Northern Ireland - Social Security and Child Support Commissioners' Decisions

MC-v-Department for Social Development (ESA) [2015] NICom 7

Decision No: C10/14-15(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 30 January 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. The decision of the appeal tribunal dated 30 January 2014 is in error of law. The error of law identified will be explained in more detail below. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

2. For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access. An appeal tribunal which has a medically qualified panel member is best placed to assess medical evidence and address medical issues arising in an appeal. Further, there may be further findings of fact which require to be made and I do not consider it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination. In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

 

3. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to employment and support allowance (ESA) remains to be determined by another appeal tribunal. In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

 

Background

 

4. The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 26 June 2012, which decided that as the Department had decided that the appellant did not have limited capability for work her entitlement to incapacity benefit did not qualify for conversion into an award of ESA from and including 21 July 2012. The appeal was received in the Department on 30 July 2012. On 20 February 2013 the decision dated 26 June 2012 was looked at again but was not changed.

 

5. Following an earlier postponement and an adjournment, the substantive oral hearing of the appeal took place on 30 January 2014. The appellant was present and was represented. There was no Departmental presenting officer present. The appeal tribunal disallowed the appeal and confirmed the Departmental decision dated 26 June 2012.

 

6. On 2 July 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS) from Mr McGregor of the Citizens Advice organisation who was representing the appellant. On 3 July 2014 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

Proceedings before the Social Security Commissioner

 

7. On 13 August 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 26 August 2014 observations on the application for leave to appeal were sought from Decision Making Services (DMS) and written observations were received on 10 September 2014. In these written observations, Mr McKendry, for DMS, opposed the application on the grounds submitted on behalf of the applicant but supported the application on another ground. Written observations were shared with the applicant and her representative on 11 September 2014.

 

8. On 17 November 2014 I accepted the late application for special reasons. On the same date I granted leave to appeal. In granting leave to appeal, I gave, as a reason that an arguable issue arose as to the manner in which the appeal tribunal assessed the evidence which was before it. I also directed that having considered the papers which were before me, the appeal could properly be decided without an oral hearing.

 

Errors of law

 

9. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law. What is an error of law?

 

10. In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i) making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii) failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v) making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

Analysis

 

11. In the application for leave to appeal, Mr McGregor has submitted that the appeal tribunal, in accepting and preferring the evidence contained within the report of the healthcare professional, disregarded further medical evidence which had been submitted on behalf of the appellant at the oral hearing of the appeal. Mr McGregor also submitted that there were clear inaccuracies in the content of the report of the examination by the healthcare professional which reinforced his perplexity as to why the report was accepted and preferred to the additional medical evidence which had been submitted on behalf of the appellant.

 

12. In his written observations on the application for leave to appeal, Mr McKendry submitted:

 

‘(The claimant’s) representative has taken issue with the tribunal’s findings and how it came to the conclusion that it did. The representative has highlighted inaccuracies in the HCP’s report in that (the claimant’s) daughter was initially recorded as having been in the waiting room but was then recorded by the HCP (in the personalised summary statement) as assisting her mother in putting on her socks and shoes. The ROP’s also show that this was raised as an issue before the tribunal and that if there were inaccuracies in relation to (the claimant’s) daughter being present there may be inaccuracies in relation to carrying a bag, medication and papers.

 

I would submit that it is obvious from the papers that there are discrepancies within the HCP report in relation to (the claimant’s) daughter being present. I would however submit, that this in itself, was not fatal to the tribunal coming to the conclusion that it did.

 

The ROP’s further show that the tribunal had before it, the appeal papers, two letters from Professor F and a letter from Doctor M. Dr M’s letter (of 24/09/08) details that (the claimant) suffered from chronic back pain, pain in hands and feet, non-inflammatory pain, sleeplessness and fatigue. Dr M further noted that Mrs C was markedly hyperalgesic, had mild pes planus and suffered from fibromyalgia. Professor F in his letter (of 01/08/13) diagnosed fibromyalgia and chronic pain in both hands. He noted that (the claimant) continued to complain of chronic low back pain. On clinical examination he noted that (the claimant) had multiple muscular tender points and that there was a restriction in her grip. Professor F arranged for x-rays to be carried out and the results of these were that they showed early osteophyte formation in the proximal phalanx of the index and middle fingers.

