AH-v-Department for Communities (ESA) [2017] NICom 13

				Decision No: C13/16-17(ESA)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

		SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

	EMPLOYMENT AND SUPPORT ALLOWANCE

	Application by the claimant for leave to appeal
	and appeal to a Social Security Commissioner
	on a question of law from a Tribunal’s decision
	dated 21 January 2016

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Dungannon on 21 January 2016.

2.	For the reasons I give below, I grant leave to appeal. 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 remit the appeal to a newly constituted tribunal for determination. 

REASONS

Background

3.	The applicant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from 20 December 2014. The certified cause of incapacity at that date is not identified in the Department’s submission to the tribunal. On 14 April 2015 the applicant completed and returned an ESA50 questionnaire to the Department regarding his ability to perform various activities. In it, he stated that he had brittle bone disease, hearing loss, disability in his left hand and breathing difficulties. On 25 June 2015 a health care professional (HCP) examined the applicant on behalf of the Department, preparing a report on form ESA85. Subsequent to his examination, on 13 July 2015, the applicant suffered a fracture to his right elbow in a fall. On 17 August 2015 the Department determined that the applicant did not satisfy the limited capability for work assessment (LCWA) from and including 17 August 2015, and made a decision superseding and disallowing the applicant’s award of ESA. The applicant appealed. 

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 21 January 2016. The tribunal disallowed the appeal, albeit awarding 9 points for Activity 4(b) (Picking up and moving). The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 19 April 2016. The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal. Leave to appeal was refused by a determination issued on 1 June 2016. On 7 June 2016 the applicant applied for leave to appeal from a Social Security Commissioner. 

Grounds

5.	The applicant submits that the tribunal has erred in law on the basis that it misapplied the test in regulation 29 of the Employment and Support Allowance Regulations (NI) 2008. 

6.	The Department was invited to make observations on the appellant’s grounds. Mr Kirk 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 application. 

The tribunal’s decision

7.	From its statement of reasons, I understand that the tribunal had written submissions from the Department dated 9 October 2015 and 13 January 2016 before it. These contained documentary evidence which included the ESA50 questionnaire completed by the applicant, an ESA85 HCP report by a registered physiotherapist dated 25 June 2015 and an ESA85 HCP report by a registered nurse dated 1 August 2014. The tribunal also had documentary material provided by the applicant. This included an undated pro forma questionnaire concerning risk to health completed by the applicant’s General Practitioner (GP) (which a cover letter from Citizens Advice suggested was completed on 20 October 2015) and a consultant orthopaedic surgeon’s report dated 1 August 2015. The tribunal heard oral evidence from the applicant concerning functional limitations arising from physical and mental disablement. 

8.	The tribunal made findings in each disputed area, accepting that the applicant should score 9 points for Activity 4.b (Picking up and moving) only. It considered the applicability of regulation 29 and referred to the GP’s undated opinion in particular. While accepting that his physical condition gave rise to some limitations, the tribunal did not accept that it gave rise to a substantial risk to the applicant’s mental or physical health or that of another person. It considered that, while it was important for the appellant to avoid heavy lifting to avoid stressing his right elbow joint, he would have been capable of carrying out other work without causing any further damage to his arm. The tribunal was satisfied that regulation 29 did not apply. 

Relevant legislation

9.	The present application is concerned specifically with the tribunal’s application of regulation 29 of the ESA Regulations. This provides:

Exceptional circumstances 

29.—(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— 

(a) the claimant is suffering from a life threatening disease in relation to which— 

(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and 

(ii) in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or 

(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) Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by— 

(a) reasonable adjustments being made in the claimant’s workplace, or 

(b) the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.

Submissions

10.	The applicant, represented by Mr McGlade of Citizens Advice, submitted that the tribunal applied the wrong test in its consideration of regulation 29(2)(b). He observed that the tribunal found that there were “some occupations which would have caused no risk”. However, he submitted, it should have considered the range of work which the applicant would be likely to do if found not to satisfy the LCWA. Reliance was placed on the decision of the Court of Appeal in England and Wales in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 at paragraphs 37-39, and on the Upper Tribunal decision of JW v Secretary of State for Work and Pensions [2011] UKUT 416, which confirms the relevance of Charlton (which specifically involved incapacity benefit) to ESA. Mr McGlade submitted that without identifying actual types of employment which the applicant could perform, the tribunal was unable to properly assess risk. 

