MH-v-Department for Social Development (ESA) [2016] NICom 49

Decision No:  C11/15-16(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 July 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 18 July 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.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made further findings of fact.  The fresh findings in fact are outlined below.

3.	My substituted decision is that the appellant has limited capability for work (LCW) and, accordingly, his entitlement to incapacity benefit (IB) qualifies for conversion into an award of employment and support allowance (ESA) from and including 28 August 2012.  It is not clear whether there has been a further decision on entitlement to ESA.  If there has and an award has been made, then the period of the award made pursuant to this decision will have to be adjusted.

	Background

4.	The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 9 August 2012, which decided that as the Department had decided that the appellant did not have LCW his entitlement to IB did not qualify for conversion into an award of ESA from and including 28 August 2012.  The appeal was received in the Department on 24 September 2012. On 25 February 2013 the decision dated 9 August 2012 (and two interim reconsideration decisions dated 24 August 2012 and 4 September 2012) were looked at again but were not changed.

5.	Following an earlier adjournment, the substantive oral hearing of the appeal took place on 18 July 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 9 August 2012.  The appeal tribunal did apply certain of the descriptors and activities in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 (the 2008 Regulations), as amended, which the decision-maker had not applied.  The application of these descriptors meant that the appellant attracted a score of 6 points in connection with the work capability assessment.  That score was insufficient, though, for the appeal tribunal to make a determination that the appellant had LCW - Regulation 19(3) of the 2008 Regulations, as amended.

6.	On 28 July 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 8 January 2015 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

7.	On 28 January 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 14 April 2015 observations on the application for leave to appeal were sought from Decision Making Services (DMS).  In written observations received on 30 April 2015, Mr McKendry, for DMS, supported the application.  Written observations were shared with the applicant and Mr Hatton of the Law Centre (Northern Ireland), who had come on record for the appellant, on 30 April 2015.  Written observations in reply were received from Mr Hatton on 11 June 2015 and were shared with Mr McKendry on 23 September 2015.

8.	On 23 September 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 reasons of the appeal tribunal were adequate to explain its conclusions on certain of the issues arising in the appeal.  I was, at that stage, minded to direct an oral hearing of the appeal but asked Mr Hatton to indicate whether the appellant was willing and physically able to attend an oral hearing.  On 14 October 2015 Mr Hatton confirmed that the appellant would attend an oral hearing.

9.	The oral hearing was first listed for 8 December 2015 but was postponed due to unforeseen circumstances relating to Mr Hatton.  The appeal was relisted for oral hearing on 18 February 2016.  The appellant attended and was represented by Mr Hatton.  The Department was represented by Mr McKendry.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

	Errors of law

10.	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?

11.	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.” 

	Relevant legislative provisions

12.	The form of the relevant Activity applying in this case is which was prescribed for the purposes of the LCW assessment by paragraph 9 of Schedule 2 to the 2008 Regulations as follows:

“(1) Activity	(2) Descriptors	(3) Points	
9. Absence or loss of control whilst conscious leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting) despite the presence of any aids or adaptations which normally used.	9	(a)	At least once a month experiences: 
(i) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder; or 
(ii) substantial leakage of the contents of a collecting device,
 sufficient to require cleaning and a change in clothing. 	15	
		(b)	At risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly.	6	
		(c)	None of the above apply.	0”	

	Analysis

13.	Both Mr Hatton and Mr McKendry have made detailed, constructive and practical oral and written submissions on the issues arising in the appeal.  I mean no discourtesy to the quality of those submissions by not summarising them in this decision.  I am in agreement that there are three significant errors in the decision of the appeal tribunal.

14.	The first relates to the adequacy of the reasons for the appeal tribunal’s decision.  In the statement of reasons the appeal tribunal has recorded that it accepted and preferred the findings of the report of an examination conducted by a healthcare professional except in connection with the issue of continence.  Thereafter, the reasons for the appeal tribunal’s decision in connection with continence are as follows:

‘Continence – the Appellant reports incontinence of bowel and bladder.  In relation to bladder incontinence the Appellant conceded at hearing that his problem was leakage from his foreskin after urinating.  The Tribunal concludes that in relation to incontinence of urine this does not meet the award of points in the legislation.

In relation to bowel incontinence the Appellant states that he soils himself at least twice a week and that this is caused by diarrhoea and spasms of his bowel leading to full evacuation of his bowel and requiring a change of clothes.

