Northern Ireland - Social Security and Child Support Commissioners' Decisions

PO’B-v-Department for Social Development (ESA) [2015] NICom 44

Decision No: C31/14-15(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 23 May 2013

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

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

 

2. For the reasons I give below, I disallow the appeal.

 

REASONS

 

Background

 

3. The appellant claimed incapacity benefit (IB) from the Department for Social Development (the Department) from 18 March 2008 by reason of sciatica and back pain. On 1 June 2012 the appellant was notified by the Department that his 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 appellant was issued with and completed a Departmental questionnaire, form ESA50. He was examined by a healthcare professional (HCP) on 20 July 2012, who prepared a report for the Department. On the basis of all the evidence, on 1 August 2012, the Department decided that the appellant did not satisfy the limited capability for work assessment (LCWA) and that his award of IB did not qualify for conversion into an award of ESA from 24 August 2012, resulting in an end to his entitlement. The appellant appealed.

 

4. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 23 May 2013. The tribunal disallowed the appeal. The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 2 July 2013. The appellant 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 17 July 2013. On 2 August 2013 the appellant requested a Social Security Commissioner to grant leave to appeal.

 

Grounds

 

5. The appellant submitted that the tribunal has erred in law on the basis that the tribunal had wrongly assessed the activity of mobilising.

 

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. Mr Collins submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.

 

Proceedings

 

7. On 21 November 2013 the appellant wrote to withdraw his application. However, before action was taken in pursuit of this application, a further application was made to stay the proceedings, pending the decision of a Three-Judge Panel of the Upper Tribunal in the case of SI & PR v Secretary of State for Work and Pensions [20014] UKUT 308. I acceded to the application to stay the proceedings. The decision of the three judge panel of the Upper Tribunal was given on 4 July 2014. The parties were directed to make submissions on the relevance of the case. The appellant continued to submit that the tribunal had erred in law in the light of SI & PR, particularly in relation to use of a wheelchair. The Department maintained the position that it did not support the application.

 

8. I granted leave to appeal and I directed an oral hearing of the appeal.

 

Hearing

 

9. I held an oral hearing of the appeal. The appellant was not present but was represented by Mr Smyth of Citizens Advice, who had taken responsibility for the case from colleagues who were previously involved in drafting the grounds of application and submissions on behalf of the appellant. The Department was represented by Mr Collins of DMS.

 

10. Mr Smyth made the submission that the tribunal had erred in law by reaching a decision supported by no evidence, namely that the appellant could reasonably use a wheelchair to mobilise. He submitted that the tribunal had failed to resolve conflicts of fact or opinion on material matter, namely the distance which the appellant was able to mobilise without stopping. He submitted that any conflict of evidence should have been put to the appellant for his response.

 

11. Mr Collins submitted that the issue of mobilising in a wheelchair was not material to the outcome of the particular case. He submitted that the tribunal had made findings based upon the appellant’s ability to mobilise using the stick which he habitually used. As this exceeded the statutory threshold, it had correctly decided that the appellant should not be awarded points for mobilising based on findings which were reasonable.

 

Assessment

 

12. The tribunal had found that the appellant “could mobilise repeatedly well in excess of 200 metres on level ground without stopping, in order to avoid significant discomfort/ exhaustion, or because of significant discomfort/exhaustion, and that he had no problem mounting/descending two steps. It found that the appellant “used a walking stick without any difficulty, and this would enable him to mobilise well in excess of 200 metres within the terms of the legislation”. It continued:

 

“The tribunal believed that he could reasonably use a manual wheelchair to mobilise well beyond this distance as well. He had no upper limb problems. His General Practitioner had never referred him to be assessed as fit to use a wheelchair, probably because his mobility problems were not so severe to warrant such a referral”.

 

13. Much of Mr Smyth’s criticism was directed to the tribunal’s statements to do with wheelchair use. However, Mr Collins submitted that this was immaterial as the tribunal had not needed to address the issue of wheelchair use at all.

 

14. I accept that what Mr Collins submits is correct. The appellant habitually used an aid – a walking stick. The tribunal had assessed him on the basis of using that aid and found that he did not satisfy the statutory criteria. Having made that finding, it was unnecessary for it to make any findings in relation to wheelchair use at all. The wheelchair findings are not determinative of the appeal and for that reason I accept the submission that there is no material error of law arising from the comments about wheelchair use.

 

15. Nevertheless, Mr Smyth submits that the tribunal has based its findings on mobilising using a stick on evidence which was disputed without resolving that dispute. He points to the appellant’s evidence in the form of the statement in his claim form (a reference to the ESA50 questionnaire) where he ticked the box to say that he could not move at least 50 yards before he needed to stop, and to his statement that he could walk about 100 yards using a walking stick, having to stop 2-3 times as pain is bad and that he would feel tired and breathless. Mr Smyth pointed to the findings of the tribunal where it stated that “the Tribunal believed he could mobilise repeatedly well in excess of 200 metres on level ground without stopping”. He submitted that there was no evidence that this had been put to the appellant, “but that they seem to have arrived at their own conclusions, rejecting the claimant’s evidence. Again, the tribunal have no given reasons for doing this”.

 

16. I reject Mr Smyth’s submissions. The tribunal clearly states that it “accepted the clinical findings of the healthcare professional as being reasonable in the circumstances”. The circumstances had included a history of spinal decompression surgery in 2008 resulting in “a very satisfactory decompression at L4/L5/S1 with some degree of scar tissue”, and the management of his condition with “minimal” painkilling medication. The HCP had found full function in lower limbs, but reduced ability to bend forward and crouch fully and some loss of sensation in the left foot. Straight leg raising was reduced from a lying position. There was no evidence of muscle wasting in calves or feet and moderate callous formation on the soles of the feet. The opinion of the HCP was that none of the mobilising descriptors would apply.

 

17. I do not consider that the tribunal was obliged to put the HCP’s evidence to the appellant in the manner of adversarial proceedings. That evidence was openly available to the appellant in advance of the hearing and it was open to him to obtain his own evidence in rebuttal or to make submissions at the hearing about the evidence. There are circumstances where evidence probably should be put for comment – such as where a HCP records a statement said to have been made by the claimant at examination which contradicts oral evidence given by him at a hearing or elsewhere in documentary evidence. However, that was not a factor in the present case.

 

18. The tribunal had resolved the conflict in evidence by its decision whereby it accepted the HCP evidence and it clearly explained its preference. It was entitled to accept the HCP’s evidence and the tribunal has reached a rational conclusion on the evidence before it.

 

19. I consider that I should disallow the appeal.

 

 

(signed) O Stockman

 

Commissioner

 

 

 

10 August 2015