HA-v-Department for Social Development (ESA) [2011] NICom 213

Decision No:  C6/11-12(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 15 September 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.  The decision of the appeal tribunal dated 15 September 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.

 

2.    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.  An appeal tribunal which has a medically qualified panel member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and 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.

 

3.    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.

 

4.    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

 

5.    On 8 December 2009 a decision-maker of the Department superseded an earlier decision of the Department dated 11 December 2008.  The decision-maker also decided that the appellant did not have limited capability for work and was not entitled to ESA from and including 8 December 2009.  An appeal against the decision dated 8 December 2009 was received in the Department on 22 December 2009.  On 27 February 2010 the decision dated 8 December 2009 was looked at again but was not changed.

 

6.    Following an earlier adjournment of the appeal, an appeal tribunal hearing took place on 15 September 2010.  The appeal was listed as a ‘paper’ hearing as the appellant had previously indicated in a reply to the Appeals Service (TAS) that she was content for the appeal to proceed without an oral hearing.  The appeal tribunal disallowed the appeal and confirmed the decision dated 8 December 2009.  On 20 December 2010 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 10 January 2011 the application for leave to appeal was refused by the legally qualified panel member.

 

       Proceedings before the Social Security Commissioner

 

7.    On 23 February 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners, from the appellant’s representative, Ms Loughrey of the Law Centre (Northern Ireland).  On 11 May 2011 written observations were sought from Decision Making Services (DMS) and these were received on 2 June 2011.  In these written observations, Mr Young, for DMS, opposed the application on most of the grounds submitted by the applicant but supported the application on one of those grounds.

 

8.    The written observations were shared with the appellant and her representative on 8 June 2011.  On 8 July 2011 a further submission, enclosing a medical report, was received from Ms Loughrey which was shared with Mr Young on 11 July 2011.  On 19 July 2011 a further submission was received from Mr Young.

 

       Errors of law

 

9.    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.

 

10.   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?

 

       The submissions of the parties

 

11.   In the application for leave to appeal to the Social Security Commissioner, Ms Loughrey submitted that the decision of the appeal tribunal was in error of law on the basis that:

 

(i)     the appeal tribunal concentrated on the cause of her illness rather than its effects and not how those effects impacted on her daily living in relation to the mental health descriptors;

 

(ii)    the appeal tribunal did not give any weight to her diagnosed depression when dealing with the relevant descriptors;

 

(iii)    the appeal tribunal’s reasoning with respect to its analysis of the potential applicability of Activity 18 of Part 2 of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 was inadequate;

 

(iv)   the appeal tribunal did not address regulation 29(2)(b) of the Employment and Support Allowance Regulations (Northern Ireland) 2008.

 

12.   As was noted above, in written observations on the application for leave to appeal, Mr Young, for DMS, supported the application on the basis of the ground at (iii) and opposed the application on the other submitted grounds.  In addition, Mr Young conceded that the decision of the appeal tribunal was in error of law on the basis of another submitted ground.

 

       Analysis

 

13.   I agree with Mr Young, for the reasons set out in his written observations, that the decision of the appeal tribunal was not in error of law on the basis of the submitted grounds (i) and (ii), as set out above.

 

14.   I have considered the argument presented by Ms Loughrey in submitted ground (iv) that the appeal tribunal did not consider the potential applicability of regulation 29(2)(b) of the Employment and Support Allowance Regulations (Northern Ireland) 2008.

 

15.   In his written observations on this cited ground, Mr Young has submitted that:

 

16.   Regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 provides that:

 

‘Exceptional circumstances

 

29.  (1)  A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

 

(2)  This paragraph applies if –

 

(a)  the claimant is suffering from a life threatening disease in relation to which –

 

(i)  there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and

 

(ii)  in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or

 

(b)  the claimant suffers from some specific disease or bodily or  mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.’

 

17.   As was noted by Mr Young in his written observations on the application for leave to appeal, the wording and effect of regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 is similar to regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

 

18.   As was also noted by Mr Young, in Charlton v Secretary of State for Work and Pensions ([2009] EWCA Civ 42, reported as R(IB) 2/09) the Court of Appeal of England and Wales Lord Justice Moses stated, at paragraph 4:

 

‘Employment and Support Allowance has replaced incapacity benefit for new claimants.  The previous statutory scheme is the one which is relevant to this appeal but the question of interpretation remains relevant to the regulations made under the new scheme introduced by the Welfare Reform Act 2007.’

