HD-v-Department for Social Development (ESA) [2013] NIcom 69

Decision No:  C6/13-14(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 22 November 2012

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 Strabane on 22 November 2012.

2.	For the reasons given below, I allow the appeal.  I set aside the decision of the appeal tribunal and I direct that the appeal should be re-determined by a newly constituted tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998.

REASONS

	Background

3.	The applicant claimed incapacity benefit (IB) from the Department for Social Development (the Department) from 31 October 2008 by reason of chronic obstructive pulmonary disease and dermatitis.  On 3 November 2011 the applicant was notified by the Department that her existing IB 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 appellant was issued with and completed the Departmental questionnaire, form ESA50.  She was examined by a healthcare professional on 13 February 2012, who prepared a report for the Department.

4.	On the basis of all the evidence, the Department decided that the applicant did not satisfy the limited capability for work assessment (LCWA) and that her award of IB did not qualify for conversion into an award of ESA from 24 April 2012, resulting in an end to her entitlement to benefit.  She appealed.

5.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member.  The tribunal awarded six points on the LCWA and disallowed the appeal.  The applicant requested a statement of reasons for the tribunal’s decision.  This was issued on 23 January 2013.  The applicant requested leave to appeal to the Social Security Commissioner from the LQM.  This was refused by a determination issued on 20 February 2013.  On 1 March 2013 the applicant made her application for leave to appeal to a Social Security Commissioner. 

	Grounds

6.	The applicant, represented by Ms McElroy of Strabane Citizens Advice Bureau, submits that the tribunal has erred in law as:

(i)	it has failed to take into account and resolve issues raised by the applicant’s representative;

(ii)	it has failed to give adequate reasons for preferring one piece of evidence over another. 

7.	The Department was invited to make observations on the grounds of application.  Mr McKendry responded on behalf of the Department.  He submitted that the tribunal had not erred in law and indicated that he opposed the application.

	The tribunal decision

8.	It appears from the record that the applicant’s then representative indicated at the outset of the hearing which descriptors were in dispute, namely Mobilising, Standing and Sitting, Picking up and Moving, Manual Dexterity, Getting About, Coping with Change and Coping with Social Situations.

9.	The tribunal clearly adduced evidence relevant to the physical descriptors, and no issue arises from the physical descriptors.  In relation to the mental health descriptors the tribunal asks a number of questions addressed to going places, meeting people and driving.  The tribunal accepts that the applicant should score six points for the activity of Getting About.  It then finds that “Apart from the activity of ‘getting about’, the tribunal did not believe that [the applicant] had any other difficulty in any of the remaining mental health activities”.

	Hearing

10.	I held an oral hearing of the application.  The applicant was present and was represented by Ms McElroy of Strabane Citizens Advice Bureau.  The Department was represented by Mr McKendry of Decision Making Services.  I am grateful to each of the representatives for their assistance.

11.	At the hearing, Ms McElroy confirmed that the applicant consented to me treating and determining the application as if it were an appeal.

12.	Ms McElroy submitted that the applicant’s representative at the tribunal hearing had identified a number of physical and mental health activities which were in dispute.  These were set out by the tribunal in the record of its proceedings.  The tribunal had clearly addressed the physical health activities and the mental health activity of “Getting About”.  However, Ms McElroy submitted, the record of proceedings was silent on the issue of “Coping with Change” and it had made no findings in relation to this descriptor.  She submitted that it was not apparent that the tribunal had taken direct evidence or considered the aspect of “Coping with Change” at all.

13.	For the Department, Mr McKendry submitted that the record of proceedings does not need to be a verbatim account of what occurred at the hearing.  He acknowledged that the tribunal should address each disputed activity, but suggested that the onus was on the appellant or her representative to have ensured that the tribunal addressed this activity.  Nevertheless, Mr McKendry subsequently resiled from this submission and accepted that if the tribunal had not addressed the issues which were raised before it, the tribunal would have failed in its inquisitorial duty.

	Assessment

14.	The issue before me is whether the tribunal has made adequate findings in relation to the disputed activity of “Coping with Change”.  It is submitted by both parties that, if a disputed issue is raised before a tribunal, the tribunal has a duty to consider the issue.  This is well established, as set out in the decision of Chief Commissioner Mullan in C8/08-09(IB) at paragraph 60.

15.	Documentary evidence on the particular activity appears in the ESA50 form completed by the applicant and in the ESA85 completed by the healthcare professional.  I observe that the applicant did not indicate that she had difficulties with this activity in the ESA50.  She was nevertheless entitled to raise it at the hearing, albeit that a tribunal might reasonably ask why she did not raise it previously.  She did raise it at the hearing and the tribunal was therefore required to address “Coping with Change”.  This would have required evidence on matters such as the ability of the applicant to deal with planned or unplanned change.
16.	I can find no reference in the record of proceedings to any evidence relevant to this particular activity.  The tribunal’s reasons are expressed generally and make no reference to “Coping with Change”.  The reasons do not explain whether the tribunal has considered and rejected evidence on this issue or simply not addressed it.  The record of proceedings does not have to be a verbatim account, but it should contain a record of the essential evidence adduced by the tribunal.  A tribunal has the primary function of making findings of fact.  If it does not record the evidence on which any findings are grounded, the question will inevitably be asked as to whether it addressed all relevant issues and made appropriate findings.

17.	In the present case, I consider that the record of proceedings and statement of reasons does not show that the tribunal has considered the issue of “Coping with Change” adequately or at all.  The applicant has no way of knowing whether the tribunal considered that she would not have problems coping with change on the basis of evidence which is not recorded or specified, or whether the tribunal has omitted to deal with the issue.  There is nothing in the record of proceedings or in the statement of reasons which would permit me to infer that findings of fact were made by the tribunal.  Therefore, I must accept that the tribunal has erred in law by failing to address an issue expressly raised before it.

18.	I set aside the decision of the appeal tribunal and I direct that the appeal should be reconsidered by a newly constituted tribunal.

19.	The applicant was subsequently awarded ESA on a fresh claim from and including 8 March 2013.  The tribunal reconsidering the appeal is restricted to a consideration of the period from 24 April 2012 to 8 March 2013 inclusive.

(signed):  O Stockman

Commissioner

21 November 2013