LC-v-Department for Social Development (IB) [2011] NICom 153

 

Decision No: C13/10-11(IB)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INCAPACITY BENEFIT

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 1 March 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

 

2.    The decision of the appeal tribunal dated 1 March 2010 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.

 

3.    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, and there may be further findings of fact which require to be made.  Further 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.

 

4.    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.

 

5.    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 incapacity benefit (IB) 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

 

6.    The decision under appeal to the appeal tribunal was a decision of the Department, dated 7 October 2009, which decided that:

 

(i)     grounds existed to supersede an earlier decision of the Department, dated 28 June 2001, and which had awarded an entitlement to IB, from and including 28 June 2001; and

 

(ii)    the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 7 October 2009.

 

7.    On 27 October 2009, and following a request to that effect, the decision dated 7 October 2009 was looked at again but was not changed.

 

8.    The appeal was received in the Department on 27 November 2009.

 

9.    The substantive appeal tribunal hearing took place on 1 March 2010.  The appellant was present, and was represented.  The appeal was disallowed and the outcome decision dated 7 October 2009 was confirmed.

 

10.   On 19 May 2010 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.  On 1 June 2010, the application for leave to appeal was allowed by the legally qualified panel member (LQPM).  In allowing the application for leave to appeal, the LQPM identified the following ‘point of law’:

 

‘See statement attached dated 18/5/2010.  In his direct evidence the appellant said that his problems with lifting and carrying were because of problems with his shoulders.  He did not mention this was because of his respiratory condition.  Also it is clearly stated in the part of the reasons dealing with postural drainage that lifting and carrying would not be affected by this.’

 

11.   It is important to note that this narrative does not amount to the identification of a point of law.  Rather its sets out the view of the LQPM as to why, in light of the submissions made by the appellant’s representative, the decision of the appeal tribunal is not in error of law.  It seems to me that if an LQPM allows an application for leave to appeal, it must be on the basis that the LQPM agrees that it is arguable that the decision of the appeal tribunal is in error of law.  The ‘point of law’ should, accordingly, be identified on that basis.

 

Proceedings before the Social Security Commissioner

 

12.   On 21 July 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioner and Child Support Commissioner.  On 8 September 2010 observations were sought from Decision Making Services (DMS) and these were received on 24 September 2010.  In these observations DMS supported the application on the grounds cited by the appellant.  Observations were shared with the appellant and his representative Ms Jacqui Loughrey from the Law Centre (NI) on 7 October 2010.  On 12 October 2010 further observations in reply were received from the appellant’s representative.

 

Errors of law

 

13.   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.

 

14.   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 error of law in the instant case

 

15.   It is clear from the detailed record of proceedings that the appeal tribunal went about the forensic evidence-gathering process in a careful and thorough manner.  Equally, the appeal tribunal has provided a detailed, analytical statement of reasons for its decision. Where then did the appeal tribunal go wrong in law?

 

16.   In the application for leave to appeal to the LQPM, the appellant’s representative submitted that the decision of the appeal tribunal was in error of law on the basis that the appeal tribunal failed to consider all of the relevant evidence before deciding that the appellant had no problems with the activity of ‘lifting and carrying’.  More specifically, the representative submitted that by restricting the reasons for its decision to the impact of problems in his shoulders and pain when dealing with the activity of lifting and carrying, and concluding that none of the submitted medical reports mentioned pain or problems with the shoulders, the appeal tribunal had overlooked relevant evidence which indicated other problems causing limitations with respect to lifting and carrying.  Further, the appellant, in his letter of appeal, had referred to the impact which his respiratory condition had on his ability to lift and carry.

 

17.   In written observations on the appeal, Mr Kirk, for DMS, submitted that:

 

‘… Activity 8 of the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 which is lifting and carrying by use of upper body and arms and the relevant descriptor is (d) – cannot pick up and carry a 2.5 kg bag of potatoes with either hand.