11.	For the Department, Mr Kirk submitted that the ratio of Charlton is at paragraphs 45-49. That is, the decision maker must assess the range or type of work which a claimant is capable of performing sufficiently to assess the risk to health either to himself or to others. The decision of the Commissioner was challenged in Charlton on the basis that it did not specify with any particularity the type of work which the Commissioner had in mind. However, the Court of Appeal held that the Commissioner was under no obligation to go further than he did. He submitted that the tribunal in the present case had clearly considered the range and type of work which the applicant could perform. 

Hearing

12.	I held an oral hearing of the application. Mr McGlade of Citizens Advice appeared for the applicant. Mr Kirk of DMS appeared for the Department. I am grateful to each of the representatives for their careful and well-focused submissions. 

13.	Mr McGlade submitted that the tribunal failed to determine the range of work which the applicant could do – but rather made findings as to what he could not do - and thereby failed to apply the Charlton principles. He submitted that the requirement was to identify the range of work of which a claimant was capable. However, the tribunal had focussed on the work the applicant could not do – i.e. heavy lifting. He submitted that the tribunal should have identified the work which it envisaged the applicant doing. 

14.	Mr McGlade highlighted the fact that the tribunal had relied upon a letter from the applicant’s GP which had been submitted in support of a revision request. This indicated that the applicant had fractured his elbow. The main conditions relied upon by the applicant were brittle bone syndrome and left hand deformity. However, the tribunal had focussed on the effects of the elbow injury, rather than the applicant’s overall condition. He further submitted that the tribunal had addressed the risk wrongly for that reason.

15.	In response, Mr Kirk took me to paragraphs 45-47 of the tribunal’s decision. This read:

“Exceptional circumstances

45. As noted above, the issue of the applicability of Regulation 29 or 35 of the 2008 Regulations was expressly raised in the letter from the appellant’s GP. In that letter the appellant’s GP indicates his opinion that the exceptional circumstances set out in those provisions may apply due to the appellant’s left hand deformity and brittle bones. He also indicates that these conditions mean that the appellant won’t be suitable for some occupations and will have to wait for a suitable role. This suggests that the GP is of the opinion that every type of employment would not cause a risk to the health of the appellant or another person and that there were some occupations which would have caused no such risk. 

46. This letter is, however, dated 20 October 2015 (as noted in the covering letter to the Appeals Service from the appellant’s representative). It is unclear from it whether it relates to the appellant’s condition at the date of the Departmental decision or the date that it was written. There is no reference on the form to the appellant’s elbow injury which suggests that it relates to his condition at the date it was written. We, therefore, considered whether because of his elbow injury there would have been a substantial risk to his health or that of any other person if he were found not to have limited capability for work or work related activity. 

47. Although we acknowledge that this condition gave rise to some limitations for the appellant at the date of the Department’s decision, we are convinced that our decision to find that the appellant does not have limited capability for work or work related activity does not create a substantial risk to [his] physical or mental health or that of another person. In coming to this decision, we note that whilst it would have been important for the appellant not to have stressed the joint by doing work that involved heavy lifting at that time, he would have been capable of carrying out other work and engaging in work related activity without causing further damage to his arm. We are therefore satisfied that the exceptional circumstances set out in Regulation 29(2) or Regulation 35(2) of the 2008 Regulations (as amended) did not apply to the appellant on the date of the Departmental decision.”

16.	Mr Kirk submitted that the tribunal’s approach was consistent with the relevant case law. Mr Kirk accepted that the tribunal at paragraphs 46 and 47 was dealing primarily with the situation where the applicant had fractured his arm. He submitted that the findings at paragraph 45 were sufficient to comply with the requirements of regulation 29. 

