LMH-v-Department for Social Development (ESA) [2011] NICom 180

  Decision No:  C3/11-12(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 18 May 2010

 

 

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

 

2. The decision of the appeal tribunal dated 18 May 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. 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 a Departmental presenting officer did not attend the oral hearing of the appeal, there was no possibility of the error being identified.

 

3. 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.

 

4. My substituted decision is that the appellant is not entitled to employment and support allowance (ESA) from and including 18 August 2009.

 

Background

 

5. The appellant claimed ESA from and including 3 March 2009. A questionnaire was completed by the appellant on 20 March 2009. On 6 July 2009 a medical officer of the Department examined the appellant. On 17 August 2009 a decision-maker of the Department determined that the appellant did not have limited capability for work. The decision-maker on 18 August 2009 superseded the award of ESA and decided that the appellant was not entitled to ESA from and including 17 August 2009.  This decision is the subject of further analysis below.

 

6. A letter of appeal against the decision dated 18 August 2009 was received in the Department on 28 August 2009. On 4 November 2009 the decision dated 18 August 2009 was reconsidered but was not changed. An appeal tribunal hearing took place on 9 February 2010 and was adjourned in order that the appellant’s general practitioner records could be before the appeal tribunal. The substantive appeal tribunal hearing took place on 18 May 2010. The appeal tribunal disallowed the appeal.

 

7. On 25 June 2010 an application for leave to appeal was received in The Appeals Service. On 20 July 2010, the application for leave to appeal was refused by the legally qualified panel member.

 

Proceedings before the Social Security Commissioner

 

8. On 31 August 2010 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.

 

9. On 19 October 2010 observations were sought from Decision Making Services (DMS) and these were received on 3 November 2010. DMS opposed the application on most of the grounds submitted by the applicant but supported the application on another identified ground. Observations were shared with the applicant on 16 November 2010. On 5 April 2011 a further submission on the applicability of the decision in NKC v Department for Social Development (ESA) ([2010] NICom 87 C2 10-11(ESA)) was received and was shared with the appellant on 19 April 2011.

 

Errors of law

 

10. 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.

 

11. 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?

 

12. 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:

 

(i) no points had been awarded for certain activities, including lifting and transferring and manual dexterity; and

 

(ii) that her condition had deteriorated since she had been examined, on 6 July 2009, by a healthcare professional in connection with her claim to ESA.

 

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

 

‘The question for the appeal tribunal to decide was whether (the claimant) had limited capability for work in accordance with the limited capability for work assessment (section 8(2) of the Welfare Reform Act (NI) Act 2007 and regulation 19 of the Employment and Support Allowance Regulations (NI) 2008).  This is a statutory test that has to be applied by the appeal tribunal. 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, or incapable, of performing the activities prescribed in Schedule 2 to the Employment and Support Allowance Regulations (NI) 2008. To have limited capability for work the claimant had to score 15 points, whether for physical descriptors; mental, cognitive or intellectual descriptors; or a combination of both. The Tribunal awarded (the claimant) a score of 0 points.

 

Issue 1

 

(The claimant) contends that she disagrees with the tribunal’s decision that no points were awarded for certain activities. I would submit that this contention does not equate to an error of law.

 

(The claimant) had previously outlined her disagreement to the Department’s disallowance decision in her letter of appeal dated 24 August 2009 and had identified the various activities upon which she disagreed. The appeal tribunal considered all the evidence and whilst it accepted that (the claimant) has medical problems it was not satisfied that any of them were such that would cause her significant difficulties in relation to any of the disputed areas of activity.

 

The tribunal accepted the conclusions and findings of the health care professional on examination of 6 July 2009 which it was clearly entitled to do and concluded that (the claimant) was not entitled to ESA. I would refer to the guidance of Kerr LCJ (delivering the judgement of the Northern Ireland Court of Appeal) at paragraph 29 of decision R3/04(DLA) (Quinn v Department for Social Development [2004] NICA 22):

 

“…it is of course to be remembered that a view of the facts reached by a tribunal can only be interfered with by the Court of Appeal in limited and well-defined circumstances.  Carswell LCJ described those circumstances in Chief Constable of the RUC v Sergeant A [2000] NI 261 at 273f as follows: -

 

“A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless –

(a) there is no or no sufficient evidence to found them, which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR 697 at 699, per Lord Sutherland); or

 

(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, per Viscount Simonds at 29 and Lord Radcliffe at 36.””

 

I would submit that the evidence before the tribunal, which included the claimant’s medical notes and records as well as her oral evidence, supported its decision and its assessment of the evidence was in no way irrational, unreasonable or perverse and as such it did not err in law.

 

Issue 2

 

(The claimant) contends that over the last year her condition has deteriorated. She indicates that “Fibromyalgia requires that I have to sit down and rest often. I find now that, with my tennis elbow and fibromyalgia having got worse, using my arm to reach or pick up and transfer objects is an increasing problem (This is under investigation at present with Craigavon Hospital). My manual dexterity has worsened.”

