WJTK-v-Department for Communities (ESA) [2016] NICom 76

Decision No:  C23/15-16(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 1 April 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 1 April 2015 is in error of law.

2.	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.

3.	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.

	My substituted decision is as follows:

4.	I am applying descriptor (a) of activity 16 in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 (the 2008 Regulations).  The application of this descriptor means that the appellant attracts a score of 15 points in connection with the work capability assessment.  That score is sufficient, therefore, for me to make a determination that the appellant has limited capability for work - Regulation 19(3) of the 2008 Regulations, as amended.  This determination takes effect from and including 19 May 2014 and, accordingly, the appellant is entitled to employment and support allowance (ESA) from and including that date, subject to the additional comments below.

5.	Although this was not an issue directly before me, based on the evidential assessment and fact-finding conducted above, I am also applying the descriptor in activity 13 in Schedule 3 to the 2008 Regulations.  This means that the appellant has limited capability for work-related activity.  This determination also takes effect from and including 19 May 2014.

6.	Following the oral hearing, and at my request, Mr McKendry confirmed that the appellant made a claim to jobseeker’s allowance (JSA) on 17 April 2015, that JSA was payable from that date and that the appellant had been paid, at that stage, up to and including 7 April 2016.  My determinations that the appellant has limited capability for work from and including 19 May 2014, is, accordingly, entitled to ESA from and including the same date and that he also has limited capability for work-related activity from and including the same date has to take account of the payability of JSA from and including 17 April 2015.  I am grateful to Mr McKendry for confirming that the decision to award JSA can be revised under Regulation 3(5G) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  Mr McKendry also confirmed that the benefit (in terms of JSA) already paid under the revised award may be treated as having been paid on account of the award of ESA - regulation 5(1) & (2), case 2 of the Social Security (Payment on Account, Overpayments and Recovery) Regulations (NI) 1988, as amended.

	Background

7.	The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 19 May 2014, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 23 August 2011; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 19 May 2014.

8.	The appeal was received in the Department on 30 May 2014.  On 15 September 2014 the decision dated 19 May 2014 was looked at again but was not changed.

9.	The appeal was first listed for oral hearing on 3 December 2014 and was adjourned.  The stated reason for the adjournment was to permit the appellant to obtain and provide further evidence.  The substantive appeal tribunal hearing took place on 1 April 2015.  The appellant was present and was represented.  There was no Departmental Presenting Officer present.  The appeal was disallowed and the appeal tribunal confirmed the decision dated 19 May 2014.  The appeal tribunal did apply certain of the descriptors and activities in Schedule 2 to 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 limited capability for work - Regulation 19(3) of the Employment and Support Allowance Regulations (Northern Ireland), as amended.

10.	On 8 September 2015 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 2 October 2015 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

11.	On 6 November 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners (OSSC).  On 11 November 2015 observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 3 December 2015.  In these observations, Mr McKendry, for DMS, supported the application for leave to appeal.  The written observations were shared with the appellant and his representative on 3 December 2015.

12.	On 23 February 2016 I granted leave to appeal.  When granting leave to appeal I gave, as a reason, that an arguable issue arose as to the manner in which the appeal tribunal had approached the potential application of Activity 16 in part 2 of Schedule 2 to the 2008 Regulations, as amended.

13.	On 29 February 2016 I directed an oral hearing of the appeal.  The oral hearing took place on 7 April 2016.  The appellant was present and was represented by Mr Cree.  The Department was represented by Mr McKendry.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.  There then followed a delay in the promulgation of this decision which was due to the current workload in the OSSC.  Apologies for this delay are extended to the parties to the proceedings.

	Errors of law

14.	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?

15.	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.”

	The submissions of the parties

16.	In the application for leave to appeal and in his oral submissions, Mr Cree made the following submissions on behalf of the appellant:

(i)	Following the initial adjournment of the appeal, the appellant’s General Practitioner (GP) provided additional medical evidence in the form of a report dated 8 December 2014.  It was submitted that the appeal tribunal had rejected this evidence because it did not relate to the descriptors associated with the limited capability for work assessment.  This was not the fault of the appellant and he had been disadvantaged as a result.

