AL -v- Department for Communities (ESA) [2017] NICom 31
Decision No: C17/16-17(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 26 May 2016
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The decision of the appeal tribunal dated 26 May 2016 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.
3. 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.
4. 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
5. The decision under appeal to the appeal tribunal was a decision of the Decision Maker of the Department, dated 1 December 2015, which decided that:
(i) grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 7 February 2014; and
(ii) the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 1 December 2015.
6. The appeal was received in the Department on 3 December 2015. On 15 February 2016 the decision dated 1 December 2015 was looked at again but was not changed.
7. Following an earlier adjournment, the substantive appeal tribunal hearing took place on 26 May 2016. The appellant was not present. There was no Departmental Presenting Officer present. The appeal was disallowed and the appeal tribunal confirmed the decision dated 1 December 2015. 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 6 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.
8. On 20 September 2016 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service (TAS). On 12 October 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).
Proceedings before the Social Security Commissioner
9. On 9 November 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 21 November 2016 observations on the application for leave to appeal were sought from Decision Making Services (DMS). In written observations dated 12 December 2016 observations, Ms Lovell, for DMS, supported the application on one of the grounds advanced on behalf of the appellant. The written observations were shared with the appellant and his representative on 16 December 2016.
10. On 5 April 2017 I granted leave to appeal. When granting leave to appeal I gave, as a reason, that an arguable issue arose as to whether the appeal tribunal had properly applied regulation 29(2)(b) of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended. On the same date I determined that an oral hearing of the appeal would not be required.
Errors of law
11. 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?
12. 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
13. In her constructive and helpful written observations on the application for leave to appeal, Ms Lovell has made the following submissions on the appellant’s grounds of appeal:
‘In her application for leave to appeal to the Commissioner, (the appellant) made reference to Regulation 29(2)(b) and Regulation 35(2)(a) & (b) of the Employment and Support Allowance Regulations (NI) 2008. In referencing these regulations, I would assume that (the appellant) believes that these Regulations should have been considered and/or applied in her case. I will consider each of these Regulations in turn.
…
It should be noted that Regulation 29 would only be considered after it has been found that a claimant does not have limited capability for work and has not scored 15 or more points from the physical or mental, cognitive and intellectual function descriptors set out in Schedule 2 of the Employment and Support Allowance Regulations (NI) 2008.
In relation to Regulation 29(2)(b), the health care professional stated in the medical report of 13/11/15 that ‘the evidence does not suggest the client has a condition which means there would be substantial risk to the mental or physical health of any person if they were found capable of work or work related activity’.
In the statement of reasons from the oral hearing of 26/5/16, the Tribunal wrote the following:-
‘We considered Regulation 29 but felt that there was no evidence of a substantial risk to the mental or physical health of any person if the Appellant was found not to have limited capability for work. The GP letter stated that the Appellant’s psychological state was fragile and she was at risk of deterioration but the current medical intervention does not indicate that there would be a substantial risk to the Appellant’s mental health and we therefore decided that Regulation 29 did not apply’.
The GP letter referred to in the statement of reasons was written by a Dr [MM] on 29/4/16. In the letter he states the following:-
‘To whom it may concern
Re (the appellant)
The above named patient of mine suffers from chronic mental health problems. She has a history of anxiety and chronic dysthymia, with recurrent acute depression precipitated by psychosocial stresses. She has been under severe stress in the past year with a detrimental effect on her mood and anxiety level. She admits to excessive use of alcohol to help her cope.
It is my opinion that her psychological state is very fragile at present and she is at risk of deterioration. I do not feel that she has the ability to undertake any useful work at this time.
Yours faithfully
Dr [MM]’
In this letter the GP puts forward the possibility that Regulation 29(2)(b) applies to (the appellant) and the question that needs to be considered is whether or not the Tribunal dealt with this adequately. To be applicable, Regulation 29(2)(b) stipulates that there needs to be a substantial risk. The Great Britain decision R(IB) 2/09 (Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42) looks at the interpretation of Regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311). Although this decision relates to Regulation 27(b) of the Incapacity Benefit regulations, it applies equally to Regulation 29(2)(b) of the Employment and Support Allowance Regulations (NI) 2008, as indicated by paragraph 4, which states:-
‘4. Employment support allowance has replaced incapacity benefit for new claimants. The previous statutory scheme is the one which is relevant to this appeal but the question of interpretation remains relevant to the regulations made under the new scheme introduced by the Welfare Reform Act 2007.’
