Northern Ireland - Social Security and Child Support Commissioners' Decisions

DPK-v-Department for Social Development (ESA) [2015] NICom 22

 

Decision No: C5/13-14(ESA)

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

EMPLOYMENT AND SUPPORT ALLOWANCE

 

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 8 March 2013

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. This is a claimant’s appeal, leave to appeal having been granted by the legally qualified member (LQM), from the decision of an appeal tribunal sitting at Derry on 8 March 2013.

 

2. For the reasons I give below, I allow the appeal. 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 appellant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from 11 July 2011 by reason of back pain and depression. On 19 September 2011 the appellant completed and returned an ESA50 questionnaire to the Department regarding his ability to perform various activities. A report was obtained from the appellant’s general practitioner (GP). On 12 January 2012 a healthcare professional (HCP) examined the appellant on behalf of the Department. On 28 January 2012 the Department considered all the evidence and determined that the appellant did not have limited capability for work from and including 30 January 2012, and made a decision superseding and disallowing the appellant’s award of ESA. He appealed.

 

4. His appeal was considered by a tribunal consisting of a LQM and a medically qualified member on 8 March 2013. The tribunal disallowed the appeal. The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 20 June 2013. The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal and leave to appeal was granted by a determination issued on 8 August 2013. The LQM has not specified the grounds on which he has granted leave to appeal. On 29 October 2013 the appeal was received in the Office of the Social Security Commissioners. It was accepted by the Chief Social Security Commissioner on 21 November 2013 that the appeal had been submitted within the appropriate time limit.

 

Grounds

 

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

 

(i)             he was assessed as eligible for incapacity benefit on 6 May 2009 and his condition has worsened in the meantime;

 

(ii)           his mental health is adversely affected by threats to his life following his acquittal on a murder charge;

 

(iii)          the tribunal failed to consider the evidence of his GP;

 

(iv)          the tribunal directed him to attend the hearing, rather than hold a domiciliary hearing resulting in deterioration in his mental health and an unfair hearing.

 

6. The Department was directed to make observations on the appellant’s grounds. Mr Toner 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.

 

7. The appellant was legally represented at the date of making his appeal. The matter has moved slowly due to the efforts of the appellant’s solicitor to obtain legal aid. Having been refused legal aid in respect of these proceedings, the applicant ceased to instruct his solicitor but continues to rely on the grounds as previously framed.

 

Assessment

 

8. In his ESA50 questionnaire, the appellant indicated that he had both physical and mental health problems. In particular, he states that in 2004 he was charged with the offence of murder but was acquitted. Since that time, he states, he has been subjected to death threats, assaults and criminal damage to his home. He stated that he had problems with his heart and back and alcohol abuse. He stated that he had problems with the physical activities of Mobilising, Picking up and moving things, Communication, Navigation, Controlling bladder and Consciousness. He stated that he had problems with the mental activities of Learning how to do tasks, Awareness of hazards, Initiating actions, Coping with change, Going out, and Coping with social situations.

 

9. His GP, in a pro forma ESA113, indicated that he had suffered from depression with low mood anxiety and panic since 1995. He had suffered from low back and leg pain from 2005. He had a history of alcohol dependence.

 

10. The HCP found that the applicant had good function of his lower limbs and spine. He had a tender finger on his right hand but otherwise good function of upper limbs. He had no problems with speech, vision or hearing at examination. His report of incontinence was of enuresis only. He had no medication or specialist care for blackouts and was responsible for looking after young children.

 

11. It was accepted that he had anxiety related to accusations and threats and that he had been assaulted on many occasions. He used low dose medication for anxiety and an anti-depressant at normal dosage. He had reported thoughts of self-harm to his GP but had no current specialist input.

 

12. The tribunal found that the physical restrictions claimed were not supported by evidence, placing reliance on the report of the HCP.

 

13. The tribunal found that he had depressive episodes which would not appear to have been treated significantly. His medication was at a low dose. He had no current input from a community mental health team, community psychiatric nurse or psychiatry. However, the tribunal did not accept that there was a death threat against the applicant on the evidence provided.

 

14. The appellant’s first ground of appeal is that he was found incapable of work for the purposes of IB in 2009 and that his condition has worsened since. The test of entitlement to IB – the personal capability assessment - had some conceptual similarities with the test of entitlement for ESA. However, the manner in which the assessment of mental disablement, in particular, is conducted is very different under ESA. The tests for various physical disablement activities and descriptors also contain substantial differences. Leaving aside for a moment the issue of whether the applicant’s condition has or has not changed, the tests for the two benefits are not sufficiently similar for this point to be arguable. I do not accept that a decision on IB on a previous claim is at all relevant to the present appeal.