(ii)	The appeal tribunal’s conclusions with respect to the appellant’s ability to mobilise were perverse.

(iii)	In respect of the activity 16 in Schedule 2 to the 2008 Regulations, the appellant’s ability to go into a supermarket once or twice per week was not relevant to the question of social engagement unless the appeal tribunal ascertained what actual social contact the appellant had while he was there.  In this respect, it was noted that it was possible to go to modern supermarkets and not speak or engage with anyone to any significant degree.  The appeal tribunal erred by finding that an ability to go to a supermarket once or twice per week meant that he could not satisfy descriptor (a) of activity 16.  If the appellant was precluded from social engagement for the rest of the time and only engaged in limited, infrequent social engagement, this should not automatically prevent him from being able to satisfy descriptor (a).

(iv)	A specific argument had been raised regarding concerns over the qualifications of the healthcare professional who had examined the appellant on behalf of the Department.  This argument had not been addressed by the appeal tribunal.

17.	In his written observations on the application for leave to appeal, Mr McKendry opposed the application on grounds (i), (ii) and (iv) above but supported the application on grounds (iii).  He stated:

‘(The appellant’s) representative further contended that the tribunal had erred in relation to the application of Activity 16 “Coping with social engagement due to cognitive impairment or mental disorder”.  (The appellant’s) representative contended that the error was, the fact that because (the appellant) could go to the supermarket once or twice a week meant that the “always precluded” condition of the descriptor could never be satisfied and further that it was possible in the modern supermarket, to not speak or engage with anyone to any substantive amount.

(The appellant), at his examination, in his description of a typical day stated that he could get annoyed at the supermarket if the queue was too long but would not shout and would release his tension in private.

The ROPs show that when questioned by the panel in relation to managing in the supermarket (the appellant) replied that he could manage but hated rudeness.  At paragraph 19 of the SORs the tribunal noted:

“(The appellant’s) evidence on his day to day activities including going to the supermarket.  Therefore social engagement is not always precluded.” 

…

I would submit that in this modern day and age it is certainly possible to go and shop at a supermarket without having any social interaction with anybody.  This is in keeping with (the appellant’s) representative on this point.

I would further submit that it was for the tribunal to elicit further evidence from (the appellant) as to exactly what type of social contact he experienced whilst at the supermarket.

Commissioner Stockman in decision C2/15-16(ESA) considered the case where the claimant had contended that the tribunal had not gave adequate reasons for its decision and felt that the fact that he was travelling to see his daughter was not sufficient reason to refuse points for mental health activities.

Commissioner Stockman held:

“Nevertheless, I am conscious of the words of the three-judge panel of the Great Britain Upper Tribunal in the case of JC v Secretary of State for Work and Pensions [2014] UKUT 352 at paragraphs 24-39.  The Upper Tribunal was here looking at activity 16 and the different approaches which had been taken to the meaning of the word “social” by Upper Tribunal judges.  Having determined the meaning of the word “social”, at paragraph 38 the Upper Tribunal addressed the approach to fact finding. They said:

“38.  The fact finding exercise can be, and in our view generally should be, carried out separately from, although with an eye to, the value judgements that have to be applied to those findings.  It identifies and particularises, by reference to the primary facts, the situations and events that will be taken into account and so the bedrock of the decision on the application of the Activities and their Descriptors.  In reaching that decision the tribunal will have to address and decide whether those findings show that:

i)	the claimant has cognitive impairment or mental disorder,

ii)	a causative link between that impairment or disorder and his difficulty relating to others or significant distress, and

iii)	a causative link between that difficulty and distress and a preclusion for all of the time or an impossibility for a majority of the time of contact with all other people, or those who are unfamiliar to the claimant, that has the necessary degree of reciprocity, give and take, initiation and response.”

Given the above I would concur with (the appellant’s) representative that the tribunal has erred in law in its inquisitorial role in not fully considering the exact nature/frequency of the problems that (the appellant) experienced in relation to activity 16.’