 

In paragraph 6 of unreported GB decision CIB/2916/2004 Commissioner Rowland considered this activity and descriptor and held that the tribunal erred in not considering the impact on Activity 8 of the claimant’s breathlessness.  Commissioner Rowland stated:

 

“…………………………The personal capability assessment is intended to be a practical test and I can see no reason why the impact of the loss of pulmonary function has on a claimant’s ability to make use of the upper limbs should be ignored.”

 

In (the claimant’s) case I note that at paragraph 4 of page 3 of the letter of appeal (Tab no 8 of the scheduled documents) he stated that lifting and carrying would have a major impact upon his respiratory condition.  Furthermore I would refer to the letter from Dr H…. dated 8 February 2010 which was amongst the evidence adduced by (the claimant’s) solicitors on 18 February 2010.  At paragraph 4 of page 2 Dr H…… noted that (the claimant) had osteoarthritis of the spine and intermittent neck pain which is exacerbated by movement.  Thus, when considering lifting and carrying there was an onus upon the tribunal to consider those issues as well as the shoulder pain.  However in paragraph 2 of page 2 of the reasons for decision the tribunal only refer to the pain in (the claimant’s) shoulder and no mention was made of the respiratory problems (the claimant) would encounter.  I submit there was an onus upon the tribunal to consider those difficulties and give reasons as to why it accepted or rejected those contended difficulties however it failed to do so.  In view of this it is my submission that the reasons for decision are inadequate therefore I would agree that the tribunal has erred in law as contended.’

 

18.   I am in agreement with both parties that the decision of the appeal tribunal is in error of law on the basis of the failure of the appeal tribunal to take into account, in adequate detail, the impact of the appellant’s respiratory condition on the activity of lifting and carrying.  I accept that the appeal tribunal, in the statement of reasons for its decision, dealt in detail with the impact of the appellant’s postural drainage exercise, and its impact on certain activities.  The appellant was not, however, submitting that his problems with certain activities, were caused solely by his requirement to undertake postural drainage, but by the overall effects of his medical condition, including his respiratory condition.

 

19.   Accordingly, and with some regret given the appeal tribunal’s careful and judicious management of the other aspects of the appeal, and its circumspectly prepared statement of reasons, I find that the decision of the appeal tribunal is in error of law.

 

Disposal

 

20.   The decision of the appeal tribunal dated 1 March 2010 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.

 

21.   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 may be further findings of fact which require to be made.  Further 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.

 

22.   I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following.

 

23.   The decision under appeal is a decision of the Department, dated 7 October 2009, which decided that:

 

(i)     grounds existed to supersede an earlier decision of the Department, dated 28 June 2001, and which had awarded an entitlement to IB, from and including 28 June 2001; and

 

(ii)    the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB from and including 7 October 2009.

 

24.   Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 7 October 2009, had grounds to supersede the decision of the appeal tribunal dated 28 June 2001.  The ground for supersession on which the decision-maker relied is to be found in regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, namely that since the decision awarding IB was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, from a doctor referred to in paragraph (1) of that regulation.

 

25.   The test of incapacity for work, applicable to the appellant, was the personal capability assessment.  The personal capability assessment is an assessment of the extent to which a person who has some specific disease or bodily or mental disablement to perform certain of the activities as prescribed - Section 167A(1), 167C(1) and (2) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

 

26.   The prescribed activities are to be found in Parts I and II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

 

27.   If the appeal tribunal determines that the appellant is not incapable of work in accordance with the personal capability assessment then it must then decide whether any of the exceptional circumstances set out in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, apply to the appellant.  Guidance as to the approach to be taken to regulation 27 is to be found in R 4/01(IB), C22/01-02(IB), CIB/14667/1996, and CIB/1381/2008.

 

28.   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.  The appellant’s representative may wish to make a submission to the appeal tribunal, and adduce further evidence in connection with that submission, as to the potential application of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

 

29.   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):  Kenneth Mullan

 

Commissioner

 

 

 

23 February 2011