Northern Ireland - Social Security and Child Support Commissioners' Decisions

MA-v-Department for Social Development (ESA) [2016] NICom 6

Decision No: C11/14-15(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 18 March 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. This is a claimant's appeal from the decision of a tribunal sitting at Belfast on 18 March 2014. An oral hearing of the appeal has not been requested.

 

2. For the reasons I give below, I allow the appeal. I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998 and I refer the appeal to a newly constituted tribunal for determination.

 

REASONS

 

Background

 

3. The appellant claimed incapacity benefit (IB) from the Department for Social Development (the Department) from 24 April 2005 and was awarded IB. On 19 September 2012 the appellant 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 appellant was issued with and completed a Departmental questionnaire, form ESA50. She indicated that she had difficulties with certain activities due to fibromyalgia, an ulcer and a perforated eardrum which led to hearing problems. She was examined by a healthcare professional (HCP) on 13 November 2012, who prepared a report for the Department. The HCP was also told by the applicant that she suffered from eczema and anxiety and depression. On the basis of all the evidence, on 28 November 2012, the Department decided that the appellant did not satisfy the limited capability for work assessment (LCWA) and that her award of IB did not qualify for conversion into an award of ESA from 15 December 2012, resulting in an end to her entitlement. She appealed.

 

4. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 18 March 2014. The tribunal awarded 12 points on the LCWA, 6 points for Activity 1 ('Mobilising') and 6 points for Activity 7 ('Understanding Communication'). As this was below the threshold of points required to satisfy the LCWA, the tribunal disallowed the appeal. The appellant then requested a statement of reasons for the tribunal's decision, and this was issued on 3 September 2014. The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal. Leave to appeal was granted by a determination issued on 8 October 2014. The LQM has not indicated which of the applicant's grounds he accepted as raising an arguable case that the tribunal had erred in law. On 15 October 2014, the appellant made her appeal to a Social Security Commissioner.

 

Grounds

 

5. The appellant, represented by Ms Rogers of Law Centre (NI), submits that the tribunal has erred in law on the basis that:

 

(i)         it made irrational findings in relation to Activity 2;

(ii)        it failed to give adequate reasons for its decision on Activity 2;

(iii)       it failed to give adequate reasons for its decision on Activity 1.

 

6. The Department was directed to make observations on the appellant's grounds. Mr Collins of Decision Making Services (DMS) 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 appeal. In response to Mr Collins' submissions Ms Rogers maintained her first two grounds of appeal, but withdrew the third ground.

 

The tribunal's decision

 

7. The tribunal was advised by the appellant's representative that the disputed issues in the appeal were the activities of 'Mobilising', 'Standing and sitting', 'Understanding communication', 'Coping with change' and 'Getting about'. It was submitted by her representative that the appellant was examined by the HCP on a good day and may have had difficulty hearing the HCP's questions. The tribunal was advised that she had since been assessed for hearing aids bilaterally.

 

8. The tribunal heard oral evidence from the appellant. It took into account the level of pain relief medication taken by her, and lack of medication for mental health problems. It accepted that she would have limitations in terms of mobilising, awarding six points for this activity (Activity 1, descriptor 1(d)). On the basis of medical reports from 352 Healthcare, including an audiogram report, it accepted that she should be awarded six points for having some difficulty understanding a message from a stranger due to sensory impairment (Activity 7, descriptor 7(c)).

 

9. The tribunal assessed that the appellant was able to sit for at least 30 minutes, based upon its observations at hearing and on the HCP report - albeit accepting that the weight to be given to that aspect of the HCP report should be reduced due to inaccurate recording of time.

 

10. The tribunal stated that there was no clinical finding in any of the mental or physical activities that would lead it to "award any point scoring activity", referring driving, cooking and self-care at the toilet, and stated that the appellant has a social life of "a moderate degree".