18.	At the oral hearing before me, Mr McKendry supplemented the submissions which he had made in his written observations.

	Analysis

19.	Mr McKendry is correct to highlight the decision of Mr Commissioner Stockman in NL-v-Department for Social Development (ESA) ([2015] NICom 28, C2/15-16(ESA), ‘NL’).  The decision of the Commissioner highlighted the crucial significance of the decision of the Three-Judge Panel in Great Britain in JC v Secretary of State for Work and Pensions ([2014] UKUT 352, reported as [2015] AACR 6, ‘JC’).

20.	In paragraphs 24 to 35 of that decision, the Three-Judge Panel reviewed the criterion and conceptual test to be applied when a decision-making authority, including an appeal tribunal, was considering the potential application of activity 16 in Schedule 2 and activity 13 in Schedule 3 to the Great Britain equivalent to the 2008 Regulations.  It is, in my view, worth setting out the conclusions of the Three-Judge Panel in full.  Having reviewed the decision of Upper Tribunal Judge Parker in KB v Secretary of State for Work and Pensions (ESA) ([2013] UKUT 152 (AAC), ‘KB’) and a decision of Upper Tribunal Judge Ward in AR v Secretary of State for Work and Pensions (ESA) [2013] UKUT 446 (AAC), and having noted apparent conflicts between them, the Three-Judge Panel stated:

‘24.	It is common ground that in isolation the word “social” has a range of meanings that covers the rival arguments before us.  The search for its meaning within the statutory test must therefore be carried out applying the general approach set out above.

25.	Like Judge Ward, we do not agree with Judge Parker that because the word “social” qualifies “engagement” (in the activities) and “contact” (in the descriptors) it follows that it has the meaning she finds, namely “relations with other human beings and does not carry connotations of leisure and pleasure”.  But, while we accept that Parliament must have had the difficulties of those with Autistic Spectrum Disorder in mind, we do not accept that its intention was directed only at the difficulties in communication they suffer or similar difficulties.

26.	Indeed the causes referred to in the activities and their descriptors, namely:

i)	“due to cognitive impairment or mental disorder” which link to sections 1(4)(a), 8 and 9 of the 2007 Act and regulations 19(5) and 34(3A), and which need to have a sufficient causative link to

ii)	“difficulty relating to others or significant distress experienced by the individual”

show that the intention was not so confined but was directed to the possible impact of a wide range of impairments or disorders which caused one of the results for one of the reasons set out in the descriptors.  Further, in our view those results for those reasons might be affected by a variety of circumstances relating to the context in which they might arise, including a factor expressly addressed in the descriptors namely the distinction between social contact with someone who is familiar and all social contact.

27.	In our view, the most important factors that determine the nature and quality of the behaviour and communication covered by the activities and their descriptors are the words of the definitions taken as a whole and the underlying statutory purposes.  The application of those factors involves a consideration of:

i)	the range of meanings in common usage of the individual words that are used and so of “coping”, “engagement”, “social” and “contact” in the context of their combined effect,

ii)	the causes referred to in the activities for the problems with coping with and engaging in social contact,

iii)	the causes referred to in the descriptors and their link with the relevant cognitive impairment or mental disorder, and

iv)	the underlying purposes of the legislation and so of the assessments.

28.	Having regard to the underlying purposes of the assessments that we have set out earlier (see [15] and [16] above), a limitation of the nature and quality of the contact or engagement in the activities and their descriptors to contact for pleasure or leisure or characterised by friendliness, geniality or companionship and so the choices that that involves would be surprising because that limitation (a) would exclude aspects of communication in the workplace, and (b) would not take proper account of the distinction in the descriptors between communication with people with whom the claimant is familiar and all communication.  Indeed, it seems to us that points (a) and (b) dictate that the tests in the activities and their descriptors extend to contact for the purposes of work and so to contact with other characteristics and purposes that involve different degrees of choice or no choice because they relate to a structured situation or professional relationship (eg doctor and patient, lawyer and client).