Dr C, 17 July 2014, refers to ongoing diarrhoea daily and an urgent need to defecate.  The report does not detail an inability to control this condition in terms of getting to the toilet in time.  In addition the 2 medical certificates referred to by Dr C, dated 26 September 2012 and 26 March 2013, respectively refer to “diabetes” and “irritable bowel syndrome”.  No reference is made to incontinence.  The Tribunal does not accept that a presumption of incontinence follows from a diagnosis of irritable bowel syndrome.

In relation to incontinence the Tribunal accepts and prefers the findings of the Health Care Professional for the following reasons: -

The Appellant’s evidence in relation to taking medication to control diarrhoea is not consistent with frequent difficulty.  The Appellant reports a significant weekly problem and it is reasonable to suggest that one would have expected the advised use of aids and alternative medication to attempt to improve control.

The Appellant demonstrates that he can control his condition by fasting.  The Tribunal … conclude that on a balance of probabilities the Appellant experiences monthly loss of control but rather that he is at risk of full evacuation or soiling if not able to reach a toilet in time.’

15.	The emphasis in the final sentence of this section of the statement of reasons is my own.  It is axiomatic that the highlighted sentence, as drafted, is meaningless.  The inclusion of the ellipsis after the words ‘The Tribunal’ suggest that the LQPM, who drafted the statement of reasons, either had additional original material which he decided to omit or that he intended, after completing an initial first draft of the decision with the ellipsis included, to add further material at a second or later draft stage.  To that extent, it may be that there has been an accidental error in how the final draft of the statement of reasons has been produced.  I have noted, in this respect, that there is a second ellipsis in an earlier part of the statement of reasons in the following sentence:

‘Painful spasms might … moderately but in all probability this would not be a problem most of the time.’

	Once again, as drafted, that sentence is meaningless.

16.	Mr Hatton has conceded that even as drafted it is possible for a reader to ascertain the conclusion reached by the appeal tribunal.  If one reads the highlighted passage in conjunction with the descriptor in connection with the activity of continence which the appeal tribunal chose to apply, 9(b), then it is possible to restructure the offending section of the reasons to reflect the chosen descriptor.  The concession by Mr Hatton is generously made because I am not sure that any such restructuring would accurately reflect the discrete wording of the activity 9 descriptors.  In addition, the statement of reasons for an appeal tribunal’s decision should be an accurate reflection of its conclusions on issues of fact and law, and the concerned reader should be provided with a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.  I leave there this problematic aspect of the appeal tribunal’s reasoning without having to consider whether the failure to provide a clear and accurate statement of reasons on a relevant issue amounts to a material error of law.

17.	I turn to the second thorny aspect of the appeal tribunal’s reasoning.  This relates to the manner in which it assessed the evidence and, in particular, the medical evidence which was before it.  In the record of proceedings for the hearing, the appeal tribunal noted that it had before it a copy of correspondence dated 17 July 2014 from the appellant’s General Practitioner (GP).  There is a copy of the relevant correspondence in the file of papers which is before me.  The correspondence reads as follows:

‘The above gentleman is a patient of our surgery. (The appellant) has type 2 Diabetes Mellitus and Irritable Bowel Syndrome for 15 years.  He has problems with ongoing diarrhoea daily and painful abdominal cramps associated with this.  The abdominal cramps cause him severe painful spasms which affect his mobility and make him defecate urgently.  This is not going to improve with time.  This affects him daily and he would be unable to work because of this any time in the future.  This has been confirmed on two medical certificates handed into the ESA.’

18.	As was noted above, the appeal tribunal makes reference to this correspondence in the statement of reasons for its decision. It concluded that:

‘This report does not detail an inability to control this condition in terms of getting to a toilet in time.’

19.	The appeal tribunal also noted that the two medical certificates which had been referred to by the appellant’s GP, and which were dated 26 September 2012 and 26 March 2013, had made no reference to incontinence.  The appeal tribunal concluded, therefore, that it:

‘… did not accept that a presumption of incontinence follows from a diagnosis of irritable bowel syndrome.’   

20.	What is missing from the appeal tribunal’s reasoning is an assessment of the contents of a medical report completed and signed by another doctor in the appellant’s GP practice, Dr W, on 31 July 2012. 