This decision concluded that, for the purposes of Regulation 27(b), the decision maker is required to assess risk in the context of the work or workplaces in which the claimant may find themselves. Paragraphs 38-39 discuss the importance of assessing the range and type of work that a claimant could undertake, in order to determine whether this is any substantial risk:-
‘...In order to determine whether there is any health risk at work or in the workplace it is necessary to make some assessment of the type of work for which the claimant is suitable. The doctor, the decision-maker and, if there is an appeal, the tribunal, should be able to elicit sufficient information for that purpose. The extent to which it is necessary for a decision-maker to particularise the nature of the work a claimant might undertake is likely to depend upon the claimant’s background, experience and the type of disease or disablement in question. It is not possible and certainly not sensible to be more prescriptive. The most important consideration is to remember that the purpose of the enquiry is to assess risk to the claimant and to others arising from the work of which he is capable. No greater identification of the type of work is necessary other than that which is dictated by the need to assess risk arising from work or the workplace.
39. The correct approach has been identified by Deputy Commissioner Paines in CIB/360/2007:
“17. The degree of details in which [the consequences of a finding that claimant is capable of work] will need to be thought through will depend on the circumstances of the case...A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant’s background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b).
18. Regulation 27(b) requires one to start by identifying a disease or disablement: the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial.”
(The appellant’s) GP suggested that her health was at risk and I would submit that it was for the Tribunal to consider the type and range of work that would be suitable for her, bearing in mind any risks posed by her mental health problems. I would submit that in relation to Regulation 29(2)(b) the Tribunal’s reasons are inadequate and they should have taken the steps outlined in the paragraphs above to investigate the type of work which (the appellant) could carry out which would not cause substantial risk to her, or any other persons, mental or physical health. In failing to do this I would submit that the Tribunal has erred in law and would support the contention put forward by (the appellant).’
14. In AH -v- Department for Communities (ESA) ([2017] NICom 13, C13/16-17(ESA)) (‘AH’), Mr Commissioner Stockman reviewed the jurisprudence relevant to regulation 29 of the Employment and Support Allowance Regulations 2008 in Great Britain and addressed the applicability of that jurisprudence in Northern Ireland. He gave authoritative guidance to decision-makers and appeal tribunals on the proper approach to regulation 29. He said the following, at paragraphs 21 to 33 of his decision:
‘Substantive issue
21. The tribunal in this case, in applying the LCWA, has conducted a careful exercise of fact-finding, has based its decision on the correct law and has given clear reasons for its decision. However, the issue which gives rise to the application before me is not the tribunal’s approach to the application of the LCWA, but rather its approach to the exceptional circumstances criteria which can lead to a claimant being treated as satisfying the LCWA under regulation 29(2)(b) of the ESA Regulations.
22. The tribunal deals with this aspect of the appeal in the three paragraphs of its decision set out above. Essentially the case made out on his behalf at the tribunal hearing was that the applicant’s left hand deformity and his brittle bone syndrome placed him at risk in the workplace. A further relevant matter, which had arisen between the date of the decision under appeal and the appeal hearing, was that the applicant had fractured his elbow in a fall.
23. The issue of regulation 29 was placed before the tribunal by the applicant. He relied on a pro forma document completed by his GP at the request of Citizens Advice. This included the words “Due to his left hand deformity and his brittle bones he won’t be fit for some occupations. He will have to wait for a suitable job”. After setting out the GP’s evidence, the tribunal concluded that “this suggests that his GP is of the opinion that every type of employment would not cause a risk to the health of the appellant or another person and that there were some occupations which would have caused no such risk”. This appears to conclude the tribunal’s treatment of this point.
24. In the following two paragraphs the tribunal addresses a different question – namely whether the exceptional circumstances provisions applied to the injury to the applicant’s right elbow. The right elbow injury was a circumstance obtaining at the date the decision under appeal was made. Therefore, limitations arising from that injury could and should be considered by the tribunal. The injury was material to the tribunal’s decision both in terms of whether work would make that injury worse, but also to the extent that it may have demonstrated the applicant’s liability to injury arising from his brittle bone syndrome. I take no exception to the tribunal’s approach in paragraph 46 and 47 of its statement of reasons.
25. However, the main challenge to the decision was based around paragraph 45. Reliance was placed by Mr McGlade on paragraph 39 of Charlton. That paragraph contains largely a statement of approval of, and quotation from, the decision of Deputy Commissioner Paines QC in CIB/360/2007. In paragraph 17 of that decision he said,
“A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant’s background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him capable of performing. They will then need to consider whether, within that range, there is work he could do without the degree of risk to health envisaged by regulation 27(b)”.
