Northern Ireland - Social Security and Child Support Commissioners' Decisions

KE-v-Department for Social Development (ESA) [2013] NICom 59

Decision No:  C7/12-13(ESA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

EMPLOYMENT AND DEVELOPMENT ALLOWANCE

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 5 July 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 5 July 2011 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.

 

2.     I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made further findings of fact.  The fresh findings in fact are outlined below.

 

3.     My revised decision is as follows:

 

I accept that for the purposes of the work capability assessment descriptor 6(e) in the Schedule to the Employment and Support Allowance Regulations (Northern Ireland) 2008 applies to the appellant.  Descriptor 6(e) attracts a score of 9 points.  The appeal tribunal had decided that descriptor 5(c) also applied to the appellant.  Descriptor 5(c) attracts a score of 6 points.  Accordingly, the appellant scores 15 points in connection with the work capability assessment.

 

The question for decision is whether the appellant has limited capability for work in accordance with section 8(2) of the Welfare Reform Act (Northern Ireland) 2007 and regulation 19 of the Employment and Support Regulations (Northern Ireland) 2008.  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 to the Employment and Support Allowance Regulations (Northern Ireland) 2008.  To have limited capability for work the appellant has to score 15 points whether for physical disabilities, mental, cognitive and intellectual function assessment or a combination of both.  Having decided that the appellant scores 15 points, she has limited capability for work and is entitled to ESA from and including 17 January 2011.

 

         Background

 

4.     The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 17 January 2011, which decided that:

 

(i)      grounds existed to supersede an earlier decision of the Department, dated 24 August 2010, and which had awarded an entitlement to incapacity benefit (IB), from and including 28 August 2010; and

 

(ii)     the appellant did not have limited capability for work and was, therefore, not entitled to employment and support allowance (ESA) from and including 17 January 2011.

 

5.     An appeal against the decision dated 17 January 2011 was received in the Department on 9 February 2011.  On 1 March 2011 the decision dated 17 January 2011 was looked at again but was not changed.

 

6.     Following an earlier postponement, the substantive appeal tribunal hearing took place on 5 July 2011.  The appellant was present and was accompanied by her sister.  There was no Departmental presenting officer present.  The appeal was disallowed.  The appeal tribunal did apply certain of the descriptors and activities in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 as amended, which the decision maker had not applied.  The application of these descriptors meant that the appellant attracted a score of 12 points in connection with the work capability assessment.  That score was insufficient, though, for the appeal tribunal to make a determination that the appellant had limited capability for work - regulation 19(3) of the Employment and Support Allowance Regulations (Northern Ireland), as amended.  Accordingly the substance of the decision dated 17 January 2011 was confirmed.

 

7.     On 11 November 2011 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service (TAS).  The application was made by Mrs Carty of the Law Centre (NI) who was now representing the appellant.  On 17 November 2011, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

Proceedings before the Social Security Commissioner

 

8.     On 12 December 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners from Ms Linkin of the Law Centre (NI).  On 13 February 2012 observations were sought from Decision Making Services (DMS) and these were received on 7 March 2012.  In these initial observations, Mr Young, for DMS opposed the application on the grounds cited on behalf of the appellant but supported the application on another identified ground.

 

9.     Written observations were shared with the appellant on 28 March 2012.  Written observations in reply were received from Mr Hatton of the Law Centre (NI) on 27 April 2012.  On 29 May 2012 a further submission was received from Mr McKendry of DMS.

 

10.   On 6 September 2012 I granted leave to appeal.  In granting leave to appeal I identified as a reason that:

 

‘An arguable issue arises as to whether the appeal tribunal adopted the correct approach to (i) the interpretation and application of the descriptors in Activity 6 and of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended and (ii) the interpretation and application of Regulation 19 and Part 2 of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.’

 

11.   On 6 September 2012 I also directed an oral hearing of the appeal.  The oral hearing took place on 25 October 2012.  The appellant was present and was represented by Mr Hatton.  The Department was represented by Mr McKendry.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

 

         A preliminary issue – was the application for leave to appeal to TAS outside of the prescribed time limits for making such an application?

 

12.   In the initial written observations on the application for leave to appeal, Mr Young submitted that the application for leave to appeal to the Social Security Commissioner which was sent to TAS may have been received outside the prescribed time limits for making such an application as set out in regulation 58 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  In his response to the initial written observations, Mr Hatton, in a detailed submission, argued that the application for leave to appeal was not late.  In a further response dated 29 May 2012 Mr McKendry, for DMS, accepted the arguments which had been made by Mr Hatton, resiled from the position adopted in the initial written observations and accepted that the application for leave to appeal had been received within the prescribed time limits for the making of such an application.

 

         What is an error of law?

 

13.   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.

 

14.   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

 

15.   In the application for leave to appeal, it was submitted on behalf of the appellant that the decision of the appeal tribunal was in error of law on the ground that the appeal tribunal failed to give adequate reasons for a finding on a material matter.

 

16.   The particulars of this ground were that while the appeal tribunal had applied descriptor (g) of activity 6 in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 as amended, it had not adequately explained why it did not consider why any of the other descriptors scoring higher points in activity 6 applied to the appellant.  On the evidence – both in the ESA questionnaire which the appellant had completed as part of the decision-making process and in her oral evidence to the appeal tribunal - descriptors (e) and (f) of activity 6 had the potential to apply.

 

17.   It was submitted that the decision of Upper Tribunal Judge May QC in DW v Secretary of State for Work and Pensions ([2010] UKUT 245 (AAC)) was authority for the principle that the proper approach to the application of the descriptors in Schedule 2 was to take a ‘broad view’ and ‘exercise a reasonable judgement’.  It was submitted that the appeal tribunal erred in failing to take a ‘broad approach’ to activity 6.  The appeal tribunal had taken a narrow approach ‘… by proceeding on the assumption that the tasks in these descriptors could be performed with the unimpaired use of only one hand.’  The appeal tribunal was obliged to consider whether there were some circumstances where the appellant could not perform the descriptors due to ‘… significant difficulties arising from only having the use of one hand.’