 

The HCP’s report shows that (the claimant) declined to carry out some functional tests in relation to her left arm and that she declined to bend forwards or to crouch down. The HCP did note that the results of the examination showed slight restriction with her upper and lower limbs (notwithstanding her refusal to carry out some of the functional tests).

 

The tribunal in its SOR’s accepted and preferred the evidence of the HCP in relation to all of the disputed activities. It was for the Tribunal to show in its SOR’s as to what evidence it used and why it preferred it to any other evidence available.

 

Commissioner Mullan (as he was then), in C8/08/-09(IB) made findings in relation to the assessment of evidence at a tribunal. At paragraph(s) 60-63 he held:

 

“60. The reason for my rejection of the DMS submission is that there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.

 

61. In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

 

‘ … there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect. It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason. Indeed, it will sometimes be its duty to do so. However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant. It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short. We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal. That body must have regard to the whole of the evidence, including the medical evidence. Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so. Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.’

 

62. In its statement of reasons the appeal tribunal has made no reference to the medical evidence provided by the appellant, in the form of the medical report from his GP, dated 3 December 2007, and in which the GP refers to impaired hearing. The statement of reasons gives no indication as to how that medical evidence was assessed and whether or not it was accepted or rejected.

 

In his disposal in the above appeal at paragraph 74 Commissioner Mullan directed:

 

“I have decided that the statement of reasons for the decision of the appeal tribunal is not adequate to explain why the appeal tribunal accepted and preferred the evidence which it did, and rejected other evidence available to it. According to the principles in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), as accepted by the Tribunals of Commissioners in Great Britain in R(I)2/06 and CSDLA/500/2007, that means that the decision of the appeal tribunal is in error of law. The decision is set aside.”

 

I would submit that the medical evidence provided for by Professor F and by Dr M are medical findings and do not as such demonstrate that (the claimant) had LCW (at the relevant date). I would however, further submit that because they were before the tribunal it therefore had a duty to explain as to why it preferred the HCP’s report to the exclusion of all the other evidence before it. With this in mind I would respectfully submit that in not doing so it had failed in its inquisitorial role and as such has erred in law.’

 

13. I agree with and accept the submissions which have been made by Mr McKendry and, for the reasons which are set out by him, agree that the decision of the appeal tribunal is in error of law.

 

14. The appeal tribunal did conduct a rigorous and thorough assessment of the evidence contained within the report of the examination conducted by the healthcare professional. It noted the discrepancies and inaccuracies within that report and identified by the appellant. The appeal tribunal stated that it did ‘… not accept the appellant’s assertions that the record of the HCP is inaccurate.’ That conclusion was one for the appeal tribunal to make, was reasonable in the circumstances and is one with which I cannot interfere.

 

15. Of much greater significance is the manner in which the appeal tribunal addressed the additional medical evidence which had been submitted on behalf of the appellant. The relevant principles concerning the assessment of evidence which has been adduced by a party to the proceedings before an appeal tribunal and the proper approach to that assessment were set out by me in C8/08-09(IB). In that case, I also endorsed the principles set out by the Tribunal of Commissioners in R2/04(DLA). As in C8/08-09(DLA), the statement of reasons in the instant case gives no indication as to how the medical evidence adduced on behalf of the appellant was assessed and whether or not it was accepted or rejected. Accordingly, its decision is in error of law.

 

Disposal

 

16. The decision of the appeal tribunal dated 30 January 2014 is in error of law. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

 

(i)        the decision under appeal is a decision of the Department dated 26 June 2012, in which a decision-maker decided that as the Department had decided that the appellant did not have limited capability for work her entitlement to incapacity benefit did not qualify for conversion into an award of ESA from and including 21 July 2012;

 

(ii)       the Department is directed to provide details of any subsequent decision-making in respect of ESA and the outcome of that decision-making to the appeal tribunal to which the appeal is being referred. The appeal tribunal is directed to take any evidence of subsequent decision-making into account in line with the principles set out in C20/04-05(DLA);

 

(iii)      it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

 

(iv)      it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

 

 

(signed) K Mullan

 

Chief Commissioner

 

 

 

13 February 2015