HF-v-Department for Social Development (ESA) [2014] NICom 56
Decision No: C15/14-15(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 4 March 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 Belfast on 4 March 2013.
2. For the reasons given below, I grant leave to appeal and I allow the appeal. Under Article 15(8)(b) of the Social Security (NI) Order 1998 I set aside the decision of the appeal tribunal and I remit the appeal for determination by a newly constituted tribunal in accordance with directions I have given.
REASONS
Background
3. The applicant claimed incapacity benefit (IB) from the Department for Social Development (the Department) from 8 October 2007 by reason of nervous debility. On 6 October 2011 the applicant was notified by the Department that his existing claim was to be converted into a claim for employment and support allowance (ESA) under the regulations implementing the Welfare Reform Act (Northern Ireland) 2007. On 20 October 2011 the applicant was issued with a Departmental questionnaire, form ESA50. He returned it on 23 November 2011 but had declined to complete it, saying that he had completed such forms three times previously. (I observe that the fact that the applicant had completed such forms previously was not a good reason for failing to do so again – particularly since it was possible that the rules of entitlement had changed since he last completed a form, regardless of whether his medical condition had changed.) The Department obtained a report from the applicant’s general practitioner (GP), who reported a significant history of alcohol abuse and chronic anxiety symptoms, while indicating that the applicant had not been seen in more than a year. The applicant was examined by a healthcare professional (HCP) on 26 January 2012, who prepared a report for the Department.
4. On the basis of all the evidence, on 4 April 2012, the Department decided that the applicant scored six points (for Coping with Social Engagement) but that he did not satisfy the limited capability for work assessment (LCWA). His award of IB did not qualify for conversion into an award of ESA from 19 April 2012, resulting in an end to his entitlement. The applicant appealed.
5. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 4 March 2013. The tribunal awarded six points for Coping with Social Engagement and six points for Initiating and Completing Personal Action, but disallowed the appeal. The applicant requested a statement of reasons for the tribunal’s decision and this was issued on 3 October 2013. The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 12 November 2013. On 28 November 2013 the applicant requested a Social Security Commissioner to grant leave to appeal.
Grounds
6. The applicant, represented by Ms Loughrey of Law Centre (NI), submits that the tribunal has erred in law on the basis that:
(i) Its reasons are inadequate to explain the findings under mental health descriptors 11.c or 13.b.
7. The Department was invited to make observations on the appellant’s grounds. Mr Collins of Decision Making Services (DMS) responded on behalf of the Department. He submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.
The tribunal’s decision
8. The tribunal heard evidence from the applicant and his wife. It had documentary evidence before it including a report from a consultant psychiatrist from 2008, orthopaedic consultant evidence from 2012, a letter from the applicant’s GP and the HCP report. It considered the applicant’s appeal addressing both physical and mental health descriptors.
9. The tribunal found that the clinical findings in relation to the applicant’s physical condition would not be expected to impact to any significant degree on functional ability. The tribunal accepted that the applicant had some issues as regards mental health. It accepted the HCP’s assessment which led to an award of six points for the activity of Coping with social engagement, descriptor 16.c. It departed from the HCP’s by awarding a further 6 points for the activity of Initiating and completing personal action, descriptor 13.c.
Relevant legislation
10. The relevant activities which were discussed in the application for leave to appeal were 11 and 13. These read as follows:
PART 2
MENTAL, COGNITIVE AND INTELLECTUAL FUNCTION ASSESSMENT
(1) Activity
11. Learning tasks
13. Initiating and completing personal action (which means planning, organisation, problem solving, prioritising or switching tasks).
| (2) Descriptors
(a) Cannot learn how to complete a simple task, such as setting an alarm clock.
(b) Cannot learn anything beyond a simple task, such as setting an alarm clock.
(c) Cannot learn anything beyond a moderately complex task, such as the steps involved in operating a washing machine to clean clothes.
(d) None of the above apply.
(a) Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions.
(b) Cannot, due to impaired mental function, reliably initiate or complete at least 2 personal actions for the majority of the time.
(c) Frequently cannot, due to impaired mental function, reliably initiate or complete at least 2 personal actions.
(d) None of the above apply.
| (3) Points
15
9
6
0
15
9
6
0
|
Hearing
11. I held an oral hearing of the application. The applicant was not present, but was represented by Ms Loughrey of Law Centre NI. The Department was represented by Mr Collins of DMS. I am grateful to the representatives for their submissions.
12. Ms Loughrey’s arguments were essentially addressed to the adequacy of the tribunal’s reasons. She submitted that the tribunal had addressed relevant mental health descriptors including activities 11 and 13 in making findings. However, she submitted, it was not clear why no award of points had been made for activity 11, and why the tribunal had decided that 13.c was the appropriate descriptor as opposed to, say, 13.b.
