Northern Ireland - Social Security and Child Support Commissioners' Decisions

AH-v-Department for Social Development (ESA) [2012] NICom 343

 

  Decision No: C15/11-12(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 10 October 2011

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. The decision of the appeal tribunal dated 10 October 2011 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the respondent has limited capability for work and is entitled to employment and support allowance (ESA) from and including 29 May 2011 is confirmed.

 

Background

 

2. On 29 May 2011 a decision-maker of the Department superseded an earlier decision of the Department dated 19 April 2010. The decision dated 19 April 2010 had, in turn, awarded an entitlement to ESA from and including 29 May 2009. The decision dated 29 May 2011 also decided that the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 29 May 2011. An appeal against the decision dated 29 May 2011 was received in the Department on 17 June 2011. On 22 July 2011 the decision dated 29 May 2011 was reconsidered but was not changed.

 

3. An oral hearing of the appeal took place on 10 October 2011. The appellant was present and was accompanied by his wife. The Department was represented by a presenting officer. The appeal tribunal allowed the appeal and decided that the appellant should have an entitlement to ESA from and including 19 May 2011. On 2 December 2011 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service. On 12 December 2011 the application for leave to appeal was granted by the legally qualified panel member (LQPM). In granting leave, the LQPM identified the following, as a point of law:

 

‘Grounds set out in the letter dated 2.12.11 from Decision Making Services.’ 

 

Proceedings before the Social Security Commissioner

 

4. On 17 January 2012 the appeal was received in the Office of the Social Security Commissioners. On 18 January 2012 a copy of the appeal was forwarded to the respondent who was asked to provide observations on it. Correspondence was received from the respondent on 15 February 2012 in which he opposed the appeal on the submitted grounds. Observations were shared with the appellant on 15 February 2012. On 24 February 2012 written observations in reply were received from Mr Young of Decision Making Services (DMS). These observations in reply were shared with the respondent on 27 February 2012.

 

5. On 19 April 2012 I directed an oral hearing of the appeal. The oral hearing took place on 6 September 2012. At the oral hearing, the appellant was represented by Mrs Gunning of DMS and the respondent was represented by Ms Loughrey from the Law Centre (Northern Ireland). Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions

 

Was the decision of the appeal tribunal in error of law?

 

Limited capability for work

 

6. The decision under appeal is a decision of the Department, dated 29 May 2011, which decided that:

 

(i)            grounds existed to supersede an earlier decision of the Department, dated 19 April 2010, and which had awarded an entitlement to ESA, from and including 29 May 2009; and

 

(ii)          the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 29 May 2011.

 

7. Accordingly, the first task of the appeal tribunal was to decide whether the decision-maker, on 29 May 2011 had grounds to supersede the decision of the Department dated 19 April 2010. 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.

 

8. 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.’

 

9. 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.’

 

10. 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.’

 

11. It is clear that the appeal tribunal decided that the decision-maker, on 29 May 2011, did have grounds to supersede the decision of the Department dated 19 April 2010. Further the appeal tribunal also decided that following an application of the relevant legislative provisions set out above the respondent did not have limited capability for work in accordance with the work capability assessment. This was because, on an application of the descriptors associated with the activities in Part 1 of Schedule 2 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, the respondent scored 0 points. The appeal tribunal also decided that there was no requirement to consider whether any of the descriptors associated with the activities in Part 2 of Schedule 2 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 applied but I note that, nonetheless, the LQPM completed the relevant part of the ‘score-sheet’ indicating that on an application of Part 2 the respondent scored 0 points. It is clear that both parties to the proceedings agree that the appeal tribunal’s decision with respect to the application of the descriptors and activities in Schedule 2 was correct.

 

Regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended

 

12. That was not the end of the matter, however. Having determined that the respondent did not have limited capability for work in accordance with the work capability assessment then the appeal tribunal was obliged to 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.

 

13. In HA-v-Department for Social Development (ESA) ([2011] NICom 213 C6/11-12(ESA)) I said the following, at paragraphs 16 to 21 of my decision:

 

‘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.’

 

14. It is clear that the appeal tribunal was very alert to the requirement to consider the potential application of regulation 29. It is the manner in which it has applied that regulation which is the subject of the challenge by the appellant. 

