NKC-v-Department for Social Development (ESA) [2010] NICom 87

 

                        Decision No: C2/10-11(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 14 August 2009

 

                         DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.         Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.

 

2.         I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal. 

 

3.         The decision of the appeal tribunal dated 14 August 2009 is in error of law. The error of law identified will be explained in more detail below.

 

4.         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.

 

5.         I am able to exercise the power conferred on me by Article 15(8)(a)(i) 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 without making fresh or further findings of fact.

 

6.         My substituted decision is that the appellant is not entitled to employment and support allowance (ESA) from and including 28 February 2009.

 

 

 

 

 

Background

 

7.         The appellant became unfit for work on 6 November 2008, claimed and was awarded ESA.  Doctor’s statements submitted in support of her claim refer to ‘post operation’.

 

8.         In connection with the work capability assessment, the appellant completed a questionnaire on 10 December 2008 on which she stated that she was still recovering from varicose vein surgery, constantly suffering from very low blood pressure and has suffered with irritable bowel syndrome for the past 20 years. She stated that she had difficulties in the activities of walking and using steps, standing and sitting, bending and kneeling, and controlling bowels and bladder. She also indicated that she had problems with memory and concentration, initiating and sustaining personal action, going out alone, meeting new people and going to new places.

 

9.         On 6 January 2009 a medical officer of the Department examined the appellant. In the report of the medical examination, the medical officer diagnosed her medical conditions as post-op varicose vein surgery, irritable bowel syndrome, hiatus hernia and memory problems and expressed the opinion that she had problems only with standing and sitting and no problems with any of the activities relating to mental, cognitive and intellectual function.   

 

10.       On 20 February 2009 a decision-maker of the Department determined that the appellant did not have limited capability for work from and including 20 February 2009. The decision-maker on 28 February 2009 superseded the award of ESA and decided that the appellant was not entitled to ESA from and including 20 February 2009.  This decision is the subject of further analysis below.

 

11.       A letter of appeal against the decision dated 28 February 2009 and, in her letter of appeal she stated that it had come to light she was suffering from fibromyalgia and depression, was tortured with pain and chronic fatigue every day, with nausea and panic attacks at night and that this had been going on for some time.  In view of the grounds of appeal a letter requesting further information was issued to the appellant on 1 April 2009 but no reply was received. The Department’s submission was prepared and sent to the Appeals Service (TAS) on 5 May 2009. 

 

12.       An appeal tribunal hearing was held on 14 August 2009. The appeal tribunal disallowed the appeal.

 

13.       On 22 September 2009 an application for leave to appeal was received in TAS. On 24 September 2009, the application for leave to appeal was refused by the legally qualified panel member.

 

 

Proceedings before the Social Security Commissioner

 

14.       On 21 October 2009 a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.

 

15.       On 3 November 2009 observations were sought from Decision Making Services (DMS) and these were received on 3 February 2010. DMS opposed the application on most of the grounds submitted by the applicant but supported the application on another identified ground.

 

16.       Observations were shared with the applicant on 18 February 2010.

 

Errors of law

 

17.       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.

 

18.       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.”

 

Was the decision of the appeal tribunal in the instant case in error of law?

 

19.       In the application for leave to appeal to the Social Security Commissioner, the appellant submitted that the decision of the appeal tribunal was in error of law on the basis that the decision failed to take into account her medical history since she was examined by the medical officer of the Department, and that she had asked the Department to seek out her medical records from her general practitioner but the Department had failed to do so.

 

20.       In written observations on the application for leave to appeal, DMS has responded to the applicant’s grounds for appealing, as follows:

 

‘The question for the tribunal to decide was whether (the claimant) had limited capability for work in accordance with section 8(2) of the Welfare Reform Act (Northern Ireland) 2007 and regulation 19 of the Employment and Support Allowance Regulations (Northern Ireland) 2008.  The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 is incapable by reason of such disease or bodily or mental disablement of performing those activities.  To have limited capability for work (the claimant) had to score 15 points whether for physical disabilities, mental, cognitive and intellectual function assessment or a combination of both.  The tribunal awarded (the claimant) a score of 6 points.

 

In this case (the claimant) stated on 10 March 2009 that she also suffered from Fibromyalgia and depression of a severe nature.  She was asked in a letter dated 1 April 2009 to provide the following information:

 

“The exact date you were diagnosed with fibromyalgia and depression, what medication you have been prescribed and from what date and any specialist referrals anticipated.” 

 

She was issued with a return envelope and told that if a reply was not received by 15 April 2009 a decision would be made based on the information already held.  A reply was not received.

 

The claimant was given the opportunity to provide medical evidence of her illness and failed to do so.  She did not request an oral hearing and the tribunal decided the appeal on the information held.  Under the provisions of Article 13(8) (b) of the Social Security (Northern Ireland) Order 1998 the tribunal could not take into account any circumstances not obtaining at the time when the decision appealed against was made.  The tribunal accepted the contents of the report dated 6 January 2009 from Dr Cummings the health care professional who found that (the claimant) was on no medication for mental health, lives an active, independent and outgoing life style and her mental health was normal.     

