CAF-v-Department for Social Development (ESA) [2012] NICom 248

Decision No:  C9/11-12(ESA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

EMPLOYMENT AND SUPPORT ALLOWANCE

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 3 March 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

       The decision of the Banbridge appeal tribunal of 3 March 2010 is erroneous in law.

 

       It is set aside.

 

       The case is remitted for redetermination by a freshly constituted appeal tribunal in accordance with the directions in paragraph 12 of the reasons.

 

 

REASONS

 

 

1.    The claimant is a 44 year old woman.  She was awarded employment and support allowance (ESA) from 30 March 2009 by a decision-maker’s decision.  Her medically identified conditions are an underactive thyroid gland, fibromyalgia and depression.

 

2.    At or about the same time as the award of ESA was made to the claimant, British Airways terminated her employment with them as a senior cabin crew member on medical grounds after around 20 years continuous service.

 

3.    On 18 May 2009 the claimant returned a completed limited capability for work questionnaire to the Department.  She was then examined on 19 August 2009 for the purpose of the limited capability for work assessment.  On 8 September 2009, a decision-maker, after considering the report of that examination, awarded the claimant only six points under that assessment for descriptors relating to mental, cognitive and intellectual functions and superseded her entitlement to ESA from 4 September 2009.

 

4.    On 8 October 2009 the claimant appealed against the decision-maker’s decision.  That decision was reconsidered.  On 15 December 2009 it was revised but only to the extent that its effective date was correctly amended from 4 September 2009 to 8 September 2009.

 

5.    In these circumstances the claimant’s appeal proceeded.  She lodged written evidence with the appeal tribunal from the condition management programme, her general practitioner, her consultant psychiatrist, a chartered psychologist and her crew manager with British Airways.  The oral hearing took place on 3 March 2010.  The tribunal which convened on that date disallowed the claimant’s appeal and upheld the decision-maker’s decision as revised in its entirety.

 

6.    The claimant now appeals with my leave.

 

7.    In granting leave I raised the question of whether the tribunal should have explicitly considered and determined the issue of the application to the claimant of regulation 29(2)(b) of the Employment and Support Regulations (Northern Ireland) 2008.

 

8.    Regulation 29(2)(b) only applies to claimants who do not score sufficient points for descriptors under the limited capability for work assessment to satisfy that assessment.  It provides that such a claimant is “to be treated as having limited capability for work” if he or she “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.”  In practical terms, the reference to “any person” includes the claimant himself or herself.  That is very much the situation which applies in this case.

 

9.    It is clear from the tribunal’s record of proceedings that the claimant’s representative did not put the application of regulation 29(2)(b) to the claimant specifically at issue before them.  Rather, he concentrated in his submissions on two additional descriptors from the mental, cognitive and intellectual functions part of the limited capability for work assessment which he argued should be awarded to the claimant.  However the tribunal had an inquisitorial or investigative function.  Its jurisdiction in deciding the appeal was not restricted to a consideration of the contentions of the parties.  The nature and application of the inquisitorial or investigative role of an appeal tribunal is authoritatively discussed by the Court of Appeal in Northern Ireland in Mongan v Department for Social Development, R3/05(DLA), paragraphs 14-18.  In particular that function demands that issues “clearly apparent from the evidence” must be considered as is pointed out by Lord Chief Justice Kerr in paragraph 16.  In paragraph 17 his Lordship goes on to say:

 

“Whether an issue is sufficiently apparent from the evidence will depend on the particular circumstances of each case.  Likewise, the question of how far the tribunal must go in exploring such an issue will depend on the specific facts of the case.  The more obviously relevant an issue, the greater will be the need to investigate it.”

 

10.   Having regard to the quotation from the judgment of Lord Chief Justice Kerr in Mongan in paragraph 9 above, I am satisfied that the issue of the application of regulation 29(2)(b) was in this case one which was “clearly apparent from the evidence” and was indeed one which was “obviously relevant”.  I reach that conclusion on the basis of the claimant’s personal circumstances briefly described in paragraph 2 above and also the contents of much of the written evidence referred to in paragraph 5 above.  It was therefore the duty of the tribunal to consider and determine the above question.  In failing to do so they materially erred in law.

 

11.   I set the tribunal’s decision aside as being erroneous in law for the reason given in paragraph 10 above.  Further fact-finding is required for a just determination of this appeal and I thus remit the case to a freshly constituted appeal tribunal for that process to be carried out.  My directions for their rehearing of the case are contained in paragraph 12 below.

 

12.   My directions for the rehearing are as follows

 

(a)    The new tribunal should recall that the departmental decision-maker bears the legal onus of proof because the decision under appeal is a supersession.

 

(b)    They should also recall that they are restricted to considering the circumstances pertaining on 8 September 2009, the date of the original decision-maker’s decision, ignoring any subsequent improvement or deterioration in the claimant’s condition.  Evidence post-dating that date should be considered provided its content relates to those circumstances.

 

(c)    If the claimant’s representative puts specific descriptors at issue, then the new tribunal is entitled to restrict its consideration of the case to those descriptors.  However if other descriptors appear to them to be relevant from the whole state of the evidence they should consider those also.

 

(d)    They should first of all determine whether the claimant satisfies the limited capability for work assessment by scoring her under that assessment on the basis of descriptors which they award to her having made focused findings of fact on the basis of such of the evidence as they accept on balance of probabilities.

 

(e)    In the event that they do not consider that the claimant satisfies the above assessment then they must go on to consider whether she is covered by the terms of regulation 29(2)(b).  In doing so, I specifically direct them to apply the approach authoritatively laid down by the Court of Appeal in England and Wales in Charleton v Secretary of State for Work and Pensions, R(IB)2/09 especially paragraphs 34-39 of the judgment in that case.  Strictly decisions of the Court of Appeal in England and Wales do not bind either the Social Security Commissioners or the appeal tribunals in Northern Ireland.  However they should generally be followed in cases turning on legislation which is identically expressed in Great Britain on the one hand and Northern Ireland on the other in order to secure uniformity of interpretation.  See R(SB)1/90, paragraphs 13 and 15 and much more recently paragraphs 26-27 of the judgment of the Court of Appeal in England and Wales in Secretary of State for Work and Pensions v Deane [2010] AACR 42.  (In both of those cases the converse situation arose ie the authority of decisions of the Court of Appeal in Northern Ireland in Social Security cases arising in Great Britain).  The findings of fact required by the tribunal in regard to this aspect of the claimant’s case should be apparent from the paragraphs from Charleton which I have just cited.

 

13.   The claimant’s appeal thus succeeds.  She should draw no inference as to her eventual success on the merits.  Those are for determination by the freshly constituted tribunal rehearing her case and applying the directions in paragraph 12 above.

 

 

(signed)  A J Gamble

 

Deputy Commissioner

 

 

 

9 January 2012