 

18.   In the initial written observations on the application for leave to appeal, Mr Young submitted that being able to physically use a conventional keyboard or mouse or do/undo small buttons (the two descriptors at 6(e) and (f) of Schedule 2 and contended for on behalf of the appellant) with one hand would mean that these descriptors would not be satisfied.  Mr Young submitted that ‘… the use of a conventional keyboard or mouse or indeed doing/undoing buttons are not functions that necessarily require the use of both hands.’

 

19.   Mr Young made reference to the decision of Upper Tribunal Judge Jacobs in GS v Secretary of State for Work and Pensions (ESA) ([2010] UKUT 244 (AAC)).  In his decision Upper Tribunal Judge Jacobs was concerned with the application of the descriptors in activity 6 of Schedule 2 to the Employment and Support Allowance Regulations 2008.  Activity 6 of Schedule 2 is in identical terms to that of the parallel activity in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 as amended.  Upper Tribunal Judge Jacobs stated the following, at paragraph 15 of his decision:

 

‘15.      I agree with the claimant’s representative to the extent that some of the descriptors expressly apply if the claimant can use neither hand and others expressly apply if the claimant can use one hand, but not the other.  I do not agree that all the descriptors must be so classified.  Some are not specific one way or the other.  That reflects the possibility that a claimant may not be able to perform an activity with either hand on its own, but may be by using them together.  Fastening a button is an example.  A person may not be able to manage this with either hand individually, but may be able to do so with the combined function of each hand.’

 

20.   In his initial written submissions, Mr Young submitted that:

 

‘I submit that descriptors 6(e) and (f) are descriptors which are not specific one way or the other.  The tribunal found that (the claimant) had full use of her right hand/arm and hence that descriptors 6(a) – (f) were not satisfied.  This finding is supported by what was noted in the record of proceedings under Manual Dexterity ‘I can do everything with my right hand’ as well as the findings of the health care professional at examination on 3 December 2010 for manual dexterity who found that when examining (the claimant’s) right arm there was no abnormality detected and that she had full range of movements all areas.  The ESA50 medical questionnaire completed by (the claimant) also confirmed that she had a problem with just one hand.  I submit that the tribunal did not err in law in making its finding that she had full use of her right hand/arm and has given adequate reasons to enable a reasonable person to understand why it awarded the points it did.’

 

21.   Mr Young also submitted that while there was a reference in the record of proceedings for the appeal tribunal hearing to the appellant having a need for her food to be cut up for her, this was a reference to a requirement in connection with ‘self-care’ and could not attract points under the personal capability assessment.  The cases of GS, as noted above, and KN v Secretary of State for Work and Pensions (ESA) ([2011] UKUT 229 (AAC)) were cited by Mr Young in support of this submission.

 

22.   Reference was also made by Mr Young to the submission on behalf of the appellant that she would have difficulty in carrying out functions such as ‘Ctrl, Alt Delete’ or using the shift key to capitalise letters on a conventional keyboard.  Mr Young noted that having examined the papers relating to the appeal this issue did not appear to have been argued before the application for leave to appeal to the Social Security Commissioner was made.  Despite that, Mr Young submitted that it would be possible to carry out the relevant functions on a conventional keyboard with the use of one hand.

 

23.   Mr Young turned to the decision of Upper Tribunal Judge May in DW which, as was noted above, was relied on by the appellant’s representative.  Mr Young began his analysis of this decision by noting that care should be taken when applying the principles from case law arising in connection with one social security benefit when considering the rules of entitlement to another social security benefit.  Mr Young noted that Upper Tribunal Judge May had set out what he thought was the proper approach to descriptor 6(e) in Schedule 2.  Mr Young submitted, however, that, equally, Upper Tribunal Judge Jacobs in GS had set out what he had thought was the proper approach to be taken in interpreting and applying all of the activities and descriptors in both Schedules 2 and 3.  Mr Young referred to the endorsement of the decision in GS in the further decision of Upper Tribunal Judge Wikeley in KN and in my own decision in GF v Department for Social Development (ESA) ([2011] NI Com 160, C7/10-11(ESA)).  Mr Young submitted that the conclusions of the appeal tribunal on the claimant’s functional ability, including the conclusions that she had full use of her right arm and hand were sufficient for it to conclude that none of the other activity 6 descriptors applied.  In any event, he reiterated that the full use of one hand would enable a claimant to carry out the vast majority of functions on a conventional keyboard.

 

24.   Mr Young also made reference to the ‘Training and Development ESA Medical Handbook’ described by him as having been:

 

‘…  prepared by the Office of the Chief Medical Officer on behalf of the Department.  This Handbook is fundamentally a training and development handbook to support health care professionals in performing limited capability for work and limited capability for work-related activity examinations and is not binding on either decision-makers or tribunals.

 

I submit however that the Handbook is useful in establishing the functions that are being tested within each activity and what should be considered.  I have copied below the extract from the ESA Medical Handbook which relates to activity 6 (manual dexterity):

 

“This activity relates to hand and wrist function.  It is intended to reflect the level of ability to manipulate objects that a person would need in order to carry out work related tasks.  Ability to use a pen or pencil is intended to reflect the ability to use a pen or pencil in order to make a purposeful mark.  It does not reflect a person’s level of literacy.  The same concept applies to use of a computer keyboard.”

 

I submit therefore that this guidance adheres with the views of Judge Jacobs and if one applies the same concept to a computer keyboard then the level of competency in using a keyboard does not come into question.’