21.	I would note, at this stage, that the appeal tribunal did refer in its statement of reasons to a report by Dr M, dated 1 August 2012.  The report signed by Dr W, on 31 July 2012, was by way of completion of a template Form ‘ESA 113’.  A copy of the relevant form is in the file of papers which is before me.  The form was forwarded to Dr M on 4 July 2012 with a request for its completion.  It is date-stamped as having been received back in the Department on 1 August 2012.  It is clear that this is why the appeal tribunal has referred to a report from Dr M dated 1 August 2012.  Nothing in particular turns on names and dates but it is important to note that the appeal tribunal’s reference to the completed Form ‘ESA 113’ was in the context of the appellant having claimed difficulty in respect of a number of what I might term ‘non-continence’ descriptors.  The appeal tribunal rejected such claims, noting that evidence from the appellant’s GP, including the Form ‘ESA 113’, did not ‘… account for a probable difficulty in these areas most of the time.’ 

22.	The problematic aspect of the appeal tribunal’s failure to consider further the contents of the Form ‘ESA 113’ is that it did make reference to the appellant’s difficulties in the area of continence.  In the relevant form, the appellant’s GP was asked to list the appellant’s medical conditions.  One listed in the completed form is ‘IBS’ or irritable bowel syndrome.  The GP was also asked to list symptoms and signs against each of the diagnosed conditions.  Against ‘IBS’ the GP stated ‘Prone to diarrhoea everyday’ and ‘Metformin makes his symptoms worse.’  I would note at this stage that ‘Metformin’ is a medication for the treatment of Type II Diabetes which was another of the appellant’s diagnosed conditions.  The GP was also asked to set out details of investigations, management and medication.  Of relevance he listed ‘Loperamide 2 mg 2 tabs after each loose motion’.

23.	Of more significance, however, are the responses by the appellant’s GP to additional questions set out in Form ‘ESA 113’.  The GP was asked to comment on specific activities with which the appellant might have difficulty.  The GP ticked the box relating to the activity of continence and stated:

‘Can have accident soiling at times.’

24.	As was noted by Mr Hatton:

‘… It is our submission that this evidence is particularly important in light of the tribunal’s findings and we do not believe the tribunal have either taken it into account or adequately explained how it assessed this evidence.  This evidence appears to demonstrate that the GP is aware that (the appellant) can have a loss of control at times which results in the soiling of clothes.  It is also in response to the statement “Continence”. We would submit that this should have resolved the tribunals concerns that IBS does not automatically lead to a presumption of incontinence.  The statement by the GP does not give the necessary detail in terms of frequency but it is at least evidence that soiling happens.

It is submitted that given the evidence shows he suffers from diarrhoea on a daily basis, his own evidence that he suffers loss of control twice weekly and the GP’s strongly stated opinion that he is not fit to work, then there is a prima facie case that on the balance of probabilities he does experience accidental soiling and that it occurs at least once a month.  This may be sufficient to satisfy the relevant descriptor, if it can be accepted that the accidental soiling is due to a loss of control of the bowel to the requisite extent . As a result, we would respectfully submit that the tribunal’s failure to either take this evidence into account or explain its assessment of it has led to an error of law which is a material one.’

25.	I agree with that submission.

26.	The third manner in which the decision of the appeal tribunal was problematic was in connection with the statement that:

‘The Appellant demonstrates that he can control his condition by fasting.’

27.	On its face, this seems like a remarkable statement.  I am bound, however, to consider its legitimacy on the relevant jurisprudence.  In C33/00-01 (IB), Mrs Commissioner Brown was considering an appeal against a decision of an appeal tribunal which had found that loss of control of bowels due to coeliac disease could be adequately controlled by diet.  This was in connection with the interpretation of Activity 13 of Part I to the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995, as amended.  After considering a decision of a Social Security Commissioner in Great Britain in CSIB/889/99, Mrs Commissioner Brown concluded, at paragraphs 10 and 11:

‘I am in agreement with Mr Commissioner May that the Tribunal can take into account fact that any problems can be controlled by way of diet.  If following the proper diet would give a claimant control and if it would be reasonable and practicable for him to be expected to follow this diet then the functional ability, with the diet being followed, is what should be assessed.  If the claimant has the means of acquiring a better measure of control over bowel and or bladder and does not adopt this measure it is doubtful if it could be said that he has an actual loss of control coming from a specific disablement.  It appears much more to be a matter of choice and that is not what the descriptors are intended to embrace.