 

I submit that the findings on the medical report dated 6 January 2009 do not support (the claimant’s) contentions and the information supplied by her on the questionnaire dated 10 December 2008 makes no mention of the illness conditions or symptoms described in her grounds of appeal.  She was given the opportunity to submit medical evidence in support of her contentions but failed to do so.  Furthermore the tribunal was required to take account of her condition at the date of the decision, not at the date of the hearing.  Accordingly I submit that (the claimant) has not identified an error of law in the tribunal decision.’      

 

21.       I accept the response from DMS in its entirety and agree that the appellant has not, in her application for leave to appeal to the Social Security Commissioner, identified a ground or basis on which it could be said that the decision of the appeal tribunal is in error of law.

 

A possible error of law?

 

22.       In the written observations on the application for leave to appeal, DMS has submitted that the decision of the appeal tribunal was in error of law on the following basis:

 

‘… I believe that the tribunal has erred in relation to the effective date of decision.  Article 11 of the Social Security (Northern Ireland) Order 1998 (the 1998 Order) provides the power that enables a decision to be superseded.  In particular Article 11(3) allows for regulations to specify the cases and circumstances which may be superseded.  The effective date of any supersession decision falls to be determined under Article 11(5) and (6) which states:

 

(5)               Subject to paragraph (6) and Article 27, a decision under this Article shall take effect as from the date on which it is made or, where applicable, the date on which the application was made.

(6)               Regulations may provide that, in prescribed cases or circumstances, a decision under this Article shall take effect as from such other date as may be prescribed.

 

Regulation 6(2) of the Decision and Appeals Regulations specifies the various circumstances under which a decision may be superseded.  Regulation 6(2)(q) is appropriate in this case and states:

 

is an employment and support allowance decision where, since the decision was made, the Department has received medical evidence from a health care professional approved by the Department for the purposes of regulation 23 or 28 of the Employment and Support Allowance Regulations.

 

This is the provision under which (the claimant’s) award of employment and support allowance was superseded.

 

Regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 specifies the date from which a decision superseded under Article 11 takes effect.  As none of the circumstances of that regulation apply, the effective date of supersession is determined in accordance with Article 11 (5) of the 1998 Order, ie the date of decision.

 

In this case the tribunal was advised that on 20 February 2009 a determination was made by the Department that (the claimant) did not have limited capability for work and that on the basis of the determination a decision was made on 2 March 2009 to supersede the decision awarding employment and support allowance.  I have investigated the matter and established that the actual supersession decision was made on 28 February 2009.  The effect of this decision was to remove entitlement to employment and support allowance from 20 February 2009 (the date of determination) when this should have been 28 February 2009, the date of the supersession decision. …

 

Regulation 1(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 [the Decisions and Appeals Regulations] defines the meaning of a limited capability for work determination and an employment and support allowance decision as follows:

 

“limited capability for work determination “ means a determination whether a person has limited capability for work by applying the test of limited capability for work or whether a person is to e treated as having limited capability for work in accordance with regulation 20 of the Employment and Support Allowance Regulations  

 

And

 

“employment and support allowance decision” means a decision to award a relevant benefit or relevant credit embodied in or necessary to which is a determination that a person has or is to be treated as having limited capability for work under Part 1 of the Welfare Reform Act 

 

The distinction between decisions and determinations was considered by Commissioner Jacobs in decision CIB/2338/2000. … He concluded that a determination is a building block of a decision, it has no direct effect on the money the claimant receives and a determination only has effect on the money the claimant receives when incorporated into an outcome decision which the claimant is able to challenge on appeal – see paragraphs 19 to 25.

 

In view of the above it is my submission that the tribunal erred in law in deciding that the effective date of supersession was 20 February 2009.’

 

23.       Once again, I accept this submission from DMS, and the basis upon which it was made, in its entirety. Accordingly, I find that the decision of the appeal tribunal is in error of law. I would emphasise, however, that no blame can be attached to the appeal tribunal in respect of this error, as the appeal submission, prepared for the appeal tribunal, is misleading and inaccurate. As the hearing of the appeal was on the basis of the papers alone, the appellant having chosen not to attend an oral hearing, there was no possibility of the error being identified by a Departmental presenting officer at an oral hearing.

 

Postscript

 

24.       In the written observations on the application for leave to appeal, DMS have added the following:

 

‘(The claimant) appealed against the decision that she was not entitled to employment and support allowance from and including 20 February 2009.  When a claimant is pursuing an appeal against a decision that they are not entitled to employment and support allowance because they do not have limited capability for work a new award is made from the date of disallowance on the basis that they are treated as having limited capability for work.  The award is made under the provisions of regulations 6 and 30 of The Employment and Support Allowance Regulations (Northern Ireland) 2008, benefit is paid at the assessment phase rate and a claim for benefit is not required (regulation 3(j) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987). Accordingly (the claimant) was awarded and paid employment and support allowance from and including 20 February 2009.’    

 

Disposal

 

25.       The decision of the appeal tribunal dated 14 August 2009 is in error of law. 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.

 

26.       I am able to exercise the power conferred on me by Article 15(8)(a)(i) 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 without making fresh or further findings of fact.

 

 

 

 

27.       My substituted decision is that the appellant is not entitled to ESA from and including 28 February 2009.

 

 

            (Signed):  K Mullan

 

            COMMISSIONER

 

 

            21 September 2010