29.	Accordingly, we have concluded that Judge Parker and the Secretary of State are right in concluding and arguing that if it is isolated the word “social” in those definitions is a reference to “with other human beings”.

30.	However, that conclusion does not define the types of “engagement” or “contact” between people and thus the “engagement” or “contact” with other human beings that is to be taken into account.  Accordingly, our conclusion on the meaning to be given to “social” leaves open the nature and quality of the “engagement” or “contact” that is precluded or not possible for the given reasons and thus the assessment of what “engagement or contact with other people” the claimant can cope with due to his cognitive impairment or mental disorder.

31.	What is the nature and extent of that engagement or contact and how is it to be assessed?

32.	In our view, “coping” and “engagement” and the underlying statutory purposes introduce elements of reciprocity, give and take, initiation and response. Such qualities exist in contact that is marked or characterised by friendliness, geniality or companionship but, in our view, they can arise and can be demonstrated without those elements (and the choices they involve) being present and this is often the case in the workplace and elsewhere albeit that a number of relationships there will include (or at least not exclude) them.

33.	A number of examples were addressed in the course of the hearing including those mentioned in [29] of Judge Ward’s decision (eg buying a ticket or groceries), contact with a medical examiner or other professional or a First-tier Tribunal and conversation with a stranger on a park bench.  In our view, all of these examples could demonstrate the necessary degree of reciprocity, give and take, initiation and response.

34.	As Judge Parker pointed out there is a range of possibilities from no response and then on through monosyllabic or unresponsive answers and, in our view, it is open to a decision-maker to base his decision on an example or examples chosen from a wide range of situations.  Whether the evidence and findings relating to the claimant’s communications with others and behaviour in the chosen example or examples have the necessary degree of reciprocity, give and take, initiation and response raises issues of fact and degree and of judgment having regard to all the circumstances relating to them.  As with other such issues, the authorities show that it is not practical or appropriate to identify the statutory criterion by reference to abstract examples or by reference to a general classification or description other than the statutory test.

35.	Rather, these are the type of issues that the authorities show are eminently suitable for consideration by a tribunal charged with considering the evidence whose approach to determining the application of the activities and their descriptors in each individual case should be to consider and determine how:

The nature and quality of the examples of communications and behaviour they take into account (and thus the reciprocity, give and take, initiation and response shown thereby) would, for the reasons given in the activities and their descriptors, be likely to be an effective barrier to the claimant working.

21.	Having identified the correct criterion or conceptual test, the Three-Judge Panel, in paragraphs 37 to 39, turned to their application by a decision-making authority.  Paragraph 38 has been highlighted above in the extract from Mr McKendry’s written observations.  The analysis in that paragraph by the Three-Judge Panel represents the best and safest practice for a decision-making authority in applying the tests relating to activity 16 in Schedule 2 and activity 13 in Schedule 3 to the 2008 Regulations.

22.	I adopt and accept the reasoning and analysis of the Three-Judge Panel in JC, set out above, which, in my view, properly reflects the law in Northern Ireland.  The approach taken by the Three-Judge Panel is, accordingly, the correct one to be adopted by decision-making authorities in this jurisdiction.

23.	It is important to note that the Three-Judge Panel in JC also made mention of the decision of Court of Session in Secretary of State for Work and Pensions v Brade ([2014] CSIH 39, (reported as [2014] AACR 29, ‘Brade’) which was an appeal against aspects of the decision of Upper Tribunal Judge Parker in KB.  As part of her decision, Upper Tribunal Judge Parker had to consider the relationship between the application of activity 13 in Schedule 3 to the Great Britain equivalent to the 2008 Regulations and regulation 34(2), which, in the form that was before her, read:

‘(2) A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.’

