LO’N-v-Department for Social Development (ESA) [2012] NICom 347

Decision No:  C9/12-13(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 9 September 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.  I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

 

2.     The decision of the appeal tribunal dated 9 September 2011 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.  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.

 

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 his 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 8 June 2011, which decided that:

 

(i)        grounds existed to supersede an earlier decision of the Department, dated 28 January 2011, and which had awarded an entitlement to ESA, from and including 21 January 2011; and

 

(ii)       the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 8 June 2011.

 

7.     The appeal was received in the Department on 14 June 2011.  On 5 July 2011 the decision dated 8 June 2011 was looked at again but was not changed.

 

8.     The substantive appeal tribunal hearing took place on 9 September 2011.  The appellant was present and was not represented.  The Department was represented by a Departmental presenting officer.  The appeal was disallowed and the appeal tribunal confirmed the decision dated 8 June 2011.

 

9.     On 11 November 2011 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service (TAS).  On 21 November 2011, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

         Proceedings before the Social Security Commissioner

 

10.   On 13 December 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 7 February 2012 observations were sought from Decision Making Services (DMS) and these were received on 22 February 2012.  In these observations, Mr McKendry, for DMS, opposed the application on the grounds cited by the appellant but supported the application on another identified ground.  The written observations were shared with the appellant on 5 March 2012.

 

         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.”

 

         The error of law in the instant case

 

13.   In the written observations on the application for leave to appeal, Mr McKendry submitted that the decision of the appeal tribunal was in error of law on the basis of the following identified ground:

 

         ‘Error of law:

 

18.    (The claimant) on his ESA50 at page 19 (in relation to awareness of hazard or danger) indicated that he experienced difficulties in relation to activities 13 (awareness of hazard) and 14 (memory and concentration) which fall within part 2 of Schedule 2 to “The Regulations” which specifically relate to Mental, cognitive and Intellectual function assessment.  (The claimant) stated:

 

          “Normally when my eye is playing up I stay in bed as the pressure causes severe headaches”

 

          At page 20 of his ESA50 (the claimant) further stated:

 

          “Sometimes I find it difficult to concentrate or function as quickly as normal due to not sleeping properly which is caused by pain of my right eye.”

 

          The HCP in their report ESA85 (at page 21) noted that (the claimant) could:

 

          “wash and dress daily, look after children, use remote control, drive car, cook all meals and was aware of hazards”

 

          The HCP further added that (the claimant’s) activities of daily living:

 

          “suggest no functional disability”

 

          At page 23 of ESA85 the HCP further noted that (the claimant) could:

 

          “drive car and go to the shops alone”

 

          Again, the HCP found that (the claimant) had no functional disability.

 

          The Tribunal in its reasons for decision noted that (the claimant) had identified problems in the area of awareness of hazards or danger and memory and concentration but these related to his physical problems and not to be a mental health disorder.  The Tribunal then found that:

 

          “There are no known grounds to require applying the mental health descriptors – no medication, referrals or diagnosis of a mental health illness.”

 

          There have been a number of Upper Tribunal decisions in Great Britain that have clarified the interpretation of regulation 19 of and Schedule 2, Part 2 of “The Regulations”.

 

          In particular, the Upper Tribunal Judges concluded that a claimant can satisfy any of the mental, cognitive or intellectual function descriptors in Part 2 of Schedule 2 where the claimant has a physical function and does not have a mental illness or disablement.  Similarly a claimant can satisfy any of the physical descriptors in Part1 of Schedule 2 where the claimant has a mental illness or disablement.

 

          In Commissioner’s decisions CE/3002/2010 and CE/1222/2010 both Judges highlighted that the wording of regulation 19(5) is such that points can be scored for the whole of Schedule 2 if the incapability to perform the activity arises from some specific bodily disease or disablement, some specific mental illness or disablement or from the treatment of such conditions by a medical practitioner.  There was no partitioning in the legislation requiring mental health descriptors to be scored only in relation to mental health conditions and physical descriptors only being applicable to physical conditions despite there being a clear opportunity for the draftsman to do so.  Judge Mesher highlighted that it is the function that is affected which is the important matter, regardless of the underlying cause, thus avoiding the difficult task of separating out mental and physical origins.

 

          This is an important difference in the rules governing Employment and Support Allowance when compared to the Incapacity Benefit regime.

 

          In CE/3002/2010 Judge Wikeley at paragraph(s) 29 - 31 highlighted the differences in the legislation between ESA and incapacity benefit:

 

          29.       “It is worth highlighting in this context an important difference between the rules governing incapacity benefit and the ESA regime.

 

          30.       In incapacity benefit cases the physical health descriptors apply only to an incapacity arising “in respect of a disability... from a specific bodily disease or disablement”, whilst the mental health descriptors apply solely to “a disability... from some specific mental illness or disablement” (Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311), reg. 25(3)).  This provision undoubtedly poses some difficulty with complex conditions such as chronic pain syndrome (see e.g. CIB/5435/2002).

 

          31.       The rules for ESA are different. Regulation 19(5) of the Employment and Support Allowance Regulations 2008 (SI 2008/794) provides as follows:

 

“(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.”

