Northern Ireland - Social Security and Child Support Commissioners' Decisions

EA-v-Department for Social Development (ESA) [2016] NICom 20

 

Decision No: C26/15-16(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 5 September 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 Bangor.

 

2. An oral hearing of the application has not been requested.

 

3. For the reasons I give below, I grant leave to appeal. However, I disallow the appeal.

 

REASONS

 

Background

 

4. The applicant claimed incapacity benefit (IB) from the Department for Social Development (the Department) from 8 April 1998 by reason of stress and depression. On 27 November 2013 the applicant was notified by the Department that her 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 applicant was issued with and completed a Departmental questionnaire, form ESA50. A report was obtained from the applicant's general practitioner. She was examined by a healthcare professional (HCP) on 3 February 2014, who prepared a report for the Department. On the basis of all the evidence, on 6 March 2014, the Department decided that the applicant did not satisfy the limited capability for work assessment and that her award of IB did not qualify for conversion into an award of ESA from 22 March 2014, resulting in an end to her entitlement. The applicant appealed.

 

5. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 5 September 2014. The tribunal disallowed the appeal. The applicant then requested a statement of reasons for the tribunal's decision and this was issued on 2 December 2014. The applicant 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 19 January 2015. By an application dated 16 March 2015, the applicant requested a Social Security Commissioner to grant leave to appeal. The application was therefore late. However, by a determination dated 5 November 2015 the Chief Social Security Commissioner admitted the late application for special reasons.

 

Grounds

 

6. The applicant, through her representative Mr Byrne of Citizens Advice, submits that the tribunal has erred in law on the basis that it failed to take into account and/or resolve conflicts of fact or opinion on material matters. The applicant bases this ground on the submission that the report of the HCP in relation to Standing-sitting was not comprehensive and objective due to flaws and inaccuracies in the report. Specifically it is submitted that:

 

a) the applicant could not have been observed sitting for 30 minutes as stated in the report as the report of the assessment also states that "the client rose multiple times from sitting in an upright chair .." and "was able to get on to the couch without assistance";

 

b) it was observed that the clinical examination involved limb rotation exercises and lying down, and submitted that as the total examination time was 36 minutes the statement that the client was able to sit on a chair for 30 minutes was unreliable;

 

c) it was submitted that the overall evidence of the HCP should not have been favoured for these reasons, and that the applicant was not sufficiently well examined in relation to her ability to move between seated positions without pain and severe discomfort;

 

d) there was insufficient justification to prefer the evidence of the HCP over the evidence of the applicant and her two doctors;

 

e) the statement that the applicant visited her son at the weekend where she sat for a number of hours is "lacking and insufficient to resolve any conflict of fact or opinion relating to the client's difficulties with sitting"; and

 

f) the applicant was not examined in relation to continence.

 

7. The Department was invited to make observations on the appellant's grounds. Mr Toner of Decision Making Services 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.

 

The tribunal's decision

 

8. At the tribunal hearing, the applicant's representative indicated that the applicant disputed only the physical activities of Standing-sitting and Continence, and disputed the mental activities of Awareness of danger, Initiating and completing personal action, Coping with change, Getting about, and Appropriateness of behaviour. The tribunal accepted the stated concession as to the applicability of the activities, but considered that Coping with social engagement should also be investigated. The tribunal accepted that the applicant suffered from the medical conditions set out at pages 2-3 of the HCP report and accepted the summary statement at page 19 of the report.

 

9. In relation to Standing-sitting, the tribunal had been told by the applicant that she could only stay in one place by standing, sitting or a combination of these for between 30 minutes and an hour. The tribunal noted the evidence of Dr W.... that the applicant would only be able to sit for less than 10 minutes but that there would be no limitation on her ability to stand. The tribunal preferred the evidence of the HCP that there were no difficulties within the remit of the Standing-sitting activity and awarded no points for it. The tribunal rejected the applicant's evidence of Continence problems, observing that there was no medical evidence to support such significant problems with continence. It noted the lack of any reported problems with continence in the evidence of Dr S... and Dr W... It noted that the applicant reported to the HCP that no pads were worn and that she had no change of clothing with her at the examination. It therefore rejected the account of the applicant.

 

10. In the area of mental health, the tribunal indicated that insofar as there was a conflict of evidence, it preferred that of the HCP, being comprehensive and objective, and being obtained through a process of clinical examination, observation and history directed specifically to the work capability assessment at the relevant date being considered by the tribunal. The tribunal noted that in oral evidence the applicant accepted that she had no difficulty in the areas of Awareness of hazards and Coping with change and that there was no medical evidence to support a conclusion that she experienced difficulties in these areas. The tribunal considered each of the remaining disputed mental activities in turn and decided on the basis of the evidence of the HCP that no points were warranted.