 

25.   Mr Young added that he was of the view that no error of law arose in connection with the appeal tribunal’s application of regulation 29 of the Employment and Support Regulations (Northern Ireland) 2008, as amended:

 

‘The tribunal in its statement of reasons stated the following:

 

“On this basis, (the claimant’s) total score of 12 points in respect of physical descriptors is insufficient to find that she has limited capability for work and there are no grounds for exception or exemption from the test.”

 

I submit that the reference to exception most likely refers to the Exceptional circumstances provision.  Even if I am wrong in that I submit that whilst the tribunal did not fully explain that it had considered and discounted the potential application of the Exceptional circumstances provision, contained in regulation 29 of the Employment and Support Allowance Regulations (NI) 2008, its failure to do so does not render its decision as being in error of law.  I submit that there was nothing in the evidence which was before the appeal tribunal to suggest that (the claimant) 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.  In this regard I would rely on the analysis of regulation 29 by Chief Commissioner Mullan at paragraphs 14-31 in decision HA -v- Department for Social Development (ESA) [2011] NICom 213, decision no. C6/11-12(ESA).’

 

26.   Having submitted that the decision of the appeal tribunal was not in error of law on any of the grounds submitted on behalf of the appellant, nor on its application of regulation 29, Mr Young submitted that the appeal tribunal had erred in law on the basis of the application of regulation 19 of and Schedule 2 to the Employment and Support Regulations (Northern Ireland) 2008.  Mr Young noted the considerable case law on the parallel provisions in Great Britain, including the decision of Upper Tribunal Judge Wikeley in KN above and the decision of Upper Tribunal Mesher in KP v Secretary of State for Work and Pensions (ESA), ([2011] UKUT 216 (AAC), reported as [2012] AACR 5).  He noted that the decision in KP had been endorsed by Upper Tribunal Judge Parker in her decision in CE/175/2011 and by Upper Tribunal Judge Jupp in CE/433/2011.  Finally Mr Young referred to the decision of Upper Tribunal Judge Ward in RM v Secretary of State for Work and Pensions (ESA) ([2011] UKUT 454 (AAC)).  I shall return to the detail of all of those decisions below.  Mr Young submitted that the appeal tribunal had failed properly to follow the principles set out in those decisions:

 

         The tribunal stated:

 

“In her Self Assessment Form, (the claimant) identified problems with mental activities (15) (execution of tasks) and (19) (coping with social situations) but explained that her difficulties with these activities were, (15) because she needed help to do things due to restriction in her left shoulder/arm function and (19) because she was frightened of getting her shoulder bumped into when out in public.

 

At examination on 3 December 2010 (the claimant) denied any problems with mental health and confirmed that she was not on any medication for this.  The Examining Doctor commented that the difficulty identified in the mental health section of the Self Assessment Form were due to her physical problems and did not consider it appropriate to apply the mental health criteria.  We note that the Examining Doctor for the purposes of Industrial Injuries Benefit on 10 December 2010 took a slightly different view in that, while noting medication or treatment for mental health, considered that there was a degree of emotional trauma resulting from the physical condition (albeit a very minor one, with an award of only 5 per cent applicable).  Having considered the available medical evidence and evidence from (the claimant) and bearing in mind that at no time during the period relevant to the appeal was (the claimant) receiving any medication or treatment for any mental conditions, we prefer the approach adopted by the Examining Healthcare Professional on 3 December 2010 who concluded that there was no impairment of mental, cognitive or intellectual functions to warrant the applicability of the mental descriptors.”

 

         (The claimant), as acknowledged by the tribunal, identified problems with activities 15 & 19 in her completed ESA50 medical questionnaire.  In addition the tribunal referred to the examination by the doctor for the purposes of Industrial Injuries Benefit and that he considered there was a degree of emotional trauma resulting from the physical condition.

 

         I submit that in light of the evidence and the aforementioned case law the tribunal, by finding that as (the claimant’s) problems were purely physical and that as she did not receive any medication or treatment for any mental health conditions there was no impairment of mental, cognitive or intellectual functions, has erred in law in failing to apply the mental, cognitive and intellectual function assessment.

 

         I submit however that the error in the circumstances is understandable as the first decisions on this issue cited above, that of Judge Wikeley and Judge Mesher, were given on 31 May 2011 and 1 June 2011 respectively.  Given that the decision of the appeal tribunal was given on 5 July 2011 it would appear likely the tribunal was unaware of these Upper Tribunal decisions in Great Britain.  In addition the health care professional on behalf of the Department failed to apply the mental, cognitive and intellectual function assessment as confirmed on page 18 of the ESA85 medical report and this was confirmed in the Department’s appeal submission of 1 March 2011 sent to the Appeals Service (paragraph 12 refers).  Both the health care professional’s medical report and the Department’s appeal submission were however prepared in advance of the case law clarifying the interpretation on how to apply the mental, cognitive and intellectual function assessment.’

 

27.   In response to the initial written observations on the application for leave to appeal, Mr Hatton made a number of submissions, as follows.  He began by referring to the error of law identified by Mr Young and indicating his agreement that the decision of the appeal tribunal was in error of law on the basis of this ground.  Mr Hatton then made further submissions in connection with the appeal tribunal’s consideration of the activity 6 descriptors, as follows:

 

(i)         While accepting that the appellant had not expressly raised the issue of difficulties with using a keyboard or doing up buttons at the appeal tribunal hearing, she had indicated in her claim form to ESA that she would have difficulty with some of the activities listed in the relevant section of the form.  Those activities included using a computer and doing up buttons.

 

(ii)        Nonetheless, the appeal tribunal did make a finding on which activities applied to the appellant and whether she could score points under the relevant descriptors.  Any such finding would have to be in accordance with the law.