I further agree with Commissioner May however when he states that the question of reasonableness and practicability must be considered.  The Tribunal is not entitled to leap from the finding that a diet to control the coeliac problem is available to a conclusion that the claimant should be following it without some conclusion being reached as to the reasonableness and practicability of the claimant’s so doing.  If the claimant can give evidence in relation to this matter it will obviously be helpful to the Tribunal if he does so.  If he does not give such evidence the Tribunal must make up its mind on the material before it and it is entitled to bring into account its own common sense and judgment in so doing.  In general terms if a diet would lessen symptoms of a particular condition a Tribunal may conclude that the person suffering from that condition can reasonably be expected to follow that diet unless there is some good reason to the contrary.’

28.	I am mindful that the comments of Mrs Commissioner Brown arose in the context of an interpretation of the then legislative scheme pertaining to Incapacity Benefit (IB).  There is no reason, however, why general principles which emerged from the jurisprudence which interpreted the ambit of the legislative scheme for IB should not be adopted in the interpretation of the legislative scheme for ESA, which has many parallels with its predecessor – see paragraph 39 of GF-v-Department for Social Development (ESA) ([2011] NICom 160, C7/10-11(ESA)), for example. 

29.	There is, of course, a significant difference in the factual circumstances of the decision in C33/00-01(IB) and those pertaining in the instant case.  In C33/00-01(IB), the discussion related to the specific medical condition of coeliac disease which is an autoimmune disorder that can occur in genetically predisposed people where the ingestion of gluten leads to damage in the small intestine.  There is an evidence base which suggests that the adherence to a gluten-free diet villous atrophy in the small intestine, causing symptoms to resolve.  Following a gluten-free diet also helps prevent future complications, including malignancies.

30.	More importantly, however, even in that factual context, Mrs Commissioner Brown emphasised the requirement to consider the question of reasonableness and practicability.  In the instant case, it is, in my view, wholly unreasonable to accept that the appellant’s problems with incontinence can be avoided through what would be compulsory fasting.  Moreover, I have noted that the appellant also suffers from a further medical condition – Type II diabetes – in which close monitoring of diet is essential.  It is axiomatic that it is wholly unreasonable to suggest that the control of one medical condition, and, accordingly, effect on functional ability, might be alleviated by adopting a regime which might have an adverse effect on the control of a secondary medical condition.

31.	I turn to a further submission which was made by Mr Hatton. It was in the following terms:

‘In addition to this, and this was a point we had not raised earlier in our submissions, we would submit that the tribunal has also failed to provide adequate reasons as to its assessment of the letter dated 17 July 2014 from Dr C.  This evidence refers to (the appellant) experiencing abdominal cramps which cause severe painful spasms which then in turn affect his mobility and make him urgently defecate.  The GP also refers to this affecting him daily and further states that he would be unable to work.

In this regard, we note that the tribunal had found that (the appellant) satisfied descriptor 9(b).  This is concerned with there being a risk of soiling of clothes if a person is unable to get to a toilet in time.  The above evidence from Dr C however expressly refers to (the appellant) experiencing mobility difficulties when he also experiences an urgent need to defecate.  (The appellant’s) evidence was that he would be unable to move when experiencing these cramps and could not get to the toilet.

The issue of mobility difficulties combined with incontinence has been subject to a number of recent decisions from the Upper Tribunal. In particular, we would refer to and rely on the comments of Judge Gray in FR v Secretary of State for Work and Pensions (ESA) [2015] UKUT 0151 (AAC):

16.	The application of descriptor 9(a)(i) was considered in EM v Secretary of State for Work and Pensions [2014] UKUT 0034 (AAC), when Upper Tribunal Judge Mark observed:

“[19] 	As I held in LB v SSWP, [2013] UKUT 0352 (AAC), descriptor 9(i) requires not full evacuation or voiding (as had been required by the descriptor in its original form up to 27 March 2011) but only extensive evacuation or voiding sufficient to require cleaning and a change of clothes, and this must be despite the presence of any aids or adaptations normally used….”

17.	After setting out the correct approach to the “normal” use of aids or adaptations, he continued:

“[24]  I note that the representative of the Secretary of State on this appeal has drawn attention to guidance in the Medical Services Handbook which states: 

“In terms of continence problems as a result of time taken to get to toilet facilities because of poor mobility, this issue would not be considered in this activity area as mobilising issues are covered elsewhere.”