 

 

The proper approach to the application of regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended

 

15. 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 was considering the proper approach to the applicability of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995, as amended. Regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995, as amended has an equivalence in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended. As was noted above, the appellate authorities have applied the interpretation of the legislative provisions relating to the general scheme for incapacity benefit to analogous legislative provisions relating to the general scheme for ESA - 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)).

 

16. Moses LJ stated the following, at paragraphs 33 to 34 and 36 to 39 of the decision:

 

‘33. Once it is appreciated that regulation 27(b) applies only when a claimant’s functional abilities in the performance of everyday tasks have been established, it becomes clear that the risk to be assessed must arise as a consequence of work the claimant would be found capable of undertaking, but for regulation 27. Were it not so, there would be no statutory purpose in requiring a claimant to have undergone an assessment before consideration of the effects of any disease or disablement on his or others’ safety.

 

34. Regulation 27(b) may be satisfied where the very finding of capability might create a substantial risk to a claimant’s health or to that of others, for example when a claimant suffering from anxiety or depression might suffer a significant deterioration on being told that the benefit claimed was being refused. Apart from that, probably rare, situation, the determination must be made in the context of the journey to or from work or in the workplace itself.

…

 

36. Regulation 27(b) requires the decision-maker to assess risk in the context of the work or workplaces in which the claimant might find himself. The controversy between the claimant and the Secretary of State relates to the extent to which the decision-maker must identify the type of work which the claimant would perform on the hypothesis that he had been found capable of work.

 

37. The claimant contends that a decision-maker must identify what he describes as “actual positions of employment” and must concentrate upon the job that the claimant will undertake, the nature of its duties and its location. Without such analysis a decision-maker will, so he contends, be unable properly to assess risk to safety both to himself and to others. The Commissioner’s identification of the type of work the claimant might be expected to undertake is too vague and too broad.

 

38. The answer to this submission lies in the purpose of regulation 27(b), that is to assess risk at work. In order to determine whether there is any health risk at work or in the workplace it is necessary to make some assessment of the type of work for which the claimant is suitable. The doctor, the decision-maker and, if there is an appeal, the tribunal, should be able to elicit sufficient information for that purpose. The extent to which it is necessary for a decision-maker to particularise the nature of the work a claimant might undertake is likely to depend upon the claimant’s background, experience and the type of disease or disablement in question. It is not possible and certainly not sensible to be more prescriptive. The most important consideration is to remember that the purpose of the enquiry is to assess risk to the claimant and to others arising from the work of which he is capable. No greater identification of the type of work is necessary other than that which is dictated by the need to assess risk arising from work or the workplace.

 

39. The correct approach has been identified by Deputy Commissioner Paines in CIB/360/2007:

 

“17. The degree of detail in which [the consequences of a finding that the claimant is capable of work] will need to be thought through will depend on the circumstances of the case … . A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant’s background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b).

 

18. Regulation 27(b) requires one to start by identifying a disease or disablement; the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial.’

 

17. In considering whether the approach advocated by Deputy Commissioner Paines was correct, Moses LJ concluded, at paragraphs 45 to 47:

 

‘45. The correct approach is that which was identified by Deputy Commissioner Paines. The decision-maker must assess the range or type of work which a claimant is capable of performing sufficiently to assess the risk to health either to himself or to others.

 

46. Sufficient information may be elicited by reference to the claimant’s completion of the initial questionnaire, questioning during his medical examination, or by any evidence he may choose to give on an appeal to the tribunal. The process to be adopted by the decision-maker or tribunal is to be regarded as inquisitorial and not adversarial. It is a process described by Diplock J in R v Medical Appeal Tribunal (North Midland Region ex parte Hubble) [1958] 2 QB 228 at 240 as a fact-gathering exercise in which there is no formal burden of proof on either side. There should be no difficulty provided the decision-maker or tribunal recall that the essential question is whether there is an adequate range of work which the claimant could undertake without creating a substantial risk to himself or to others.

