DH-v-Department for Social Development (ESA) [2016] NICom 37

Decision No: C19/15-16(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 20 January 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 20 January 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. 

3.	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.

4.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of whether her entitlement to incapacity benefit (IB) qualifies for conversion 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

5.	The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 17 April 2013, which decided that as the Department had decided that the appellant did not have limited capability for work (LCW) her entitlement to IB did not qualify for conversion into an award of ESA from and including 15 May 2013.  The appeal was received in the Department on 26 April 2013. On 12 June 2013 the decision dated 17 April 2013 was looked at again but was not changed.

6.	The appeal tribunal hearing took place on 20 January 2014. The appellant was present and was represented.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the Departmental decision dated 17 April 2013.

7.	On 26 March 2015 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS) from the appellant’s representative.  On 14 April 2015 the application for leave to appeal was rejected by the Legally Qualified Panel Member (LQPM).  The reason for the rejection was that the application for leave to appeal had been received outside of the time limits for making such an application prescribed in regulation 58(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, and that the LQPM did not think that there were special reasons to accept the late application.   

	Proceedings before the Social Security Commissioner

8.	On 15 May 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 9 July 2015 observations on the application for leave to appeal were sought from Decision Making Services (DMS).  On the same date the appellant’s representative was requested to supply a copy of a General Practitioner (GP) report dated 15 January 2014 and which had been submitted to the appeal tribunal.  On 16 July 2015 a reply was received from the appellant’s representative which attached two GP reports, dated 15 January 2014 and 19 June 2014.   

9.	In written observations received on 29 July 2015, Mr Collins, for DMS, supported the application for leave to appeal.  Written observations were shared with the applicant and her representative on 30 July 2015.  There then followed an administrative delay in the movement of the application for leave to appeal to my office. 

10.	On 18 November 2015 I directed that having considered the papers I was satisfied that the application could properly be determined without an oral hearing.  The appellant was invited to make a further and final submission. There was no further correspondence from the appellant or her representative. 

11.	On 18 December 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 properly considered the potential applicability of one of the Activities in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.

Errors of law

12.	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?

13.	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

14.	In his very helpful observations on the application for leave to appeal Mr Collins made the following submissions:

‘… the tribunal had to determine if (the appellant) had limited capability for work in accordance with the relevant legislation and this involved deciding if any points were appropriate under any physical or mental descriptors or a combination of both.  In its reasons the tribunal noted that it had considered all the evidence which included a report from (the appellant’s) GP Dr Garvin dated 15 January 2014.  (This document was not included in the case papers provided by The Appeals Service but was subsequently obtained by the commissioner’s office from (the appellant’s) representative.)  The tribunal also noted that when she completed her ESA50 questionnaire (tab no. 3 in the Department’s submission) (the appellant) “indicated various difficulties with the activities referred to therein.”

I would submit that there are aspects of the evidence in this case which raise questions as to how the tribunal evaluated it.

In her questionnaire (the appellant) indicated at section 15 that she could only go to familiar and unfamiliar places if someone goes with her.  The evidence from the HCP’s report (tab no. 4) was that her daughter went with her when shopping, she visited her sister in Richill – (there is no indication if this is accompanied or not) – and she goes in to appointments alone – (again there is no indication if she is accompanied to the appointments although I note she was accompanied to the examination centre which I presume was an unfamiliar place).  See pages 12, 14 and 20 of the HCP’s report.  At the tribunal hearing the evidence given to the tribunal was that she did “not particularly like travelling to a strange place on her own.”  

Activity 15 – getting about – allows for a minimum award of 6 points if a claimant is unable to get to a specified place with which the claimant is unfamiliar unless accompanied by another person.

I would submit that the overall evidence as to the possible applicability of Activity 15 was not conclusive but the evidence given at the hearing i.e. that she didn’t particularly like travelling to a strange place on her own was not persuasive that (the appellant) would be unable to get to a specified unfamiliar place without being accompanied by another person and that Activity 15(c), at least, would become engaged. 
 
Consequently although the tribunal apparently did not specifically explore the evidence relevant to this Activity I would submit that, marginally its conclusion that points were not applicable for getting about was not unreasonable.

At page 3 of the HCP’s report (tab no. 4 in the Department’s submission) it is recorded that (the appellant) “says she can be short tempered at times due to the pain.”  The record of proceedings from the hearing on 20 January 2014 states that (the appellant) told the tribunal she “may be cross at home sometimes and may throw a remote control sometimes.”  I would submit that it is arguable that the above evidence would warrant consideration of whether Activity 17(c) applies – appropriateness of behaviour with other people, due to cognitive impairment or mental disorder.  This Activity and descriptor carries a score of 9 points if the claimant:-

“Occasionally has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.”

In its reasons the tribunal stated it had considered “all the relevant activities in Schedule 2.  It went on to conclude that having considered “the totality of the evidence” it didn’t believe “an award of points was merited in respect of any of the activities.”  However given the specific evidence referred to above I would submit that there was an onus on the tribunal to explain why it was not suggestive that an award of points was appropriate rather than appearing to simply incorporate it within a blanket dismissal of the evidence.  While a score of 9 points would not in itself be sufficient for (the appellant’s) appeal to be successful, I would submit that how the tribunal dealt with this issue is indicative of an inadequacy of reasoning and is in error of law.  Consequently I would support (the appellant’s) grounds of appeal.’

