Northern Ireland - Social Security and Child Support Commissioners' Decisions

DAM-v-Department for Social Development (ESA) [2015] NICom 37

 

Decision No: C34/14-15(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 31 January 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. This is a claimant’s appeal from the decision of an appeal tribunal sitting at Derry.

 

2. For the reasons I give below, I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998 and I direct that the appeal shall be determined by a newly constituted tribunal.

 

REASONS

 

Background

 

3. The appellant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from 26 January 2013 by reason of depression, stress, back pain and prostatism. On 4 February 2013 the appellant completed and returned a questionnaire to the Department regarding ability to perform various activities. On 14 March 2013 a health care professional (HCP) examined the appellant on behalf of the Department. On 4 April 2013 the Department considered all the evidence and determined that the appellant did not have limited capability for work (LCWA) from and including 4 April 2013, and made a decision superseding and disallowing the appellant’s award of ESA. The appellant appealed. However, he indicated on 27 January 2014 that he was content for the hearing to proceed in his absence.

 

4. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 31 January 2014. The tribunal disallowed the appeal. The appellant, who had not attended the hearing, then requested a statement of reasons for the tribunal’s decision and this was issued on 16 April 2014. The appellant 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 May 2014. On 30 May 2014 the appellant applied for leave to appeal from a Social Security Commissioner.

 

Grounds

 

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

 

(i) the panel was not presented with correspondence from his previous employer with regard to his capability to work;

 

(ii) the medical member’s professional qualifications were not confirmed to him;

 

(iii) the professional qualification of the nurse who acted as the Department’s HCP was not confirmed to him.

 

6. 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.

 

7. The appellant had engaged in correspondence with Medical Services concerning the HCP report in his case. On 11 June 2014 he submitted a reply from the Customer Relations Manager of Medical Services which included the following statements:

 

“In response to your question as to whether your mental health was properly assessed, the Customer Relations Medical Adviser finds that further information should have been provided by the Healthcare Professional in light of the suicidal thoughts described in your condition history.

 

In addition, she also finds that the Healthcare Professional’s justification for incontinence in the Personal Statement Summary is a little weak and that further evidence was available that could have been referenced in support of their chosen descriptor.

 

In view of the above findings, the Customer Relations Medical Adviser has confirmed that as recorded, the report does not meet our Professional Standards.”

 

8. For the Department, Mr Collins submitted that had the tribunal been aware of the findings contained in the Medical Services letter it would not have made a material difference to its findings. He submitted that the appellant had not attended the hearing but that the tribunal was aware of his criticisms of the HCP report through his letter of 21 January 2014. He submitted that the evidence before the tribunal – or rather the lack of supporting medical evidence - was sufficient to determine the appeal.

 

Hearing

 

9. I granted leave to appeal and I directed an oral hearing of the appeal. The appellant attended but was unrepresented. Mr Collins of DMS appeared for the Department.

 

10. The appellant submitted that a letter which he had submitted to a HCP in the course of a previous medical examination, but not to the HCP whose report was in evidence in the present appeal, should have been before the tribunal but was not. Mr Collins submitted that the letter dated 15 January 2008 from the occupational health adviser to the appellant’s previous employer could not be traced on the file. He accepted that where this was handed to a HCP in the course of an examination, it should have made its way on to the relevant file. Nevertheless, in light of the fact that it was dated January 2008 and dealt with the appellant’s ability to perform the duties of his previous employment, he submitted that it was not a material error that this was not before the tribunal.

 

11. The appellant queried the qualifications of the HCP and the medically qualified panel member in the light of the expertise of occupational health advisers. Mr Collins submitted that the qualifications of the HCP and panel member were prescribed by legislation and that the test they were applying was not similar to that of an occupational health specialist. He submitted that no error arose.

 

12. The appellant further relied on the letter he had received from Medical Services, which he submitted supported his view that the evidence before the tribunal was inadequate. In relation to the letter from Medical Services, Mr Collins continued to submit that there was no material impact on the outcome of the appeal.

 

Assessment

 

13. I am satisfied that the appellant submitted a letter to a HCP in the course of a previous medical examination. Whereas Mr Collins indicates that he would expect such a letter to have been placed on the Department’s file, I am not convinced that a claimant could reasonably expect this. If the letter had been submitted to the HCP carrying out the most recent examination, the position might be different. However, I do not consider that the appellant could have legitimately expected the letter in question to make its way to the tribunal. In any event, the letter is clearly offering advice on the appellant’s capacity to perform his former work role in 2008. It is not directly material to the issues before the tribunal and is not reflective of the appellant’s condition at the date of the decision under appeal. I do not consider that the absence of this letter materially affected the outcome of the appeal.

 

14. As far as the qualifications of the medical member of the tribunal and the HCP are concerned, these are provided for in the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 (the Decisions and Appeals Regulations) and in the Employment and Support Allowance (NI) Regulations 2008 (the ESA Regulations) respectively.

 

15. It is sufficient for a medically qualified member to sit on a tribunal that he or she has the medical qualifications referred to in paragraph 2 of Schedule 2 to the Decisions and Appeals Regulations. It is sufficient for an approved HCP to conduct an examination on behalf of the Department under regulation 23 of the ESA Regulations that he or she meets the definition set out in regulation 2, namely that he or she is:

 

“(a) a registered medical practitioner;

 

(b) a registered nurse; or

 

(c) an occupational therapist or physiotherapist registered with a regulatory body established by an Order in Council under section 60 of the Health Act 1999”.

 

16. It seems to me that no error arises from the appellant’s second and third grounds of application.

 

17. I consider that the letter from Medical Services gives rise to further argument about the fairness of the proceedings. The letter contains some strong words about the HCP report. For example, it says that further information should have been provided by the Healthcare Professional in light of the suicidal thoughts described in the appellant’s condition history. It indicates that the report does not meet the professional standards of Medical Services. Mr Collins maintained that the letter did not necessarily indicate that the tribunal would have reached a different decision and therefore that there was not a material error.

 

18. It appears to me that the issue is not whether the Medical Services letter demonstrates that there was a material error in terms of the tribunal’s conclusion on the evidence, but rather whether the letter suggests that the proceedings were procedurally unfair. In R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, the relevant error of law is formulated as “committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings”. I have to decide if there has been an irregularity which might have made a difference, as opposed to one which would have made a difference.

 

19. The tribunal decided the appeal on the basis of the evidence before it in good faith. There was no omission, clerical or otherwise, which prevented the letter of Medical Services being placed before it, since that letter did not exist at the time of hearing. Nevertheless, it seems to me that where those overseeing the production of HCP reports accept that a report “does not meet our professional standards”, an appellant would be legitimately aggrieved that reliance was placed upon it.

 

20. There was no conscious step taken by the tribunal which committed a procedural irregularity in terms of fairness. However, it appears to me that the fact of reliance on a report which was subsequently questioned by the system which produced it can amount to committing another irregularity capable of making a material difference to the fairness of the proceedings. In the present case, particularly where the appellant did not attend the hearing to give evidence and the HCP report consequently assumed greater importance, I am satisfied that an irregularity was committed.

 

21. I set aside the decision of the appeal tribunal. I refer the appeal to a newly constituted tribunal for determination.

 

22. In all the circumstances of this case, I invite the Department to have regard to the desirability of a reconsideration of the decision under appeal in the meantime.

 

23. If the matter is to come before a new tribunal, I direct that a new examination by a HCP shall be conducted and that the report of the previous HCP dated 14 March 2013 should not be placed before the tribunal.

 

 

(signed): O Stockman

 

Commissioner

 

 

 

29 July 2015