Northern Ireland - Social Security and Child Support Commissioners' Decisions

KMcC-v-Department for Social Development (ESA) [2016] NICom 46

 

Decision No:  C19/14-15(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 11 December 2013

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.         The decision of the appeal tribunal dated 11 December 2013 is in error of law.  The error of law will be explained in greater detail below.

 

2.         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.

 

3.         I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made further findings of fact.  The fresh findings in fact are outlined below.

 

4.         My substituted decision is that:

 

(i)         grounds existed to supersede an earlier decision of the Department, dated 1 July 2011 which had awarded an entitlement to employment and support allowance (ESA), from and including 13 June 2011; and

 

(ii)        the appellant has limited capability for work and is, therefore, entitled to ESA from 22 January 2012 to 20 December 2013.

 

Background

 

5.         The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 22 January 2012, which decided that:

 

(i)            grounds existed to supersede an earlier decision of the Department, dated 1 July 2011, which had awarded an entitlement to ESA, from and including 13 June 2011; and

 

(ii)          the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 22 January 2012.

 

6.         The appeal was received in the Department on 21 February 2012. On 29 October 2012 the decision dated 22 January 2012 was looked at again but was not changed.

 

7.         The appeal was first listed for hearing on 21 January 2013. In the record of proceedings for that hearing, the following is noted:

 

‘Hearing Clerk:         (The appellant) was asked by letter sent to her on 27/11/2013 to indicate by return of appropriate form whether she sought oral hearing of her appeal.  No form was returned and the appeal has been listed for a paper hearing in default of her reply.

 

(LQPM):                     Although the report from the Health Care professional discloses no referral to psychiatry, this lady has been attending a counsellor and psychiatric nurse for her mental health and she apparently sees her GP regularly.  The reported dosages of anti-depressant prescribed are of variance. The report from … Health Centre of Tab 3 has not been completed or signed.

 

                                     It would be helpful if (the appellant) could come to oral hearing of her appeal although she may not feel able to do that. I would adjourn this case and seek further medical records from her GP.

 

(MQPM):                    I agree.’

 

8.         The appeal was adjourned and the following reasons were given for the adjournment:

 

‘1- Subject to an appropriate form of consent being obtained, the Appeals Service is to request the appellant’s medical records on loan from … Health Centre for use at an oral hearing to be arranged.

 

2-The ESA 113 report of Tab 3 is incomplete. ESA Branch should re-issue ESA 113 to … Health Centre and forward any reply to the Appeals Service.’

 

9.         A further submission, prepared by an officer of the Department, and dated 14 May 2013 was subsequently received in the Appeals Service (TAS).  In that submission the Departmental officer indicated that following receipt of the evidence pursuant to the adjournment the decision dated 22 January 2012 had been looked at again but could not be changed.

 

10.       The appeal was re-listed for hearing on 20 June 2013. The appellant was not in attendance. A Departmental Presenting Officer did attend. Once again the appeal was adjourned. The reasons for the adjournment were that the appeal tribunal could not be satisfied that notification of the date, time and venue of the hearing had been received by the appellant due to a change of address and the requested medical records had not been received from the appellant’s General Practitioner (GP).  

 

11.       The substantive appeal tribunal hearing took place on 11 December 2013.  The appellant was not present.  The appeal tribunal noted correspondence from the appellant’s GP indicating that the appellant was not fit to attend the oral hearing due to her anxiety and low mood. The appeal tribunal decided to proceed in the appellant’s absence. There was no Departmental Presenting Officer present.

 

12.       The appeal was disallowed and the appeal tribunal confirmed the decision dated 22 January 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, (the 2008 Regulations), 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 2008 Regulations.

 

13.       On 12 June 2014 an application for leave to appeal to the Social Security Commissioner was received in TAS.  The application was prepared by Ms Loughrey of the Law Centre (Northern Ireland). On 2 July 2014 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

 




Proceedings before the Social Security Commissioner

 

14.       On 29 July 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners (OSSC).  On 15 April observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 2 September 2014. In these observations, Mr Collins, for DMS, supported the application on one of the grounds submitted on behalf of the appellant.  The written observations were shared with the appellant and Ms Loughrey on 5 September 2014.  On 10 September 2014 written observations in reply were received from Ms Loughrey which were shared with Mr Collins on 24 September 2014.

 

15.       On 2 December 2014 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 applied Activity 17 in Schedule 2 to the 2008 Regulations.  On the same date I directed an oral hearing of the appeal.  At the oral hearing the appellant was represented by Ms Loughrey and the Department by Mr Collins. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

 

Errors of law

 

16.       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?