 

Relevant legislation

 

11. ESA was established under the provisions of the Welfare Reform Act (NI) 2007 ("the 2007 Act"). The core rules of entitlement were set out at sections 1 and 8 of the 2007 Act. These provide for an allowance to be payable if the claimant satisfies the condition that he or she has limited capability for work (LCW). The Employment and Support Allowance Regulations (NI) 2008 ("the ESA Regulations") provide for a specific test of LCW. In particular, regulation 19(2) provides for a LCWA as 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 of the ESA Regulations, or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

 

12. One particular activity which is the focus of the submissions in the present case appears at paragraph 2 of Schedule 2 to the ESA Regulations. A second activity which I wished to address appears at paragraph 7 of Schedule 2. At the date of decision, the relevant activities read as follows:

 

SCHEDULE 2 Regulation 19(2) and (3)

Assessment of whether a claimant has limited capability for work

PART 1

 

PHYSICAL DISABILITIES

(1) (2) (3)

 

2. Standing and sitting. (a) Cannot move between one seated 15

position and another seated position

located next to one another without

receiving physical assistance from

another person.

 

(b) Cannot, for the majority of the time, 9

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),

for more than 30 minutes, before

needing to move away in order to avoid

significant discomfort or exhaustion.

 

(c) Cannot, for the majority of the time, 6

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),

for more than an hour before needing to

move away in order to avoid significant

discomfort or exhaustion.

 

(d) None of the above apply. 0

 

13. The "Standing and sitting" activity was, from 28 January 2013, amended by regulation 5 of the Employment and Support Allowance (Amendment) Regulations (NI) 2013 (SR 2013, No.2) (the 2013 Regulations). The amendment introduced a new sub-paragraph (iii) and had the effect that the relevant descriptor now reads:

 

(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.

 

14. Paragraph (c) of the activity was similarly amended to introduce a new sub-paragraph (iii).

 

7. Understanding communication by (a) Cannot understand a 15

both verbal means (such as hearing simple message due to

or lip reading) and non-verbal means sensory impairment,

(such as reading 16 point print),using such as the location of

any aid it is reasonable to expect them a fire escape.

to use, unaided by another person.

 

(b) Has significant 15

Difficulty understanding a

simple message from a

stranger due to sensory

impairment.

 

 

(c) Has some difficulty 6 understanding a simple message from a stranger

due to sensory impairment.

 

(d) None of the 0

above apply.

 

Submissions

 

15. The appellant submits that the tribunal has made an irrational finding in relation to Activity 2, 'Standing and Sitting'. This submission arises from the HCP's record of behaviour observed during assessment, namely,

 

"Sat for 40 minutes. Arose easily off the settee on several occasions and walked around room on several occasions and to front door. Stood for about 4 minutes without any problems".

 

16. It was submitted that this was inconsistent with the recorded interview and examination start time of 11.42am and end time of 12.20pm - a total of 38 minutes.

 

17. The tribunal in its statement of reasons states that:

 

"We were also satisfied that not only today did she manage to sit for a considerable period of time without any obvious discomfort she was also able to sit at least 30 minutes at the examination. We were unhappy with the accurate recording of time in the Examining Healthcare Professional's report. In fact the recording of time spent sitting and standing we felt was not as accurate as it should have been and steps should be taken by the Department to ensure that full accuracy is retained. Although this had a negative impact upon the full weight to be given to this report we were not satisfied that there were any other mistakes that would render the EHP's report invalid. It did assist us in making the appropriate points award as described above".

 

18. The appellant submits that it is difficult to see how the tribunal was able to make a finding that the appellant was able to sit for at least 30 minutes during the examination. She submits that the tribunal irrationally proceeded to use this finding to support its decision that none of the 'Standing or Sitting' descriptors in Activity 2(b) or 2(c) applied.

 

19. Mr Collins acknowledged that there was an inconsistency in the HCP's report. However, he submits that the tribunal was fully aware of the contradiction and explained that it detracted from the weight given to the HCP's report. He submitted that in concluding that the applicant was able to sit for 30 minutes, it had based its conclusions on aspects of the report other than the lengths of time that were erroneously recorded by the HCP.

 

20. The appellant further submits that the reasons for the tribunal's decision under Activity 2 are unclear. The tribunal found that the appellant was able to sit for at least 30 minutes. This would preclude an award of points under Activity 2(b). However, the appellant submits, it is unclear why she was not then awarded points under Activity 2(c).

