Northern Ireland - Social Security and Child Support Commissioners' Decisions

DP-v-Department for Social Development (ESA) [2013] NICom 4

 

                                                            Decision No: C13/12-13(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 18 May 2011

 

                       DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.         This is an application for leave to appeal from the decision of the tribunal which sat at Belfast on 18 May 2011.

 

2.         I grant leave to appeal and, with the consent of the parties, proceed to deal with the application as an appeal.

 

3.         For the reasons given below, however, I disallow the appeal.

 

REASONS

 

Background

 

4.         The applicant claimed employment and support allowance (ESA) from 27 September 2010 by reason of anxiety and deafness. The applicant was asked to complete an ESA50 questionnaire by the Department, which he returned on 23 November 2010. He was examined by a healthcare professional for the Department on 25 January 2011. On the basis of the evidence before it, the Department decided that the applicant did not satisfy the work capability assessment and was not incapable of work from and including 4 March 2011. The applicant appealed.

 

5.         The appeal was considered by a tribunal on 18 May 2011. The tribunal awarded 12 points - six each for hearing and for coping with social situations - but this did not satisfy the requirements for entitlement to ESA and the appeal was disallowed.

 

6.         The applicant requested a statement of reasons for the tribunal’s decision. This was issued to him on 9 August 2011 together with a record of the tribunal proceedings. On 23 August 2011 the applicant applied to the legally qualified member (LQM) of the tribunal for leave to appeal to the Social Security Commissioner. The application was refused in a determination issued to the applicant on 9 September 2011. On 20 September 2011 the applicant renewed his application for leave to appeal to a Social Security Commissioner.

 

Submissions

 

7.         In his application for leave to appeal the applicant submits that the tribunal has erred in law by:

 

(i)            not properly discounting coping strategies such as lip-reading when assessing his hearing ability - relying on CIB/2177/2008;

 

(ii)          taking into account evidence of the medical assessor which was given on the basis of a wrongly applied test;

 

(iii)         wrongly taking into account evidence of the medical assessor regarding background noise during testing of his hearing;

 

(iv)         wrongly assuming that he was following questions at hearing because he was paying attention to his father at the hearing rather than the tribunal members, when this was a coping strategy aimed at picking up the discussion by focusing on the person whose speech he was most likely to be able to follow.

 

8.         The Department was invited to make observations on the grounds of application for leave to appeal. Mr Toner responded on behalf of the Department. He observed that the tribunal had stated in its reasons that it was aware that lip-reading was not to be taken into consideration and that it had not done so. He indicated that the Department opposed the appeal.

 

9.         Following receipt of the observations, the legal officer directed further questions to the Department for comment. Mr Toner in response submitted that the reasons were adequate, that the mental health descriptors had been properly applied and that the examination by the medical assessor had been conducted properly.

 

10.       I decided to hold a hearing of the application.

 

Adjustments to the hearing process

 

11.       The applicant had requested certain adjustments to the normal hearing in order to overcome disadvantages arising from his hearing deficit. I held a case management hearing on 18 September 2012. This was done in order to assess what adjustments might reasonably be made to the hearing process in order to facilitate the applicant to participate in the hearing. 

12.       The applicant confirmed that the loop system in hearing room 1 would be of little benefit to him. He preferred a smaller room as a hearing venue. I directed that the hearing should take place in hearing room 2.

 

13.       The applicant confirmed that he understood spoken language through a combination of lip-reading, body language and using his hearing aids. He needed to observe any speaker face on, rather than from the side, in order to maximise the value of the skill of lip-reading. I directed that the seating in the hearing room should be laid out in a triangular pattern, in order to maximise the applicant’s ability to observe both the Commissioner and the Department’s representative face on.

 

14.       The applicant confirmed that he has some knowledge of sign language but that it would not be of use to him to have a sign language interpreter. He requested a note-taker such as he had at University. Due to difficulties in providing such a service and in order to facilitate the applicant, I directed that a Palantype service should be provided for the date of hearing. This service would enable live “sub-titles” of the words spoken in the course of the hearing to be displayed for the benefit of the applicant on a computer monitor.

 

The hearing of the application

 

15.       At the hearing, the applicant appeared in person and the Department was represented by Mr Toner. I am grateful to both parties for their submissions. Palantype services were provided at hearing by Mrs Susan McIntyre and I am grateful to her for her assistance.

 

16.       The applicant submitted that there were two aspects of hearing - one was the ability to hear a sound and the other was the ability to understand spoken language. He submitted that the relevant test was ability to understand spoken language. In his case, he submitted, use of a loud voice could be counter-productive in that it distorted the sound he heard and made it more difficult to distinguish words. He used a hearing aid, but he submitted that, unlike glasses for vision, a hearing aid did not clarify sounds.