 

19.   In line with this authority, there are instances where the appellate authorities have applied the interpretation of the legislative provisions relating to the general scheme for incapacity benefit (IB), namely the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, and the Great Britain equivalent, namely the Social Security (Incapacity for Work) (General) Regulations 1995, to analogous legislative provisions relating to the general scheme for ESA, namely, the Employment and Support Allowance Regulations (Northern Ireland) 2008, and the Great Britain equivalent, the Employment and Support Allowance Regulations 2008.  See, for example, GF-v-Department for Social Development (ESA) ([2011] NICom 160 C7/10-11(ESA)), and GS v Secretary of State for Work and Pensions (ESA) ([2010] UKUT 244 (AAC)).

 

20.   I have considered the meaning and applicability of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, in a number of decisions, including C5/08-09(IB), C4/09-10(IB) and C24/10-11(IB).  As was pointed out by Mr Young, in C24/10-11(IB) I stated, at paragraphs 39 to 40:

 

‘39.     It is important to note that at paragraphs 54 and 55 (of C5/08-09(IB)), I stated:

 

‘54.     I would note, at this stage, that in the majority of cases in which an appeal tribunal is considering whether the appellant is incapable of work in accordance with the personal capability assessment, the further issues of whether he also satisfies the exceptional circumstances in regulation 27, will not be relevant.  Nonetheless, it will be safest and best practice for appeal tribunals to note that the regulation was considered.  I am aware that many LQPMs of appeal tribunals have aide-memoirs to assist in ensuring that all issues in connection with personal capability assessment appeals have been considered.  In my view, such aide-memoirs should also contain a reminder to consider regulation 27.  Where a statement of reasons for the appeal tribunal’s decision is requested it will also be safest and best practice to make a reference therein that the application of regulation 27 was considered but was discounted.  That will not be an onerous duty for appeal tribunals.  Where regulation 27 is not relevant a simple statement to that effect is sufficient.

 

55.     Where, of course, regulation 27 has a potential relevance there is a greater duty on the appeal tribunal to consider that application, as indicated in paragraph 52 above.’

 

40.     In the instant case, and on the basis of an assessment of all of the relevant evidence, it is clear that the substantive issue raised by the appeal was whether the appellant was incapable of work in accordance with the personal capability assessment, the further issue of whether he also satisfied the exceptional circumstances in regulation 27, was not relevant.  While, in accordance with paragraph 54 of C5/08-09(IB), it would have been safest and best practice for the appeal tribunal, in the statement of reasons for its decision, to make a reference therein that the application of regulation 27 was considered but was discounted, its decision is not in error of law for having failed so to do.’

 

21.   I would state, firstly that my conclusions with respect to an appeal tribunal’s duty with respect to the potential applicability of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as set out in C5/08-09(IB), C4/09-10(IB) and C24/10-11(IB) are equally applicable to the appeal tribunal’s duty with respect to the potential applicability of regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008.

 

22.   In the majority of the appeals involving ESA, the first task of the appeal tribunal will be to decide whether the decision-maker had grounds to supersede an earlier decision of the Department.  The ground for supersession on which the decision-maker usually relies 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 healthcare 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.

 

23.   If the appeal tribunal decides that the decision-maker did have grounds to supersede an earlier decision of the Department, it must then go on to decide whether the appellant has limited capability for work in accordance with the work capability assessment.

 

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.   In the majority of cases in which an appeal tribunal is considering whether the appellant has limited capability for work in accordance with the work capability assessment, the further issues of whether he also satisfies the exceptional circumstances in regulation 29, will not be relevant.  Nonetheless, it will be safest and best practice for appeal tribunals to note that the regulation was considered.  Where a statement of reasons for the appeal tribunal’s decision is requested it will also be safest and best practice to make a reference therein that the application of regulation 29 was considered but was discounted.  That will not be an onerous duty for appeal tribunals.  Where regulation 29 is not relevant a simple statement to that effect is sufficient.

 

26.   In C5/08-09(IB), it was clear, on the facts of the case, that the issue of the possible application of regulation 27 was one of the issues that was raised by the appeal and was one which required to be addressed by the appeal tribunal.  The appeal tribunal was in error of law in failing to address what was a real issue arising in the appeal.

 

27.   In the instant case, the medical officer of the Department, conducted a medical examination of the appellant on 11 November 2009.  At page 26 of that medical report, the medical officer gave advice that the appellant was not suffering from a life threatening disease in relation to which there was medical evidence that the disease was uncontrollable or uncontrolled, by a recognised therapeutic procedure and that the appellant was not suffering from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the appellant was found not to have limited capability for work.  The medical officer added:

 

‘Diagnosis and clinical findings do not indicate life threatening nor uncontrollable disease.

