KMcL-v-Department for Social Development (ESA) [2011] NICom 208

Decision No:  C4/11-12(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 14 June 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 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 14 June 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 her entitlement to employment and support allowance (ESA) 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 decision- maker of the Department, dated 20 November 2009, which decided that:

 

(i)          grounds existed to supersede an earlier decision of the Department, dated 4 August 2009, and which had awarded an entitlement to ESA, from and including 31 July 2009; and

 

(ii)         the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 20 November 2009.

 

7. The appeal was received in the Department on 3 December 2009.  On 12 February 2010 the decision dated 20 November 2009 was looked at again but was not changed.

 

8. The substantive appeal tribunal hearing took place on 14 June 2010 following an earlier postponement of the appeal.  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 20 November 2009.

 

9. On 14 October 2010 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.  On 18 November 2010, the application for leave to appeal was refused by the legally qualified panel member.

 

Proceedings before the Social Security Commissioner

 

10. On 6 January 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 21 April 2011 observations were sought from Decision Making Services (DMS) and these were received on 19 May 2011.  In these observations, Mr McKendry, for DMS supported the application for leave to appeal to the Social Security Commissioner.  The basis for that support will be explored in greater detail below.  The written observations were shared with the appellant and her representative on 25 May 2011.

 

Errors of law

 

11. 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.

 

12. 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?

 

13. The appeal tribunal has provided a detailed, analytical statement of reasons for its decision with respect to the majority of the issues arising in the appeal.  Where then did the appeal tribunal go wrong in law?

 

14. In the written observations on the application for leave to appeal, Mr McKendry, for DMS, has submitted that:

 

‘… (the claimant’s) representative has asked why the decision maker did not consider the claim under regulation 20(b) of the ESA Regulations.  The Tribunal in its reasons for decision contended that regulation 20(b) was not relevant in that (the claimant’s) chemotherapy ended on 09/12/08 and that the decision to disallow ESA was not made until 20/11/09.  Regulation 20(2) to the ESA Regulations provides:

 

“ A claimant is to be treated as having limited capability for work if—

…

(b) the claimant is—

 

(i) receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy, *or is likely to receive such treatment within 6 months after the date of determination under this sub-paragraph*, or

 

(ii) recovering from that treatment and the Department is satisfied the claimant should be treated as having limited capability for work;”

 

* note that this amendment to the regulation was inserted by Statutory Rule 76/11 that only came into effect from 28/03/11 and as such would not have been before the Tribunal.

 

I have confirmed with ESA processing section that the ESA decision maker did not consider regulation 20 at fresh claim stage and as such ESA was awarded under regulation 30 of the above regulations, i.e. that (the claimant) was to be treated as incapable of work until such time as her limited capability for work was determined.  I have also made further investigation and have confirmed that (the claimant) claimed ESA from 05/02/09 (as opposed to 31/07/09 as quoted on the Department’s appeal submission).

 

I would submit that, in relation to the consideration of regulation 20(b) the Tribunal erred in its inquisitorial role in that it would appear that the Tribunal only considered regulation 20(b)(i) of same.  There was clear evidence from (the claimant’s) oncologist that on completion of chemotherapy she was extremely tired and that some patients can be tired for quite a considerable period of time after completion of treatment.  To this end, I would further submit, that in this respect the Tribunal should have considered whether regulation 20(b)(ii) may have applied in this case.  It is clear from the statement of reasons that the Tribunal did not address this issue.

 

In relation to the second and third questions raised on behalf of (the claimant), the Tribunal, in its reasons for decision found that these questions should be addressed by the DSD and as such they could not answer.  I would submit that, in this instance, the Tribunal further erred in not requesting an adjournment in order for the DSD to provide the information requested.  The responses to these questions could have provided the Tribunal with further information that may have been crucial to its decision.’

 

15. I am in agreement with Mr McKendry that the decision of the appeal tribunal is in error of law on the basis of the careful reasoning set out in his written observations on the application for leave to appeal, and as set out above.  I set aside the decision of the appeal tribunal on that basis.

 

Disposal

 

16. The decision of the appeal tribunal dated 14 June 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.

 

17. 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.

 

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

 

19. The decision under appeal is a decision of the Department, dated 20 November 2009, which decided that:

 

(iii)       grounds existed to supersede an earlier decision of the Department, dated 4 August 2009, and which had awarded an entitlement to ESA, from and including 31 July 2009; and

 

(iv)       the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 20 November 2009.

 

20. Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 20 November 2009 had grounds to supersede the decision of the appeal tribunal dated 4 August 2009.  The ground for supersession on which the decision- maker relied is to be found in regulation 6(2)(q) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, namely that since the decision the Department has received medical evidence from a health care professional approved by the Department, or made a determination that the claimant is to be treated as having limited capability for work in accordance with regulation 20, 25, 26 or 33(2) of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.

 

21. Section 1(4) of the Welfare Reform Act (Northern Ireland) 2007 provides that:

 

‘1(4) For the purposes of this Part, a person has limited capability for work if—

 

(a) his capability for work is limited by his physical or mental condition, and

 

(b) the limitation is such that it is not reasonable to require him to work.’

 

22. Section 8(1) of the Welfare Reform Act (Northern Ireland) 2007 provides that:

 

‘8(1) For the purposes of this Part, whether a person's capability for work is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to work shall be determined in accordance with regulations.’

 

23. Regulation 19(1)-(6) of the Employment and Support Allowance Regulations (Northern Ireland) 2008 provides that:

 

‘19(1) For the purposes of Part 1 of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.

 

(2) 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 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

 

(3) Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against any descriptor listed in that Schedule, the claimant obtains a total score of at least—

 

(a) 15 points whether singly or by a combination of descriptors specified in Part 1 of that Schedule;

 

(b) 15 points whether singly or by a combination of descriptors specified in Part 2 of that Schedule; or

 

(c) 15 points by a combination of descriptors specified in Parts 1 and 2 of that Schedule.

 

(4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.

 

(5) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises from—

 

(a) a specific bodily disease or disablement;

 

(b) a specific mental illness or disablement; or

 

(c) as a direct result of treatment provided by a registered medical practitioner for such a disease, illness or disablement.

 

(6) Where more than one descriptor specified for an activity apply to a claimant, only the descriptor with the highest score in respect of each activity which applies is to be counted.’

 

24. If the appeal tribunal determines that the appellant does not have limited capability for work in accordance with the work capability assessment then it must then decide whether any of the exceptional circumstances set out in regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, apply to the appellant.

 

25. 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 20(b) of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.  The Department may also wish to make comment on the potential applicability of this provision.

 

26. 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)  K Mullan

 

Chief Commissioner

 

 

 

7 September 2011