Northern Ireland - Social Security and Child Support Commissioners' Decisions

CP-v-Department for Social Development (ESA) [2016] NI Com4

Decision No:  C13/15-16(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 27 June 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 27 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 31 May 2013, which decided that:

 

(i)          grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 20 February 2012; and

 

(ii)        the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 31 May 2013.

 

5.     The appeal was received in the Department on 13 June 2013.  On 25 July 2013 the decision dated 31 May 2013 was looked at again but was not changed.

 

6.     The substantive appeal tribunal hearing took place on 27 June 2014.  The appellant was present and was accompanied by her daughter.  There was a Departmental Presenting Officer present.  The appeal was disallowed and the appeal tribunal confirmed the decision dated 31 May 2013.  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.

 

7.     On 28 November 2014 correspondence, which was signed by the appellant and a representative was received in The Appeals Service (TAS).  On 22 December 2014 the Legally Qualified Panel Member (LQPM) directed that the appellant’s representative should be asked to clarify whether she was applying for the decision of the appeal tribunal to be set aside or was making an application for leave to appeal to the Social Security Commissioner.  Further correspondence was forwarded to the appellant's representative on 6 January 2015.  There was no reply to that correspondence and on 6 February 2015 the LQPM directed that the earlier correspondence, should be treated as an application for leave to appeal to the Social Security Commissioner.  On 17 February 2015 the application for leave to appeal was refused by the LQPM.

 

         Proceedings before the Social Security Commissioner

 

8.     On 6 March 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioner (OSSC).  On 15 April observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 29 April 2015.  In these observations, Mr Collins, for DMS, supported the application on one of the grounds cited by the appellant.  The written observations were shared with the appellant and her representative on 29 April 2015.

 

9.     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 whether the statement of reasons for the appeals tribunal’s decision was adequate to explain its conclusions on certain of the issues arising in the appeal.

 

         Errors of law

 

10.   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?

 

11.   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

 

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

 

‘… it is argued that (the claimant) told the tribunal that when she had diverticulitis she soiled when it flared up but the tribunal did not explore such issues as the frequency and intensity of the flare-ups.  Consequently the tribunal failed in its inquisitorial role, did not establish sufficient findings of fact and provided an inadequate statement of reasons.

 

In her questionnaire (page 12, tab no. 2 in the Department’s submission) (the claimant) stated she has to wash or change her clothes because of difficulty controlling her bowels but only if she could not reach a toilet quickly.  At the examination the HCP recorded her diverticular disease flares up for 1-2 days every 3 months and she would have faecal urgency but that no soiling episodes were reported.  (See tab no. 4, page 3).  In her letter of appeal and supporting letter from her children it is stated by (the claimant) that her diverticular disease flares up every couple of months but apart from this she has trouble on a weekly basis and on occasions she does not make it to the bathroom before soiling.  It is confirmed by her children that there are times when she is unable to make it to the toilet and she is too embarrassed to go to see the doctor.

 

The record of proceedings from the tribunal on 27 June 2014 states:-

 

“Question: Diverticulitis?

Answer: I’m trying green tea.

 

Question: Do you soil?

Answer: Yes when it flares.  Just the same today.  One day last week I just made it in time from the bedroom to the bathroom.”

 

In its reasons the tribunal has this to say about (the claimant’s) diverticulitis and continence problems:-

 

“In her appeal letter she refers to her Diverticular Disease flaring up every couple of months and that she has weekly problems with her bowels in not making it to the toilet on occasion.”

 

In the remainder of the tribunal’s reasons there is no specific reference to continence or to the relevant disputed Activity – number 9.  Given that there is some contradiction between the above evidence – for example no evidence of soiling recorded by the HCP but weekly problems with some soiling claimed by (the claimant) I would submit there was an onus on the tribunal to explore further this evidence.  I would also submit that the tribunal should have specifically made conclusions regarding loss of control in its reasons.  Reading the tribunal’s reasons as a whole it refers to lack of consistency in (the claimant’s) evidence but refers specifically to mobilising, sitting, her ability to get about and to carry out tasks.  It may well be that the tribunal did not believe (the claimant’s) claims regarding her bowel problems or did not believe they were sufficient to satisfy any of the descriptors but this is not explicitly stated.

 

Consequently I would agree that the tribunal erred by not fully exercising its inquisitorial function regarding (the claimant’s) problems arising from diverticulitis and by inadequate reasoning regarding the relevant disputed descriptor.  I would therefore agree that there is an error in law arising from (the claimant’s) second ground of appeal.’

 

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

 

14.   The statement of reasons for the appeal tribunal’s decision is reasonably detailed and has been prepared with attention to the issues arising in the appeal.  Nonetheless the greater part of the statement of reasons is taken up with a summary of the evidence which was before the appeal tribunal.

 

15.   The final three paragraphs of the statement of reasons set out the appeal tribunal’s analysis of the issues arising in the appeal.  As was noted by Mr Collins, the appeal tribunal has found that there are inconsistencies in the appellant's evidence but has equated that inconsistency to activities such as mobilising, sitting and completion of tasks.  The further analysis of the evidence which had been provided by the appellant's general practitioner (GP), and in the report of the examination conducted by the Healthcare Professional, relates, once again, to a variety of different activities.  There is no specific analysis, however, in relation to the potential applicability of Activity 9 in Part 1 of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.  The evidence which was before the appeal tribunal was sufficient to mandate an exploration as to whether Activity 9 did apply.  More significantly, the appeal tribunal, if it had concluded, on the basis of an analysis of the evidence which was before it, that Activity 9 did not apply, was obliged to provide reasons which were adequate to explain its decision in that regard.

 

16.   Having found, for the reasons which are set out above, that the decision of the appeal tribunal is in error of law, I do not have to explore, in detail, the appellant's further ground for appealing to the Social Security Commissioner.  I would note, however, that for the reasons which have been set out by Mr Collins in his written observations on the application for leave to appeal, I would not have found the decision of the appeal tribunal to be an error of law on the first submitted ground.

Disposal

 

17.   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.

 

18.   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 31 May 2013, which decided that (a) grounds existed to supersede an earlier decision of the Department and which had awarded an entitlement to ESA, from and including 20 February 2012; and (b) the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 31 May 2013;

 

(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