Assessment

Preliminary issue

17.	As a preliminary issue, albeit not discussed at the oral hearing of the appeal, I wish to comment on a specific statement made in the Department’s submission to the tribunal, which reflected a reconsideration decision of 13 January 2013 which was before the tribunal. This statement was to the effect that, because the fracture to the applicant’s right elbow “had occurred after the Work Capability Assessment”, it had not been assessed in relation to his ESA claim. In fact, the injury had occurred after the examination by the HCP, but before the Department’s decision. The submission writer and the decision maker responsible for the reconsideration decision both took the view that the right elbow fracture was a new condition which should be forwarded for a new Work Capability Assessment. 

18.	I prefer the term “Limited Capability for Work Assessment” to “Work Capability Assessment”, but nothing turns on that, and for convenience I will refer to the “Assessment”. The Assessment properly refers to the determination made by the decision maker of the Department under regulation 19 of the ESA Regulations. This determination should be based on evidence, including the report of the HCP. However, the submission writer and the decision maker responsible for the reconsideration decision appear to confuse the report of the HCP with the “Assessment” itself. The HCP report is merely evidence which is taken into account by the Departmental decision maker who carries out the Assessment. The Assessment should be conducted on the basis of all relevant circumstances obtaining at the date of decision. In the circumstances of this case, the decision maker should have had regard to the right elbow injury and was wrong to categorise it as a matter for a new Assessment. The submission writer has similarly advanced a misleading submission to the tribunal on this issue.  

19.	I directed further enquiries to Mr Kirk, who does not dispute that the decision maker should have taken the right elbow injury into account when making the Department’s decision. However, as Mr Kirk submits, the error is not material to the outcome of this application. This is because the tribunal did not permit itself to be misled. It properly took the further injury into account and made a decision on that basis. 

20.	Nevertheless, it does concern me that the potential for the tribunal to be misled by the Departmental submission arose. I trust that the Department will take steps to address the shortcomings which were evident. 

Substantive issue

21.	The tribunal in this case, in applying the LCWA, has conducted a careful exercise of fact-finding, has based its decision on the correct law and has given clear reasons for its decision. However, the issue which gives rise to the application before me is not the tribunal’s approach to the application of the LCWA, but rather its approach to the exceptional circumstances criteria which can lead to a claimant being treated as satisfying the LCWA under regulation 29(2)(b) of the ESA Regulations. 

22.	The tribunal deals with this aspect of the appeal in the three paragraphs of its decision set out above. Essentially the case made out on his behalf at the tribunal hearing was that the applicant’s left hand deformity and his brittle bone syndrome placed him at risk in the workplace. A further relevant matter, which had arisen between the date of the decision under appeal and the appeal hearing, was that the applicant had fractured his elbow in a fall. 

23.	The issue of regulation 29 was placed before the tribunal by the applicant. He relied on a pro forma document completed by his GP at the request of Citizens Advice. This included the words “Due to his left hand deformity and his brittle bones he won’t be fit for some occupations. He will have to wait for a suitable job”. After setting out the GP’s evidence, the tribunal concluded that “this suggests that his GP is of the opinion that every type of employment would not cause a risk to the health of the appellant or another person and that there were some occupations which would have caused no such risk”. This appears to conclude the tribunal’s treatment of this point. 

24.	In the following two paragraphs the tribunal addresses a different question – namely whether the exceptional circumstances provisions applied to the injury to the applicant’s right elbow. The right elbow injury was a circumstance obtaining at the date the decision under appeal was made. Therefore, limitations arising from that injury could and should be considered by the tribunal. The injury was material to the tribunal’s decision both in terms of whether work would make that injury worse, but also to the extent that it may have demonstrated the applicant’s liability to injury arising from his brittle bone syndrome. I take no exception to the tribunal’s approach in paragraph 46 and 47 of its statement of reasons.  

25.	However, the main challenge to the decision was based around paragraph 45. Reliance was placed by Mr McGlade on paragraph 39 of Charlton. That paragraph contains largely a statement of approval of, and quotation from, the decision of Deputy Commissioner Paines QC in CIB/360/2007. In paragraph 17 of that decision he said, 

“A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant’s background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him capable of performing. They will then need to consider whether, within that range, there is work he could do without the degree of risk to health envisaged by regulation 27(b)”.