 

15. The appellant submitted that death threats had been made against him which were treated as credible by the PSNI. At the hearing the appellant’s representative stated that “They confirmed that there was no additional evidence that they could put before the Tribunal with the claimed death threat”. The tribunal states “Had the appellant been able to produce any such evidence for the hearing this may have assisted in assessing his credibilities [sic]”. In his application for leave to appeal made to the LQM the applicant submits evidence in the form of a police message to the appellant dated 24 March 2009 indicating that they are in possession of information that “persons … have made a death threat against you”.

 

16. The appellant further submits that the tribunal failed to address the evidence of his GP. The tribunal had the GP factual report on pro forma ESA 113. It is further submitted that letters dated 19 December 2012 and 19 February 2013 had been submitted to the tribunal. The letter of 19 February 2013 was before it when it made its decision. This letter was an augmented version of the letter of 19 December 2012. It is not entirely certain that the earlier letter was also considered. However, the letter of 19 February 2013 appears to include all the text of the letter of 19 December 2012, with some augmentation. Both letters described “social anxiety and a marked reluctance to leave his home”. The tribunal does not appear to have given much consideration to the GP’s letter in assessing the issues of “Getting about” and “Coping with social situations”.

 

17. The appellant’s fourth ground is addressed to the issue of domiciliary hearings. He submits that he was directed to attend the hearing of his appeal. I have not seen evidence of this and can only assume that the appellant was given the same statutory notice of place and time of hearing as is issued to all appellants who request an oral hearing. This is not a “direction” and an appellant may choose whether or not to attend his hearing. The appellant submits that the appeal should have taken place in his home. However, I have not been shown any evidence to suggest that the appellant had requested a domiciliary hearing and that he was refused a domiciliary hearing by the Appeals Service.

 

18. This submission would appear to be that the tribunal should have adjourned to a domiciliary hearing of its own motion. However, the appellant was present and was legally represented at the hearing and no adjournment application was made. It would not appear that the appellant or his representative considered that the appellant was unfit to attend an oral hearing or that he would be unable to give accurate evidence of this condition. I do not accept that the tribunal’s failure to direct a domiciliary hearing amounted to interference with the appellant’s right to a fair hearing.

 

19. Although I reject the appellant’s first and fourth grounds, I consider that there is some merit in his second and third grounds and I will explore these further.

 

20. The tribunal did not have evidence of a death threat before it. It is suggested by the appellant that he had a number of newspaper cuttings and letters which he offered to show the tribunal but that this was declined. None of this material was probative of any death threat. It appears to me that a key document was a form PM/1 – a police message which indicated that there was information to suggest that unnamed persons had made a death threat against the appellant – which has now been produced to me but was not before the tribunal.

 

21. Where an appellant seeks to rely on evidence which was not before the tribunal below, under the principles in Ladd v Marshall [1954] 1 WLR 1498, three conditions must be fulfilled. First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

 

22. In this case, the last two factors are present in my view, observing in particular the importance which the tribunal would have placed on it in establishing the appellant’s credibility. I cannot, however, accept that the first criterion is present. It seems to me that this evidence could have been produced to the tribunal with reasonable diligence. I must reject this ground therefore.

 

23. Turning to the third ground, it does appear that relevant evidence was available in the form of the GP letter of 19 February 2013 which the tribunal has not addressed in its findings or reasons. In particular, the GP indicates problems which would be relevant to the activities of “Getting about” and “Coping with social engagement”. The tribunal awarded 6 points for descriptor 15(c) “Is unable to get to a specified place with which the claimant is unfamiliar, without being accompanied by another person”. However, it is not clear on what basis the tribunal has selected the particular descriptor, as opposed to another, as the evidence does not appear to differentiate between familiar and unfamiliar places. Furthermore, the tribunal does not appear to address the issue of coping with social situations at all.

 

24. Where an LQM grants leave to appeal, particularly without specifying the reasons for granting leave, it tends to suggest misgivings about the correctness of the decision below. I share those misgivings in this particular case. I conclude that the tribunal has erred in law by failing to make sufficient findings on the issues of “Getting about” and “Coping with social situations” and to give sufficient reasons for its findings to enable a third party to understand its decision.

 

25. I find that the tribunal has erred in law and I allow the appeal. I set aside the tribunal’s decision.

 

26. This matter has been in progress for some considerable time, and the appellant has expressed anxiety about attending appeal hearings. However, in all the circumstances I do not consider that I can make findings of fact and decide the appeal. Reluctantly I conclude that I must remit the appeal to a newly constituted tribunal for determination.

 

 

(Signed): O Stockman

 

COMMISSIONER

 

 

 

18 June 2015