Northern Ireland - Social Security and Child Support Commissioners' Decisions

AB-v-Department for Social Development (ESA) [2015] NICom 2

Decision No: C27/14-15(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 28 November 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 Craigavon.

2. For the reasons I give below, I grant leave to appeal. I set aside the decision of the appeal tribunal under Article 15(7) of the Social Security Order (NI) 1998. I remit the appeal for determination by a newly constituted tribunal.

REASONS

Background

3. The applicant claimed incapacity benefit (IB) from the Department for Social Development (the Department) from 11 March 1998. On 27 June 2012 the applicant was notified by the Department that her 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. The applicant was issued with and completed a Departmental questionnaire, form ESA50. She was examined by a healthcare professional (HCP) on 5 November 2012, who prepared a report for the Department. On the basis of all the evidence, on 15 November 2012, the Department decided that the applicant did not satisfy the limited capability for work assessment (LCWA) and that her award of IB did not qualify for conversion into an award of ESA from 6 December 2012, resulting in an end to her entitlement. The applicant appealed.

4. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 28 November 2013. The tribunal disallowed the appeal. The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 24 January 2014. 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 18 February 2014. On 12 March 2014 the applicant, represented by Mr McCloskey of Craigavon District Citizens Advice Bureau (CAB), requested a Social Security Commissioner to grant leave to appeal.

Grounds

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

(i)        it has failed to address conflicts in the medical evidence and to apply the evidence as a whole;

(ii)       it has failed to address a contention that the HCP had based a judgment on a misunderstanding of the law;

(iii)      it placed weight on irrelevant matters.

6. The Department was invited to make observations on the appellant’s grounds. Mr McKendry responded on behalf of the Department. He submitted that the tribunal decision contained an error of law as alleged and indicated that the Department supported the application.

7. Mr McKendry submitted that the HCP report contained inconsistencies, such as a reference to the applicant being “Unkempt”, while at the same time saying that she looked well and was neatly dressed, and making a reference to the applicant being tense and appearing timid, but not trembling or sweating. He felt that the Departmental submission should have made reference to the findings.

The tribunal’s decision

8. The tribunal recorded that the applicant complained of back pain and right leg pain, and of depressive and mental health symptoms. She had a melanoma removed from her left hand in August 2012. In the statement of reasons, the tribunal recorded that the applicant had indicated problems only in relation to activity 5 (manual dexterity) in her ESA50, but at hearing was raising activities 1, 2 and 4 in addition. She further sought to rely on mental health activities 13, 14, 15 and 16, whereas she had not mentioned any problem with activity 14 in her ESA50. The tribunal further recorded that, at hearing, the applicant had presented as very restricted, for example, being able to walk only from her seat to the front door [of Mount Zion House] and found some contradictory aspects to her evidence. The tribunal noted that she had been referred for cognitive behaviour therapy, but had stopped sessions with a counsellor after three sessions.

9. The tribunal did not accept that the applicant’s evidence was reliable. While acknowledging that there were some negative findings on the HCP’s assessment, it found that many findings were within normal limits. It held that the applicant’s overall medical condition was not such that functional ability was restricted to such a degree as to satisfy any of the descriptors. Accordingly, the tribunal disallowed the appeal.

Hearing

10. I held an oral hearing of the application. The applicant was not present but was represented by Mr McCloskey of Craigavon District Citizens Advice Bureau. The Department was represented by Mr McKendry of Decision Making Services.

11. Mr McCloskey submitted, first, that the tribunal had failed to deal with conflicts in the evidence. He relied on CW v SSWP [2011] UKUT 386 (AAC), a decision of Deputy Upper Tribunal Judge Ovey. His submission was that the HCP report was wrongly preferred.

12. He further submitted that the tribunal had insufficient evidence to consider the full statutory test, in terms of the oral evidence adduced and the evidence available from the HCP report. In particular, he submitted that the tribunal had incorrectly interpreted the terms “always” and “majority of the time” as they appeared in activity 16.

13. Mr McCloskey further challenged the tribunal’s decision for placing weight on the fact that she could not remember the date of her referral to the mental health team.

14. At hearing, Mr McCloskey disputed the written record of the tribunal as it related to the findings on mobility. However, that point had not been raised previously. He had not submitted a copy of his own record of the proceedings into evidence before me. As the argument in the hearing primarily centred on mental health descriptors, however, he decided that he would not pursue this issue.

15. Mr McKendry drew my attention to discrepancies in the HCP’s report. For example, the HCP recorded that the applicant was unkempt, but then that she was neatly dressed and looked well. He submitted that the Department decision-maker was at fault for not drawing attention to this. He disputed the applicant’s second and third points.

16. As the applicant had raised arguments relating to the use of the terms “always” and “majority of the time” in activity 16, but as neither party had raised the case of JC v. SSWP [2014] UKUT 352 (AAC), I gave the parties an opportunity to make written submissions on the relevance of that case.

17. Mr McCloskey submitted that JC v SSWP was relevant and that the tribunal had not made sufficient enquiry to demonstrate that it applied the relevant descriptors correctly. He submitted that there was contradiction between the HCP record that the applicant was tense and timid and the opinion that she appeared to cope well. He submitted that more findings were necessary as to the applicant’s ability to initiate social contact. He submitted that the tribunal had not adequately found facts on the frequency of the ability of the applicant to engage in social contact and whether she required a third party’s presence.

18. For the Department, Mr McKendry also submitted that the tribunal had not made adequate investigation of activity 16. He submitted that the tribunal had erred in law and asked me to remit the appeal to a newly constituted tribunal to make findings.

Assessment

19. The parties are agreed that the tribunal had made inadequate findings regarding frequency of activities in the mental health descriptors in activity 16. In particular, Mr McCloskey sought to persuade me that the tribunal had made inadequate findings of fact in the case, relying too broadly on the assessment of the HCP.

20. Mr McKendry shared some of the concerns of Mr McCloskey, pointing out that the HCP report contained discrepancies in evidence, such as the applicant being unkempt yet neatly dressed, although the tribunal had referred to it as “adequate”.

21. I accept that there is an arguable case and I grant leave to appeal.

22. I understand that the reasoning of the tribunal was to reject the applicant’s evidence on the physical descriptors and, from that assessment, to prefer the evidence of the HCP overall. This included the HCP’s findings on the mental health activities. In doing so, Mr McCloskey has argued, the tribunal made inadequate findings on the mental health descriptors. He has made submissions on the meaning of terms used in, for example, activity 16, such as “always” and “the majority of the time”. He submits that the tribunal’s view on what these terms mean is not clear, and that by adopting the HCP’s findings, and by implication the HCP’s interpretation of them, the tribunal has not made adequate findings.

23. It does seem to me that there may be force in Mr McCloskey’s criticism of the tribunal’s findings. However, there are also some unsatisfactory aspects arising from the discrepancies in the HCP report. I do not consider that this case is a suitable one to determine whether the tribunal has or has not erred in law in its approach.

24. However, as this is a case in which each of the parties has expressed the view that the decision appealed against was erroneous in point of law, I have decided to set aside the decision under Article 15(7) of the Social Security (NI) Order 1998.

25. I set aside the decision of the appeal tribunal and I direct that the appeal shall be determined by a newly constituted tribunal.

(signed) O Stockman

Commissioner

13 January 2015