 

(iii)       The appeal tribunal had erred in that it had found, without further explanation or reasoning that the appellant’s full use of her right arm/hand prevented her from scoring under other descriptors in activity 6.  It was submitted that the appeal tribunal had either found that a person with full use of at least one arm or hand would never qualify for the application of the higher-scoring descriptors in activity 6 or that she cannot qualify herself because of factors relevant to her individual circumstances.  In both instances, there would be an error of law.  It was noted that there was no assertion that the appeal tribunal was making a general statement of law.  Rather without further explanation or a demonstration that it had considered the proper approach to the descriptor, as set out in DW.

 

(iv)       In relation to the descriptors in activity 6, the three which attract a score of 9 points - (d), (e) and (f) – do not make any reference to whether they are to be assessed using either hand or just one.  Of these three, it is clear that descriptor (d) – ‘cannot physically use a pen or pencil’ – is to be assessed as being able to be done with just one hand.  Of the remaining two descriptors - (e) and (f) – which relate to an ability to physical use a conventional keyboard or mouse or do up or undo small buttons, while accepting that these activities might be undertaken using one hand alone, the starting point must be that ‘… a person without any disability or impairment would always attempt either of the above tasks with two hands.’

 

            In light of the analysis in GS above, the use of a conventional keyboard does not take into account a person’s competency and how proficient that person might be at typing.  As the further analysis in DW demonstrates, it must, however, go beyond a simple ability to press on the keyboard but did not require that person to demonstrate that they could competently type at a particular rate or speed.

 

(v)        The difficulty in being prescriptive in deciding whether the 6(e) keyboard descriptor is satisfied may have been why Upper Tribunal Judge may advocated a broad approach to the interpretation of this and other descriptors.  Further, there was no conflict between the approach of Upper Tribunal Judge May in DW and that of Upper Tribunal Judge Jacobs in GS.  The ultimate purpose of the legislation, as Upper Tribunal Judge Jacobs made clear in GS was to test a person’s capability for work.  There could be a danger in straying too far from ‘… the statutory language in simply focusing on the anatomical functions at the expense of assessing the capability for work in context and the actual requirements of the descriptor.’

 

(vi)       In making a decision as to whether an individual satisfies an activity descriptor there is also a requirement to consider whether a person is able to perform the activity with reasonable regularity.  It was submitted that my decision in C7/10-11 (ESA) was authority for the principle that ‘… the applicability of the descriptor must take into account the reasonableness of requiring the claimant to do the task.’

 

         Analysis

 

28.   I begin by considering the potential error of law identified by Mr Young in the initial written observations on the application for leave to appeal.

 

29.   In YK-v-Department for Social Development (ESA) ([2012] NICom 350 C16/11-12(ESA)), I said the following, at paragraphs 15 to 23 of my decision:

 

         Analysis of the relationship between regulation 19 and Schedule 2 of the Employment and Support Allowance Regulations (Northern Ireland) 2008

 

15.       In a series of cases the Judges of the Upper Tribunal have analysed the relationship between regulation 19 and Schedule 2 of the Employment and Support Allowance Regulations 2008 in Great Britain.  The wording of regulation 19 and Schedule 2 of the Employment and Support Allowance Regulations 2008 is identical to the equivalent regulation and Schedule to the Employment and Support Allowance Regulations (Northern Ireland) 2008, and as set out above.  The decisions of the Upper Tribunal Judges were set out and analysed in some detail by Mr Young in his thorough and helpful submission.  I set out the relevant passages from those decisions in order to draw these to the attention of appeal tribunals and decision-makers.

 

16.       In KN -v- Secretary of State for Work and Pensions (ESA) ([2011] UKUT 229 (AAC), Upper Tribunal Judge Wikeley stated the following, at paragraphs 29 to 32 of his decision:

 

            ‘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.”

 

32.             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.’

 

17.       In KP -v- Secretary of State for Work and Pensions (ESA) ([2011] UKUT 216 (AAC)), (to be reported as [2012] AACR 5), in a decision promulgated the day after that in KN above, Upper Tribunal Mesher stated the following, at paragraphs 19 to 20:

 

‘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.’

 

18.       In CE/175/2011, Upper Tribunal Judge Parker, accepted, at paragraph 19 of her decision, the reasoning of Judge Mesher in KP, as set out above.  That reasoning was also accepted by Upper Tribunal Judge Jupp at paragraphs 11 and 12 of her decision in CE/433/2011.

 

19.       The decisions in KN and KP were referred to by Upper Tribunal Judge Ward in his own decision in RM v Secretary of State for Work & Pensions ([2011 UKUT 454 (AAC)).  He added the following, at paragraphs 10 to 13:

 

‘10.            Much of the relevant part of the regime for employment and support allowance has been adopted from the previous statutory regime of incapacity benefit.  Regulation 19 of the 2008 Regulations is to a large extent a direct lift from the equivalent provisions of the Social Security (Incapacity for Work)(General) Regulations 1995/311 (“the 1995 Regulations”).  It is not necessary to set the legislation out verbatim.  However, as Judge Mesher noted, there was a clear opportunity in regulation 19(5) to limit part 2 to conditions arising from some specific mental illness or disablement, which was not taken.  Such a link existed in regulation 25(3) of the 1995 Regulations and, when so much was carried across from regulation 25 to regulation 19, I can only conclude that the omission of the link was deliberate.  This is particularly so as the link in the 1995 Regulations had been specifically created by an amending regulation (the Social Security (Incapacity for Work)(Miscellaneous Amendments) Regulations 1999/3109), thus the significance of the point under the 1995 Regulations was there to be seen and, if thought fit, the point adopted, but it was not.