 

21. Mr Collins responds by submitting that the tribunal stated, having awarded points for the activities of 'Mobilising' and 'Understanding communication', that "we could not find, on the evidence before us today, that she had any difficulties with any of the remaining mental or physical activities". He referred to the decision of the Northern Ireland Tribunal of Commissioners in R3/01(IB)(T) where it was said that "there is no universal rule that a tribunal has to give individual reasons for the selection of a particular descriptor". He submits that the tribunal's reasons are clear from the statement of reasons in conjunction with the score sheet.

 

22. Ms Rogers for the appellant responded, by referring to the appellant's action of rising on a few occasions in the course of the HCP examination. She submits that it is not clear how long the tribunal hearing - and therefore the tribunal's observation of the appellant sitting - lasted, and that it was not clear what evidence the tribunal had relied on. Ms Rogers made further written submissions relying on the case of MM v Department for Social Development [2014] NI Com 48, concerning the interpretation of activity 2, as it was from 28 March 2011 to 27 January 2013.

 

Assessment

 

Understanding communication

 

23. I directed further submissions from the parties. The issue on which I directed submissions from the parties was the correct interpretation of the 'Understanding communication' activity. The activity heading, as it stood until 28 January 2013, revealed a certain ambiguity - namely, whether a claimant must be unable to understand or have difficulty understanding by both verbal means and non-verbal means in order to satisfy the relevant descriptors. I asked:

 

(i)         whether the tribunal had misdirected itself in law or has otherwise erred in finding that the appellant was entitled to an award of six points under Activity 7: Understanding Communication, descriptor 7(c) as it was enacted at 28 November 2012;

 

(ii)        whether the tribunal had failed to consider the ability of the appellant to read a simple message, even if she could not hear it;

 

(iii)       whether the tribunal had sufficient evidence upon which to make a finding that the appellant satisfied descriptor 7(c);

 

(iv)       whether the tribunal had erred in law by failing to address the issue of whether the appellant's hearing should have been assessed using a hearing aid;

 

(v)        whether it was reasonable to expect the appellant to use a hearing aid.

 

24. Mr Collins responded by submitting that the tribunal had interpreted the particular activity correctly, had made reasonable findings of fact and had not erred by failing to consider possible use of a hearing aid. Ms Rogers also submitted that the tribunal had interpreted the particular activity correctly, albeit submitting that the descriptors were ambiguous. She submitted that the tribunal had sufficient evidence upon which to base its decision and that it had not erred by failing to consider whether use of hearing aids would be reasonable.

 

25. After the submissions of the parties had been received, Upper Tribunal Judge Markus QC considered the correct interpretation of Activity 7 in the case of AT & VC v Secretary of State for Work and Pensions [2015] UKUT 445 (AAC), as it stood at the relevant period in Great Britain. She addressed the specific question of whether a claimant must be unable to understand, or have difficulty in understanding, communication by both verbal and non-verbal means in order to satisfy the relevant descriptors, or whether inability/difficulty by only one of those means is sufficient.

 

26. Judge Markus reviewed case law in Great Britain. In the light of the ambiguity in the legislation she turned to the legislative history to aid in interpretation. Among the material she considered was evidence from Dr "B" - Deputy Chief Medical Officer for the Department for Work and Pensions in Great Britain - explaining the policy intention. While acknowledging that official statements from a Department administering an Act are persuasive authority, yet cannot turn what has been enacted into what the Department wished it had enacted (see JC v SSWP [2015] AACR 6 at paragraph 13), she found these of assistance in reaching her decision. She found that it was the legislative intention that, in order to qualify under a relevant descriptor, a claimant needed to be impaired in understanding either spoken or written communication, but not both.

 

27. For the reasons given by Judge Markus, I accept that the submissions of the parties on this issue are correct. The decision of the tribunal reveals no error of law on this issue.