13. Mr Collins submitted that the tribunal had made full findings on relevant matters. It could be inferred that the tribunal had not accepted that the applicant was entitled to a higher level of award than 13.c. However, he did accept that it was difficult to explain from the statement of reasons why the tribunal found that 13.b was not satisfied. He submitted that a reasonable judgement had been made by the tribunal, albeit that the reasons for this were not stated as explicitly as they could be.
Assessment
14. Ms Loughrey submitted that the tribunal failed to address activity 11 properly, on the basis that the applicant’s evidence to the tribunal was that he could not operate a washing machine. She submitted that the tribunal had not explained why it rejected the evidence which pointed to an award under descriptor 11.c. I accept that the tribunal does not expressly state its conclusions on activity 11, apart from a general statement to the effect that “As to all the remaining descriptors the tribunal concurs with the HCP’s assessment as to functional ability as we believe same to be more reliable and appropriate taking all clinical findings into account as well as all other evidence on board”.
15. Among the evidence heard by the tribunal was that the applicant was an experienced joiner and had been a computer engineer for 24 years. He stated that he could fix cars, but was not capable of this or of operating a washing machine when he was in a trough of depression. He also stated that he could drive a car.
16. The descriptors in activity 11 are addressed to ability to learn tasks. This would have particular relevance to persons with some form of learning disability. It might apply to persons with mental health problems where, for example, impairment of concentration was a factor of their condition. The applicant indicated that he would not be capable of activity such as running a washing machine due to depression. However, this is not the same thing as being unable to learn how to use a washing machine at all, which is the requirement of the descriptor.
17. To the extent that the tribunal’s reasons for deciding not to award points under activity 11 might appear somewhat thin, I am satisfied that these could be adequately understood from its decision. I do not accept that this is an arguable ground.
18. Ms Loughrey further submits that it is not possible to say from the reasons why the tribunal has decided that the applicant should be awarded points for descriptor 13.c but not 13.b. The tribunal had accepted that the applicant frequently could not, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions. The applicant had given evidence that he did not get up out of bed and had not washed his teeth for 6 months. When pressed by the tribunal, the applicant had stated that he would independently get out of bed one day in the week. Mr Collins submitted that the decision on activity 13 was a matter of judgement for the tribunal, but accepted that it was not explained against the background of the evidence why descriptor 13.c was selected instead of descriptor 13.b. In particular, the tribunal in making this finding was departing from the evidence of the HCP and therefore couldn’t rely on the HCP report as the basis of the finding. It was rejecting the applicant’s evidence, but without making any finding as to the applicant’s credibility and without alternative evidence which it could prefer.
19. In this particular context of this case, I must accept Ms Loughrey’s submission that it was not enough for the tribunal to state that the “appellant’s health issues were not at a level which would satisfy either 13.a or 13.b”. This does not explain why his evidence to the contrary was rejected. The tribunal needed to clarify that it did not accept his evidence of inability to initiate or complete personal actions for a majority of the time, and the basis for rejecting it, or to point to contrary evidence. As it was, the applicant’s evidence that six days a week he could not initiate or complete two personal actions was not contradicted. As Ms Loughrey points out, this would suggest that 13.b was satisfied in addition to 13.c.
20. It follows that I find that the tribunal has erred in law. I grant leave to appeal, I allow the appeal and I set aside the tribunal’s decision.
Disposal
21. In terms of disposing of the appeal, Mr Collins invites me to make the decision the tribunal should have made. Ms Loughrey concurs, if I am minded to allow the appeal, but otherwise submits that the appeal should be remitted in order that new evidence can be fully considered.
22. In the course of the hearing, I learned that the applicant currently receives ESA at the support group level, having suffered a fractured sternum which gives rise to a new basis of incapacity. This award was backdated to 19 April 2012, which is the date on which his entitlement to IB ceased. This had the effect that the applicant was being paid ESA throughout the period for which he was appealing the decision not to convert his IB award to an award of ESA.
23. The practical consequences to the applicant of the decision under appeal are that he is some £2.30 worse off weekly. Remitting the appeal for re-hearing would most likely involve greater public expense than if I were to simply allow the appeal, and it is tempting to adopt a pragmatic approach to the case. However, I do not consider on the evidence I have before me that the applicant should necessarily attract an award of points for descriptor 13.b, which would enable me to allow the appeal. I have not had the benefit of seeing the applicant and hearing his oral evidence as the tribunal had.
24. I consider that I should remit the appeal to a newly constituted tribunal for determination. That tribunal should be made aware of the existing award of ESA. If the tribunal decides to allow the appeal and to give a decision that the applicant does have limited capability for work, and that his existing award of IB qualifies for conversion into an award of ESA from and including 19 April 2012, I direct that reference should be made to the Department for the purpose of offsetting any benefit paid as a result of the award made on the appeal. Regulation 5 (1) and (2) of the Social Security (Payments on Account, Overpayments and Recovery) Regulations (NI) 1988 allows for offsetting in the present circumstances.
(signed) O Stockman
Commissioner
25 November 2014