	Lady Smith, giving the lead judgement of the Court in Brade, stated, at paragraphs 32 to 37:
‘32.	The essential question is: what did Parliament mean by the term “always precluded”, as used in descriptor 13 of Schedule 3 to the 2008 Regulations?  As is well understood, the answer to such a question is not necessarily to be found by adopting a literal interpretation.  If the interpretation exercise is confined to a consideration of the precise wording employed, the outcome may be one which frustrates Parliamentary intention, namely, such intention as can, objectively and in context, reasonably be imputed to Parliament in respect of the words used.  That is why, where the meaning of a provision such as the present one is challenged, it is important to consider it in the context of the statute as a whole or where, as here, it is part of a wider statutory scheme, in that context.
33.	In this case, I consider that that means that descriptor 13 of Schedule 3 to the 2008 Regulations requires to be considered not only in the context of those regulations but in the context of the other legislative provisions to which I have already referred.  The intention which I consider to be disclosed by that legislative scheme, when viewed objectively, is to place within the WRAG those persons who might have potential for engagement in the labour market provided it is reasonable to require them to perform work-related activity which would, under the current legislation, involve them taking part in one or more work-focused interviews.  The descriptors in Schedule 3, when read together with regulation 34(1) appear to be intended to identify where the claimant’s personal circumstances can be deemed to negative either the existence of such potential or the reasonableness of the work-related activity requirement, or both. However, regulation 34(2), which is a substantive provision, must also be taken into account when considering the meaning and effect of the Schedule 3 provisions.  It has a moderating influence; to avoid being included in the WRAG, claimants need not show that they fall within a descriptor all the time, every minute, 24 hours of every day.
34.	It was, very properly, recognised on behalf of the appellant that, to succeed in his interpretation of descriptor 13, regulation 34(2) had to be disapplied.  Although expressed as relating to all the descriptors in Schedule 3, it had to be read as, in fact, not applying to descriptor 13 at all.
35.	To ignore, in the course of an interpretative exercise, the entirety of a legislative provision would, whilst not unheard of be very unusual indeed.  I am unable to identify anything which would justify, in effect, ignoring the terms of regulation 34(2) and thus depriving descriptor 13 or any other part of the Schedule 3 descriptors – such as descriptor 8, in relation to which similar questions could arise – of their moderating influence.  I am satisfied that, when these provisions are considered in the context of the whole statutory scheme, “always”, as used in descriptor 13 of Schedule 3 cannot have been intended to mean “always” in the sense of the claimant never, at any time, whatever the circumstances, being able to engage in “social contact”.
36.	I would not, however, be minded to adopt the UT’s interpretation, given the extent to which it is somewhat loose and indefinite and, importantly, was not based on a consideration of the wider statutory scheme.
37.	A purposive construction is called for.  Whilst slavish application of the literal meaning of “always” might appear to place a claimant in the WRAG unless he can bring himself within the description to which I refer at the end of [35] above, I consider that that would not make sense in the overall statutory context and would tend to undermine its underlying purpose.  I consider that descriptor 13 must apply if a claimant suffers from a mental disorder which has the consequence that, for the majority of the time, he cannot engage in social contact.  That construction properly embraces regulation 34(1), 34(2) and the terms of descriptor 13 and accords with their evident intention.  Such a person is not likely to have labour market potential and, moreover, if, for the majority of the time, that person cannot engage in social contact, requiring participation in a work-focused interview would be not only unreasonable but pointless.  Further, that construction avoids the fact-finder being necessarily driven to the absurd conclusion that descriptor 13 is not satisfied if, for instance, on a single occasion, a claimant has given instructions to a representative for the purposes of a tribunal hearing.  The question of whether or not a person is wholly precluded from engagement in social contact for the majority of the time is one of fact having regard to the statutory provisions as understood by the guidance we have sought to provide.  That question is not answered by the application of any precise mathematical approach but by the fact-finding tribunal having regard to the evidence in the particular case of the effects of the claimant’s condition in a realistic way whilst bearing in mind the purpose of the legislation.’
24.	Once again, I adopt and accept the reasoning and analysis of the Court of Session in Brade, set out above, which, in my view, properly reflects the law in Northern Ireland.  The approach taken by the Court of Session is, accordingly, the correct one to be adopted by decision-making authorities in this jurisdiction when considering the relationship between regulation 34(2) and both activities 16 in Schedule 2 and 13 in Schedule 3 to the 2008 Regulations and the meaning of ‘always’ as used in the descriptors in both Activities.