[25]	This statement is wholly misguided both in relation to the descriptor as it was at the time of the decision and as it now is.  In descriptor 9(a)(i) the only question is whether at least once a month the claimant experiences loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder sufficient to require cleaning and a change of clothes.  The fact that this is because the claimant is unable to reach a toilet in time because of other physical problems is irrelevant, as one would expect bearing in mind that the purpose of the descriptor is to deal with questions of personal dignity and social acceptability.  This is made even clearer, if that were possible, by the wording of descriptor 9(b) where the question is whether there is a risk of loss of control if not able to reach a toilet quickly.  Loss of control at least once a month because the claimant cannot reach a toilet quickly plainly qualifies for 15 points if the other requirements are met.”

18.	In granting permission to appeal, Judge Wright raised the question of whether activity 9 is to be read discounting any mobilising difficulties the claimant has, so as to focus exclusively on bladder or bowel control; or whether, on the other hand, mobilising difficulties should be regarded as relevant to a claimant’s ability to reach a toilet quickly under descriptor 9(b), given that the assessment is meant to be of the individual claimant’s ability to work.

19.	It seems to me that both general principle and previous authority, in the shape of EM, provide the answer to that question.  The effect of the “loss of control” set out in descriptor 9 must be assessed in the light of an individual’s personal circumstances.   If, as a result of limited mobility, he or she is more adversely affected than someone who has greater mobility and an associated ability to better manage the effects of any threatened loss of control, this should be taken into account by the decision-maker.  The alternative would be to divorce the assessment of this activity and the descriptors from the reality of an individual’s ability to cope with their condition and to replace an assessment which is claimant-centred with one based on (here) the ability of a ‘hypothetical’, reasonably mobile individual to reach toilets.  The activity seeks to assess the likelihood of loss of personal dignity and shame in the workplace associated with significant ‘accidents’.   It should make no difference whether soiling may occur because an individual’s restricted mobility slows down the process of reaching a toilet, or because the loss of control is comparatively rapid.  The effect on the individual and their ability to work is the same. 

We acknowledge that this decision was given after the tribunal decision in (the appellant’s) appeal but we would submit that this is a correct statement of the law. The tribunal had evidence which suggested that (the appellant) would have mobility difficulties which would make it more difficult for him to get to a toilet in time while also experiencing an urgent need to defecate. We would submit that the tribunal had not adequately explained its assessment of this evidence particularly given that it has accepted he would be at risk of soiling if he were not able to reach a toilet in time. As a result, we would submit that the tribunal has erred in law.’

32.	Mr Hatton is correct to acknowledge that the decision in FR was given after the decision of the appeal tribunal was promulgated. I accept his submission, however, and for the reason set out by him and for the other reasons set out above, I find that the decision of the appeal tribunal is in error of law.

	My further findings in fact

33.	At the oral hearing of the appeal, the appellant gave oral evidence.  I found the appellant to be honest and credible and I accept his evidence.  He told me that his problems go back to 1999 when he was diagnosed with both irritable bowel syndrome (IBS) and diabetes.  The medication which he takes for his diabetes leads to diarrhoea as a side effect.  His IBS leads to severe cramps when he cannot move.  When he has loose or ‘soft’ diarrhoea he cannot hold himself and he soils himself.  Sometimes he just makes it to the toilet.  When he takes the cramp or spasm he cannot hold things in.  He has to go and get changed.  The ‘Metformin’ medication which he takes for his diabetes also causes cramps.  He would get cramps twice per week.  At least once per week he does not make it to the toilet in time and has an accident.  He would soil himself and have to change his clothing.  He had tried other medications which had not worked.  It had been recommended that he use pads.  He had a serious accident when he was a child which had resulted in skin grafts.  As a result, he could not use pads as they would lead to irritation and bleeding.

34.	I have also had access to the drug information leaflet for the medication referred to by the appellant – Metformin.  This confirms that the side effects of the medication include diarrhoea, bloating and stomach pain.

35.	I am satisfied that at the date of the decision under appeal, the appellant satisfied descriptor 9(a) of Schedule 2 to the 2008 Regulations.  As was noted above, that descriptor attracts a score of 15 points which is sufficient for me to make a determination that the appellant has limited capability for work.  At the oral hearing of the appeal Mr McKendry was in agreement that on the basis of the available evidence, including the appellant’s own oral evidence, descriptor 9(a) applies.

	Disposal

36.	My substituted decision is that the appellant has limited capability for work and, accordingly, his entitlement to IB qualifies for conversion into an award of ESA from and including 28 August 2012.  It is not clear whether there has been a further decision on entitlement to ESA.  If there has, and an award has been made, then the period of the award made pursuant to this decision will have to be adjusted.

(signed):  K Mullan

Chief Commissioner

4 July 2016