MI-v-Department for Social Development (ESA) [2016] NICom 34

Decision No: C18/15-16(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 23 October 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

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

2.	For the reasons I give below, I allow the appeal.  I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998 and I direct that the appeal shall be determined by a newly constituted tribunal. 

REASONS

	Background

3.	The appellant claimed employment and support allowance (“ESA”) from the Department for Social Development (“the Department”) from 5 February 2013 by reason of back pain.  On 25 March 2013 the appellant was sent a questionnaire by the Department regarding her ability to perform various activities, which she completed and returned.  On 15 May 2013 a health care professional (“HCP”) examined the appellant on behalf of the Department, who examined the applicant in respect of back pain and anxiety and depression.  On 20 June 2013 the Department considered all the evidence and determined that the appellant did not have limited capability for work (“LCWA”) from and including 20 June 2013, and made a decision superseding and disallowing the appellant’s award of ESA. She appealed. 

4.	The appeal was considered by a tribunal consisting of a legally qualified member (“LQM”) and a medically qualified member on 23 October 2014. The tribunal disallowed the appeal.  The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 18 December 2014.  The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal.  Leave to appeal was refused by the LQM on 12 February 2015.  On 11 March 2015 the appellant submitted her appeal to a Social Security Commissioner. 

	Grounds

5.	The appellant, represented by Ms Dugdale of Belfast Citywide Tribunal Service, submitted that the tribunal had erred in law on the basis that:

(i)	it had failed to give adequate reasons for its decision;

(ii)	in particular it had failed to explain its decision on credibility. 

6.	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. 

7.	In response, Ms Dugdale submitted that it was not clear how the tribunal had assessed the evidence and that while normally an explanation of findings on credibility was not warranted, this was a case which required further explanation. 

8.	Leave to appeal was granted by Deputy Commissioner Gamble in a determination issued on 21 December 2015. 

	The tribunal’s decision

9.	The tribunal had documentary evidence before it in the form of the Department’s submission an appointment letter from Orthopaedic ICATS and a letter from the appellant’s GP practice.  The appellant attended to give oral evidence and both the appellant and the Department were represented.  The appellant’s representative clarified that the impact of the appellant’s anxiety and depression did not bring her within scoring descriptors for mental disablement and indicated that the physical activities of “Mobilising” and “Standing-sitting” were the only disputed areas.   

10.	The tribunal noted that the appellant had stated in the ESA50 that her ability to mobilise varied depending on the severity of her pain.  She had stated that she could sit between 30 minutes and an hour, and that she could not pick up half a litre of milk, which the tribunal noted to be inconsistent with the HCP’s observations.  The tribunal was told by the appellant that she could sit for a maximum of 30 minutes and stand for 5 minutes.  She stated that would be able to walk about 100 metres without stopping and on a good day could probably walk for about 15 minutes before needing to rest.  

11.	The tribunal reached a conclusion that the appellant had a genuine back condition which clearly caused her pain from time to time, but found that she exaggerated her limitations somewhat and “was clearly able to do more than she alleged”.  The tribunal assessed that the appellant would not have the ability to repeatedly mobilise more than 200 metres, awarding 6 points, and that she would not be able to sit and stand for more than one hour, awarding 6 points. As this was below the 15 point threshold, the tribunal disallowed the appeal. 

	Relevant legislation

12.	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 limited capability for work.  The Employment and Support Allowance Regulations (NI) 2008 (“the ESA Regulations”) provide for a specific test of limited capability for work. In particular, regulation 19(2) provides for a limited capability for work 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. The relevant activities in the present case were as follows:

SCHEDULE 2
Regulation 19(2) and (3)

Assessment of whether a claimant has limited capability for work
PART 1
PHYSICAL DISABILITIES

(1)	(2)	(3)
Activity	Descriptors	Points

1. Mobilising unaided	(a) by another Cannot either— 	15
person with or without a 	(i) mobilise more than 50 metres
walking stick, manual	on level ground without stopping
wheelchair or other aid	in order to avoid significant
if such aid is normally,	discomfort or exhaustion, or
or could reasonably be,	(ii) repeatedly mobilise 50 metres
worn or used	within a reasonable timescale
	because of significant discomfort
	or exhaustion.