25.	Having considered the content of the appeal submission and the oral submissions which were made on behalf of the appellant, it is clear that there was no reference to the decisions of the Three-Judge Panel in JC or the Court of Session in Brade.  It may be the case, therefore, that the appeal tribunal was unaware of the valuable guidance to be found within those decisions and which I have adopted without hesitation.

26.	Mr McKendry has already made reference to the conclusions of the appeal tribunal in paragraph 19 of its decision where it set out its findings on the potential application of activity 16 in Schedule 2 to the 2008 Regulations.  To repeat, the appeal tribunal noted:

‘(The appellant’s) evidence of his day to day activities including going to the supermarket.  Therefore social engagement is not always precluded.’

27.	If the appeal tribunal was concluding that any interaction by the appellant, including going to the supermarket, precluded the potential application of descriptors (a) or (b) of activity 16, then that conclusion runs contrary to the interpretation of the word ‘always’ in the relevant descriptor by the Court of Session in Brade – see paragraph 35 of the decision as noted above.  I would also agree with Mr McKendry that had the appeal tribunal been aware of the guidance on the proper approach to fact-finding set out by the Three-Judge Panel in paragraph 38 of the decision in JC and approved of by Mr Commissioner Stockman in NL then it might have adopted a more rigorous approach to that exercise.  For these reasons, the decision of the appeal tribunal is in error of law and must be set aside.  I do so with a degree of reluctance given the appeal tribunal’s careful and judicious management of the other aspects of the appeal, and its circumspectly prepared statement of reasons.

	The appellant’s other grounds of appeal

28.	Having found, for the reasons set out above, that the decision of the appeal tribunal is in error of law, I do not have to consider, in detail, the appellant’s other grounds of appeal.  With respect to Mr Cree’s careful presentation of those grounds I am, nonetheless, of the view that I would not have found the decision of the appeal tribunal to be in error of law on the basis of those submitted grounds.

	My substituted decision

29.	In making the decision which I consider the appeal tribunal should have given, I also consider it expedient to make further findings of fact.  In so doing, I remind myself to adopt the fact-finding approach set out in paragraph 38 of the decision of the Three-Judge panel in JC and which approach I have exhorted on other decision-makers.

30.	In the file of papers which is before me is a copy of a report from the appellant’s GP dated 8 December 2014.  The appeal was first listed for hearing on 3 December 2014.  The appeal was adjourned to permit the appellant to obtain additional medical evidence.  The report dated 8 December was, in all probability, adduced in response to the adjournment.

31.	It is clear from the contents of the GP report that for the purposes of sub-paragraph (i) of paragraph 38 of the decision of the Three-Judge Panel in JC that the appellant suffers from mental disorder.  The GP report states:

‘…

He has been receiving treatment for depressive illness for four years and despite this continues to experience prominent anxiety, low mood, pessimism and apathy.  The Christmas period is particularly difficult in relation to family bereavements and he is also experiencing problems in relation to his home circumstances and worries about money.  He has had a combination of long-term antidepressant medications, referral to specialist services and cognitive behavioural psychotherapy, but without any long-term improvement in his continued symptoms.

Unfortunately I do not anticipate that there will be a significant improvement in symptoms related to either of these conditions in the short to medium term.’

32.	During the course of the oral hearing I heard oral evidence from the appellant which, for the most part, was in response to questions which I put to him.  I found the appellant to be open, honest and credible, and accept his oral evidence as factual.

33.	The facts, therefore, are as follows.  He told me that he lived on his own in a one-bedroom Housing Executive flat on the first floor in a complex of four.  He knew two of the other tenants of the flats.  He stated that his mood was up and down.  He did not want to go out because he ‘would be that depressed’ and would prefer to stay in.  He had a lot of anxiety and was easily frustrated.  He has anger problems which he has taken out by hitting a door but not any person.  He attempts to keep his anger under control in other ways.  He has a girlfriend who lives down the street and whom he sees every now and then.  She has her own health problems.  Sometimes when she calls he does not want to see her.  He does not want to see strangers who call to his door.  He has told them in no uncertain terms to go away.