 

(The claimant) was examined by a health care professional on 6 July 2009 and a decision was given on 18 August 2009 that she was not entitled to ESA.

 

Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 states:

 

“(8) In deciding an appeal under this Article, an appeal tribunal—

……………………………………………

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

 

Therefore I would submit that as the decision under appeal was 18 August 2009 the tribunal could only take into account any circumstances obtaining up to and including 18 August 2009. Hence the tribunal was only concerned with the medical evidence relating up to that date. I would submit that any deterioration in the claimant’s condition since 18 August 2009 was not a consideration for the tribunal at the hearing on 18 May 2010.

 

There is the question of whether there was any deterioration in the claimant’s condition from the date of examination on 6 July 2009 to the date of the Department’s decision on 18 August 2009. There is no mention within the tribunal’s Record of Proceedings or in its Reasons for Decision that (the claimant) made any reference to a deterioration in her condition from 6 July 2009. (The claimant) was also given the opportunity to raise any issues at the end of the oral hearing and it is noted in the Record of Proceedings that she had “nothing further” to add.

 

Having received a letter dated 21 September 2009 from Dr McG at the hearing of 9 February 2010 the tribunal decided to adjourn until (the claimant’s) medical notes and records were received. The tribunal was therefore in a position to view her medical notes and records relevant for the period up to and including 18 August 2009. The tribunal also referred to Dr McG’s letter in its Reasons for Decision which confirmed the diagnosis of fibromyalgia. The tribunal was therefore aware of this and her history of joint pains (including her left elbow) and the affect her conditions had upon her.

 

I would also highlight that Dr McG’s letter made reference to (the claimant) indicating that the “joint pains and aches increased dramatically in June”. Clearly this increase in joint pains and aches occurred prior to the examination to determine the question of limited capability for work on 6 July 2009 and hence the healthcare professional’s examination was able to take this increasing pain into account.

 

The tribunal concluded in its Reasons for Decision that:

 

“Nothing in the medical notes and records or in the Appellant’s oral evidence causes us to disagree with the conclusions and findings of the Healthcare Professional who examined the Appellant on 6 July 2009.”

 

I would submit therefore that no error in law has been identified by (the claimant) in the appeal tribunal’s decision.’

 

14. I accept the response from Mr Young 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. Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it. 

 

A possible error of law?

 

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

 

‘I have noticed that the appeal tribunal in its decision of 18 May 2010 indicated that the Appellant was not entitled to ESA from and including 17 August 2009 - the date the determination on limited capability for work was made. The appeal tribunal correctly confirmed in the Record of Proceedings that the decision under appeal was 18 August 2009. However I believe the tribunal has erred in stating in its decision that the appellant is not entitled to ESA from and including 17 August 2009. The error arises from the effective date of supersession.

 

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

 

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

 

(Regulation 6(2)(q) has since been amended by regulation 7 of Statutory Rule No. 200/2010 (the Social Security (Miscellaneous Amendments No.4) Regulations (NI) 2010) with effect from 28 June 2010)

 

This is the provision under which (the claimant’s) award of Employment and Support Allowance was superseded.

 

The effective date of supersession rules are set out in Articles 11(5) and (6) of the Social Security (Northern Ireland) Order 1998, and regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, all as amended.

 

Articles 11(5) & 11(6) of the Social Security (Northern Ireland) Order 1998 state:

 

(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 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 in certain circumstances.

 

In this case neither the provisions of Article 27 nor any of the provisions in regulation 7 apply. Therefore the effective date of supersession is determined in accordance with the provision in Article 11(5) of the 1998 Order i.e. the date of 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 be 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; 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.  

 

Accordingly the decision that (the claimant) is not entitled to Employment and Support Allowance takes effect from the date on which it was made i.e. 18 August 2009 (see Tab 5 of the Department’s appeal submission) and not from the date of determination. Therefore the effective date of the appeal tribunal’s decision of 17 August 2009 is erroneous. I would however submit that no blame should be attached to the appeal tribunal in respect of this error as regretfully the appeal submission prepared for the appeal tribunal by the Department was misleading and inaccurate on this point. As a result of the error (the claimant’s) entitlement was removed from 17 August 2009 instead of 18 August 2009.

 

I would however submit that when (the claimant) lodged her notice of appeal a decision was made to make a new award of Employment and Support Allowance on the grounds that she was pursuing an appeal in accordance with regulation 30 of the Employment and Support Allowance Regulations (NI) 2008. No claim is required under the provision in regulation 3(j) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended. Therefore (the claimant) was awarded Employment and Support Allowance from and including 17 August 2009. Even though the Department’s decision should have only had effect from 18 August 2009, (the claimant) has not been financially disadvantaged by the error because of the subsequent award made on appeal.’

 

16. Once again, I accept this submission from Mr Young, 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 a Departmental presenting officer did not attend the oral hearing of the appeal, there was no possibility of the error being identified.

 

Disposal

 

17. The decision of the appeal tribunal dated 18 May 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.

 

18. 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. My substituted decision is that the appellant is not entitled to ESA from and including 18 August 2009.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

7 June 2011