 

17.       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.”

 

The relevant legislative background

 

18.       Section 1(1)-(4) of the Welfare Reform Act (Northern Ireland) 2007 provides that:

 

‘1(1) An allowance, to be known as an employment and support allowance, shall be payable in accordance with the provisions of this Part.

 

(2) Subject to the provisions of this Part, a claimant is entitled to an employment and support allowance if he satisfies the basic conditions and either-

 

(a)  the first and the second conditions set out in Part 1 of Schedule 1 (conditions relating to national insurance) or the third condition set out in that Part of that Schedule (condition relating to youth), or

 

(b)  the conditions set out in Part 2 of that Schedule (conditions relating to financial position).

 

(3) The basic conditions are that the claimant-

 

(a)  has limited capability for work,

 

(b)  is at least 16 years old,

 

(c)  has not reached pensionable age,

 

(d)  is in Northern Ireland,

 

(e)  is not entitled to income support, and

 

(f)   is not entitled to a jobseeker's allowance (and is not a member of a couple who are entitled to a joint-claim jobseeker's allowance).

 

(4) For the purposes of this Part, a person has limited capability for work if-

 

(a)  his capability for work is limited by his physical or mental condition, and

 

(b)  the limitation is such that it is not reasonable to require him to work.’

 

19.       Section 8(1) of the Welfare Reform Act (Northern Ireland) 2007 provides that:

 

‘8(1) For the purposes of this Part, whether a person's capability for work is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to work shall be determined in accordance with regulations.’

 

20.       Regulation 19(1)-(6) of the 2008 Regulations provides that:

 

‘19(1) For the purposes of Part 1 of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.

 

(2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

 

(3) Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against any descriptor listed in that Schedule, the claimant obtains a total score of at least-

 

(a)  15 points whether singly or by a combination of descriptors specified in Part 1 of that Schedule;

 

(b)  15 points whether singly or by a combination of descriptors specified in Part 2 of that Schedule; or

 

(c)  15 points by a combination of descriptors specified in Parts 1 and 2 of that Schedule.

 

(4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.

 

(5) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises from-

 

(a)  a specific bodily disease or disablement;

 

(b)  a specific mental illness or disablement; or

 

(c)  as a direct result of treatment provided by a registered medical practitioner for such a disease, illness or disablement.

 

(6) Where more than one descriptor specified for an activity apply to a claimant, only the descriptor with the highest score in respect of each activity which applies is to be counted.’

 

 

21.       Activity 17 in Schedule 2 to the 2008 Regulations is in the following terms:

 

            17. Appropriateness of behaviour    (a)     Has, on a daily basis          15

            with other people, due to cognitive            uncontrollable

            cognitive impairment or mental                  episodes of aggressive

            disorder                                                           or or disinhibited

                                                                                     behaviour that would

                                                                                     be unreasonable in

                                                                                     any workplace

 

                                                                            (b)     Frequently has                    15

                                                                                     uncontrollable episodes

                                                                                     of aggressive or

                                                                                     disinhibited behaviour

                                                                                     that would be

                                                                                     unreasonable in any

                                                                                     workplace.

 

                                                                            (c)     Occasionally has                9

                                                                                     uncontrollable episodes

                                                                                     of aggressive or

                                                                                     disinhibited behaviour

                                                                                     that would be

                                                                                     unreasonable in any

                                                                                     workplace.

 

                                                                            (d)     None of the above              0

                                                                                     apply.

 

 

The submissions of the parties

 

22.       In the Case Summary prepared for the oral hearing of the appeal, Ms Loughrey made the following submission on behalf of the appellant:

 

‘Contained in its reasons to explain why it decided that Activity 17 was not relevant to the assessment of (the appellant’s) limited capability for work, the Tribunal recorded,

 

“the appellant in her self-assessment indicated that every day she behaved in a way which upset others.  She went on to indicate that other people were upset to see her depressed and that she shouted at them and her children were upset and she cried.  Whilst the Tribunal accepted that the appellant would undoubtedly be upset and emotional on occasions, there was no evidence to suggest that she had “uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any work place” within the remit of the descriptors”.

 

On page 17 of her questionnaire dated 19 September 2011, when asked

 

“How often do you behave in a way which upsets other people,” (the appellant) confirmed that this happened every day.

 

She then went on to explain,

 

“Because I am anxious, nervous and depressed every day and it upsets my children and other people as I can shout at them and then it upsets them when I cry”.

