SA-v-Department for Communities (II) [2018] NICom 44
Decision No: C1/18-19(II)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
INDUSTRIAL INJURIES
Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 9 February 2017
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. As will be explained in greater detail below, both parties have expressed the view that the decision appealed against was erroneous in point of law.
2. Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.
3. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to Industrial Injuries Disablement Benefit (IIDB), for a particular period, remains to be determined by another appeal tribunal.
4. 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 26 August 2015, which decided that, pursuant to a claim to IIDB, a declaration of an industrial accident could not be made and that IIDB was not payable;
(ii) 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
(iii) 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.
Background
5. On 26 August 2015 a decision maker of the Department decided that, pursuant to a claim to IIDB, a declaration of an industrial accident could not be made and that IIDB was not payable. Following a request to that effect and a further exchange of correspondence between the appellant and the Department, the decision dated 26 August 2015 was reconsidered on 13 January 2016 but was not changed. An appeal against the decision dated 26 August 2015 was received in the Department on 4 February 2016.
6. The appeal tribunal hearing took place on 9 February 2017. The appellant was present and was represented. There was no Departmental Presenting Officer present. The appeal tribunal disallowed the appeal and confirmed the decision dated 26 August 2015.
7. On 8 November 2017 an application for leave to appeal to the Social Security Commissioners was received in the Appeals Service (TAS). The appellant was represented in the application by Mr Sheridan, Solicitor. On 9 November 2017 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).
Proceedings before the Social Security Commissioner
8. On 12 December 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners. The appellant was represented in this application by Mr McKenna, Solicitor. On 5 April 2018 observations on the application for leave to appeal were requested from Decision Making Services (DMS). In written observations dated 26 April 2018, Mr Hinton, for DMS, supported the application for leave to appeal on the grounds submitted on behalf of the appellant. Written observations were shared with the appellant and Mr McKenna on 26 April 2018. Further correspondence was received from Mr McKenna on 2 May 2018.
9. On 27 June 2018 I granted leave to appeal. In granting leave to appeal, I gave as a reason that the grounds of appeal, as set out in the application for leave to appeal, were arguable. On the same date I determined that an oral hearing of the appeal would not be required.
Errors of law
10. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law. What is an error of law?
11. In R(I)2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:
“(i) making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii) failing to give reasons or any adequate reasons for findings on material matters;
(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv) giving weight to immaterial matters;
(v) making a material misdirection of law on any material matter;
(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”
Analysis
12. In the application for leave to appeal, which was received in the Office of the Social Security Commissioners, Mr McKenna made the following submissions on behalf of the appellant:
‘Decision
The Tribunal approved the reasoning of the original Decision maker in a decision dated 11th October 2017, and the appeal duly failed. Leave to appeal was refused by the Legally Qualified Panel Member in a decision dated 9th November 2017.
The Tribunal concluded that the words of the conversation and comments which took place in the appellant’s working environment were not sufficient per se to ground the personal injuries. The Tribunal is not satisfied that the work environment caused the problems she suffered from. The Tribunal approved the reasoning of the original decision maker.
Submissions – Medical Evidence
As per the contents of the submissions sent on 31st October 2017, the Appellant respectfully disagrees with this finding. The appellant asserts that the medical evidence indicates that the extent of the abuse she was subjected to was of sufficient seriousness to warrant a definition of trauma. The tribunal had sight of a report by Dr BM, consultant psychiatrist. The opinion of this report is as follows:
“… As a consequence of her difficulties in her working environment she developed a psychological adjustment disorder.”
It is accepted that there were other pre-existing issues with the appellant’s mental health, however the expert evidence obtained does refer to the development of this adjustment disorder as a consequence of the working environment. Regardless of whether there were pre-existing issues, it is clear that the working environment contributed to this psychiatric injury.
At Paragraph 44, it is stated: “For Miss A’s claim to succeed, it would be necessary for her to establish that she sustained personal injury as a result of a particular incident or series of such incidents.”
At paragraph 48, it is stated that “the medical evidence provided … although confirming that Miss A suffered personal injuries, some of which could be attributed to difficulties in the workplace, does not confirm that Miss A sustained personal injury as a result of any particular incident arising out of and in the course of her employment”.
It is submitted that in upholding this erroneous conclusion, there has been an error by the Tribunal. It is clear from the medical evidence provided that the appellant has sustained personal injury (in this case, psychiatric injury). The Appellant provided specific details of incidents which occurred during the course of her employment.
It is submitted that the key issue in this case is whether the incidents in the workplace themselves have been sufficient to cause personal injury. The conclusions of Dr M are clear – he makes a consequential link between the two. It is respectfully submitted that the Tribunal have not placed sufficient weight to this fact.
Submissions – Case Law
It is respectfully submitted that the original decision maker reaches conclusions which would contradict the case law provided within the decision. At Paragraph 43 – “Dr M’s report clearly confirms that Miss A suffered personal injury, and that some of that personal injury was associated with workplace issues, that would not be sufficient to establish that she sustained an industrial accident”.
However in evaluating the relevant case law at Paragraph 24, the original decision maker states: “Where it can be shown that an injury results from a single accident, or is the result of a series of minute injuries by accident, each of which is separate and identifiable, the case cannot be accepted as one of injury by accident”.
