful for a tribunal to see and to hear from an appellant in order to form a more rounded view of the evidence in a case.  The tribunal in the present case had to determine the appeal on the basis of the documentary evidence.  However, I cannot fault the tribunal’s assessment of the appeal based on that evidence.  I do not consider that the tribunal has erred in law and I must disallow the appeal. 

(signed):  O Stockman

Commissioner

18 May 2016