Northern Ireland - Social Security and Child Support Commissioners' Decisions

MK-v-Department for Social Development (ESA) ]2014] NICom 82

 

Decision No: C17/14-15(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 20 June 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 Ballymoney on 20 June 2013.

 

2. For the reasons I give below, I grant leave to appeal. I allow the appeal and I set aside the decision of the appeal tribunal under Article 15(8)(b) 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 17 January 2010 by reason of back pain and depression. On 24 October 2011 the applicant completed and returned an ESA50 questionnaire to the Department regarding her ability to perform various activities. On 31 January 2012 a healthcare professional (HCP) examined the applicant on behalf of the Department. A letter dated 26 January 2012 was provided by the applicant’s general practitioner (GP). On 28 February 2012 the Department considered all the evidence and determined that the applicant did not have limited capability for work from and including 6 March 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 20 June 2013. The tribunal disallowed the appeal. The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 12 November 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 20 December 2013. By an application made on 22 January 2014 the applicant requested a Social Security Commissioner to grant leave to appeal.

 

Grounds

 

5. The applicant, represented by Ms Black of the Ely Centre, submits that the tribunal has erred in law on the basis that:

 

(i)            the tribunal did not have her full medical history as the medical member did not let her representative or her husband speak;

 

(ii)          the tribunal has not accepted oral evidence given by her;

 

(iii)         the tribunal did not accept that she had panic attacks most of the time, but for the relevant descriptor only once a month was required for an award of 15 points;

 

(iv)         the tribunal had insufficient regard to regulation 29.

 

6. The Department was invited to make observations on the appellant’s grounds. Mr Toner of Decision Making Services (DMS) responded on behalf of the Department. Mr Toner 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

 

7. The tribunal heard oral evidence from the applicant and her husband. The applicant’s representative set out the activities in dispute in a written submission. These were Mobilising, Standing and sitting, Continence, Coping with change, Getting about and Coping with Social Engagement.

 

8. The tribunal considered the evidence in relation to physical and mental descriptors. It accepted HCP’s clinical findings and opinion in relation to Mobilising and Standing and sitting. On Continence, the tribunal accepted that applicant might suffer loose bowel motions when panicking but that she did not suffer panic attacks most of the time and therefore was not troubled by the risk of loss of control leading to extensive evacuation of the bowel most of the time.

 

9. The tribunal considered the evidence in relation to the mental health descriptors and determined that the applicant was not restricted in any of the relevant activities. Accordingly it disallowed the appeal with an award of no points.

 

 

 

Relevant legislation

 

10. The decision under appeal was made on 6 March 2012. At that date the relevant activity was prescribed for the purposes of the LCWA by paragraph 9 of Schedule 2 to the Employment and Support Allowance (NI) Regulations 2008 (the ESA Regulations) as follows:

 

“(1) Activity	(2) Descriptors			(3) Points
9. Absence or loss of control leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting) despite the presence of any aids or adaptations normally used.	9	(a)	At least once a month experiences: (i) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder; or (ii) substantial leakage of the contents of a collecting device, sufficient to require cleaning and a change in clothing.	15
		(b)	At risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly.	6
		(c)	None of the above apply.	0”

 

Hearing

 

11. I held an oral hearing of the application. The applicant was not present but was represented by Ms Black of the Ely Centre. The respondent was represented by Mr Toner of DMS.

 

12. Ms Black submitted that the tribunal had not conducted the hearing fairly as it had declined to hear evidence regarding the background to the applicant’s mental health problems. She submitted that the medical member of the tribunal indicated that the troubles-related history of the condition was not relevant. Ms Black submitted that it was vital for the tribunal to hear how the applicant had suffered.

 

13. She submitted that the tribunal had made irrational findings from the evidence contained in letters from the applicant’s GP. These indicated a frequency of emptying bowels of up to 10 times a day and the tribunal reached a perverse conclusion in stating that there was no evidence of loss of control.

 

14. She disputed the tribunal’s findings on the frequency of panic attacks. She submitted that the tribunal accepted that there was a connection between panic attacks and bowel incontinence, but that the panic attacks were not “most of the time”, and therefore the applicant was not at risk of a loss of bowel control most of the time for the purposes of descriptor 9.b.

 

15. She further submitted that the tribunal did not address regulation 29 of the ESA Regulations properly, and the issue of how the decision to refuse her claim would affect her mental health. She addressed the evidence of the applicant’s GP about the lack of prospect of her being able to return to work.

 

16. Mr Toner submitted that the record of the tribunal indicated that the tribunal had considered the applicant’s medical notes and had not accepted that the applicant actually lost control of her bowels. However, the evidence linked the symptom of loss of bowel control to panic attacks, which the tribunal found not to be present for the majority of the time. He further submitted that the tribunal had given adequate consideration to regulation 29.