 

17.       He said that he used a number of different mechanisms to understand spoken language. One was predicting conversation based on context, one was reading body language and one was lip-reading. He indicated that he would watch television only with sub-titles. He said that without sub-titles he could not follow what was being said, in the absence of the coping mechanisms he used in conversation. He indicated that individual voices varied, for example in relation to accent and clarity of tone, and were not equally understandable.

 

18.       He submitted that the tribunal had been an artificial setting in which to assess his ability to hear and understand spoken language since the tribunal members appeared to him to accentuate the clarity of their speech, giving an example of an inaudible comment made at the conclusion of the hearing when he was leaving the room as a contrast with the questioning in the more formal part of the hearing. He submitted that he used his coping mechanisms to follow the hearing, and that he also relied upon his father’s dialogue with the tribunal to pick up cues.

 

19.       He noted that the tribunal had referred to him using the telephone. However, he could only use it for short conversations of 30 seconds to one minute duration, such as to tell a parent he was on the way home. He had used a telephone perhaps ten times in the course of his employment, mainly where the staff supervising car parking would ring to ask him to move his car, and he had no conversations with clients by telephone.

 

20.       The applicant relied upon CIB/2177/2008, a decision of Upper Tribunal Judge Ward. He submitted that paragraphs 5 and 6 were of particular relevance. There the Judge held that the tribunal erred in law for not establishing how much a claimant could “hear” in the sense of understanding through the sense of hearing, and how much through the alternative strategy of lip-reading.

 

21.       The applicant gave a history of his education and employment and indicated that he had problems with hearing throughout his life. He said that it was impossible for the medical assessor to give him a score of nil points for hearing, which is what occurred.

 

22.       Mr Toner responded to the last submission by pointing out that the descriptor for nil points is appropriate where none of the other descriptors apply. It does not suggest that the medical assessor thought there was no hearing problem at all.

 

23.       Mr Toner submitted that the applicant’s submissions were addressed to the correctness of the tribunal decision but nowhere raised an error of law. In particular, he submitted that the tribunal had stated that it was aware that lip-reading should not be taken into account, which was the correct legal position. He submitted that without lip-reading the tribunal had assessed that the applicant could hear someone talking in a normal voice in a quiet room sufficiently clearly to hear the words being spoken.

 

24.       He submitted that it was open to the tribunal to make their own observations at hearing and to use those to make their assessment. They had observed the applicant to hear what they said when not directly looking at the speaker. In this context, Mr Toner submitted that it was not necessary to put their observations to the applicant for comment.

 

25.       The applicant remembered that the LQM had asked him whether he could hear the tribunal members. He said that if it had been put to him that he understood the tribunal he would have agreed because he understood a lot from what his father was saying.

 

Relevant Legislation

 

26.       The relevant descriptors at the period which I am considering appeared at Schedule 2 to the Employment and Support Allowance (NI) Regulations 2008. The relevant part reads:

SCHEDULE 2

Assessment of whether a claimant has limited capability for work

PART 1

PHYSICAL DISABILITIES

(1)		(2)	(3)
Activity		Descriptors	Points
8. Hearing with a hearing aid or other aid if normally worn.	(a)	Cannot hear at all.	15
	(b)	Cannot hear well enough to be able to hear someone talking in a loud voice in a quiet room, sufficiently clearly to distinguish the words being spoken.	15
	(c)	Cannot hear someone talking in a normal voice in a quiet room, sufficiently clearly to distinguish the words being spoken.	9
	(d)	Cannot hear someone talking in a loud voice in a busy street, sufficiently clearly to distinguish the words being spoken.	6
	(e)	None of the above apply.	0

 

Assessment

 

27.       I note that the relevant hearing descriptors were amended from 28 March 2011, with the heading now being “Understanding communication by both verbal means (such as hearing or lip-reading)…”.  This has the consequence that the test looks at understanding, and that lip-reading is to be taken into account as part of the assessment. However, the previous formulation of the descriptor, which I am concerned with, focused on hearing using a hearing aid if normally worn.

 

28.       The relevant activity was considered by Upper Tribunal Judge Ward in CIB/2177/2008. When giving consideration to the activity, Judge Ward noted that the activity was one of hearing with a hearing aid or other aid if normally worn. He held that this activity precluded alternative strategies such as lip-reading from being taken into account. I am in agreement with Judge Ward that this is the correct approach to the activity. The parties are also in agreement that this is the correct approach.

29.       From the record of proceedings it would appear that the hearing began with the tribunal asking the applicant about particular descriptors, followed by the applicant’s father giving a history of the applicant’s situation, and further responses from the applicant and his father concerning his ability to hear. These include the applicant responding to the LQM to indicate that he could hear him.