15.	In the statement of reasons for its decision the appeal tribunal began by setting out details of the evidence which was before it. In connection with the decision-making process giving rise to the decision under appeal, the appellant had completed a questionnaire giving information about her capability to perform certain activities associated with the test of LCW. A copy of the questionnaire completed by the appellant in the instant case is attached to the appeal submission as Tab No 3.  The appellant completed the questionnaire in a reasonable degree of detail. In respect of this evidence the appeal tribunal noted in its statement of reasons:

‘The Appellant had completed an ESA50 questionnaire which was returned to the Department on 14 March 2013.  Therein she indicated that she had a heart attack in July 2003 and was suffering from fibromyalgia, depression, diabetes, nasal congestion and gallstones. She indicated various difficulties with the activities referred to therein.’

16.	The appeal tribunal also made reference to the report of an examination conducted by a healthcare professional (HCP) on 10 April 2013. A copy of the report of the medical examination is attached to the appeal submission as tab No 4.  The appeal tribunal also summarised the evidence which the appellant had given at the oral hearing of the appeal as follows:

‘The Tribunal noted that the Appellant tried to maintain a healthy lifestyle and was working on 2 evenings per week in a local supermarket, usually on a Tuesday or Wednesday between the hours of 5pm to 10pm.  This work involved various tasks, for example, using the tills, stacking shelves and the usual tasks involved as working as an assistant in a supermarket.’   

17.	In its substantive reasoning, the appeal tribunal noted that it had considered ‘… all the relevant activities in Schedule 2 of the Employment and Support Allowance Regulations Northern Ireland 2008 as amended’ and proceeded to set out a list of those activities which it regarded as relevant. The appeal tribunal then noted:

‘Having considered the totality of the evidence the Tribunal did not believe that an award of points was merited in respect of any of the activities referred to therein.  At the examination by the Health Care Professional on 10 April 2013, the appellant indicated to the Health Care Professional, that she could independently self care and can mobilise reasonably well at home and around the shops.  She is able to carry out light household tasks and was able to work on 2 evenings per week in the supermarket.  Some restriction on her upper and lower limb movements was noted during examination but the Tribunal did not believe that these greatly affect her in her everyday tasks and in particular did not impinge on her ability to carry out all the functional activities particularly referred to in Schedule 2. Accordingly the Tribunal did not award any points in any of the relevant activities …’

18.	In summary, therefore, the appeal tribunal accepted that although the appellant has some restriction in upper limb function this did not impinge on her ability to carry out all of the functional activities in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, which the appeal tribunal considered to be relevant.  The appeal tribunal also noted the appellant’s evidence to the HCP that she could self-care, could carry out light household tasks, was able to work on two nights per week in a local supermarket and could mobilise ‘reasonably’ well at home and around the shops. 

19.	In my view the appeal tribunal’s very general conclusions on the evidence which was before it tell the appellant very little about how it assessed her own evidence, in the ESA50 questionnaire, to the HCP, in her letter of appeal and, most significantly, in the oral evidence which she had given during the appeal tribunal hearing.  As was noted by Mr Collins, the appellant had given oral evidence, noted in the record of proceedings for the appeal tribunal hearing, that she might be ‘cross at home sometimes’ and ‘might throw a remote control sometimes.’  She also stated that she ‘battles with depression’ and ‘suffers from low mood.’  The appeal tribunal had noted that several of the activities in Schedule 2 which it had considered included learning tasks, awareness of everyday hazards, initiating and completing personal action, coping with change, coping with social engagement and appropriateness of behaviour with others.  It is self-evident that an inability to carry out these tasks is often (but not always) associated with mental health problems including depression, low mood and irritability, or with a lack of motivation associated with debilitating physical conditions. 

20.	It seems to me that the appeal tribunal’s conclusions on the evidence, and which led to its decision that it could not award points for any of the activities in Schedule 2 identified by it as relevant, are redolent of an assessment of the appellant’s physical ability to carry out those activities. It might be arguable that the appeal tribunal’s conclusion that it could not award points for an activity such as appropriateness of behaviour with other people is subsumed in its very general conclusions that the appellant could self-care and was able to work on two evenings.  It could not be found in its conclusion that she could carry out light household tasks and was able to mobilise ‘reasonably’ well at home and around the shops.  I am of the view that the appeal tribunal’s very general assessment of the evidence which was before it and its equally general parallel conclusion that none of the Schedule 2 activities applied did not go far enough.  There was the potential, and I confine myself to potential, for certain of the Schedule 2 activities to apply and that possibility warranted a more rigorous assessment of the available evidence, more discrete fact-finding and a more satisfactory explanation of its conclusions. 

21.	I agree with Mr Collins, therefore, that the decision of the appeal tribunal was in error of law. 

	Disposal 

22.	The decision of the appeal tribunal dated 20 January 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. 

23.	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 17 April 2013, in which a decision maker decided that the appellant did not have LCW and, accordingly, her award of IB did not qualify for conversion to ESA from and including15 May 2013;
(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

2 June 2016