 

47. This conclusion is consistent with the practical application of these regulations. Any interpretation must bear in mind that the regulations are designed to provide a fair and effective system for assessing entitlement to incapacity benefit and to allied benefits when a claimant has passed the personal capability assessment. It would not be possible to achieve the aim of those regulations were the decision-maker to be required to make findings of the particularity for which the claimant contends. The decision-maker, it must be recalled, will be provided only with the report of the doctor based upon the doctor’s interview with the claimant and the claimant’s completion of the questionnaire. It is quite impossible for the decision-maker to identify actual positions of employment or the nature of the duties and location of any job which the claimant might undertake, not least because the decision-maker may often be based in Belfast, or elsewhere, and can have no possible means of discovering employment circumstances throughout the country. The conclusion which requires no more than that the decision-maker or tribunal assess the range of work of which the claimant is capable for the purposes of assessing risk to health has the merit of achieving the objective of the regulations.’

 

18. In the application for leave to appeal to the LQPM, Mr Young, for DMS, submitted that:

‘I accept that the tribunal applied the limited capability for work assessment to determine that (the claimant) scored no points (as is noted in its decision) and hence satisfied the first step as outlined in paragraph 30 of Charlton. However I submit that the tribunal has failed to consider or establish whether a substantial risk is foreseen in the light of the work (the claimant) might be expected to perform in the workplace in which he might be expected to be (paragraph 35 of Charlton refers).

 

With regards whether the tribunal proceeded to determine whether there was any health risk to (the claimant) or others at work or in the workplace by assessing the type of work suitable for him, I submit that no consideration has been given to the type of work suitable and if there was I submit there is nothing stated in the reasons to explain this.

…

I submit that the tribunal erred in not obtaining information about the range or types of work which suited (the claimant) and which his disability did not render him incapable of performing. The tribunal did not establish whether there was work that he could do without this resulting in substantial risk.

…

I submit therefore that the tribunal’s failure to apply the principles established in Charlton and to base its conclusions on facts amounts to an error of law.’

 

19. It is clear that there is no reference in the statement of reasons for the appeal tribunal’s decision to the decision of the Court of Appeal for England and Wales in Charlton. That would not necessarily be an error in law of itself provided that it was clear from the remainder of the statement of reasons that the appeal tribunal had applied the principles in Charlton in deciding whether regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 applied. Having looked at the statement of reasons I cannot find any evidence that the appeal tribunal has undertaken the rigorous assessment and fact-finding exercise set out by Moses LJ at paragraphs 46 and 47 of the decision in Charlton.

 

20. That is, once again, not necessarily the end of the matter, however. I have also given consideration to the further decision of the Court of Appeal for England and Wales in Secretary of State for Work & Pensions v Cattrell ([2011] EWCA Civ 572). In that case the court was also considering the application of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995, as amended. Sir Richard Buxton gave specific approval to the principles which had been set out in Charlton. He concluded however, at paragraph 27 that the ‘… actual dispute in Charlton was within a very narrow compass.’ Further, at paragraphs 28 to 30 he stated that

‘28. The Secretary of State says in our case that the tribunal did not ask any question about what work the claimant might undertake, but, on the basis of the finding that no work was safe for the claimant, passed straight to the conclusion that if she worked she would be at risk.  But far from ignoring the approach required by Charlton, the Upper Tribunal in fact addressed this point in a passage I have already read:

 

" While in the normal course a tribunal is required to identify 'range or types of work' that a claim [that should be claimant] can undertake, in the present case the tribunal has accepted the claimant's evidence that the Job Centre 'could see no prospect of her getting work that would be reliably safe for her' and that in practice there was no suitable work."

 

29. What he said therefore was, I respect Charlton but I do not need -- indeed it would be supererogatory -- to go through the formula that Commissioner Paines set out, because we know (there is a finding of fact) that there is no work at all safe for this lady, so it would be beating the air to hypothesise some work and then ask myself whether she would be reasonably safe in doing that work. 

 

30. The Secretary of State's real complaint under this ground is not, I think, that Charlton was not respected but that the lower tribunal was wrong in relying on the evidence that it did in finding that no work was safe for the claimant to do.  The lower tribunal's approach might be criticised, other tribunals might have gone into it a lot more fully, or alternatively might not have accepted as sufficient the evidence -- truthful evidence as they found -- that was given to them by the claimant, but I cannot say that the lower tribunal was simply not entitled to reach the conclusion that it did, much less that it made an error of law in reaching that conclusion, and even less that there is some important point of principle involved in what the lower tribunal did or did not find.  This matter of course could have been debated in the upper tribunal if the Secretary of State had made this complaint in his application to that court; he did not do so.  It is therefore not possible in my view for this court to take the matter further.’