 

While our instructions are that on a daily basis, (the appellant’s)  behaviour upset other people in the way described on her ESA50 questionnaire, we respectfully submit that having accepted that she would undoubtedly be upset and emotional on occasion, it is unclear why the Tribunal went on to conclude that,

 

“…there was no evidence to suggest that she had “uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace” within the remit of the descriptors”.

 

By this, the fact that the Tribunal were aware that (the appellant’s) behaviour manifested itself in her shouting at other people, being behaviour,

 

“That would be unreasonable in any work place”.

  

She was entitled to know why the Tribunal did not view her tendency to shout as behaviour which came within the remit of the descriptors. 

 

In GB decision KE v Secretary of State for Work and Pensions (ESA) [2013]Appeal No: CE/591/2013 (copy attached), Judge Williams was considering a case in which  the appellant was asked to leave the local Jobs and Benefits Office after outbursts of shouting.  At paragraph 18 of that decision, he confirmed that,  

 

“18      The appellant is entitled to those 9 points on this evidence.  What other explanation is there for him being required to leave a Job Centre? That action occurred because of what the appellant said, rather than did.  But that is a classic form of disinhibited behavior.  Does a Job Centre apply a lower test than an employer would be expected to apply?  Nor, on the available evidence, was that an isolated occurrence.  And, as I have emphasized above, there is no evidence from the medical examiner to contradict this”. 

 

Similarly, when dealing with (the appellant’s) case, the Tribunal were aware that because of anxiety, nervousness and depression, she got upset on a daily basis and that she shouted at people.  When this happened, her children became upset and she cried.

 

Just as Judge Williams in the aforementioned decision expressed the view that being asked to leave the Jobs and Benefits Office was concerned more with what the appellant said rather than what he had done, we respectfully submit that while on the evidence we cannot know what (the appellant) said during outbursts, we do know that her behaviour at these times was sufficiently inappropriate as to upset people around her including her children. 

 

Further, in the same way as Judge Williams posed the question:

 

“Does a Job Centre apply a lower test than an employer would be expected to apply?”

 

We respectfully submit that a comparable question arises in the present case.  In other words, we would ask the Commissioner to consider the question,

 

“Did (the appellant’s) behaviour towards people around her represent a lower standard that an employer would be expected to apply?”

 

We respectfully submit that the standard of behaviour which she would be expected to adopt towards colleagues in the work place would be of a higher standard than that required of behaviour with other people including her children.  As such, if considered to be inappropriate in a less formal setting than a work place, it would follow that when untoward events and stresses associated with many (if not all) work places is factored in, her outbursts of shouting would not be reasonable behaviour in a work setting.  As such, on the basis of her own evidence, (the appellant) could have potentially scored 9 points by satisfaction of descriptor 17(c).

 

On this basis, rather than concurring with the Tribunal which found that because of her behaviour she would,

 

“…Undoubtedly be upset and emotional on occasions…”,

 

We would ask the Commissioner to decide if, on the facts, (the appellant’s) daily outbursts of shouting could be treated as a classic example of disinhibited behaviour in the same way that Judge Williams viewed the behaviour as manifested by the appellant in decision KE v Secretary of State for Work and Pensions (ESA).’

 

23.       In his Case Summary, Mr Collins made the following submission:

 

‘In support of this contention it is argued that it is unclear why the tribunal which its reasons indicate accepted that (the appellant) would be upset and emotional on occasion did not view her tendency to shout at other people as evidence of behaviour which would be sufficient to attract points under descriptor 17(c).

 

In her questionnaire (the appellant) ticked that she behaved in a way which upset other people every day and explained that due to her depression she can shout at other people and this upsets her children and other people.  The tribunal in the first paragraph of page 4 of its reasons accepted that (the appellant) would be upset and emotional on occasions but that this behaviour would not fall within the remit of the descriptors.  There may clearly be situations where someone shouts but is not necessarily exhibiting uncontrollable, aggressive or disinhibited behaviour but without addressing such issues as the nature of her behaviour it is unclear how the tribunal reached its decision.  (The appellant’s) contention that she behaved in a way which upset other people every day arguably meets either descriptors 17(b) or (c) but the tribunal has not clearly indicated why her shouting could not be construed as uncontrollable or aggressive.  While there is evidence within the Department’s submission that she has no history of threatening or violent behaviour (form ESA113) the tribunal has made no reference to this evidence but instead it has appeared to characterise any episodes as the result of (the appellant) being tired and emotional.  On this basis I would submit that the tribunal’s reasoning is inadequate regarding activity 17.’

 

Analysis

 

24.       I would note that the statement of reasons for the appeal tribunal’s decision has been prepared with care and attention to detail and the appeal tribunal has been forensic in its analysis of the issues which arose in the appeal.  Nonetheless, I am in agreement with both representatives that the appeal tribunal’s approach to the potential applicability of Activity 17 was problematic sufficient to render its decision as being in error of law.