 

17. On the issue of the tribunal’s finding that the risk of loss of control was not present most of the time, it was noted that the tribunal was considering a decision made under the version of paragraph 9.b of Schedule 2 to the ESA Regulations in force from 28 March 2011 to 27 January 2013. From 28 January 2013, the words “The majority of the time is at risk” were inserted into paragraph 9.b, which had previously read “At risk”. However, the legislation which fell to be considered by the tribunal did not contain the “majority of the time” requirement. Mr Toner submitted that by giving consideration to the issue of the majority of the time the tribunal had potentially erred in law.

 

Assessment

 

18. It is now established that for a claimant to establish a risk of loss of bladder or bowel control under descriptor 9.b, it is not necessary that the risk has materialised. This point was made by Upper Tribunal Judge Lane in NH v Secretary of State for Work and Pensions [2010] UKUT 82 (AAC). Her view was approved by Upper Tribunal Judge Rowland in KB v SSWP [2014] UKUT 126 (AAC) at paragraph 12 where he says, “The most important point made by Judge Lane is that a risk may exist notwithstanding that there are few, or no, occasions when it materialises”. I too accept that this is a correct analysis.

 

19. The tribunal, in applying the version of descriptor 9.b as it was between 28 March 2011 and 27 January 2013, has applied a qualification that the risk of loss of control must be present “most of the time”. This would roughly parallel the wording of the legislation as it has been amended from 28 January 2013. The current descriptor is satisfied only if for a “majority of the time” the claimant is at risk of a loss of control. Prior to that amendment, there was no requirement as to the prevalence of the risk for the purposes of paragraph 9.b of Schedule 2.

 

20. I observe that for the purpose of the Schedule 3 activities, regulation 34(2) of the ESA Regulations provides that “A descriptor applied to a claimant if the descriptor applied for the majority of the time or, as the case may be, on the majority of occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor”. However, this only applies to the test of Limited Capability for Work-related Activity for the purposes of the “Support Group”. It has no application to the Schedule 2 descriptors.

 

21. In the absence of any qualification in the legislation to that effect introduced by the amendment of 28 January 2013, I consider that it was not open to the tribunal to require that the descriptor should be satisfied “most of the time”. Prior to 28 January 2013, satisfaction of the descriptor might have been subject to the condition of “reasonable regularity” which has been implied to the descriptors in ESA - and incapacity benefit before that - since the decision of former Chief Commissioner Chambers in C1/95(IB). However, reasonable regularity cannot be equated to a test of “most of the time”. It therefore appears to me that there is an error of law in the tribunal’s decision.

 

22. Nevertheless, the descriptor in question attracts 6 points, which would be insufficient to determine the appeal in the applicant’s favour. Therefore, I consider that this may not have been a material error.

 

23. However, it does appear from the statement of reasons that the tribunal accepted that the applicant would suffer loose motions when experiencing a panic attack. It rejected the proposition that the applicant would lose control of her bowel when not having a panic attack. It then reasoned that the appellant did not suffer panic attacks most of the time, when refusing to accept that 9.b was satisfied. What is recorded in the statement of reasons is “Although the appellant claimed at the hearing of her appeal that she can lose control of her bowel occasionally when not having a panic attack the Tribunal rejects this assertion”. I consider that it is possible that the statement of reasons contains a typographical error and that the word “not” has been used unintentionally. However, I cannot be sure that this is the case.

 

24. I consider that the above findings are not clear on whether the tribunal accepted that - at the point of experiencing panic attacks - the applicant did in fact experience a loss of control leading to extensive evacuation of the bowel, resulting in a need to clean herself and change her clothing. If it did accept that such events occurred in the course of a panic attack, I consider that it needed to determine how frequently this occurred and, specifically, whether it was at least once a month – the relevant criterion for satisfying descriptor 9.a. The tribunal has made no findings on frequency. This would be a material error, in the sense that 15 points are at issue in descriptor 9.a. and it would be decisive to the outcome of the appeal.

 

25. It therefore appears to me that the decision of the tribunal contains a material error of law and that I must set it aside.

 

 

 

 

Disposal

 

26. For the applicant, Ms Black urges me to make the decision which the tribunal should have made. She points to the stress experienced by the applicant and her difficulties in again attending a tribunal. She has provided me with medical evidence to explain her absence at the hearing before me. The applicant’s husband also expresses his frustration with the appeal process and the effects it has had on the applicant.

 

27. For the Department, Mr Toner submits that the appeal must be remitted to a newly constituted tribunal for determination.

 

28. While I have considerable sympathy with the mental health problems experienced by the applicant, I consider that I do not have sufficient evidence on the key issue of loss of bowel control to enable me to determine this appeal myself. I must remit the appeal to a newly constituted tribunal for determination. If the applicant cannot bring herself to attend a further hearing, those representing her will need to consider alternative ways to bring her evidence to a tribunal in a way which will enable adequate findings of fact to be made.

 

(Signed): O Stockman

 

COMMISSIONER

 

 

 

15 December 2014