 

11.             I accept that the wording of regulation 19(3) which sets out, in three sub-paragraphs, points thresholds before limited capability for work can be established does so in terms that suggest that there might be a difference between part 1 and part 2 (as there was for incapacity benefit) but in fact as the position is that the 15 point target can be met either from part 1, or from part 2, or from parts 1 and 2 together, it is presently a distinction without substance.  Insofar as it has a purpose, it is in my view to facilitate (in the sense that it would make for a simpler legislative amendment) the process, should it be desired at a future date, of setting different points targets in respect of descriptors under part 1 and part 2.  However, there is as they stand a distinction between the two parts as their cross headings  “Physical Disabilities” and “Mental, Cognitive and Intellectual Function Assessment” proclaim and that distinction might itself be a reason why it might be thought appropriate to set different points thresholds under the various sub-paragraphs of regulation 19(3).  It does not follow from that distinction (even with the help of the structure of points thresholds retained by regulation 19(3)) that part 2 is concerned with assessing such functions only insofar as problems with them arise from a specific mental illness or disablement.

 

12.             In my view the meaning of the legislation is plain, rather than ambiguous or obscure.  Nor does it lead to absurdity, in that in the case of conditions such as chronic fatigue syndrome and ME there may be sound practical reasons for considering the functional difficulties experienced by a claimant, rather than having to explore elusive questions as to whether the source of that limitation is mental or physical in origin.  Thus the test for permitting reference to Hansard as set out in Pepper v Hart [1992] UKHL 3; [1993] AC 593 in my view is not met.  The other material provided does not contain anything providing material assistance, nor do the extracts from Hansard provided to me in any event contain any clear statement directed to the very issue.

 

13.             Consequently the First-tier Tribunal created a barrier to the claimant’s ability to meet descriptors 14, 15 and 18 which was not justified by the 2008 Regulations.’

 

20.       In his written observations on the application for leave to appeal, Mr Young made reference to the decision of Upper Tribunal Judge May QC in RA v Secretary of State for Work & Pensions (ESA) ([2010] UKUT 301 (AAC).  At paragraph 10 of that decision, the judge stated that:

 

            ‘Schedule 2 is in two parts Part 1 relates to physical disabilities and part 2 relates to mental disabilities.  The activity of remaining conscious during waking moments is in part 1 and is accordingly related to physical disablement.  The claimant in these circumstances requires to establish that his incapacity to perform any descriptor in activity 11 is caused by a specific bodily disease or disablement which is physical.  It does not appear to me that on the evidence accepted by the tribunal the claimant has established as a matter of fact a specific physical disablement which would allow for the satisfaction of a points scoring descriptor in relation to activity 11.  That is sufficient to dispose of the appeal.  It was not necessary in these circumstances to go into the meaning of involuntary episodes of lost or altered consciousness.’

 

21.       Further, at paragraph 12, he added:

 

            ‘12.            Employment Support Allowance is as set out in paragraph 10 above related to incapacity to perform as an activity arising from specific bodily disease or disablement or specific mental illness or disablement or as a direct result of treatment provided for them.  The activities are also as indicated clearly categorised into physical or mental.  These distinctly different statutory provisions have to be applied in relation to their own terms.’

 

22.       Mr Young is correct to submit that the reasoning of Upper Tribunal Judge May QC in RA appears to run contrary to the alternative reasoning of five other decisions of Upper Tribunal Judges in Great Britain, beginning with KN and KP and ending with RM.  He is equally correct, however, to submit that the question of the relationship between regulation 19 and Schedule 2 to the Employment and Support Regulations 2008 was considered in some significant detail in KP which, as a decision which is to be reported, must be given considerable weight.  Further the reasoning of Upper Tribunal Judge Mesher in KP has been approved of by three other Upper Tribunal Judges in separate decisions, including RM¸ where, once again, there was detailed analysis.

 

23.       Accordingly, I conclude that to the extent that the decision in RA conflicts with the reasoning in KP and KN, as approved of in RA, I accept and prefer the reasoning in those latter decisions.  Further, I agree with that reasoning and adopt and apply it as representing the correct legal analysis of the relationship between regulation 19 and Schedule 2 of the Employment and Support Allowance Regulations (Northern Ireland) 2008.  Further, and while accepting that many decisions of appeal tribunals at first-tier level in Northern Ireland were being made at a time when the legal principles set out above were being developed at second-tier appellate level and the relevant reasoning may not have permeated to appeal tribunals and found their way into submissions made by the Department for individual appeals, I would exhort appeal tribunals to give careful consideration to, and apply those principles when determining appeals where the issue is relevant.’

 

30.   How were the principles in KP and KN applied in the instant case?  As was noted above, the appeal tribunal did consider whether any of the descriptors in Part 2 of Schedule 2 to the Employment and Support Regulations (Northern Ireland) 2008, as amended, applied to the appellant.  The appeal tribunal noted that the appellant had indicated in the ‘Limited Capability for Work Questionnaire’, a copy of which was attached to the original appeal submission as Tab No.2, that she had difficulties with the execution of tasks and coping with social situations but also noted that the explanation given by the appellant for her difficulties with these activities were that (i) she required help to do things due to restriction in her left shoulder/arm function and (ii) because she was frightened of having her shoulder bumped into when she was out in public.

 

31.   The appeal tribunal also noted that as part of the examination conducted by the healthcare professional on 3 December 2010, a copy of the report of which was attached to the original appeal submission as Tab No 3, the appellant ‘… denied any problems with mental health and confirmed that she was not on any medication for this.’  The appeal tribunal noted the conclusions of the healthcare professional that the difficulties noted by the appellant in the relevant section of the questionnaire when identifying problems with the execution of tasks and coping with social situations, were due to her physical problems and that, accordingly, consideration did not need to be given to the question as to whether any of the activities or descriptors in Part 2 of Schedule 2 had the potential to apply to the appellant.

 

32.   The appeal tribunal was alert to the additional evidence which had been provided in support of the appeal in the form of a report of an examination conducted by a medical officer of the Department in connection with a claim to industrial injuries disablement benefit (IIDB).  The appeal tribunal noted the conclusion of the medical officer of the Department was that there was a degree of emotional trauma associated with the physical conditions which should be assessed at 5% disablement.