 

25.       I accept that the evidence which was before the appeal tribunal was limited. It did not have the advantage of taking oral evidence from the appellant herself.  The appellant was unable to attend any of the oral hearings of her appeal due to her medical condition. In the file of papers which is before me there is a copy of correspondence from the appellant’s GP in which he/she stated:

 

‘(The appellant) has chronic anxiety and depression.  She is under review of the mental health and has received trauma counselling. She is not fit to attend a hearing because of her anxiety and low mood.’

 

26.       I directed an oral hearing of the appeal before me because I wished to take oral evidence from the appellant in connection with the potential application of Activity 17.  As it turned out, the appellant was unable to attend that oral hearing and Ms Loughrey gave details of the extent to which the appellant’s medical condition impinged on her ability to undertake unfamiliar and stressful activities such as participation in an oral hearing.

 

27.       Accordingly, the appeal tribunal was limited to the appellant’s evidence as contained in the appeal submission.  As was noted above, in a ‘limited capability for work questionnaire’ which was signed and dated by the appellant on 19 September 2011, the appellant was asked whether her behaviour upset other people.  This was in a section of the questionnaire headed ‘Behaving appropriately with other people’.  The evidence which is sought in this section of the form is clearly aimed at assisting a decision-maker to determine whether Activity 17 of Schedule 2 to the 2008 Regulations applies.

 

28.       The appellant was asked to tick a box if her behaviour did not upset other people.  She did not tick that box. What is to be inferred from that is that the appellant was stating that her behaviour did upset other people.  The appellant was then asked to indicate how often she behaved in a way which upset other people.  In this section she was advised, by way of an example, that ‘… this might be because you are aggressive or act in an unusual way.’  The appellant responded by ticking a box to indicate that she behaved in this way every day. The appellant was then given the opportunity to expand on why her behaviour upset other people and how often this happened. She stated:

 

‘Because I’m anxious, nervous and depressed every day and it upsets my children and other people as I shout at them and then it upsets them when I cry.’

 

29.       It seems to me that what can be derived from that evidence is that (i) the appellant is stating that she is anxious, nervous and depressed every day (ii) her children and other people are upset as she shouts at them and (iii) her children and others are upset when she cries.

 

30.       The appeal tribunal also had before it a copy of a Form ‘ESA113’ completed by the appellant’s GP on 7 May 2013.  The appellant’s GP was asked the question ‘Does the patient have a history of threatening or violent behaviour?’ The GP ticked the box to indicate ‘no’.

              

31.       The appeal tribunal also had a copy of a report of a medical examination conducted by a healthcare professional on 30 December 2011.

 

32.       In connection with Activity 17, the appeal tribunal arrived at the following conclusions:

 

‘With regard to appropriateness of behaviour the appellant in her self-assessment indicated that every day she behaved in a way which upset others.  She went on to indicate that other people were upset to see her depressed and that she shouted at them and her children were upset and she cried.  Whilst the Tribunal accepted that the appellant would undoubtedly be upset and emotional on occasions, there was no evidence to suggest that she had “uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any work place” within the remit of the descriptors”.’

 

33.       The appeal tribunal’s reasoning is that it accepted that she would be upset and emotional on occasions and that her behaviour which upset others derived from her own upset and emotion.  The appeal tribunal reasoned that there was no evidence to suggest that the principal test in Activity 17, that is uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace, was satisfied.  As that principal test was not satisfied then the question of how often inappropriate behaviour occurred did not arise.  The appeal tribunal did not also look at the question as to whether such episodes would be unreasonable in the workplace.

 

34.       It seems to me, however, that there was no reason why the behaviour described by the appellant in the limited capability for work questionnaire could not amount to episodes of aggressive or disinhibited behaviour.  I say this because the appellant was positive in stating that her behaviour did upset others.  Further, in the relevant questionnaire she was given an example of what acting inappropriately or upsetting others with her behaviour might mean that was acting in an aggressive or unusual way.  Finally, the breakdown of the appellant’s narrative which expanded on her statement about daily upsetting behaviour is not quite as summarised by the appeal tribunal.  The key feature of that narrative is that her children and other people are upset as she shouts at them and it may have been the case that the appellant was describing what she was specifically guided to in the form, namely, aggressive or unusual behaviour.  With respect to the appeal tribunal it is difficult to bottom out how they limited the described behaviour to be the outcome of occasional upset and emotion. In my view, the analysis is too narrow and required to be expanded upon.