 

Standing and sitting

 

28. The appellant challenges the rationality of the tribunal's findings of fact and the adequacy of its reasons in relation to this activity. The tribunal has made a finding that the appellant can sit for over 30 minutes, thus precluding her from an award of points under descriptor 2(b). The appellant's representative submits that no finding is made such as would preclude an award of points under descriptor 2(c). In order to determine the appeal as it has, it is implicit that the tribunal has found that the appellant could sit for an hour, or could stand for an hour. The question essentially posed by the appellant's ground of appeal is whether the tribunal is obliged to expressly state that these are its findings.

 

29. While the appellant points to an absence of such a finding, Mr Collins submits that it is well established that the tribunal's findings in the decision score sheet are sufficient for the purpose of stating its findings of fact. He refers to the decision of Mrs Commissioner Brown in C19/98(IB), submitting that a tribunal can make adequate findings by setting out its score and indicating the appropriate descriptor on what is known as the "score sheet". He further refers to the decision of the Tribunal of Commissioners in R3/01(IB)(T), which holds that there is no universal rule that a tribunal has to give individual reasons for the selection of a particular descriptor.

 

30. Nevertheless, at paragraph 24 of R3/01(IB)(T) the Tribunal of Commissioners said:

 

"Secondly, as regards the findings which will now be included in the reasons, we consider that it is necessary for a Tribunal to indicate its findings of fact on every contended descriptor in the All Work Test (now known as the personal capability assessment) and those which are raised by clear implication or which a Tribunal is required to investigate. This is part of the Tribunal's duty of isolating the issues in the case and dealing with them".

 

31. This Tribunal of Commissioners, which included Mrs Commissioner Brown as a member, gave a single decision, and it is to be concluded that Mrs Commissioner Brown's views were more accurately reflected by the later decision to the extent that it is in conflict with the earlier decision.

 

32. The appeal in R3/01(IB)(T) concerned a tribunal's failure to deal with specific detailed disputes regarding the observations and clinical findings of a medical practitioner who had examined the appellant on behalf of the Department. It was not clear from the record what view the tribunal had taken of the appellant's submissions. Its decision was set aside for that reason. In the present case, the appellant also disputed the Department's medical report. It is clear that the tribunal has accepted some of the criticism of that report, to the extent that it has afforded it less weight than it might otherwise have done. Nevertheless, it made a finding that the appellant could sit for more than 30 minutes without significant discomfort, relying, I understand, on the medical report.

 

33. The appellant had stated that she could not sit for more than 5 minutes. It is clear that the tribunal afforded some weight to her stated difficulty with the physical activity of Mobilising. However, on the basis of evidence before it, her account of functional limitations when sitting was rejected. The gist of Ms Rogers' submission is that it is not then clear what evidence the tribunal used to ground its decision that the appellant could sit for more than an hour without significant discomfort.

 

34. Mr Collins points to the general conclusion of the tribunal that "we could not find, on the evidence before us today, that she had any difficulties with any of the remaining mental or physical activities". The tribunal then indicates that the level of medication and lack of specialist referral were relevant factors in its decision. However, the issue of sitting was expressly in dispute. The tribunal was required, following R3/01(IB)(T), to investigate that dispute and to indicate its findings of fact. Its findings were confined to the issue of sitting for 30 minutes, basing those on all the evidence. Those were reasonable findings as far as they go. However, the question of whether the appellant could sit without significant discomfort for an hour was not actually addressed in evidence (or the alternative issue of standing). I consider that there is merit in the submission of Ms Rogers. This is particularly so in light of the fact that the tribunal accepted that there would be significant discomfort in mobilising, and that this is a more nuanced situation than an outright rejection of the appellant's evidence in its entirety. It appears from the record that the tribunal has not considered evidence or reached a concluded view on the issue of whether the appellant could sit (or stand) for more than an hour without significant discomfort. I conclude that the tribunal has erred in law.

 

35. In light of the number of points in issue, I would not normally have considered this to be a material error. However, the appellant was awarded 12 points under the LCWA by the tribunal. The six points available for descriptor 2(c) in the activity of "Standing and sitting" could potentially bring her over the statutory threshold.

 

36. I allow the appeal and I set aside the decision of the appeal tribunal. I refer the appeal to a newly constituted tribunal for determination.

 

 

(signed) O Stockman

 

Commissioner

 

 

 

18 January 2016