The appellant has identified a number of incidents which, taken a whole, has led to psychiatric injury, and therefore asks that the decision of the original decision maker, and the Tribunal, is overturned.’
13. In his written observations on the application for leave to appeal, Mr Hinton has made the following submissions:
‘The tribunal in its reasoning stated the following:
“…The claimant asserted that an industrial accident had happened at her work at … on 14 January 2014. In her original claim form page 4 she referred to a number of incidents including bullying, harassment, stress, offensive language and discriminatory jokes because of nationality, gender and mental fragility.
The Tribunal has considered Mr Strawbridge’s submission. The Tribunal has considered the medical history utilising its considerable medical experience.
This young lady has a serious problem which existed prior to her period of employment with … The Tribunal is of the view that none of the conversation and comments she recounted carry the necessary import of trauma. She has told the Tribunal that she suffered as a result of same being said. However the Tribunal is of the view that the words of the conversation and comments were not sufficient per se to ground the personal injuries. The Tribunal is not satisfied that the work environment caused the problem she suffers from…”
The record of proceedings show the tribunal questioning (the appellant) at length concerning her history of a personality disorder and self-harm and the current treatment she was receiving for this. The following exchanges also took place regarding her employment in … :
“…Question: - Do you think had it not been for the distress you felt at … you would not have required to have had therapy or need referral. Answer: - Yes. Question: - If the problems in … had not occurred would you have been referred? Answer: - No. It caused the prior symptoms to begin again. Answer: - Yes. Question: - Do you think those symptoms would not have re-occurred. Question: - Dr M mentioned difficulties in work and also your past problems causing distress? Answer: - I had a traumatic experience at ... That was a trigger…”
By virtue of the above evidence (the appellant) recognised the mental health difficulties she suffered prior to working in … ; however she emphasised that the stress experienced arising out of her working environment was the trigger that cause her symptoms to re-appear. That being the case, did the tribunal investigate in an adequate manner and in sufficient detail the link between (the appellant’s) symptoms and the problems experienced in her work environment? I would contend it did not. I refer to the tribunal’s reasoning again in which it stated:
“This young lady has a serious problem which existed prior to her period of employment with … The Tribunal is of the view that none of the conversation and comments she recounted carry the necessary import of trauma. She has told the Tribunal that she suffered as a result of same being said. However the Tribunal is of the view that the words of the conversation and comments were not sufficient per se to ground the personal injuries. The Tribunal is not satisfied that the work environment caused the problem she suffers from…”
I would contend the onus was on the tribunal to investigate in greater detail its statement that the work environment did not cause the problems she suffers from. It is my opinion that the tribunal has not explained adequately how it has arrived at this conclusion. In the report of Dr M dated 21 February 2015 he diagnosed 3 psychiatric disorders which were:
“Childhood post-traumatic stress disorder
Emotionally unstable personality disorder
Psychological adjustment disorder secondary to stressors in working environment, complicated by the development of a moderate depressive episode”.
Towards the end of his report Dr M submitted the following opinion:
“..The plaintiff’s past history of mental health problems would have significantly increased her vulnerability to developing problems with her mental health as a consequence of the difficulties in her working environment. The plaintiff’s records indicate that she had stopped self-harming for a period of approximately 8 years. Her problems with self-harming re-emerged as a consequence of the difficulties in her working environment…”
Consequently, whilst Dr M recognised that (the appellant) had mental health issues going back to her childhood, the episodes of self-harming had stopped for a considerable time and only re-emerged owing to stressful incidents encountered in her working environment. I would re-iterate my view that the tribunal did not address this issue in sufficient detail.
This brings me on to a further issue concerning the tribunal’s reasoning – did it give adequate consideration to the report of Dr M and comment sufficiently on the information contained within it?
The proceedings record (the appellant’s) representative stating to the tribunal:
“Within the papers please see the report from Dr M.”
Whilst the tribunal in its reasoning stated that it considered the medical history utilising its considerable medical experience, I would contend it has not made it clear how it assessed the evidence contained within Dr M’s report. In an unreported NI Commissioner’s decision, C16/08-09(DLA), the then Commissioner Mullan addressed the role of appeal tribunals when assessing evidence. He stated that the assessment of evidence is a matter for the tribunal; however at paragraphs 54 and 55 he emphasised the following:
“Nonetheless, there is a clear duty on appeal tribunals to undertake a rigorous assessment of all the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issue arising in the appeal.
In R2/04(DLA) a Tribunal of Commissioners stated, at paragraph 22(5)
‘..there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect. It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason. Indeed, it will sometimes be its duty to do so. However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously irrelevant. It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short. We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal. That body must have regard to the whole of the evidence, including the medical evidence. Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so. Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence”.
The evidence contained within the report of Dr M was obviously a central part of (the appellant’s) claim. As such, it is my contention the tribunal should have given it more detailed consideration especially concerning the re-emergence of her symptoms and the link to her working environment. However, the statement of reasons gives no indications as to how Dr M’s report was assessed and I would contend they are inadequate to explain the tribunal’s decision. Consequently this renders the decision erroneous in law.’
14. It is clear, therefore, that both parties have expressed the view that the decision appealed against was erroneous in point of law. I am of the view that the most significant issue is the failure by the appeal tribunal to assess in sufficient detail the report from Dr M.
15. Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.
(signed) K Mullan
Chief Commissioner
5 September 2018