	(b) Cannot mount or descend two 	9
	steps unaided by another person
	even with the support of a handrail.

	(c) Cannot either— 	9
	(i) mobilise more than 100 metres
	on level ground without stopping
	in order to avoid significant
	discomfort or exhaustion, or
	(ii) repeatedly mobilise 100 metres
	within a reasonable timescale
	because of significant discomfort
	or exhaustion.

	(d) Cannot either— 	6
	(i) mobilise more than 200 metres
	on level ground without stopping
	in order to avoid significant
	discomfort or exhaustion, or
	(ii) repeatedly mobilise 200 metres
	within a reasonable timescale
	because of significant discomfort
	or exhaustion.

	(e) None of the above apply.	0

2. Standing and sitting.	(a) Cannot move between one
position	seated and another seated position
	located next to one another without 
	receiving physical assistance from 
	another person.	15

	(b) Cannot, for the majority of the
	time, remain at a work station, 
	either—	9
	(i) standing unassisted by another
	person (even if free to move
	around), or
	(ii) sitting (even in an adjustable
	chair), or
	(iii) a combination of (i) and (ii).
	for more than 30 minutes, before
	needing to move away in order to
	avoid significant discomfort or
	exhaustion.

	(c) Cannot, for the majority of the time,
	remain at a work station, either—		6
	(i) standing unassisted by another
	person (even if free to move
	around), or
	(ii) sitting (even in an adjustable
	chair), or
	(iii) a combination of (i) and (ii),
	for more than an hour before
	needing to move away in order 
	to avoid significant
	discomfort or exhaustion.

	(d) None of the above apply. 	0

	Submissions

13.	I held an oral hearing of the appeal.  The appellant was present and was represented by Ms Dugdale of Belfast Citywide Representation Service. The Department was represented by Mr Collins of DMS.  I am grateful to the representatives for their helpful submissions. 

14.	Ms Dugdale pointed out that the tribunal had before it a HCP report which had assessed the appellant’s functional limitations as meriting no points.  However, the tribunal had clearly rejected the HCP’s assessment, when awarding 6 points for “Mobilising” and 6 points for “Standing-sitting”.  The tribunal had therefore accepted that the appellant gave a credible account of her limitations.  Nevertheless, Ms Dugdale submitted that it was not fully clear why the tribunal had made the award that it had, since the appellant’s evidence pointed to a higher level of award in respect of “Mobilising”.  In essence, she made three submissions.  The first of these was that the tribunal had failed to adequately explain its finding that the appellant could not repeatedly mobilise more than 200 metres within a reasonable timescale.  The second was that in making its findings on “Mobilising” the tribunal had failed to address the issue of variability.  The third was that the tribunal had found that the appellant had “exaggerated her limitations somewhat” but had not explained why it had accepted her credibility to some extent, but not entirely.  Mr Dugdale relied on CIS/4022/2007 at paragraph 52, where Great Britain Deputy Commissioner Wikeley (as he was then) had said that: 

“.. (5) Having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however an obligation on a tribunal to give adequate reasons for its decision which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence had not been accepted.  As the Northern Ireland Tribunal of Commissioners explained in R3/01(IB)(T), ultimately “the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it””. 

15.	Mr Collins for the Department submitted that the tribunal had made credibility findings in the appellant’s favour, although it had not gone as far as the appellant might have liked.  He submitted that the tribunal was not required to give reasons for its assessment on credibility, relying on C11/00-01(IB) at paragraph 7, where Mrs Commissioner Brown had said “The tribunal is required to give adequate reasons for its decision.  It is not required to give reasons for its reasons”.  He accepted that the reasons for the decision in respect of “Mobilising” could have been more explicit.  He submitted that the tribunal was entitled to rely on the expertise of the medical member in assessing the likely functional limitations of an appellant.  However, Mr Collins accepted that the reasons for rejecting the appellant’s credibility were not explicit. He acknowledged that there had been discussion at the hearing about “good days” and “bad days”.  While there was no particular mathematical formula to be applied, Mr Collins accepted that findings on variability would have been necessary. 

