AMcN-v-Department for Communities (ESA) [2017] NICom 25

Decision No:  C9/16-17(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 29 October 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 29 October 2015 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 his entitlement 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 25 June 2015, which decided that:

	(i)	grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 25 February 2015; and

	(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 25 June 2015.

6.	The appeal was received in the Department on 6 July 2015.  On 30 July 2015 the decision dated 25 June 2015 was looked at again but was not changed.

7.	The appeal tribunal hearing took place on 29 October 2015.  The appellant was present.  There was no Departmental Presenting Officer present.  The appeal was disallowed and the appeal tribunal confirmed the decision dated 25 June 2015.

8.	On 22 April 2016 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  In the application the appellant was represented by the Citizens Advice organisation.  On 28 April 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

9.	On 7 June 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 28 June 2016 observations on the application for leave to appeal were sought from Decision Making Services (DMS).  In written observations dated 9 August 2016, Mr Collins, for DMS, supported the application on one of the grounds advanced on behalf of the appellant.  The written observations were shared with the appellant and his representative on 10 August 2016.  Written observations in reply were received from Ms Banks on 6 September 2016.

10.	On 8 December 2016 I granted leave to appeal.  When granting leave to appeal I gave, as a reason that an arguable issue arose as to which the appeal tribunal has properly applied the principles in Charlton v Secretary of State for Work and Pensions ([2009]) EWCA Civ 42).  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

11.	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?

12.	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

13.	In the application for leave to appeal, Mr Byrne, for the applicant, set out the following ground of appeal:

‘1)  The tribunal has erred in law by making perverse or irrational findings on a matter material to the outcome.

The tribunal has failed to adequately take into account regulation 29(2)(b) outlining those who fail to achieve 15 points must still be treated as having a limited capability for work if he/she;

“Suffers from some disease or bodily or mental disablement and, by reasons of such disease or disablement there would be a substantial risk to the mental and physical health or any person if the claimant were not to have limited capability for work.”

We submit that the tribunal has failed in its duty to adequately consider this as a ‘substantial risk’.  The term ‘substantial risk’ has often been accepted by the tribunal as one in which may exacerbate a Claimant’s condition.  However, in the reason for decision the tribunal has stated:

“We do not accept that there would be a substantial risk to the physical or mental health of (the appellant) or others …  His injury certainly is non-life threatening.”

We would submit that this is an inappropriate conclusion and argue that (the claimant’s) condition may present a substantial risk to the physical and mental health of the Claimant and others.  We dispute the relevance of the ‘life-threatening’ nature of his condition when determining ‘substantial risk’, and furthermore question the certainty of this very assumption, as this is arguably an insufficient conclusion to reach when considering the Claimant’s injury in the context of a potentially dangerous work environment.

Physical Risk

At the date of decision (the claimant) had undergone multiple operations on his wrist.  The Claimant’s condition further deteriorated due to his inability to allow himself time to recover.

If (the claimant) was to return to his position as chef, use of his right hand could not physically substitute for the required strength, dexterity and control granted by the ability to use both hands.  The claimant is a qualified Chef, meaning that this is likely work that (the claimant) could return to.  Work as a chef naturally requires the use of both hands, for instance, chopping with the left hand and securing an object with the left, or carrying a heavy pot of boiling water.  The Claimant confirmed at the tribunal hearing that he is occasionally capable of carrying out tasks such a lifting and carrying ½ - 1 litre containers, however he cannot do this with reasonable regularity, and frequently drops the objects that he picks up, due to his injury.

The Claimant has attempted to return to work, but is unable to avoid further injuring himself, delaying a permanent return to full-time work.  A return to full-time work is an outcome that the Claimant eventually desires, but he requires a recovery period to allow this.  The above factors – i.e. his inability to utilise his left hand effectively, and the further damage that he has suffered (and will suffer) as a result of his attempts to return to work – present a substantial risk to the physical health of the Claimant, as well as the physical health of others in a work environment.

Similarly, it is submitted that the tribunal had made a perverse and incorrect judgement in determining the nature of the work (the claimant) may return to.

Regulation 29 requires the tribunal to consider any risk to be considered in the context of the claimant’s actual work.  Within the reasons for decision the tribunal state:

“We accept that he might find it difficult to continue in his regular employment as a chef but as stated we are not assessing his ability to return to his previous job but rather we are assessing if he has limited capacity for work.”

It is submitted that the tribunal directly contravene their duty under regulation 29, disregarding the test set out in Charlton v SoS [2009] EWCA Civ 42, and subsequently have applied their own test, thus making a perverse and irrational decision.’