 

21. He was not convinced, therefore, that the Upper Tribunal had mis-applied the principles in Charlton and, indeed, nor was he convinced of any of the other grounds on which the appeal had been brought.

 

22. Hughes LJ, who together with Patten LJ agreed with Sir Richard Buxton, was clear on the emerging principles. At paragraph 36 he stated:

 

‘36. Secondly, it is clear to me beyond argument that the first tier tribunal found as a fact that there was no work which did not carry a substantial risk to the claimant's physical health.  If that is the fact then the question of examining the range of possible employment as is ordinarily necessary under Charlton v the Secretary of State for Work and Pensions does not arise.’ 

 

23. Accordingly, I have considered whether the appeal tribunal in the instant case has found as a fact that ‘… there was no work which did not carry a substantial risk to the claimant’s physical health.’ As was noted by Hughes LJ in Cattrell if that is the fact then there would have been no requirement on the appeal tribunal to undertake the assessment process advocated in Charlton.

 

24. The statement of reasons for the appeal tribunal’s decision contains the following passage:

 

‘Tribunal decision

In considering the evidence the tribunal’s medical member explained that a cerebral arteriovenous malformation (AVM) is an abnormal connection between the arteries and veins in the brain. Typically, AVM symptoms include headache and seizures. In serious cases the blood vessels rupture and there is bleeding (intracranial haemorrhage) within the brain. Impairments caused by local brain tissue damage can include hemiparesis or speech defects. 

 

So the tribunal considered that the exceptional circumstances provision in regulation 29 (ii)(b) of the ESA Regulations (NI) 2008 ought properly to be considered …

 

Was there a substantial risk to (the claimant) if he was found not to have limited capability for work? The medical member thought that (the claimant) was likely to be particularly vulnerable to a brain haemorrhage, that therapeutically the better course was a low stress life and that, also therapeutically, a return to full-time work was almost certain to increase his stress. The LQM accepted the medical member’s guidance and insights on the issue.

 

Accordingly, the appeal was allowed.’

 

25. There is no discrete finding by the appeal tribunal that there was no work which the respondent could undertake which did not carry a substantial risk to his physical health. Although the question is a narrow one, I am satisfied that the conclusion which the appeal tribunal intended to arrive at was that there was no work which the respondent could undertake without an attendant substantial risk to his health. I am of the view, as was Sir Richard Buxton in Cattrell that the ‘…  tribunal's approach might be criticised, other tribunals might have gone into it a lot more fully, or alternatively might not have accepted as sufficient the evidence -- truthful evidence as they found -- that was given to them by the claimant, but I cannot say that the lower tribunal was simply not entitled to reach the conclusion that it did, much less that it made an error of law in reaching that conclusion, and even less that there is some important point of principle involved in what the lower tribunal did or did not find.’ The appeal tribunal might have been more explicit in setting out what its precise conclusion was with respect to the level of risk to the respondent’s health if it was determined that he had limited capability for work. I am prepared, however, to accept that this was the appeal tribunal’s intention.

 

26. There are other aspects of this appeal which require consideration. In the original application for leave to appeal, Mr Young, for DMS, submitted that:

 

‘It is also not clear from the reasons what evidence the medical member considered to base his finding that (the claimant) was ‘likely to be particularly vulnerable to a brain haemorrhage.’ Whilst (the claimant) indicated to the tribunal that the arteriovenous malformation (AVM) had been identified from an MRI scan about 10 years previous, I would submit that this diagnosis is not in itself sufficient to address the substantial risk issue required under regulation 29(2)(b).

 

It is stated on page 2 of the tribunal’s reasons that the medical member gave an explanation about cerebral arteriovenous malformation (AVM) but I submit this was a general summary of the condition and was not specific to (the claimant). The LQPM indicated that he ‘accepted the medical member’s guidance and insights on the issue’ which I submit were not based upon specific evidence relating to (the claimant’s) medical history. I submit the tribunal has erred in failing to relate its findings on specific evidence.’