 

33.   Despite this alertness to the requirement to consider the potential application of Schedule 2 Part 2 activities and descriptors, the appeal tribunal concluded, however, that:

 

‘Having considered the available medical evidence and evidence from (the claimant) and bearing in mind that at no time during the period relevant to the appeal was (the claimant) receiving any medication or treatment for any mental conditions, we prefer the approach adopted by the Examining Healthcare Professional on 3 December 2010 who concluded that there was no impairment of mental, cognitive or intellectual functions to warrant the applicability of the mental descriptors.’

 

34.   I find the conclusions of the appeal tribunal on this issue to be problematic, for two reasons.

 

         The first, and most significant, is that if the appeal tribunal was concluding that the activities and descriptors in Part 2 of Schedule 2 to the Employment and Support Regulations (Northern Ireland) 2008, as amended, could only be applied where the appeal tribunal had evidence of a diagnosed mental health condition or mental disablement, then such a conclusion is contrary to the principles in KP and KN above.  As was noted in those cases, the intent of the scheme for ESA is clearly different to that which prevailed for IB.  Decision-making authorities including appeal tribunals were accustomed to restricting the application of what were known as the ‘mental health descriptors’ in Part 2 of Schedule 1 to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, solely in the circumstances where there was evidence that the incapacity arose from disability from some specific mental illness or disablement.  Indeed regulation 25(3) mandated the link between Part 2 of Schedule 1 and incapacity arising from disability from some specific mental illness or disablement and, therefore, that the approach of the decision-making authorities.

 

         What KP and KN make clear is the regime for ESA is different.  As was noted in paragraph 32 of the decision in KN, there can be:

 

‘… 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.’

 

         The second manner in which the appeal tribunal’s reasoning with respect to the potential application of the Schedule 2 Part 2 descriptors is in its conclusion that there was no evidence that during the period relevant to the appeal the appellant was receiving treatment or medication for a mental health condition.  In the file of papers which is before me is a copy of the appellant’s letter of appeal against the decision of the Department, a copy of which was attached to the original appeal submission as Tab No 1.  In that letter, the appellant has stated that:

 

‘I have been prescribed anti-depressants by my Doctor because I am very tearful and down every day.  It is very difficult for me to accept my disability maybe because I have spent 25 years looking after children with disabilities and now I need the care.’

 

35.   The letter of appeal is dated 1 February 2011 and was noted to have been received in the Department on 9 February 2011.  In the record of proceedings for the appeal tribunal hearing the appellant is recorded as stating that she was on medication for depression and indicating the dosage of her medication as of April 2011.

 

36.   I am mindful of the rule in Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, as amended which provides that in deciding an appeal an appeal tribunal must not take into account circumstances not obtaining at the time when the decision appealed against was made.  It may be the case that the appeal tribunal thought that it was prevented from taking into account the evidence in the appellant’s letter of appeal and her oral evidence to the appeal tribunal that she was receiving treatment for depression because that evidence post-dated the decision under appeal and offended the rule in Article 13(8)(b).  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.’

 

37.   I have concluded that the evidence contained within the appellant’s letter of appeal relates to the period under consideration in the appeal.  It cannot be the case that there was a significant difference in the appellant’s medical condition between the date of the decision under appeal which was 17 January 2011 and the date of her letter of appeal which was 1 February 2011.  I had the opportunity during the oral hearing of the appeal to hear oral evidence from the appellant.  She confirmed to me that she commenced antidepressant medication in February 2011.  The reason why she had sought anti-depressant therapy was that in the period from November 2010, when she had undergone a surgical procedure on her left shoulder, and January 2011, she had difficulties in coming to terms with her disability which, in turn were impinging on her mental health.  Having heard from and seen the appellant I found her oral evidence to be wholly reliable and credible and I have no hesitation in accepting it in its entirety.

 

38.   On the basis of all of the reasoning above I have concluded that the appeal tribunal erred in failing to consider whether any of the activities and descriptors in Part 2 of Schedule 2 to the Employment and Support Regulations (Northern Ireland) 2008, as amended, had the potential to apply to the appellant.  I shall return below to the specific question as to whether any of the specific activities and descriptors in Part 2 Schedule 2 actually applies to the appellant in the instant case.

 

39.   I turn to the question of whether the appeal tribunal adopted the proper approach to the application of Activity 6 in Schedule 2 to the Employment and Support Regulations (Northern Ireland) 2008, as amended.  As it was in force at the date of the decision under appeal, Activity 6 read as follows:

 

‘6.  Manual dexterity

 

(a)       Cannot turn a”star-headed’ sink tap

            with either hand                                                 15

 

(b)       Cannot pick up a £1 coin or equivalent

            with either hand                                                 15

 

(c)        Cannot turn the pages of a book with           

            either hand                                                         15

 

(d)       Cannot physically use a pen or pencil          9

 

(e)       Cannot physically use a conventional         

            keyboard or mouse                                            9

 

(f)        Cannot do up/undo small buttons, such

            as shirt or blouse buttons                                 9

 

(g)       Cannot turn a “star-headed” sink tap

            with one hand but can with the other                        6

 

(h)       Cannot pick up a £1 coin or equivalent

            with one hand but can with the other                        6

 

(i)         Cannot pour from an open 0.5 litre

            carton full of liquid                                             6

 

(j)         None of the above apply                                  0’

 

40.   There were significant amendments to the content and wording of Schedule 2 to the Employment and Support Regulations (Northern Ireland) 2008, as amended, in 2011 and 2013, after the date of the decision under appeal.  I shall return to those amendments below.

