Northern Ireland - Social Security and Child Support Commissioners' Decisions

CMcC-v-Department for Social Development (ESA) [2015] NICom 4

Decision No: C6/14-15(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 9 January 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is a claimant’s appeal from the decision of an appeal tribunal sitting at Lurgan, leave having been granted by the legally qualified member of the tribunal.

2. For the reasons I give below, I allow the appeal. 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 16 August 2012 by reason of “pains”. On 11 October 2012 a healthcare professional (HCP) examined the appellant on behalf of the Department. Following this examination, the Department decided that the appellant had limited capability for work. On 17 January 2013 the appellant completed and returned a questionnaire to the Department regarding ability to perform various activities. In that form the appellant stated that she was suffering from repetitive strain injury to her right wrist, depression and back and hip pain. On 26 February 2013 the appellant was again examined by a HCP on behalf of the Department. On 13 March 2013 the Department considered all the evidence and determined that the appellant did not have limited capability for work (LCW) from and including 13 March 2013, and made a decision superseding and disallowing the appellant’s award of ESA. She appealed.

4. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 9 January 2014. While accepting that the appellant should be awarded 6 points on the LCW assessment for limitations in the activity of mobilising, the tribunal disallowed the appeal. The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 10 June 2014. The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal. Leave to appeal was granted by a determination issued on 28 July 2014. On 20 August 2014 the appeal was received at the Office of the Social Security Commissioners.

Grounds

5. The appellant, represented by Mr McCloskey of Craigavon District Citizens Advice Bureau, submits that the tribunal has erred in law on the basis that:

(i)        it has misapplied the law in relation to descriptor 4(c);

(ii)       it has failed to explicitly address conflicts in the evidence regarding mobilising over particular distances;

(iii)      it failed to address the activities of remaining at a workstation and continence correctly;

(iv)      it made findings of fact which were unsupported by evidence;

(v)       it failed to address particular mental health activities;

(vi)      it failed to record particular oral evidence which could have affected the outcome of the appeal.

6. The Department was directed to make submissions on the appellant’s grounds. Mr McKendry of Decision Making Services responded on behalf of the Department. He submitted that the tribunal had erred in law as alleged in the appellant’s third and fifth grounds, and indicated that the Department supported the appeal.

Assessment

7. With no disrespect intended to Mr McCloskey and without stating a view on the other grounds which he has submitted, I will focus on an issue which finds the parties in agreement.

8. The basis of Mr McKendry’s support of the appeal in relation to the third ground is that the tribunal has not made findings on the issue of continence, and by not doing so it has failed in its inquisitorial duty and erred in law.

9. The appellant’s representative had given a written submission to the tribunal. This identified the disputed descriptors by their paragraph number from Schedule 2 to the Employment and Support Allowance Regulations (NI) 2008 (the ESA Regulations). The disputed descriptors were stated to be 1, 2, 4, 5, 9, 13, 14, 15 and 16. Paragraph 9 refers to the issue of continence.

10. The appellant had ticked the box in the ESA 50 questionnaire relating to continence, indicating a need to wash or change clothes weekly because of difficulty controlling bladder, bowel or a collecting device. She wrote “Because of my condition I cannot move normally and sometimes get caught out when I have to go to the toilet”. To the HCP, at page 4 of the ESA85 report she is recorded as stating “Sometimes has been slow to get toilet [sic] quickly enough and has got wet or soiled. Happens every 2-3 weeks Last time 3 weeks ago No pads used”. The appellant also referred to the issue of controlling bladder or bowels in her letter of appeal.

11. Consideration of the record of proceedings and the statement of reasons, which is otherwise exemplary, does not demonstrate that the issue of continence was taken into account by the tribunal. Nor is there any evidence that the issue was conceded by the appellant or her representative.

12. It may be that the tribunal considered that the stated difficulties relating to bladder and bowel control were actually problems of mobilising. However, as I have said in JMcC-v-Department for Social Development (ESA) [2014] NI Com 50, the contribution of mobility problems to a claimant’s ability to reach a toilet is a relevant factor and one which a tribunal should take into account. The case of JMcC v DSD involved irritable bowel syndrome whereas, as far as I can see, this appellant states no particular medical condition which might affect her bladder or bowel control. Nevertheless, the key issue in the present case is that the tribunal did not address the issue of continence at all.

13. I agree with the parties that the tribunal has erred in law. I set aside the decision of the appeal tribunal and I remit the appeal to a newly constituted tribunal for hearing.

14. In addition to the other activities which are in issue, the new tribunal will need to determine whether the appellant suffers from any condition which means that she satisfies any of the descriptors in activity 9 when considered alone or in combination with any difficulties in mobilising.

(signed) O Stockman

Commissioner

26 January 2015