Northern Ireland - Social Security and Child Support Commissioners' Decisions

NL-v-Department for Social Development (ESA) [2015] NICom 28

Decision No: C2/15-16(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 7 May 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

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

 

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 direct that the appeal shall be determined by a newly constituted tribunal.

 

REASONS

 

Background

 

The applicant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from 10 May 2011 by reason of anxiety. On 23 November 2012 the applicant completed and returned a questionnaire to the Department regarding ability to perform various activities. On 21 December 2012 a health care professional (HCP) examined the applicant on behalf of the Department. On 5 March 2013 the Department considered all the evidence and determined that the applicant did not have limited capability for work from and including 5 March 2013, and made a decision superseding and disallowing the applicant’s award of ESA. The applicant appealed.

 

The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 7 May 2014. The tribunal disallowed the appeal. The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 14 August 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 1 October 2014. On 27 October 2014 the applicant applied for leave to appeal from a Social Security Commissioner.

 

Grounds

 

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

 

(i)         the tribunal’s reasons are inadequate;

 

(ii)        the tribunal based its decision on the mental descriptors on insufficient evidence.

 

The Department was invited to make observations on the appellant’s grounds. Mr McKendry 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.

 

Assessment

 

An appeal lies to a Commissioner from any decision of an appeal tribunal on the ground that the decision of the tribunal was erroneous in point of law. However, the party who wishes to bring an appeal must first obtain leave to appeal.

 

Leave to appeal is a filter mechanism. It ensures that only applicants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner.

 

An error of law might be that the appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that the appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach.

 

The applicant had given evidence to the tribunal of a physical health problem, namely, that he had suffered a broken left arm in 2011 which had not healed properly. He also gave evidence that he suffered from anxiety and depression and that he abused alcohol. He stated in his ESA50 questionnaire that he sometimes did not want to meet people and sometimes would not leave the house for days. He stated that he would go through periods where he could not face anybody. In addition he referred to a recent incident where he had hit someone when he was drunk, albeit that he could not remember this. He indicated that he got angry with “officialdom” and that his arm injury had resulted from an altercation with police.

 

The tribunal accepted that the applicant had restrictions due to his left arm injury but found nothing to indicate that the restrictions would lead to an award of points for any of the physical health activities under the limited capability for work assessment (LCWA).

 

The tribunal further accepted that the applicant had a degree of anxiety and depression exacerbated by excess alcohol consumption. However, it found that he would not be entitled to an award of points for any of the mental health activities under the LCWA.

 

The tribunal was concerned with circumstances obtaining before and around the decision made by the Department on 5 March 2013. The tribunal heard that the applicant’s daughter had been admitted to hospital in Belfast and that he had driven to the hospital from his home on a daily basis for a period of months. At that time the tribunal found that the applicant was able to engage with hospital staff, albeit not always positively because of perceived lack of communication, but that the applicant behaved appropriately. The applicant had stated that he had been referred to a psychiatrist for his mental health problems, but he declined an opportunity to adjourn in order to obtain further medical evidence.

 

The grounds of the application for leave to appeal submitted by the applicant are that the tribunal had not given adequate reasons for its decision, and that he felt that the fact that he was travelling to visit his daughter was not sufficient reason to refuse points for mental health activities.

 

The tribunal has expressed clear reasons for its decision, namely, that at the time of the decision the applicant was travelling daily by car to visit his daughter in hospital in Belfast. In this case, the tribunal has drawn inferences from the circumstances of the applicant’s daily living as to his ability to perform the activities which are set out in detail in particular descriptors. Provided there is sufficient evidence before it, I consider that it is open to a tribunal to do this in any particular case.

 

Nevertheless, I am conscious of the words of the three-judge panel of the Great Britain Upper Tribunal in the case of JC v Secretary of State for Work and Pensions [2014] UKUT 352 at paragraphs 24-39. The Upper Tribunal was here looking at activity 16 and the different approaches which had been taken to the meaning of the word “social” by Upper Tribunal judges. Having determined the meaning of the word “social”, at paragraph 38 the Upper Tribunal addressed the approach to fact finding. They said:

 

“38. The fact finding exercise can be, and in our view generally should be, carried out separately from, although with an eye to, the value judgements that have to be applied to those findings. It identifies and particularises, by reference to the primary facts, the situations and events that will be taken into account and so the bedrock of the decision on the application of the Activities and their Descriptors. In reaching that decision the tribunal will have to address and decide whether those findings show that:

 

i)              the claimant has cognitive impairment or mental disorder,

 

ii)             a causative link between that impairment or disorder and his difficulty relating to others or significant distress, and

 

iii)            a causative link between that difficulty and distress and a preclusion for all of the time or an impossibility for a majority of the time of contact with all other people, or those who are unfamiliar to the claimant, that has the necessary degree of reciprocity, give and take, initiation and response.”

 

The fact of daily travel to Belfast could give a reasonable basis for finding that the applicant at the time of the decision did not experience problems in terms of getting to specified familiar and unfamiliar places. His attendance at the hospital, which would inevitably involve a degree of contact with hospital staff, might demonstrate that some engagement in social contact with persons unfamiliar to the applicant was not always precluded due to difficulty relating to others or significant distress experienced by him. However, I observe that the primary facts, situations and events as found by the tribunal are quite restricted in their scope. The applicant submits that evidence of travelling to visit his seriously ill daughter was not a sufficient reason to refuse all points on the mental health activities.

 

Having considered the applicant’s submission, I have some sympathy with his argument. In particular, it appears to me that the evidence of visiting the hospital in such a context does not address the issue of social contact with persons unfamiliar to the claimant sufficiently broadly so as to enable the tribunal to find that social contact would be possible for the majority of the time. Attending the hospital was an artificial situation which was forced on the applicant. I consider that the tribunal lacked evidence of the nature of contact with persons unfamiliar to the applicant in his normal daily life to determine whether this might involve “the necessary degree of reciprocity, give and take, initiation and response” ( JC v Secretary of State for Work and Pensions, paragraph 33).

 

Further, the applicant had made the case that he occasionally behaved in an aggressive manner which has upset other people. The tribunal does not make a specific finding on the issue of the appropriateness of the applicant’s behaviour for the purposes of Activity 17, relying again on his travelling to see his daughter in hospital. However, there were references to violent behaviour on the part of the applicant when drinking and the injury to his left arm has arisen in the context of an incident involving the PSNI. Again, it seems to me that the fact of visiting his daughter in hospital on a daily basis does not give a sufficient evidential basis for finding that the applicant did not satisfy any of the mental health activities.

 

I consider that the applicant has raised an arguable case that the tribunal has erred in point of law and I grant leave to appeal.

 

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

 

 

(signed) O Stockman

 

Commissioner

 

 

 

6 July 2015