 

Assessment

 

11. An appeal lies to a Commissioner from any decision of an appeal tribunal on the ground that the decision of the tribunal was erroneous in point of law. However, the party who wishes to bring an appeal must first obtain leave to appeal.

 

Leave to appeal is a filter mechanism. It ensures that only applicants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner.

 

12. An error of law might be that the appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that the appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach.

 

13. The grounds submitted on behalf of the applicant relate to the physical activities. It is submitted that the tribunal has erred by accepting flawed evidence from the HCP. In particular, under "Behaviour Observed During Assessment" on page 5, the HCP records that "Client was able to sit on a chair with a back for 30 minutes", while in the next sentence saying that "The client rose multiple times from sitting in an upright chair (no chair arms) without physical assistance from another person". The applicant submits that the examination time in total was 36 minutes and that it was not possible that the applicant had sat continuously for 30 minutes.

 

14. The activity in question at the date of decision read as follows:

 

2. Standing and sitting. (a) Cannot move between one

seated position and another

seated position located next to

one another without receiving

physical assistance from another

person. 15

 

(b) Cannot, for the majority of the

time, remain at a work station,

either—

 

(i) standing unassisted by
another person (even if free
to move around), or

 

(ii) sitting (even in an adjustable
chair) or

 

(iii) a combination of (i) and (ii).

 

for more than 30 minutes, before

needing to move away in order to

avoid significant discomfort or

exhaustion. 9

 

(c) Cannot, for the majority of the

time, remain at a work station,

either—

 

(i) standing unassisted by
another person (even if free

to move around), or

 

(ii) sitting (even in an
adjustable chair), or

 

(iii) a combination of (i)
and (ii).

 

for more than an hour before

needing to move away in order
to avoid significant discomfort
or exhaustion. 6

 

(d) None of the above apply. 0

 

15. From 28 January 2013, the activity that must be assessed for the purpose of descriptors 2(b) and 2(c) is whether the applicant can remain at a work station either standing, sitting or alternating between standing and sitting. Therefore the question of how long the applicant could sit is not decisive in itself. The evidence of the HCP and of Dr W... was that there was no relevant limitation in her ability to stand. While the HCP has stated an observation that the applicant was able to sit on a chair with a back for 30 minutes, I accept that this cannot have realistically been 30 minutes of unbroken sitting. I grant leave to appeal on this ground.

 

16. However, the question before me is whether the tribunal has materially erred in law. A claimant will not score points under the activity of Standing-sitting for an inability either to sit for the relevant period without more or stand for the relevant period without more. If she cannot sit, but can stand, no points can be awarded. As the evidence did not indicate a problem with the aspect of standing, the tribunal would have been entitled to assess the activity as it did. Therefore, I see no merit in this ground.

 

17. In relation to descriptor 2(a), it is submitted that the applicant was not sufficiently examined. Nevertheless, the applicant was observed rising from a chair with no arms with no evident difficulty. This observation is relevant to the aspect of moving from one seated position to another. The tribunal was entitled to find, despite claimed left leg weakness, that the applicant could move from one seated position to another without difficulty. I see no merit in this ground.

 

18. The applicant submits that the tribunal was not entitled to rely on the evidence of the HCP to justify disregarding the claimant's evidence "and the evidence of both Dr S... and Dr W....". The issue is more nuanced than this submission suggests. There were areas where the evidence of all contributors was consistent, and some where inconsistent. However, the weight to be given to evidence is a matter for the tribunal. The tribunal preferred the evidence of the HCP, where the evidence otherwise conflicted, and made the decision to prefer it on rational grounds. I see no merit in this ground.

 

19. The applicant submits that a reference to visiting her son at the weekend "where she sat for a couple of hours" is lacking and insufficient to resolve any conflict of fact or opinion. That is undoubtedly correct. However, this was an extract from a broader descriptive passage in the statement of reasons of the applicant's "typical day". The decision was not based on this evidence alone. The tribunal had sufficient evidence from all the other sources to determine the issue before it on whether the applicant should be awarded points for Standing-sitting. I see no merit in this ground.

 

20. Finally, the applicant submits that the tribunal did not adequately address the evidence of incontinence, as "no examination was carried out for incontinence". Despite the lack of a physical examination for continence, the tribunal considered the lack of any mention of continence in the evidence from either of the applicant's doctors to be significant. The tribunal observed that the HCP noted that there had been no continence adviser referral. Although there was no examination carried out, the HCP ascertained that the applicant did not wear pads, and was not carrying a change of clothes (despite being away from her home and in an environment where the location of toilets would be unfamiliar). These factors were evidence from which it could be inferred that the applicant did not consider herself to be at risk of any loss of bladder control. I consider that the tribunal was entitled to determine this aspect as it did and that there is no merit in this ground.

 

21. For these reasons, having granted leave, I disallow the appeal.

 

 

(signed): O Stockman

 

Commissioner

 

 

 

16 March 2016