Northern Ireland - Social Security and Child Support Commissioners' Decisions

AG-v-Department for Social Development (ESA) [2015] NI Com 55

Decision No:  C9/15-16(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 4 June 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

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

 

2. An oral hearing of the application has been requested.  However, I consider that the proceedings may properly be determined without a hearing.

 

3. For the reasons I give below, I grant leave to appeal and set aside the decision of the appeal tribunal under Article 15(7) of the Social Security (NI) Order 1998.  I direct that the appeal shall be determined by a newly constituted tribunal.  However, in the light of the submissions of the Department in this case, I further direct the Department to conduct a reconsideration of the decision which is the subject-matter of the appeal prior to any such hearing.

 

REASONS

 

Background

 

4. The applicant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from 13 November 2012 by reason of anxiety and depression.  On 4 July 2013 an appointment letter was sent to the applicant asking him to attend a medical examination with a health care professional (HCP) on 18 July 2013.  The applicant did not attend and he did not reply to a letter issued on 19 July 2013 which asked him why he did not attend.  The Department decided to conduct a safeguard visit to the applicant on 27 September 2013.  However, this was ineffective.  On 3 October 2013 the Department determined that the applicant did not have limited capability for work (LCWA) as he had failed to attend a medical examination without good cause.  It made a decision superseding the applicant’s award of ESA and disallowing the applicant’s award of ESA from 19 July 2013.  The applicant appealed.

 

5. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) sitting alone.  The tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 5 November 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 12 January 2015.  On 3 February 2015 the applicant applied for leave to appeal from a Social Security Commissioner.

 

Grounds

 

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

 

(i) he had not received notification of the medical examination;

 

(ii) he had experienced problems with post in the past;

 

(iii) the tribunal erred by finding on the balance of probabilities that the applicant received notice of the medical examination.

 

7. 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 erred in law and indicated that the Department supported the application on procedural grounds.

 

Assessment

 

8. Mr McKendry’s concession in this case is based on two factors.  Firstly, he submits that the tribunal did not adequately investigate the matter, pointing to the decision of Deputy Commissioner Powell in C11/03-04(IB).  Secondly he submits that the Department’s own procedure was not followed, in that a “safeguard visit” was ineffective.

 

9. I cannot agree with the first point advanced by Mr McKendry in the applicant’s interests.  The case before Deputy Commissioner Powell involved delivery of post to a communal point in a building which had a number of flats.  The Deputy Commissioner found that it was not open to the tribunal to find that “once posting had been established, the letter will, on the balance of probabilities be delivered” in the particular context.  He found that the tribunal had failed to deal with the point that the claimant’s mail was not secure.  In this case, the tribunal was considering delivery to a single address.  It heard evidence from the applicant that he did not receive the notification of his medical examination appointment, but clearly did not believe him.  It was entitled not to believe the applicant when he said he did not receive the appointment letter, having heard his evidence and seen his demeanour.

 

10. Secondly, however, Mr McKendry submits that there was another issue which may have amounted to a procedural error.  In brief, this was that the Departmental safeguards for following up missed appointments were not observed in the present case.  Mr McKendry referred to the safeguard visits which had been put in place following Ministerial guidance that no person with mental health issues should be disadvantaged in the assessment process.

 

11. I issued a direction to the Department to produce a copy of the guidance on safeguard visits.  Mr McKendry responded to indicate that he had liaised with Network Support Branch, which is tasked with the responsibility for the publication of procedural guidance.  They informed him that the “outreach guidance referral process” was first published on the Departmental intranet in May 2011 and that the “safeguard visit” guidance was already published prior to this date.

 

12. Paragraph 27 of the Safeguard Visits instructions within the generic ESA guidance reads:

 

“If ESA is in payment, incapacity is MH,” [mental health] “learning difficulties, etc. and irrespective of whether conditionality was previously explained verbally to the customer, Medical Team refer case to have a safeguard visit carried out”.

 

13. Paragraph 24 of the outreach visit guidance contains the following under the heading Referral Process – Employment and Support Allowance (ESA) Safeguard Visit:

 

24. Emails acknowledging an effective completed visit will also contain the following information:

 

- date visit completed;

 

-                 reasons provided by the customer/representative for the non-attendance at the WFI/WCA;

 

-                 confirmation that the rules of conditionality regarding the WFI/WCA were explained;

 

- confirmation that the customer/representative now have a full understanding of the rules of conditionality regarding WFI/WCA;

 

- other details that may be relevant; and

 

- details of any accompanying documents attached (accompanying documents will be submitted separately to the sender by the relevant Outreach Office).

 

14. Mr McKendry submitted that the safeguard visit conducted by the Department had been ineffective as the policy had not been complied with in the circumstances of this case.  He submitted that the decision of the tribunal was flawed given that proper procedures were not carried out by the Department (although no blame can be attached to the tribunal).

 

15. The Department accepts on a review of the evidence in this case that its own procedures were not properly carried out.  The implication of the Department putting in place its own procedures on the basis of Ministerial instructions is that the category of claimant which the policy is intended to protect has a legitimate expectation of benefitting from those procedures.  A failure to follow procedures will be unlawful, amounting to a breach of an expectation of procedural fairness.  Whereas the tribunal is not bound by Ministerial policy, a Departmental decision based upon a failure to observe policy will arguably be unlawful.  The question which has not been fully addressed is whether the tribunal can rectify the omissions in the Department’s procedures, or whether the failure on the part of the Department to follow Ministerial instructions is fatal to its decision.

 

16. I have not had the benefit of legal argument on the issue arising in this case, but each of the parties accepts that the decision of the appeal tribunal is erroneous in law.  I consider that it is appropriate, without making a concluded decision on the issue of whether the tribunal has erred in law, to set aside the decision of the appeal tribunal under Article 15(7) of the Social Security (NI) Order 1998.

 

17. I direct that the appeal shall be determined by a newly constituted tribunal.  However, in the particular circumstances of this case, where the Department accepts that its first instance decision is procedurally flawed, I direct the Department to first conduct a reconsideration of the decision which is the subject matter of the appeal.

 

 

(signed)  O Stockman

 

Commissioner

 

 

 

15 September 2015