Northern Ireland - Social Security and Child Support Commissioners' Decisions

AH-v-Department for Communities (ESA) [2017] NICom 4

 

Decision No: C4/16-17(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 27 August 2015

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

1. The decision of the appeal tribunal dated 27 August 2015 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. I would ask the Legally Qualified Panel Member (LQPM) of the appeal tribunal to note that it has been accepted that the appeal tribunal's task in assessing the issues arising in this appeal was not helped by a parallel failure by the Department, in the initial decision-making stage, to comply with the requirement to provide the appeal tribunal with certain evidence.

 

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 whether he has limited capability for work-related activity 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. On 16 December 2014 a decision-maker of the Department decided that the appellant was entitled to employment and support allowance (ESA) as he had limited capability for work. On the same date the decision-maker decided that the appellant did not have limited capability for work-related activity and was, therefore, not entitled to the 'support' component of ESA. The decision dated 16 December 2014 was reconsidered on two occasions - 1 April 2015 and 4 June 2015 - but was not changed. An appeal against the decision dated 16 December 2014 had been received on 23 January 2015. The appeal continued against the decision as revised as the revised decisions were not more advantageous to the appellant.

 

6. The appeal tribunal hearing took place on 27 August 2015. The appeal was considered as a 'paper' hearing. The appellant had returned Form REG2(i)d to the Appeals Service (TAS) where it was received on 26 June 2015 and in which he indicated that he was content for the appeal to proceed without an oral hearing. On 24 July 2015 a LQPM had determined that the appeal should be determined on the papers.

 

7. The appeal tribunal disallowed the appeal and confirmed the decision dated 16 December 2014. An application to set aside the decision of the appeal tribunal was subsequently received in TAS. Although the application is stamped as having been received it is impossible to determine the precise date of receipt. On 29 October 2015 the LQPM determined that the set-aside application should be refused.

 

8. On 25 February 2016 an application for leave to appeal to the Social Security Commissioner was received in TAS. On 9 March 2016 the application for leave to appeal was refused by the LQPM.

 

9. On 18 April 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioner. On 14 June 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS). In written observations dated 5 July 2016, Mr Collins, for DMS, supported the application on one of the grounds submitted on behalf of the appellant. Written observations were shared with the appellant and his representative, his mother, on 5 July 2016. On 12 August 2016 correspondence from the appellant's mother was received and which was shared with Mr Collins on 12 September 2016.

 

10. On 12 September 2016 I granted leave to appeal. In granting leave to appeal I gave, as a reason, that an arguable issue had arisen as to whether the appeal tribunal had properly applied the principles in IM v SSWP ([2014] UKUT 412 (AAC)). 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 his written observations on the application for leave to appeal, Mr Collins noted the following:

 

'The question of whether a claimant has LCWRA is determined by an assessment of whether the claimant's capability is limited by his physical or mental condition and whether any such limitation makes it unreasonable to require the claimant to undertake such activity. (This is in accordance with the Welfare Reform Act (NI) 2007 Section 9 and the ESA Regulations (NI) 2008, Regulation 34(1)). Schedule 3 to the ESA Regulations contains the prescribed descriptors - if at least one of these descriptors is satisfied the claimant will have LCWRA. Regulation 35 of the ESA Regulations also makes provisions for circumstances where a claimant can be treated as having LCWRA. Having considered all the evidence the tribunal concluded that no points under Schedule 3 were applicable and Regulation 35 was also not applicable. Consequently it concluded that (the appellant) did not have and could not be treated as having LCWRA.'

 

14. 'LCWRA' represents 'limited capability for work related activity.' Mr Collins noted that the appellant's mother had submitted that her son had made applications for various forms of employment but had failed to gain any employment. In connection with this issue, Mr Collins made the following submission:

 

'While (the appellant's mother) is making a general point on behalf of her son regarding his medical conditions and how they are likely to affect his ability to hold down a job, I would submit that she has a valid point in the context of the substantive issues of (the appellant's) application for leave to appeal.

 

In its submission to the tribunal the Department pointed out that the LCW assessment is an assessment of the extent to which a claimant is capable of performing certain activities. In the circumstances of this case the Department awarded a total of 24 points - it was therefore accepted that the claimant had LCW and the tribunal accepted this as such:-

 

"The Tribunal awarded no score under Schedule 2, because this was not the issue under Appeal and it accepted the Department's decision on this."

 

However the tribunal agreed with the Department's conclusion that (the appellant) did not have and could not be treated as having LCWRA with the effect that he should be placed in the work related activity group rather than the support group.

 

How decision makers/ a tribunal should approach the issue of what work related activity a claimant might be required to undertake has been considered by different tribunals in Great Britain and in IM v SSWP [2014] UKUT 412 a three judge panel of the Upper Tribunal concluded that decision makers should be required to predict what work-related activity the individual claimant might be required to undertake when considering whether there would be a risk to their health if they were so required. The Upper Tribunal Judges recommended that the appeal tribunal should be provided with evidence about all the types of work-related activity available to the claimant. (See paragraphs 85-86, 95-101 and 102-109 of the aforementioned decision). In the circumstances of the present case I can find nothing to suggest that this requirement was complied with either by the Department or the appeal tribunal.

 

Consequently I would support (the appellant's) second ground of appeal.'

 

15. Mr Collins is correct to highlight the significance of the decision of the Three Judge Panel of the Administrative Appeals Chamber of the Upper Tribunal in IM. Mr Collins gives the neutral citation number for this decision but it is also reported as [2015] AACR 10. That means that it contributes to the coherent development of the law and gives practical guidance to decision-makers and appeal tribunals. Its significance is enhanced by the fact that it is a decision of a Three Judge Panel. Mr Collins has highlighted the sections of the decision which are of most relevance to the issue which he has identified. To that I would recommend the analysis set out in paragraphs 9.111 to 9.113 of Volume I of Social Security Legislation 2016/2017 (2016 Sweet & Maxwell).

 

16. For the reasons which have been set out by Mr Collins, I agree that the decision of the appeal tribunal is in error of law and must be set aside. I accept, however, as does Mr Collins, that the requirements set out in IM were also not complied with by the Department.

 

17. This conclusion is sufficient for me to dispose of the appeal and I do not, accordingly, have to address the other grounds of appeal. I would note, however, that I would not have agreed that the decision of the appeal tribunal was in error of law on the basis of those submitted grounds.

 

Disposal

 

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 16 December 2014, in which a decision maker of the Department decided that the appellant was entitled to ESA as he had limited capability for work but that he did not have LCWBA and was, therefore, not entitled to the 'support' component of ESA ;

 

(ii) the Department is directed to prepare a new submission for the appeal tribunal hearing. The submission should address the issues raised by Mr Collins in his written observations on the application for leave to appeal in this case and as set out above;

 

(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

 

 

 

23 January 2017