 

30.       As well as oral evidence, the tribunal had documentary evidence to consider. However, it seems to me that this was of little assistance in terms of assessing the appropriate hearing descriptor. For example, the applicant had provided to the tribunal a set of recommendations for workplace adjustments from the Occupational Health Service of the Northern Ireland Civil Service when he was engaged as a trainee accountant, some audiometry reports, a memorandum concerning adaptations made when he was a student at Queens University and a refusal of a job application on medical grounds relating to his deafness. In addition, the applicant had subsequently submitted a document from the Royal National Institute for the Deaf (RNID) after the date of decision. I consider that none of these had a direct bearing on the tribunal’s decision, as none addressed the specific questions in the descriptors under the activity heading of “Hearing with a hearing aid or other aid if normally worn”. 

 

31.       I also consider that the report of the healthcare professional was of limited assistance. In the report the healthcare professional recorded:

 

“Concentrating on lip-reading.

Speech is very good for a client who is congenitally deaf.

Able to respond normally to my conversation in a room with a background of noisy traffic”.

 

And later,

           

“Activities of daily living and assessment suggest no problem in these modalities”.

 

32.       The applicant reported that he had no awareness of traffic noise when being examined. However, more significantly, I consider that it is not clear whether the healthcare professional judged the applicant on the basis of his ability to respond to conversation using the faculty of hearing alone or using a combination of hearing and lip-reading. The latter approach would lead to evidence which would be of little value, as the wrong test would have been applied. I accept the point made by the applicant that the healthcare professional’s evidence should have carried little weight in such circumstances.

 

33.       A tribunal might well have been led into error had it relied on a deficient assessment of hearing. This is not the case here, however. In the instant case, the healthcare professional’s findings were such that he or she assessed the applicant as not meeting any of the criteria which would lead to an award of points under the activity of hearing. However, the tribunal rejected the assessment of the healthcare professional to that effect, accepting that the applicant would have difficulty hearing a loud voice in a busy street, and awarding six points for that descriptor. It is clear that the tribunal did not therefore base its assessment of the applicant upon the healthcare professional’s report and findings. To the extent that the report of the healthcare professional may not have addressed the correct test, this was not material to the outcome of the appeal.

 

34.       Instead, it appears clear from the papers, the tribunal made its own assessment of the applicant’s hearing based upon its observation of the tribunal proceedings, and judging that he had the ability to hear a normal voice in a quiet room sufficiently clearly to distinguish the words being spoken.

 

35.       The applicant points to the decision of Upper Tribunal Judge Ward in CIB/2177/2008, saying that the tribunal did not properly consider his use of strategies such as lip-reading, body language and prediction of words from the context. However, the tribunal refers to the act of lip-reading and expressly says “For the sake of clarification however the tribunal is aware that lip reading is not to be taken into consideration when applying the test and this was never considered by the tribunal as one of the reasons why the appeal was disallowed”.

 

36.       The essence of the tribunal’s reasons for making the decision it did reduces to two things. Firstly, it observed the applicant to hear words spoken when he was not looking directly at the speaker. Secondly, the applicant was asked by the LQM if he could hear him, and the applicant confirmed in evidence that he could. I take on board the applicant’s point that in an artificial situation, such as a tribunal, people might tend to speak a little more distinctly. However, that does not mean that such people are not speaking in a “normal voice” as in the statutory test.

 

37.       Since it was not basing its decision on deficient evidence, and since it was not applying a test of hearing which included lip-reading, in what other way might the tribunal have erred in law?

 

38.       It might be arguable that the tribunal ought to have put its observation of the applicant’s ability to hear normal voices in a quiet room to the applicant for his comments. In R3/01(IB)(T), at paragraph 27 it was said that “… a tribunal can use its own observations in reaching an assessment on credibility. It is however, strongly desirable that a tribunal seek a comment from the parties on specific observations of activity as opposed to a more generalised impression of the witness”. In the present case, I consider that the tribunal members were entitled to make findings based on their perceptions throughout the course of the hearing. They formed the impression that the applicant could hear them. In terms of putting that observation to the applicant, the LQM also asked the applicant directly if he could hear the tribunal, to which he replied that he could.

 

39.       At the end of the day the question before me is whether as a matter of law the tribunal was entitled to reach the findings which it did. It based those findings on a correct approach to the statutory test, ignoring lip-reading. It declined to follow the opinion of the healthcare professional which was possibly not based on the correct statutory test. It made its decision on its own observations of the applicant at hearing. It formed the view that he could understand what was being said without looking directly at the speaker. It asked the applicant if he could hear the panel members and he said that he could.

 

40.       If the tribunal has made its decision in accordance with the law in all other respects, I can only disturb its findings of fact if I consider them to be irrational, in the sense that no reasonable tribunal could have reached them. I do not consider that the tribunal in the present case has made an irrational decision. It has reached a conclusion which it was entitled to reach on the evidence. It follows that I do not consider that the tribunal has erred in law and that I must disallow the appeal.

 

 

            (Signed):  O Stockman

 

            COMMISSIONER

 

 

 

            24 January 2013