Northern Ireland - Social Security and Child Support Commissioners' Decisions

EJ-v-Department for Social Development (ESA) [2016] NI Com 3

Decision No: C12/15-16(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 25 June 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. The decision of the appeal tribunal dated 25 June 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 8 October 2012, which decided that:

 

(i)         grounds existed to supersede an earlier decision of the Department, dated 9 November 2011, which had awarded an entitlement to ESA, from and including 2 December 2011; and

 

(ii)        the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 8 October 2012.

5. The appeal was received in the Department on 12 October 2012. On 8 May 2013 the decision dated 8 October 2012 was looked at again but was not changed.

 

6. The appeal was first listed for oral hearing on 11 March 2014. The appeal was adjourned in order that the appeal tribunal might have access to the report of the examination conducted by a Healthcare Professional (HCP) in connection with a previous assessment and medical evidence in connection with an award of disability living allowance (DLA).

 

7. A further submission was provided by the Department on 22 May 2014. In this submission the Department indicated that in light of additional evidence which had been provided by the appellant, in the form of evidence from her general practitioner (GP), the Department had reconsidered the decision dated 8 October 2012 but had not changed this decision. The Department added, however, that the appellant had:

 

'... provided evidence of deterioration in health or any new incapacity, since the date of the decision under appeal. The Department will be forwarding (the claimant) for a new Work Capability Assessment to consider her limitations. A further determination may then be made on the outcome of this new assessment. This has no bearing on the appeal at hand.'

 

8. A further submission was provided by the Department on 1 June 2014. In this submission the Department attached a copy of the evidence which had been used in connection with an award of DLA and a copy of a report of an examination conducted by a HCP on 19 October 2011.

 

9. The substantive appeal tribunal hearing took place on 25 June 2014. The appellant was present and was represented. There was a Departmental Presenting Officer present. The appeal was disallowed and the appeal tribunal confirmed the decision dated 8 October 2012. The appeal tribunal did apply certain of the descriptors and activities in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, which the decision-maker had not applied. The application of these descriptors meant that the appellant attracted a score of 12 points in connection with the work capability assessment. That score was insufficient, though, for the appeal tribunal to make a determination that the appellant had limited capability for work - Regulation 19(3) of the Employment and Support Allowance Regulations (Northern Ireland), as amended.

 

10. On 18 November 2014 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service (TAS) from Mrs Carty of the Law Centre (Northern Ireland), now representing the appellant.

 

11. On 26 November 2014 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

 

Proceedings before the Social Security Commissioner

 

12. On 27 February 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners (OSSC). On 17 April 2015 observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 12 May 2015. In these observations, Mr Collins, for DMS, supported the application on the grounds cited by the appellant. The written observations were shared with the appellant and her representative on 12 May 2015. Correspondence in reply was received from Mrs Carty on 20 May 2015

 

13. On 28 September 2015 I granted leave to appeal. When granting leave to appeal I gave, as a reason, that an arguable issue arose as to the manner in which the appeal tribunal addressed the potential applicability of Activities 15 and 16 in Schedule 2 to the Employment and Support Alliance Regulations (Norther in Ireland) 2008, as amended.

 

Errors of law

 

14. 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?

 

15. 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

 

16. In his written observations on the application for leave to appeal Mr Collins has made the following submission:

 

'... Mrs Carty argues that the tribunal had before it evidence relating to previous ESA and DLA awards and it awarded points which reflected the previous awards other than in the area of Activity 16 which relates to coping with social engagement. Mrs Carty states that this evidence confirms (the claimant's) mental health problems and the most recent ESA report was carried out by a nurse without any stated experience of mental health problems and makes no reference to the earlier ESA report which was completed by a doctor. On this basis it is stated that (the claimant) is unable to understand why the tribunal failed to make an award under Activity 16(c) having adopted the findings of the most recent report with regard to mobilising and standing and sitting.

 

In its reasons the tribunal states:-

 

"...we also noted that there was a previous assessment and we considered the Appellant's award of DLA.

 

In dealing with the latter first we had noted this is a separate test and DLA had been awarded some time ago. The DLA test requires different standards and criteria. This ESA test is a different test and has more components to it. It is therefore free-standing. DLA awards can be indicative of some problems and we accepted that there was corroboration between the DLA award and some of the complaints made by the Appellant today."

