DMcA-v-Department for Communities (ESA) [2017] NICom 16

Decision No:  C10/15-16(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 April 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

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

2.	An oral hearing of the appeal has been requested.  However, I am satisfied that the proceedings can properly be determined without a hearing.

3.	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.  I direct that the appeal shall be determined by a newly constituted tribunal.

REASONS

	Background

4.	The respondent claimed income support (IS) from the Department for Social Development (the Department) from 24 January 2008 by reason of depression, anxiety and pain.  On 31 March 2012 the respondent was notified by the Department that his existing claim was to be converted into a claim for employment and support allowance (ESA) under the regulations implementing the Welfare Reform Act (Northern Ireland) 2007.  The respondent was issued with and completed a Departmental questionnaire, form ESA50.  He was examined by a healthcare professional (HCP) on 14 June 2012, who prepared a report for the Department.  On the basis of all the evidence, on 31 August 2012, the Department decided that the respondent did not satisfy the limited capability for work assessment (LCWA) and that his award of IS did not qualify for conversion into an award of ESA from 25 September 2012, resulting in an end to his entitlement.

5.	The respondent made a fresh claim to ESA on 5 December 2012.  On 19 December 2012 the Department decided that the respondent did not satisfy the LCWA from and including 3 December 2012.

6.	The respondent made another fresh claim to ESA on 15 January 2013, on the basis of anxiety, depression, drug and alcohol abuse and back and knee pain.  The Department decided on 30 January 2013 that the respondent was not entitled to ESA from and including 13 December 2012 as he did not satisfy the LCWA.  The respondent appealed.

7.	The appeal was postponed for a lengthy period as the respondent was serving a sentence of imprisonment.  Following his release, it was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 20 April 2015.  The tribunal allowed the appeal.  The Department then requested a statement of reasons for the tribunal’s decision and this was issued on 1 July 2015.  The Department 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 26 August 2015.  On 1 September 2015, the Department submitted its appeal to the Social Security Commissioner.

	Grounds

8.	The Department submits that the tribunal has erred in law on the basis that the tribunal misdirected itself in law in its application of regulation 30 of the Employment and Support Allowance Regulations (NI) 2008.

9.	The claimant, who was unrepresented at that time, was invited to make observations on the Department’s appeal grounds.  He submitted that the tribunal had not erred in law as alleged and indicated that he did not support the appeal.

10.	I directed an oral hearing of the appeal.  However, the respondent sought postponement of the hearing to obtain representation.  He then secured representation by Mr Lee Hatton of Law Centre NI.  I directed further written submissions from the respondent.  Mr Hatton furnished written submissions as requested.  In these he accepted that the tribunal had erred in law as submitted by the Department.

11.	In the circumstances where there was consensus on the issues, I decided that a hearing would no longer be required in order to test the respective positions of the parties.

	The tribunal’s decision

12.	The respondent had attended the tribunal, represented by Mr Mackin, solicitor.  The Department had been represented by Ms Quest.  The tribunal saw documentary material consisting of the Departmental submission, a further submission and two police messages.  The respondent attended and gave oral evidence.

13.	The tribunal found that the respondent had claimed ESA, but was disallowed on 19 December 2012.  It found that he made a further claim on 15 January 2013 which was disallowed on 30 January 2013.  The tribunal reasoned that because the new claim was made within six months of the previous disallowance, regulation 30 of the Employment and Support Allowance Regulations (NI) 2008 (the ESA Regulations) applied, and that this meant that if the respondent was suffering from any new condition not previously assessed, or if the respondent’s condition had significantly worsened between 19 December 2012 and 30  January 2013, he should be treated as having limited capability for work unless it was determined otherwise.

14.	The tribunal found that there was no evidence from the Department on the question of whether the respondent’s existing conditions had significantly worsened, as it had not sought any.  It found that it was incumbent on the Department to make reasonable enquiries but had not done so.  In these circumstances it decided that the respondent should be treated as having limited capability for work until otherwise determined.  It further found that, whereas the Department had made its decision on 30 January 2013 and amendments to the ESA Regulations had come into force on 28 January 2013, the Department had based its decision on medical evidence pertaining to the older form of the Regulations and thereby misapplied the law.  It allowed the appeal from and including 13 December 2012.

	Relevant legislation

15.	The conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made are set out at regulation 30 of the ESA Regulations.  This provides:

30.—(1) A claimant is, if the conditions set out in paragraph (2) are met, to be treated as having limited capability for work until such time as it is determined— 

(a) whether or not the claimant has limited capability for work; 

(b) whether or not the claimant is to be treated as having limited capability for work otherwise than in accordance with this regulation; or 

(c) whether the claimant is to be treated as not having limited capability for work in accordance with regulation 22 or 23. 

(2) The conditions are— 

(a) that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations; and 

(b) in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, it has not been determined— 

(i) in the last determination preceding the date of claim for an employment and support allowance, that the claimant does not have limited capability for work, or 

(ii) within the 6 months preceding the date of claim for an employment and support allowance, that the claimant is to be treated as not having limited capability for work under regulation 22 or 23, unless paragraph (4) applies.

(3) Paragraph (2)(b) does not apply where a claimant has made and is pursuing an appeal against a relevant decision of the Department, and that appeal has not yet been determined by an appeal tribunal.

(4) This paragraph applies where— 

(a) the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination; 

(b) a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened; or 

(c) in the case of a claimant who was treated as not having limited capability for work under regulation 22 (failure to provide information in relation to limited capability for work), the claimant has since provided the information requested under that regulation.

