Northern Ireland - Social Security and Child Support Commissioners' Decisions

JB-v-Department for Social Development (ESA) [2014] NICom 55

Decision No: C16/14-15(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 8 October 2013

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Enniskillen.

2. As each of the parties submits that the decision of the appeal tribunal contains an error of law, I grant leave to appeal and I set aside the decision of the appeal tribunal under Article 15(7) of the Social Security (NI) Order 1998. I remit the appeal to a newly constituted tribunal for determination.

REASONS

Background

3. The applicant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from 13 July 2010 by reason of back pain, hypothyroidism and depression. On 18 June 2012 the applicant completed and returned a questionnaire to the Department regarding her ability to perform various activities. On 18 July 2012 a health care professional (HCP) examined the applicant on behalf of the Department. On 13 August 2012 the Department considered all the evidence and determined that the applicant did not have limited capability for work (LCWA) from and including 18 August 2012, and made a decision superseding and disallowing the applicant’s award of ESA. The applicant appealed.

4. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 8 October 2013. The tribunal disallowed the appeal. The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 10 January 2014. The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal. Leave to appeal was refused by a determination issued on 12 February 2014. On 13 March 2014 the applicant applied for leave to appeal from a Social Security Commissioner.

Grounds

5. The applicant submits that the tribunal has erred in law on the basis that:

(i)        she believed that the tribunal made the wrong decision;

(ii)       the tribunal based its decision on incomplete information;

(iii)      the tribunal had not addressed her continence problems properly;

(iv)      media reports suggested that claimants in her local area were being wrongly stripped of ESA;

(v)       the HCP was unqualified to report on her mental health.

6. The Department was invited to make observations on the appellant’s grounds. Mr Collins responded on behalf of the Department. He submitted that the tribunal had erred in law as alleged in the applicant’s third ground and indicated that the Department supported her application.

Assessment

7. The basis on which Mr Collins supports the application relates to the evidence of the applicant’s GP dated 16 July 2013. The GP indicates that the applicant is prone to urinary frequency and has approximately two episodes of urinary incontinence per week. The oral evidence of the applicant to the tribunal was that after her second daughter was born she had two surgical procedures on her bladder. She indicated that she had to go to the toilet frequently, always needs access to the toilet, and that two/three times per week she had a leakage, requiring a change of clothing and that two/three times per week she wet herself, something which could happen at night.

8. In its statement of reasons the tribunal says “As regards of absence of loss of control of the bladder the Tribunal accepted that there were some leakages from time to time but this did not amount to extensive evacuation at all in all the circumstances”. The descriptor applicable at the relevant time referred to “loss of control leading to … voiding of the bladder … sufficient to require cleaning and a change in clothing”.

9. Mr Collins submits that the tribunal has not indicated how it viewed the letter of the GP, referring to C16/08-09(DLA) in which Commissioner Mullan (as he then was) stated at paragraph 54:

“… there is a clear duty on appeal tribunals to undertake a rigorous assessment of all the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal”.

10. It may well be the case, as Mr Collins speculates, that the tribunal considered that the GP was merely repeating what the applicant had said to the GP, or that the tribunal considered that the letter dated July 2013 was not relevant to the period prior to the decision of 13 August 2012. Another possibility is that the tribunal simply considered that the episodes of incontinence described did not amount to voiding of the bladder. However, the applicant cannot be satisfied from a reading of the decision which might be the case. I grant leave to appeal.

11. In all the circumstances, I consider that I should not determine the question of whether the tribunal has erred in law. This is a case which can appropriately be dealt with under the power in Article 15(7) of the Social Security (NI) Order 1998 to set aside the tribunal decision on the basis that each of the parties submits that the tribunal has erred in law.

12. I remit the appeal to a newly constituted tribunal for determination.

(signed) O Stockman

Commissioner

25 November 2014