 

From the above, I would submit that the tribunal clearly explained it had considered the DLA report and in its opinion the most significant assistance it provided was in corroborating (the claimant's) incapacities. However it is accepted case law - in both DLA and I would submit ESA - that it is the needs arising which the tribunal has to consider. (See paragraph 11 of unreported Northern Ireland decision C19/99(DLA)). In the present case the tribunal has explained that the DLA test requires different standards and criteria and I would therefore submit that the DLA evidence in itself, as the tribunal has effectively explained, is not necessarily conclusive for the award of points in relation to ESA.

 

I would also submit that it is established case law that it is not necessary for a specialist to carry out the medical examination. This was the position in relation to Incapacity Benefit, the precursor of ESA - see paragraphs 13 and 14 of reported Northern Ireland decision R2/04(IB)(T). I should also state that I can see nothing wrong in the HCP on 04 September 2012 not referring to the previous examination - there is nothing to suggest it was with the papers before her on that date. There was no issue regarding a previous report raised by (the claimant) in her initial appeal letter, and I would submit that there was therefore no onus on the decision maker to consider it.

 

That being said the tribunal has recorded on page 4 of its record of proceedings that (the claimant's) depression got worse, the dosage of her medicine had been upped and she had now been referred for counselling. In its reasons the tribunal concluded:-

 

"We are satisfied that all of the Reports before us today would retain full weight. There were no objective findings, on our part that would allow us to unduly shift the burden of weight attracted by each of the Reports. We are not satisfied that there were any difficulties or inconsistencies in either Report that would have encouraged us to change the Decision made."

 

The tribunal then went on to conclude:-

 

"In regard to her mental condition, generally, we were satisfied that there was no increase of her medication and she was not on any second line medication. The MQM confirmed that in all probability the level of medication provided was indicative of someone who has their condition under good control and is therefore reasonably expected to function normally.

 

There was no specialist input and it would appear that there is no change in her condition from the previous Report."

 

In the thirteenth paragraph of its reasons the tribunal went on to conclude that based on the above reasoning and information regarding her typical day it was happy to conclude that points were appropriate for Mobility and Standing and sitting.

 

Given that the tribunal concluded all of the reports before it - which included the ESA report dated 19 October 2011 - would retain their full weight and also concluded her condition had not changed, I would submit that it appears contradictory that the tribunal awarded the same points in two of the areas identified in the earlier report but not in the other. Page 2 of the record of proceedings indicates that the LQM directed (the claimant's) attention to the disputed activities and explained that the tribunal would be focussing on these activities and descriptors to establish if any points were applicable. Activity 16 is clearly one of the disputed activities included as part of the Department's submission. However apart from the fairly generalised conclusions to which I have referred above, I can find nothing to suggest that the tribunal focussed on this activity or asked particular questions to establish what sort of difficulties (the claimant) did or didn't have with social engagement. It would be my view that the tribunal arguably reached a fairly generalised conclusion regarding the mental health descriptors based on its view that (the claimant's) level of medication precluded the possibility that any of them could apply.

 

On the above basis I would submit that the tribunal did not properly fulfil its inquisitorial function and as a result reached conclusions which were inadequate. On this basis I would agree with Mrs Carty that the tribunal erred in law regarding how it dealt with the possible applicability of Activity 16. Consequently I would support her second ground of appeal.

 

For completion I would point out that in her application dated 18 November 2014 Mrs Carty also raised the issue of the tribunal not adequately addressing Activity 15. In the record of proceedings from the hearing on 25 June 2014 it is clear that (the claimant's) representative at the hearing stated that Activity 15 (Getting about) was at issue. It would be my view that my comments above in relation to how the tribunal dealt with Activity 16 apply equally to Activity 15.'

 

17. The 'application dated 18 November 2014' which is referred to by Mr Collins is the original application for leave to appeal which was before the LQPM.

 

18. I accept the analysis which has been set out by Mr Collins and, for the reasons which have been set out by him in comprehensive detail, agree that the decision of the appeal tribunal is in error of law.

 

Disposal

 

19. The decision of the appeal tribunal dated 6 May 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.

 

20. 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 8 October 2012, which decided that (a) grounds existed to supersede an earlier decision of the Department dated 9 November 2011 which had awarded an entitlement to ESA, from and including 2 December 2011 ; and (b) the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 8 October 2012;

 

(ii)        the Department is directed to provide details of any subsequent decision-making with respect to ESA and the outcome of any such decision-making to the appeal tribunal to which the appeal is being referred. The appeal tribunal is directed to take any evidence of subsequent claims to ESA 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

 

 

 

7 January 2016