14.	In his written observations on the application for leave to appeal, Mr Collins has made the following submissions on the appellant’s first ground of appeal:

‘In support of this contention it is argued that the tribunal has failed to adequately consider “substantial risk” and that by referring to (the appellant’s) injury being “non-life threatening” the tribunal reached an inappropriate conclusion.  It is further argued that (the appellant’s) condition may present a substantial risk to the physical and mental health of the claimant and others and that the relevance of the “life threatening” nature of his condition when determining “substantial risk” is questionable.  Furthermore the tribunal’s conclusion that his condition is not “life threatening” is arguably insufficient when considering (the appellant’s) injury in the context of a potentially dangerous work environment.

It is further contended that (the appellant’s) inability to utilise his left hand effectively and the further damage he has suffered as a result of his attempts to return to work represent a substantial risk to the physical health of others in the work environment.  Furthermore it is argued that regulation 29 requires the tribunal to consider any risk in the context of the claimant’s actual work and their conclusions directly contravene their duty under regulation 29 disregarding the test set out in Charlton v SoS [2009] EWCA Civ 42.

…

In the present case the tribunal concluded at paragraph 9 of its reasons:-

“We accept that he might find it difficult to continue in his regular employment as a chef but as stated before we are not assessing his ability to return to his previous job but rather we are assessing does he have limited capability for work within the Work Capability Assessment.”

The tribunal reached the following conclusions regarding the possible applicability of regulation 29:-

“We do not accept that there would be a substantial risk to the physical or mental health of (the appellant) or others if (the appellant) were not found to have limited capability for work.  His injury is certainly non life threatening.  We believe with the use of his left hand/arm (which he confirms at today’s hearing does not bother him) he is capable of carrying out tasks such as lifting and carrying ½ - 1 litre containers.  We note he is capable and does use his right hand for a number of tasks and believe he could with both hands pick up and move objects such as a large empty cardboard box.  We in fact believe he could do this even with one hand.

There is no evidence that danger would be caused as a result of drug side effects as the only side effect claimed at the medical was constipation.

…

We note the 2 reports from Mr Swain FRCS of 2 September 2015 and 23 February 2015 … The reports do not indicate that a return to work would result in a substantial risk to (the appellant’s) (nor indeed anyone else) physical or mental health.”

Firstly I would submit that the issue of whether or not (the appellant’s) condition is life-threatening is relevant to regulation 29(2)(a) rather than 29(2)(b).  It would appear therefore that the tribunal’s comment was made in the context of it considering regulation 29 as a whole.  That being said, in Charlton v SoS [2009] EWCA Civ 42 the Court of Appeal Judges held at paragraph 45 that:-

“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.”

In applying this approach the Court of Appeal further concluded at paragraph 46 that:-

“There should be no difficulty provided the decision-maker or tribunal recall that the essential question is whether there is an adequate range of work which the claimant could undertake without creating a substantial risk to himself or to others.”

I would accept that the above findings also hold good for cases within Northern Ireland.  I can find nothing within the tribunal’s reasons to suggest that any consideration was given by it to assessing the range or type of work (the appellant) would be capable of performing.  Consequently I would agree that there is an error in law arising from how the tribunal considered regulation 29.

I would therefore support (the appellant’s) first ground of appeal.’

15.	In AH-v-Department for Communities (ESA) ([2017] NICom 13, C13/16-17(ESA)) (‘AH’), Mr Commissioner Stockman reviewed the jurisprudence relevant to regulation 29 of the Employment and Support Allowance Regulations 2008 in Great Britain and addressed the applicability of that jurisprudence in Northern Ireland.  He gave authoritative guidance to decision-makers and appeal tribunals on the proper approach to regulation 29.  He said the following, at paragraphs 21 to 33 of his decision:

‘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.’

16.	I endorse the principles set out by Mr Commissioner Stockman and commend them to decision makers and appeal tribunals.  I also recommend that consideration be given by appeal tribunals to the further definitive analysis by the authors of Volume 1 of Social Security Legislation 2016/2017.

17.	I am also in agreement with the parties to the proceedings in the appeal before me that the approach of the appeal tribunal was not in keeping with that recommended in Charlton and sanctioned by Mr Commissioner Stockman in AH.

	Disposal

18.	The decision of the appeal tribunal dated 29 October 2015 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.

19.	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 25 June 2015, which decided that grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 25 February 2015, and the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 25 June 2015;

	(ii)	the appeal is to be listed as an oral hearing;

	(iii)	the Department is directed to provide details of any subsequent claims to ESA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to ESA into account in line with the principles set out in C20/04-05(DLA);

	(iv)	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

	(v)	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

25 May 2017