 

35.       I would note, at this stage, that although the response by the appellant’s GP that the appellant did not have a history of threatening or violent behaviour, this did not necessarily mean that she did not satisfy the descriptors associated with Activity 17.  It seems to me that there can be aggressive or disinhibited behaviour which could fall short of threatening or violent behaviour.  All would depend, however, on the individual circumstances of each case.  

 

36.       Ms Loughrey has asked that should I find that the decision of the appeal tribunal was in error of law, I should exercise my discretion under the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given after making further findings of fact.  As was noted above, it was for the purpose of the potential exercise of that discretion that an oral hearing of the appeal was directed.  I had hoped to be in a position to take oral evidence from the appellant.  It is clear that it will be very difficult for the appellant to attend an oral hearing either before an appeal tribunal or before a Social Security Commissioner.  That is confirmed by the correspondence to that effect from the appellant’s GP. It would, in my view, be grossly unfair to compel the appellant into that position. In those circumstances, I am left with the evidence which is contained within the paperwork which is before me.

 

37.       I am satisfied, on balance, that the episodes of behaviour described by the appellant in her responses in the limited capability for work questionnaire fall into the category of aggressive or disinhibited behaviour for the purposes of Activity 17 in Schedule 2 to the 2008 Regulations.  I am also satisfied, on balance, that on occasions at least, if not more frequently, the episodes are uncontrollable.  I make findings of fact in that respect.

 

38.       I am left, therefore, with the question as to whether such episodes of behaviour would be unreasonable in the workplace.  In that respect, I turn to the decision of Upper Tribunal Judge Williams in KE v Secretary of State for Work and Pensions (ESA) ([2013] UKUT 0370 (AAC) (‘KE’)).  I would emphasise that the decision in KE turned entirely on its own facts.  Indeed Upper Tribunal Judge Williams was also exercising his discretion to make the decision which the appeal tribunal ought to have been made having found that the decision of the tribunal was in error of law. He noted that there was evidence that the appellant in that case had been asked to leave his local Jobcentre having made accusations against service users. It was in that context that he concluded, in paragraph 18:

 

‘The appellant is entitled to those 9 points on this evidence.  What other explanation is there for him being required to leave a Job Centre?  That action occurred because of what the appellant said, rather than did. But that is a classic form of disinhibited behaviour.  Does a Job Centre apply a lower test than an employer would be expected to apply?  Nor, on the available evidence, was that an isolated occurrence.  And, as I have emphasized above, there is no evidence from the medical examiner to contradict this.’

 

39.       Turning as it does on its own facts the decision does not assist in the determination of the further factual issue which is before me.  That issue is whether the accepted occasional uncontrollable episodes of aggressive or disinhibited behaviour would be unreasonable in the workplace.  What the appellant has described, and what I have accepted, inter alia, is that her children and other people are upset as she shouts at them. Ms Loughrey has conceded that there is no evidence of what is being shouted by the appellant at her children and others.  It seems to me, however, that aggressive or disinhibited behaviour in the form of shouting which causes upset to those subject to it would be unreasonable in the workplace.  The appellant’s targets were not limited to her children but also included others.  I am satisfied, however, that the test of the reasonableness of the behaviour in the workplace is satisfied.  I would ask the parties to note, however, that as in KE, this case turns on its individual facts, and should not be taken as a precedent for other cases in which the descriptors in Activity 17 have the potential to apply.

 

40.       I have concluded, therefore, that descriptor (c) of Activity 17 applies. That descriptor attracts a score of 9 points, When added to the points awarded by the appeal tribunal for relevant descriptors in Activities 15 and 16, that score is sufficient for me to make a determination that the appellant has limited capability for work.  I would add that I have concluded that none of the Activities in Schedule 3 to the 2008 Regulations applies in the instant case.

 

41.       The appellant, accordingly, has an entitlement to ESA from 22 January 2012 which was the date of disallowance in the Departmental decision of 22 January 2012.  Following the oral hearing of the appeal, Mr Collins informed me that the appellant’s current claim was from 18 December 2013 with an assessment phase rate being paid from 21 December 2013 (taking three waiting days into account).  From 22 March 2014 the appellant was placed in the Support Group.  The end date for the award made pursuant to this appeal is, therefore, 20 December 2013.

 

42.       I have been able to determine this appeal on the basis of the submissions which were made in connection with Activity 17. Accordingly I have not been required to consider Ms Loughrey’s alternative argument in connection with Regulation 29 of the 2008 Regulations.

 

 

(signed) K Mullan

 

Chief Commissioner

 

 

 

2 August 2016