	Assessment

16.	The tribunal in the present case has departed from the assessment of the HCP, awarding 12 points for the activities of “Mobilising” and “Standing-sitting”, whereas the HCP had found that no scoring descriptors applied. These were the only activities in dispute.  The implication is that it based its decision on the evidence of the appellant in her ESA50 and orally at the hearing and a letter from the appellant’s GP.  The latter confirmed extensive degenerative changes in the lower part of the appellant’s spine and that she took co-codamol 30/500 for pain relief.  It seems therefore, that the tribunal has accepted the credibility of the appellant’s account of her functional limitations to a considerable extent.  In particular, the account of the appellant in respect of “Standing-sitting” appears to have been accepted entirely. 

17.	The appellant’s evidence to the tribunal was that on a good day she could walk for 15 minutes.  However, her main evidence was that she could not walk more than 100 metres without stopping. The tribunal found that she could not repeatedly walk 200 metres.  The tribunal has not drawn on any particular evidence before it to make that finding.  The appellant, against a background of her evidence being accepted in part, is essentially questioning why the tribunal, at the same time, found that she “exaggerated her limitations somewhat”.  She submits that the reason for this is not evident from the tribunal’s decision to the extent that she cannot understand the decision. 

18.	Ms Dugdale, for the appellant, speculates to some extent as to the basis on which the tribunal found that she exaggerated her evidence.  In particular, while not a disputed activity, the tribunal makes reference in its decision to an inconsistency with what the appellant had said in the ESA50 questionnaire about picking up a half litre of milk, and the HCP’s assessment of her upper limbs.  She submits that the appellant did not understand the context of the “Picking up and moving” activity when completing the ESA50, and when she was advised as to this before the hearing, she ceased to rely on “Picking up and moving”. 

19.	It seems to me more likely that the tribunal was relying on the specialist knowledge of the medical member.  It is reasonable, for example, for a medical member to consider that the response to a particular medical condition by the claimant’s doctor – in terms of medication, investigation, referral for treatment and intervention - is inconsistent with the level of functional limitation claimed by an appellant, and to advise the tribunal accordingly.  However, that is equally speculative on my part. While it might have been open to the tribunal to make such a finding and to give this as a reason for its decision, the tribunal has not explained why it considered that there was a limit to the appellant’s credibility, leading to the finding on mobilising which was contrary to her evidence. 

20.	Ms Dugdale submits that this is a case where the decision is not comprehensible.  She accepts that it is not necessary for a tribunal to explain assessments of credibility in every case.  However, she submits that the circumstances of the present case requires a brief explanation of why particular evidence has not been accepted. I agree with her submission.  Had the tribunal simply stated that it found that the appellant’s evidence was exaggerated on the basis of the level of treatment for her condition, this would have been enough.  However, in the absence of any express reason for rejecting the appellant’s evidence in part, it is not possible to fully understand the tribunal’s decision. 

21.	One purpose of reasons is to enable an appellant to know if the tribunal has made a sound decision as a matter of law.  If the decision had been based on the “Picking up and moving” issue, the appellant might challenge the decision for procedural unfairness, on the basis that this issue was not put to her and that she could have answered it.  If the decision had been based on specialist medical knowledge of a tribunal member, a challenge would be less likely.  The difficulty here is that the reasons do not make clear which, if either, is the basis for the tribunal’s conclusion.  The appellant cannot tell whether the tribunal’s conclusions are based on a sound or an unsound premise.  I conclude that Ms Dugdale’s submissions are correct, and I find that the tribunal has erred in law on the ground that its reasons are inadequate. 

22.	Ms Dugdale has further challenged the tribunal’s decision on the basis that it has not dealt with the issue of variability in the appellant’s condition.  Mr Collins accepts that whereas the tribunal has addressed the question of mobilising on a “good day”, it has not addressed the frequency of such good days.  He submits that the assessment of variability is not a mathematical operation, but accepts that the tribunal has not evidently sought to clarify the frequency of “good days” in order to understand the appellant’s condition fully. I do not need to reach a concluded view on this issue in order to determine the appeal. 

23.	For the reasons I have given above, I consider that I must set aside the decision of the appeal tribunal.  I direct that the appeal shall be determined by a newly constituted tribunal. 

(signed):  O Stockman

Commissioner

19 May 2016