34.	He goes shopping once or twice a week but has sometimes left it for two weeks.  There are supermarkets close by.  He would go when he knows that it will be quiet.  He puts in his earphones and listens to music.  He gets what he needs and leaves.  He would give a quick or curt nod to the assistant at the checkout.  He would go to the self-service checkout if he was stressed out.  There have been times when he has ‘lost it’ and left the store without finishing the shopping.

35.	He had friends many years ago but would only see them very occasionally.  He would go to the cinema ‘once in a blue moon’ if it was a good day.  He does not like crowds.  He has not been for a haircut for two years.  He is no longer in contact with his family.  He keeps his appointments ‘as much as possible’ in connection with his entitlement to Jobseeker’s Allowance.  He would put his earphones in again and listen to music to avoid contact with other people.  He was very nervous and anxious about coming to the oral hearing of the appeal.

36.	I am wholly satisfied for the purposes of sub-paragraph (ii) of paragraph 38 of the decision of the Three-Judge Panel in JC that there is a causative link between the appellant’s mental disorder and difficulty relating to others or significant distress being experienced by him when engaged in social contact.  Finally, and most significantly, I am wholly satisfied, for the purposes of sub-paragraph (iii) of paragraph 38 of the decision of the Three-Judge Panel in JC, that there is a causative link between the appellant’s difficulty relating to others or significant distress and a preclusion for all of the time with all other people.  In concluding that the preclusion is for all of the time and that it is in connection with all other people I have taken into account the guidance given by the Three-Judge Panel in JC and, more particularly, the Court of Session in Brade.  The appellant is able to engage in social contact on occasions and is able to do so with other people who are unfamiliar to him.  I am satisfied that such social engagement is rare, however, and when it does occur causes the appellant significant distress.

37.	I have noted what was said in paragraph 39 of the decision of the Three-Judge Panel in JC and am satisfied that the nature and quality of the communications and behaviour would have a significant impact on the ability of the appellant to work and would, in reality, be an effective barrier to him working.

38.	I am applying descriptor (a) of activity 16 in Schedule 2 to the 2008 Regulations.  The application of this descriptor means that the appellant attracts a score of 15 points in connection with the work capability assessment.  That score is sufficient, therefore, for me to make a determination that the appellant has limited capability for work - Regulation 19(3) of the 2008 Regulations, as amended.  This determination takes effect from and including 19 May 2014 and, accordingly, the appellant is entitled to ESA from and including that date, subject to the additional comments below.

39.	Although this was not an issue directly before me, based on the evidential assessment and fact-finding conducted above, I am also applying the descriptor in activity 13 in Schedule 3 to the 2008 Regulations.  This means that the appellant has limited capability for work-related activity.  This determination also takes effect from and including 19 May 2014.

40.	Following the oral hearing, and at my request, Mr McKendry confirmed that the appellant made a claim to jobseeker’s allowance (JSA) on 17 April 2015, that JSA was payable from that date and that the appellant had been paid, at that stage, up to and including 7 April 2016.  My determinations that the appellant has limited capability for work from and including 19 May 2014, is, accordingly, entitled to ESA from and including the same date and that he also has limited capability for work-related activity from and including the same date has to take account of the payability of JSA from and including 17 April 2015.  I am grateful to Mr McKendry for confirming that the decision to award JSA can be revised under Regulation 3(5G) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. Mr McKendry also confirmed that the benefit (in terms of JSA) already paid under the revised award may be treated as having been paid on account of the award of ESA - regulation 5(1) & (2), case 2 of the Social Security (Payment on Account, Overpayments and Recovery) Regulations (NI) 1988, as amended.

(signed):  K Mullan

Chief Commissioner

7 December 2016