26.	The decision in Charlton is a decision of the Court of Appeal in England and Wales and therefore not strictly binding on tribunals in Northern Ireland. Nevertheless, it is of highly persuasive authority and I consider that it should be followed unless good reason is shown for doing otherwise. Each of the parties relied on Charlton and submitted that it should be followed, albeit taking slightly different approaches to it. 

27.	Charlton had considered the position under the rules governing incapacity benefit (IB). However, the same principles apply to cases involving ESA. In JW v Secretary of State for Work and Pensions (ESA) [2011] UKUT 416 (AAC), at paragraph 19, Deputy Judge Poynter stated in the context of ESA, that the jurisprudence under the IB regime should be still be followed, including CIB/360/2007 (as approved in Charlton). Regulation 29 in the ESA Regulations is a direct equivalent of the former regulation 27 in the IB Regulations and I agree with him that the jurisprudence should be followed.  

28.	Mr Kirk placed reliance on Charlton at paragraph 49, where the essential conclusion was that the finding that the claimant could do some work was reasonable. He submitted that the tribunal in the present case had clearly considered the range and type of work the claimant could perform. He submitted that it noted that there were certain types of work which the claimant could not do due to his injury and that this was sufficient. While the tribunal did not identify any particular occupations, it found that he could do some work without substantial risk to himself or others. 

29.	I cannot accept Mr Kirk’s submission as to how the tribunal dealt with the particular case before me. The decision in Charlton concerned the context of the work or workplaces in which the claimant might find himself. The controversy between the claimant and the Secretary of State in Charlton related to the extent to which the decision-maker must identify the type of work which the claimant would perform on the hypothesis that he had been found capable of work. The Court of Appeal in Charlton leaned towards an approach which was less specific in identifying work which the claimant could do. The fact that the claimant in Charlton had no physical limitations was a significant factor. Nevertheless, Charlton also placed certain requirement on tribunals in the findings which it should make. 

30.	In deciding the regulation 29 issue, it appears to me that the tribunal in the present case has entirely relied on its interpretation of the evidence of the GP. It reasons that the GP’s opinion is to the effect that every type of employment would not cause a risk to the health of the appellant or another person, due to the GP’s statement “He will have to wait for a suitable job”. It appears to me that the tribunal has placed undue weight on the statement of the GP, who cannot be expected to understand the precise nature of the test under regulation 29. 

31.	In deferring to the GP’s evidence to this extent, it seems to me that the tribunal has not conducted the exercise required by Charlton in reaching its conclusions. Specifically, it has not formed a view on the range or types of work for which the applicant was suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. It has not then considered whether, within that range, there is work he could do without a substantial degree of risk to health. 

32.	The tribunal does not have to specify particular occupations which are safely open to the applicant. However, it is required to identify the range of work which he could do. The applicant had limitations in terms of literacy, lack of qualifications and lack of experience which suggested that his options in terms of non-manual occupations were limited. He had brittle bone syndrome which would have created risk in physical work in certain working environments or types of occupation. He had a missing middle finger, had a missing tip of his index finger and thumb, and had a contracture of the fourth finger on the left hand. All of this would have restricted him in manual work, have further limited his options, and potentially have given rise to dangers. He had a fractured right elbow for the time being at the date of decision, albeit that this would be expected to heal. 

33.	In the light of the various factors set out above, it seems to me that the tribunal has not done enough to meet the obligations on it which arise from Charlton and related case law to identify the range of workplaces the applicant might find himself in and to assess the risks in that context. 

34.	I accept the submissions of Mr McGlade. I grant leave to appeal and I allow the appeal. I set aside the decision of the appeal tribunal. Each of the parties submits that, rather than determine the appeal myself, I should remit the appeal to a newly constituted tribunal. I accept the submissions on this issue and I remit the appeal to a newly constituted tribunal for determination. 

								(signed)
Odhrán Stockman
Commissioner

17 February 2017