 

There is no evidence of substantial risk to anyone if found not to have limited capability for work.’

 

28.   In the written submission prepared for the appeal tribunal hearing, the appeals writer addressed the potential applicability of regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, at paragraphs 16 and 17 of section 5 of that submission.  The appeals writer submitted that regulation 29 had no application.

 

29.   In the statement of reasons for the appeal tribunal’s decision there is no allusion to the potential applicability of regulation 29.  There is no specific reference to the regulation itself and there is no analysis of the issues pertaining to that regulation or any related evidence.  Accordingly, is the decision of the appeal tribunal in error of law on the basis of that omission?  The answer is ‘no’.  To repeat what was said above, where the potential applicability of regulation 29 is clearly evident in the appeal, either because there has been a specific submission to that fact or, in the absence of a specific submission, the evidence which is before the appeal compels the appeal tribunal to consider the issues as part of its inquisitorial role, then an appeal tribunal will err in law in failing to deal with regulation 29 and/or demonstrating through the statement of reasons for its decision that it has dealt with it.  That is not the case here.  There was nothing in the evidence which was before the appeal tribunal to suggest that the appellant was suffering from a life threatening disease so as to trigger any aspect of regulation 29(2)(a).  Equally, there was nothing in the available evidence to activate an analysis as to whether regulation 29(2)(b) had a potential application.  While the appellant had given evidence concerning her problems with her mental health, there was nothing to suggest that there would be a substantial risk to her mental health if she were found not to have limited capability for work.  It would have been best and safest practice for the appeal tribunal to have noted in the statement of reasons that it had considered, and discounted, the potential application of regulation 29.  Its failure to do so does not, however, render its decision as being in error of law.

 

30.   Even if I am wrong that the failure of the appeal tribunal to include a reference in the statement of reasons to the appeal tribunal’s conclusions with respect to the potential application of regulation 29 does not render its decision as being in error of law, I would have been prepared to make a finding that none of the exceptional circumstances set out in regulation 29 apply in this case.

 

31.   I would add this.  Careful consideration has to be given to a submission that a decision of an appeal tribunal is in error of law because of a failure by the appeal tribunal to consider, in an appeal involving ESA, the regulation 29 exceptional circumstances provisions, and in appeals involving IB, the parallel regulation 27 provisions.  That is not to dilute the extent of the duty on the appeal tribunal, in line with the direction given above, to consider the potential application of those provisions where there is a specific submission that one of the exceptional circumstances applies or the potential application is apparent from the evidence available to the appeal tribunal.  I am of the view, however, that a routine submission that a simple omission to refer to the exceptional circumstances provisions, in the statement of reasons, in appeals where it is clear that those provisions would not apply, is not likely to succeed.

 

32.   As was noted above, Ms Loughrey has submitted that the appeal tribunal’s reasoning with respect to its analysis of the potential applicability of Activity 18 of Part 2 of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 was inadequate.  In written observations on the application for leave to appeal Mr Young agrees with this cited ground.  After analysing the evidence which was before the appeal tribunal, which included the manner in which the medical officer of the Department adduced and assessed that evidence and, in turn, how the appeal tribunal reviewed that evidence, Mr Young concluded:

 

‘It would appear that the tribunal used the evidence that (the claimant) could attend the medical examination on her own to justify that she could cope with change (activity 17) and in addressing the getting about activity simply concluded that it thought (the claimant) was able to get about even though apprehensive of doing so.  In my view the reasons highlighted above do not adequately explain how the tribunal came to the conclusion it did on this activity particularly when one considers the evidence from (the claimant) in her ESA50 questionnaire and the evidence in the ESA85 provided by the health care professional.

 

I agree therefore that the tribunal has erred on this ground.’

 

33.   I am in agreement with Mr Young’s conclusions how the manner in which the appeal tribunal addressed the potential applicability of Activity 18 of Part 2 of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, and am in agreement, for the reasons set out in his written observations, that the decision of the appeal tribunal is in error of law on the basis of this cited ground.

 

34.   As was noted above, in addition to assessing the grounds on which Ms Loughrey submitted that the decision of the appeal tribunal was in error of law, Mr Young submitted that the decision was in error on the basis of another cited ground, as follows:

 

‘Having considered all the evidence in this case I submit that there is a further error which would amount to a breach of the rules of natural justice.  (The claimant) completed a REG2(i)d form on 16 March 2010 which was received by the Appeals Service on 18 March 2010.  On this form she indicated that she was content for the appeal to proceed without an oral hearing.  In addition (the claimant) stated the following:

 

“Please find attached an independent medical report obtained by my employers and carried out recently – copy sent to me by e-mail.  This may help along with my GP report and a report from TMR Health Professionals, Pinewood House, Newforge Lane, Belfast.”