 

41.   As was noted above, the appeal tribunal found that the appellant had significantly reduced left arm and shoulder function and resultant pain but also found that the medical evidence which was before it did not suggest that any activities not involving use of the left arm.  With respect to specific activities and descriptors in Part 1 of Schedule 2, the appeal tribunal indicated that it was accepting, on the basis of the appellant’s own oral evidence corroborated by the medical evidence, that the appellant was significantly restricted in the use of her left shoulder and arm.  Accordingly, it concluded, firstly, that descriptor 5(c) applied to the appellant and ticked the appropriate box to that effect in the relevant ‘score-sheet’.  Descriptor 5(c) reads ‘cannot pick up and move a light but bulky object, such as an empty cardboard box, requiring the use of both hands together.’  In the statement of reasons for its decision the appeal tribunal has made reference to having applied descriptor 5(e) but this is clearly an error.

 

42.   In respect of the significant activity 6, the appeal tribunal concluded, once again on the basis of the acceptance of the appellant’s oral evidence corroborated by the available medical evidence, that descriptor 6(g) applied but, crucially, that the appellant’s full right hand/arm function:

 

‘… would prevent any of the higher scoring descriptors applying.’

 

43.   I accept the submission made by Mr Hatton that if the appeal tribunal was stating, as a matter of general principle that a person with full use of at least one arm or hand would never qualify for the application of the higher-scoring descriptors in activity 6 then such a statement would be in error of law.  In paragraph 15 of GS above, Upper Tribunal Judge Jacobs stated that ‘… certain of the descriptors in activity 6 expressly apply if the claimant can use neither hand and others expressly apply if the claimant can us one hand, but not the other.  I do not agree that all the descriptors must be so classified.  Some are not specific one way or the other.’  Mr Hatton conceded, however, that it was more likely that the appeal tribunal was concluding that the appellant did not satisfy any of the descriptors 6(a) to (f) because of factors individual to her own case.

 

44.   It was submitted on behalf of the appellant that the appeal tribunal failed to adopt the approach set out by Upper Tribunal Judge May in DW.  The crucial passage of Upper Tribunal Judge May’s decision is paragraph 5:

 

‘5.        Mr Olsen sought to distinguish consideration of this descriptor from the approach in Moyna but I cannot see such a distinction.  In both Moyna and the instant case what a tribunal has to decide is whether a claimant cannot, in the context of the relevant statutory provisions, perform the task as set out in the legislation.  In this case it is apparent that the claimant can in some circumstances physically use a conventional keyboard but in the circumstances outlined by him in relation to the use of two hands he cannot.  It would seem for example from what Mr Brown said that on a computer he could google in the weather but could not send an email.  The Secretary of State in paragraph 9 of his written submission made a submission in relation to a feature contained in machines manufactured by one manufacturer which would enable the claimant to obviate the effects of his disability and physically use the keyboard with one hand for a function of the machine which would normally require two hands.  I consider that Mr Olsen’s argument is too extreme and I do not accept it.  The proper approach to the descriptor is to follow a similar approach to that set out by the House of Lords in Moyna.  It is to take a broad view and exercise a reasonable judgement as to whether the claimant satisfies the descriptor.  There are no absolutes by which “can” and “cannot” can be defined.  In these circumstances I consider that the failure by tribunal to deal with this descriptor was a material error in law as they had already awarded him six points under descriptor 5(c).’

 

45.   I find nothing wrong with Upper Tribunal Judge May’s analysis of the approach to the interpretation of descriptors and activities in Schedule 2 to the Employment and Support Allowance Regulations 2008, as amended, and the ‘broad view’ approach adopted in Moyna.  In MF-v-Department for Social Development (DLA) ([2010] NICom 62, C40/10-11(DLA)), I stated, at paragraph 22:

 

‘…I accept and adopt the principles in Moyna and R (DLA) 5/05 as properly representing the law in Northern Ireland.  I would myself prefer to describe the proper approach as taking a ‘common sense’ rather than a ‘broad’ view but that does not affect my support for the relevant principles.’

 

46.   In DS-v-Department for Social Development (IB) ([2013] NICom 40, C14/10-11(IB)), I reviewed the authorities on the adoption of a broad approach to the application of the activities and descriptors in the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

 

47.   I concluded, at paragraphs 36 and 37:

 

‘36.      In my view, the key sentence in the approved and much-quoted extract from R1/96(IB) is:

 

‘The real issue is whether, taking an overall view of the claimant’s capacity to perform the activity in question, he should reasonably be considered to be incapable of performing it.’

 

37.       To my mind, that is reflective of a ‘broad view’ or ‘broad approach’, and there is nothing inconsistent between the ‘reasonable regularity’ test in R1/96(IB) and the ‘broad approach’ in R2/99(IB).’

 

48.   The ‘reasonable regularity’ approach in the incapacity benefit cases was extended to the legislative scheme for ESA by Upper Tribunal Judge Turnbull in AF v Secretary of State for Work and Pensions ([2011] UKUT 61 (AAC)).

 

49.   It seems to me that what Upper Tribunal Judge May was advocating was that a decision-making authority should take a common sense view and exercise a reasonable judgement as to whether a particular descriptor is satisfied.  Further, one should not be too prescriptive as to what ‘can’ or ‘cannot’ means in relation to a particular descriptor.  As he noted ‘There are no absolutes by which ‘can’ or ‘cannot’ can be defined.’  The approach promoted by Upper Tribunal Judge May accords with that taken by the Tribunal of Commissioners in R1/96(IB).  Further, I find no conflict between the decision of Upper Tribunal Judge May in DW and that of Upper Tribunal Judge Jacobs in GS.  In my view the key passage in GS is set out in paragraph 13 of the decision where he states that:

 

‘The ultimate purpose of the descriptors is to test a person’s capability for work.’

 

50.   I would note that since the decision of Upper Tribunal Judge May in DW was promulgated there has been no suggestion in the jurisprudence of the Upper Tribunal or the appellate courts that the reasoning is wrong.

 

51.   In the instant case, I am of the view that the appeal tribunal took an approach to Activity 6 which was too prescriptive.  Rather than undertake an overall common sense view of the appellant’s capacity to perform the manual dexterity activities it concluded in what might be termed to be an inflexible manner that if activities 6(e) and (f) could be performed with one hand then those descriptors could not be satisfied.