 

          At paragraph 32 Judge Wikeley held:

 

“There is, therefore, no artificial partitioning in the legislation requiring mental health descriptors to be scored only in relation to mental health conditions and physical descriptors only being applicable to physical conditions.  It may be, of course, that as a matter of evidential weight a tribunal is not satisfied that a physical condition gives rise to a score for a mental health descriptor, or vice versa, but the linkage is possible in appropriate cases.”

 

          Judge Mesher in decision CE/1222/2010 at paragraph(s) 19 & 20 endorsed this stance stating:

 

          “19.     I do not accept the submission for the Secretary of State, in the written submission of 12 January 2011 and repeated by Mr Cooper at the oral hearing, that there can only be qualification for a descriptor under Part 2 if the relevant problems stem from a mental health problem, whether existing completely independently or resulting itself from a physical disablement.  I fear that that submission did not get much further than the assertion that that had to be so because the descriptors under Part 2 referred to limitations on activities that stemmed from mental health problems.  The problem with that submission is that some of the descriptors in Part 2 refer to things that could also stem from physical problems.  It was also thought necessary in some instances to make a specific reference to mental illness or disablement, sometimes of a specific kind (see, for example, paragraphs 15, 16 and 19), which points against the existence of the general condition put forward for the Secretary of State.

 

          20.       It seems to me first that the contrast between the headings to Parts 1 and 2 of Schedule 2 is very significant.  The heading “Physical disablement” points to the underlying cause of the effect on physical function tested in the descriptors in Part 1.  The heading “Mental, cognitive and mental function assessment” points to the nature of the function that is affected, regardless of the underlying cause, suggesting that if one of those functions is affected in a way that meets the terms of a descriptor there is no need to embark on the horrendously difficult task of separating out mental and physical origins.  Second, the terms of regulation 19 of the ESA are very significant.  Regulation 19(5) merely provides that there is qualification for points under the whole of Schedule 2 only if the incapability to perform the activity in question arises from some specific bodily disease or disablement, some specific mental illness or disablement or from the treatment of such conditions by a medical practitioner.  There was the plain opportunity to connect Part 1 to physical disease or disablement and Part 2 to mental illness of disablement, which was not taken.  In my judgment, the Secretary of State’s submissions involve the adding of words to the ESA Regulations that are not there.  That could be justified only in cases of manifest absurdity or mistake or where there was a clear intention in the context of the Regulations as a whole that there should be an interpretation to that effect.  The circumstances fall a long way short of that.  Accordingly, in my judgment, if the tribunal was considering paragraph 14 of Schedule 2, it failed to give an adequate reason for not looking further at its conditions.”

 

          (The claimant) had identified on his ESA50 from that he had problems with descriptor’s 13 and 14 of Schedule 2 (Part 2) to “The Regulations”.  The HCP documented their findings on (the claimant’s) contentions.

 

          For the above reasons I would submit that the tribunal failed in its inquisitorial role in relation to not considering whether (the claimant) may have possibly satisfied descriptor(s) 13 and 14 as listed above and accordingly erred in law.’

 

14.   The decision of Judge Mesher, referred to by Mr McKendry as CE/1222/2010 is now reported in the reported decisions of the Administrative Appeals Chamber of the Upper Tribunal as KP v Secretary of State for Work & Pensions (ESA) ([2012] AACR 5).

 

15.   I agree with Mr McKendry’s detailed submission and, for the reasons set out by him, agree that the decision of the appeal tribunal is in error of law.  The date of the decision of Upper Tribunal Judge Wikeley, referred to by Mr McKendry as CE/3002/2010 and also more correctly cited as KN v Secretary of State for Work & Pensions (ESA) ([2011] UKUT 229 (AAC)) is 31 May 2011.  The date of the decision of Judge Mesher in KP is 1 June 2011.  The date of the appeal tribunal’s decision is 9 September 2011 and it may be the case the significance of both decisions in KN and KP had not yet percolated to appeal tribunal panel members.  I accept and adopt the principles set out in both decisions, however, and it is now essential that appeal tribunals in Northern Ireland assimilate those principles into the decision-making processes in appeals involving consideration of the applicability of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.

 

         The appellant’s other grounds for seeking leave to appeal

 

16.   Having found that the decision of the appeal tribunal is in error of law for the reasons set out above, I do not have to consider the other grounds advanced by the appellant when seeking leave to appeal.  I would note, however, and for the detailed reasons set out by Mr McKendry in the written observations on the application for leave to appeal, I would not have found that the decision of the appeal tribunal was in error of law on the basis of those submitted grounds.

 

         Disposal

 

17.   The decision of the appeal tribunal dated 9 September 2011 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.

 

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 8 June 2011, which decided that:

 

(i)        grounds existed to supersede an earlier decision of the Department, dated 28 January 2011, and which had awarded an entitlement to ESA, from and including 21 January 2011; and

 

(ii)       the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 8 June 2011.

 

20.   Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 8 June 2011 had grounds to supersede the decision of the Department dated 28 January 2011.  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.

 

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 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 any of the activities or descriptors in either Part of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.

 

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

 

 

 

28 November 2012