 

The LQPM adjourned the paper hearing on 26 April 2010 in order for (the claimant) to supply the reports to which she referred in the REG2(i)d form as it appeared they were not enclosed.  At the next paper hearing on 10 May 2010 a further adjournment was given by the LQPM as again copies of the reports had not been provided.  By the next re-arranged paper hearing on 15 September 2010 it would appear that the tribunal believed that the reports had been provided.  The tribunal noting in its reasons for decision at paragraph 2 that: “At this stage all the necessary reports referred to had been received.”

 

I note however that the documents considered by the tribunal recorded at paragraph 1 in the record of proceedings listed the Decision Maker’s submission, General Practitioner letter 11.5.10 and TMR letter of 21.4.09.  There is no mention of the independent medical report either in the documents considered or in the tribunal’s reasons for decision.  The tribunal did however address the General Practitioner’s letter of 11 May 2010 at paragraph 6 of its reasons and the report from Dr O’Neill of TMR health professionals dated 21 April 2009 at paragraph 5.

 

Within the Department’s appeal papers I have located a copy of the covering letter dated 11 March 2010 from Dr Jenkinson of Independent Occupational Health.  This letter mentions a recent attendance at Independent Occupational Health and that a copy of the report is enclosed.  Again I can see no copy of the report enclosed with the appeal papers.  It does not appear that the appeal writer on 30 March 2010, when contacting the Appeals Service to confirm that no further submission was required following the Clerk’s letter of 23 March 2010, questioned why a copy of the medical report from Independent Occupational Health was not enclosed.

 

I also contacted the Appeals Service to ask whether a copy of the Independent Occupational Health report was contained within their papers.  They confirmed that no such report was evident in their papers.

 

I would therefore suggest that this medical report was not before the tribunal when it made its decision on 15 September 2010.

 

…

 

Applying the principles in R(S) 4/82 to this case I would submit that it appears that the tribunal has not based its decision on all the evidence available to it.  Whilst the report was prepared following an examination, most likely in March 2010 which was some 3 months after the Department’s decision, 8 December 2009, the evidence within the medical report from Independent Occupational Health may or may not have been relevant to the period under appeal.  As the Commissioner stated at paragraph 43 of decision ‘GF-v- Department for Social Development (ESA)[2011] NICom 160’, [C7/10-11(ESA)]:

 

“43.    In C2/10-11(IB), I reviewed the jurisprudence which is relevant to the circumstances in which an adjudicating authority is permitted to take into account evidence which post-dates the decision under appeal.  In paragraph 43 I cited the following extract from paragraph 9 of the decision of Commissioner Jacobs in R(DLA) 2/01 –

 

‘…If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’”

 

Depending on whether the medical report from Independent Occupational Health related to the relevant period, the tribunal’s evaluation of the medical report may have influenced its decision.  I submit that the tribunal’s failure in this case to base its decision on all the available evidence amounts to an error in law as it was capable of making a material difference to the outcome or the fairness of proceedings.’

 

35.   In further correspondence provided in response to Mr Young’s observations, Ms Loughrey has provided a copy of the relevant report.  I agree with Mr Young that it appears that a medical report, which the appellant considered relevant to the resolution of the issues arising in the appeal, and which she wished to be placed before the appeal tribunal, was not, in fact, before the appeal tribunal.  Further, there was an adjournment of the appeal tribunal hearing for the specific purpose of ensuring that the relevant medical report was before the appeal tribunal.  Proceeding with the appeal tribunal in the absence of evidence which the appellant considered pertinent to her appeal renders the decision of the appeal tribunal as being in error of law.

 

       Disposal

 

36.   The decision of the appeal tribunal dated 15 September 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.

 

37.   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.

 

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

 

       The decision under appeal is a decision of the Department, dated 8 December 2009, which decided that:

 

(i)          grounds existed to supersede an earlier decision of the Department; and

 

(ii)         the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 8 December 2009.

 

39.   Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 8 December 2009 had grounds to supersede an earlier decision of the Department.  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 healthcare 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.

 

40.   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.’

 

41.   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.’

 

42.   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.’

 

43.   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.

 

44.   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.  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

 

 

 

3 October 2011