 

52.   I am in a position to undertake my own assessment of the appellant’s capacity to perform the manual dexterity activities adopting the common sense approach advocated in DW.  Looking at the wording of descriptor 6(e) – ‘cannot physically use a conventional key board or mouse’ – I accept that a mouse can be physically used by a person who only has function in one arm or hand.  Turning to the physical use of a conventional keyboard it seems to me that a common sense approach must not take into account a claimant’s competency in the use of a keyboard.  Keyboard competency will range from those with high-level ‘touch-type’ skills utilising all ten digits on both hands through to those who are restricted to the use of one or two fingers on one hand pressing single keys.  In my view, however, the starting point has to be that the physical use of a keyboard involves the use of two hands.  In his written observations on the application for leave to appeal, Mr Young submitted that the functions associated with the physical use of a conventional keyboard are all capable of being performed with one hand.  Such functions would include using the shift key to capitalise letters and carrying out the ‘Control, Alt Delete’ function.  With respect to Mr Young, while I accept that it is physically possible to carry out such functions with one hand, the argument that a person with function restricted to one hand or arm is physically able to use a conventional keyboard because, by unusual manipulation, can strike the keys associated with straightforward and usual functions associated with a conventional keyboard, is not maintainable.  I also conclude that while an individual with function restricted to one hand might be able to carry out functions such as ‘Control, Alt Delete’ by the manipulation suggested by Mr Young it would be wholly unreasonable to expect such a person to repeat that function on a regular basis.

 

53.   As was noted above, the appellant attended the oral hearing of the appeal and I had the opportunity to hear her oral evidence and ask questions of her concerning her difficulties with performing the manual dexterity activities.  Further I have had the opportunity of assessing all of the evidence which was before the appeal tribunal.  Having heard from and seen the appellant I found her to be an honest and credible witness and I have no hesitation in accepting her evidence as reliable and adopting it as factual.  I accept that the appellant has significant impairment of function in her left shoulder and arm and that use of her left arm and shoulder causes her pain at a substantial level.  The medical evidence which is available to me, including the clinical findings in the report of the examination conducted by the Medical Officer of the Department in connection with the claim to IIDB, including his opinion that the impairment in function should be assessed at 25%, the report from the Occupational Health Department dated 5 December 2010 and the report from the Consultant Orthopaedic and Shoulder Surgeon dated 16 March 2011 all confirm the significant impairment of function described by the appellant.  The appellant did not over-state her level of restriction to any degree, and, gave evidence that the fact that she was not in a position to return to her former rewarding career was causing her concern and distress.

 

54.   I accept that the impairment in function in the appellant’s left arm and shoulder means that she cannot physically use a conventional keyboard.  I accept that the appellant’s problems relate to her ability to manipulate her left arm into a position to utilise her left hand to carry out functions and to maintain her arm and hand in the correct position to carry out functions on the keyboard.  I accept that carrying out all of the usual functions associated with the physical use of a conventional keyboard would cause the appellant to have increased and unnecessary pain.  I also accept that the appellant would not be able to physically use a conventional keyboard with any degree of reasonable regularity.

 

55.   Accordingly, I accept that for the purposes of the work capability assessment descriptor 6(e) in the Schedule to the Employment and Support Allowance Regulations (Northern Ireland) 2008 applies to the appellant.  Descriptor 6(e) attracts a score of 9 points.  The appeal tribunal had decided that descriptor 5(c) also applied to the appellant.  Descriptor 5(c) attracts a score of 6 points.  Accordingly, the appellant scores 15 points in connection with the work capability assessment.  Having found that the appellant scores 15 points following application of the relevant descriptors from Part 1 of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, I do not have to decide whether any of the activities and descriptors in Part 2 of Schedule 2 apply to her.  I have concluded, however, that none of the activities in Schedule 3 apply to the appellant.  Accordingly, the appellant does not have limited capability for work-related activity.

 

56.   The question for decision is whether the appellant has limited capability for work in accordance with section 8(2) of the Welfare Reform Act (Northern Ireland) 2007 and regulation 19 of the Employment and Support Regulations (Northern Ireland) 2008.  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 to the Employment and Support Allowance Regulations (Northern Ireland) 2008.  To have limited capability for work the appellant has to score 15 points whether for physical disabilities, mental, cognitive and intellectual function assessment or a combination of both.  Having decided that the appellant scores 15 points, she has limited capability for work and is not entitled to ESA from and including 17 January 2011.

 

57.   Finally, I have noted that Part 1 of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 has been amended on two occasions since the date of the decision under appeal.  The first amendments were effected through the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-related Activity) (Amendment) Regulations (Northern Ireland) 2011 and took effect from 28 March 2011.  Manual Dexterity became Activity 5 in the new Schedule 1.  In turn what had been descriptor 6(e) became 5(d) and the wording was altered to ‘Cannot use a suitable keyboard or mouse.’  The second set of amendments was effected through the Employment and Support Allowance (Amendment) Regulations (Northern Ireland) 2013.  The wording of the post-28 March 2011 5(d) descriptor was changed to ‘Cannot single-handedly use a suitable keyboard or mouse.’  At paragraph 3.15 of the Explanatory Memorandum to the 2013 Regulations it was noted that the change reflected that:

 

‘The policy intent for this activity is to examine hand and wrist function and for this task is to be tested whilst being performed single-handed.  While it is clear that this is so for the mouse, it is less explicit for use of a keyboard since using a keyboard is usually bimanual.’

 

58.   The 2013 amendments apply from 28 January 2013 and from that date a claimant such as the appellant would probably not score under the 5(d) descriptor.  I have assessed the meaning of the original descriptor 6(e) descriptor and how that applied to the appellant at the date of the decision under appeal, that is, 17 January 2011.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

21 August 2013