 

27. At the oral hearing of the appeal, Mrs Gunning, for DMS, accepted that Mr Young did not mean to impute that the medically qualified panel member (MQPM) did not have the expertise to give specialist guidance based on her expert knowledge. Reference was made to the conclusions of Mrs Commissioner Brown in paragraph 16 of C35/02-03(IB) where she stated:

 

‘16. In essence there are three issues for me to deal with in relation to this matter.  The first of these is how the opinion of the medical member should be classified.  I do not consider that this is opinion evidence.  The medical member is not a witness.  He brings his expertise and knowledge to bear on the evidence before him as a member of the Tribunal.  There is therefore no evidence given by him and therefore no obligation on the Tribunal to explain why it might reject any such evidence.  I find no merit in the grounds based on the view of a medical member being classed as giving evidence.’

 

28. I agree that Mr Young did not mean to imply that the MQPM was not entitled to give expert guidance to the appeal tribunal. The point which Mr Young was making that the guidance which the MQPM gave to the LQPM in the instant case was generic to the medical condition from which the respondent suffered and did not take into account the specific manner in which the respondent was affected by the medical condition. There was no evidence before the appeal tribunal on the idiosyncratic manner in which the respondent was affected by the medical condition. I am satisfied, however, that the appeal tribunal was entitled to consider the expert guidance tendered by the MQPM and apply that guidance in the context of its consideration of regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008. I am of the view that the appeal tribunal was entitled to draw the conclusions which it did on the vulnerability of the respondent to a brain haemorrhage. 

 

29. Mr Young has also submitted that the appeal tribunal made no reference to the evidence contained in the report of a medical examination undertaken by a healthcare professional concerning the potential applicability of the exceptional circumstances provisions in regulation 29. Mr Young submitted that the healthcare professional, at page 26 of the completed medical report, had submitted the opinion that there was no evidence that the respondent was suffering from a life-threatening disease or some specific disease or bodily or mental disablement such that any of the exceptional circumstances in regulation 29 applied to him. Further, the healthcare professional in paragraph 34 of page 26 of the completed report had noted that there were ‘… no life threatening diseases; no risk factors noted.’ Mr Young also submitted that the appeals writer had made a specific reference within the appeal submission to the potential applicability of regulation 29, with the appeals writer submitting that regulation 29 did not apply. Mr Young submitted that while there was reference within the statement of reasons for the appeal tribunal’s decision to the report of the healthcare professional and the particulars therein relating to the potential application of the exceptional circumstances provisions, there was no further reference to how the appeal tribunal assessed this evidence in its further reasoning on the application of regulation 29.

 

30. I agree that the appeal tribunal has not made specific reference to how it assessed the evidence contained within the report of the healthcare professional and which related to the potential application of the exceptional circumstances provisions within regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008. It seems to me, however, that it is implicit within the reasoning of the appeal tribunal that it preferred the knowledge of the MQPM and the guidance provided by her in her expert role, to arrive at its conclusions concerning the applicability of regulation 29.

 

31. The record of proceedings for the appeal tribunal hearing notes that there was a presenting officer in attendance at the oral hearing of the appeal. The record of proceedings notes one submission from the presenting officer in which she indicates that she relied on the appeal submission. At the oral hearing of the appeal which was before me I raised the issue as to whether the appeal tribunal, having formed the view that there was the potential for regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 to apply, should have given the parties to the proceedings, including the Departmental presenting officer, the opportunity to make submissions in connection with that issue. I raised that issue because although I could not be sure of the manner in which the appeal tribunal considered the question, it seemed to me that the question of the potential application of regulation 29 arose during the post-appeal deliberations when the members of the appeal tribunal were on their own. I am of the view that given the presenting officer’s reliance on the contents of the appeal submission in connection with the other issues which arose in the appeal any invitation to her to provide additional submissions on the potential applicability of regulation 29 would have been likely to have met with the response that she continued to rely on the appeal submission. As was noted above, I am satisfied that the appeal tribunal took the contents of the appeal submission, including the specific submissions with respect to regulation 29, into account in determining the issues which were before it. I am content, therefore, that no prejudice has been suffered by the Department.

 

Disposal

 

32. The decision of the appeal tribunal dated 10 October 2011 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the respondent has limited capability for work and is entitled to ESA from and including 29 May 2011 is confirmed.

 

 

(Signed):  K Mullan

 

CHIEF COMMISSIONER

 

 

31 October 2012