26. The decision in Charlton is a decision of the Court of Appeal in England and Wales and therefore not strictly binding on tribunals in Northern Ireland. Nevertheless, it is of highly persuasive authority and I consider that it should be followed unless good reason is shown for doing otherwise. Each of the parties relied on Charlton and submitted that it should be followed, albeit taking slightly different approaches to it.
27. Charlton had considered the position under the rules governing incapacity benefit (IB). However, the same principles apply to cases involving ESA. In JW v Secretary of State for Work and Pensions (ESA) [2011] UKUT 416 (AAC), at paragraph 19, Deputy Judge Poynter stated in the context of ESA, that the jurisprudence under the IB regime should be still be followed, including CIB/360/2007 (as approved in Charlton). Regulation 29 in the ESA Regulations is a direct equivalent of the former regulation 27 in the IB Regulations and I agree with him that the jurisprudence should be followed.
28. Mr Kirk placed reliance on Charlton at paragraph 49, where the essential conclusion was that the finding that the claimant could do some work was reasonable. He submitted that the tribunal in the present case had clearly considered the range and type of work the claimant could perform. He submitted that it noted that there were certain types of work which the claimant could not do due to his injury and that this was sufficient. While the tribunal did not identify any particular occupations, it found that he could do some work without substantial risk to himself or others.
29. I cannot accept Mr Kirk’s submission as to how the tribunal dealt with the particular case before me. The decision in Charlton concerned the context of the work or workplaces in which the claimant might find himself. The controversy between the claimant and the Secretary of State in Charlton related to the extent to which the decision-maker must identify the type of work which the claimant would perform on the hypothesis that he had been found capable of work. The Court of Appeal in Charlton leaned towards an approach which was less specific in identifying work which the claimant could do. The fact that the claimant in Charlton had no physical limitations was a significant factor. Nevertheless, Charlton also placed certain requirement on tribunals in the findings which it should make.
30. In deciding the regulation 29 issue, it appears to me that the tribunal in the present case has entirely relied on its interpretation of the evidence of the GP. It reasons that the GP’s opinion is to the effect that every type of employment would not cause a risk to the health of the appellant or another person, due to the GP’s statement “He will have to wait for a suitable job”. It appears to me that the tribunal has placed undue weight on the statement of the GP, who cannot be expected to understand the precise nature of the test under regulation 29.
31. In deferring to the GP’s evidence to this extent, it seems to me that the tribunal has not conducted the exercise required by Charlton in reaching its conclusions. Specifically, it has not formed a view on the range or types of work for which the applicant was suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. It has not then considered whether, within that range, there is work he could do without a substantial degree of risk to health.
32. The tribunal does not have to specify particular occupations which are safely open to the applicant. However, it is required to identify the range of work which he could do. The applicant had limitations in terms of literacy, lack of qualifications and lack of experience which suggested that his options in terms of non-manual occupations were limited. He had brittle bone syndrome which would have created risk in physical work in certain working environments or types of occupation. He had a missing middle finger, had a missing tip of his index finger and thumb, and had a contracture of the fourth finger on the left hand. All of this would have restricted him in manual work, have further limited his options, and potentially have given rise to dangers. He had a fractured right elbow for the time being at the date of decision, albeit that this would be expected to heal.
33. In the light of the various factors set out above, it seems to me that the tribunal has not done enough to meet the obligations on it which arise from Charlton and related case law to identify the range of workplaces the applicant might find himself in and to assess the risks in that context.’
15. I endorse the principles set out by Mr Commissioner and commend them to decision makers and appeal tribunals. I also recommend that consideration be given by appeal tribunals to the further definitive analysis by the authors of Volume 1 of Social Security Legislation 2016/2017.
16. I am also in agreement with the parties to the proceedings in the appeal before me that the approach of the appeal tribunal was not in keeping with that recommended in Charlton and sanctioned by Mr Commissioner Stockman in AH.
Disposal
17. The decision of the appeal tribunal dated 26 May 2016 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.
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 1 December 2015, which decided that grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 7 February 2014 and that the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 1 December 2015;
(ii) the appeal is to be listed as an oral hearing;
(iii) the Department is directed to provide details of any subsequent claims to ESA and the outcome of any such claims 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);
(iv) 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
(v) 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
5 June 2017