(5) In this regulation “a relevant decision” means— 

(a) a decision that embodies the first determination by the Department that the claimant does not have limited capability for work; or

(b) a decision that embodies the first determination by the Department that the claimant does not have limited capability for work since a previous determination by the Department or appellate authority that the claimant does have limited capability for work.

(6) In this regulation “appellate authority” means an appeal tribunal, a Commissioner (as defined in section 167 of the Social Security Administration (Northern Ireland) Act 1992, the Court of Appeal or the Supreme Court.

	Submissions

16.	The Department’s submission set out the background to the case.  The respondent had been entitled to income support from 24 January 2008 by reason of incapacity.  A conversion decision was made on 31 August 2012 to the effect that he was not entitled to ESA from and including 25 September 2012.  The respondent did not appeal but made a fresh claim from 3 December 2012.  By a decision dated 19 December 2012 the Department decided that he was not entitled to ESA.  Again, the respondent did not appeal but on 15 January 2013 he made another fresh claim.  On 28 January 2013 the Department disallowed the claim and the respondent appealed.

17.	Mr Collins for the Department submits that when the respondent made his fresh claim to ESA on 15 January 2013, this was within six months of a previous determination on limited capability for work of 19 December 2012.  Therefore, the Department had to consider the possible applicability of regulation 30 of the ESA Regulations to the case.  He submitted that as there had been a determination within the six months preceding the claim, regulation 30(2)(b) of the ESA Regulations potentially applied.  On the basis of evidence in the claim form, the decision maker had decided that no points should be awarded under the LCWA.

18.	Mr Collins submitted that the tribunal was correct insofar as it identified the possible applicability of regulation 30.  However, he observed that the decision maker had not in fact applied regulation 30, finding that there was no evidence of a new condition or deterioration and therefore that it could not apply.  The decision maker had then gone on to apply the LCWA (i.e. proceeded to determine the issue of entitlement in terms of regulation 19 of the ESA Regulations) and awarded no points.  He submitted that the tribunal should have followed the same approach but that it did not.

19.	Mr Hatton of Law Centre (NI) made observations in response.  He submitted that the tribunal had correctly identified errors in the Department’s decision of 30 January 2013.  This was on the ground that the Department’s decision was based on legislation which had ceased to have effect due to amendments from 28 January 2013 under the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work Related Activity) (Amendment) Regulations (NI) 2013.

20.	Nevertheless, Mr Hatton agreed that the tribunal had erred in law in its approach to regulation 30.  He submitted that the tribunal had erred in concluding that, as the Department had not fulfilled its obligation to enquire as to any significant deterioration in the respondent’s condition, he should be treated as having limited capability for work until otherwise determined.  He submitted that this failed to apply regulation 30(2) correctly as the conditions therein were not met.  He submitted that, had the tribunal sought evidence from the respondent on deterioration of his condition, this might have placed the tribunal’s decision on a stronger footing.  However, he accepted that the tribunal had misdirected itself as to the applicability of regulation 30.

21.	He further expressed some concern over the fact that important documents in the respondent’s case had apparently been weeded and destroyed when an appeal was ongoing.  He further submits that the respondent was advised by the Department to make a fresh claim following the decision of 19 December 2012 when the option of appeal was open to him, with the consequence that the period in which he had to show deterioration in the present appeal was from 19 December 2012 to 15 January 2013, as opposed to 31 August 2012 to 13 December 2012, the period in which he asserted that most deterioration had occurred.

	Assessment

22.	The last matters advanced by Mr Hatton may highlight some deficiencies in Departmental procedure, but I do not consider that they raise points of law which come within my jurisdiction.  The main issues in this case are the role of the tribunal in an appeal which involves the application of regulation 30, and the procedure to follow if regulation 30 does not apply.

23.	It is well established that the role of the tribunal is not one of reviewing the Department’s decision, but one of standing in the shoes of the Departmental decision-maker and making its own independent decision on the evidence (R(IB)2/04).  The tribunal in the present case took the view that it was “incumbent on the Department by virtue of regulation 30 to make reasonable enquiries in relation to the deterioration of the appellant’s overall condition”.  As it considered that the Department had not obtained sufficient evidence to determine the regulation 30 questions, it decided to treat the respondent as having limited capability for work until otherwise determined.

24.	With respect, that was the wrong approach.  If the tribunal was not satisfied that it had sufficient evidence to determine the matter before it, then it should have sought evidence itself to ensure that the evidence was sufficient to determine the appeal.  A tribunal has an inquisitorial function and has various interlocutory powers to direct the production of evidence.  More straightforwardly, it had the respondent in the hearing room before it and could have questioned him directly about his condition.  As it was, it appeared to take no evidence from the respondent about any possible deterioration of his condition.  That was an error of law.

25.	As I accept the submissions of the parties that the tribunal has erred in law, I allow the appeal and I set aside the decision of the appeal tribunal.  On the evidence before me, I cannot make the decision that the tribunal should have made.  Therefore, I direct that the appeal shall be determined by a newly constituted tribunal.  I direct that the new tribunal shall consider evidence as to whether the conditions of regulation 30 are satisfied.  If the conditions of regulation 30 are not satisfied, I remind the tribunal that it should then apply the LCWA in accordance with regulation 19 of the ESA Regulations to the respondent as he was at the date of his claim.

(signed):  O Stockman

Commissioner

14 June 2017