PD-v-Department for Communities (ESA) [2018] NICom 6

Decision No:  C26/17-18(ESA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 12 October 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Lurgan.

2.	For the reasons I give below, I grant leave to appeal.  However, I disallow the appeal. 

	REASONS

	Background

3.	The appellant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from 5 March 2013 by reason of mental illness and alcohol abuse.  On 5 November 2015 a health care professional (HCP) examined the appellant on behalf of the Department and the Department considered all the evidence and determined that the appellant had limited capability for work.  On 7 March 2016 the appellant completed and returned a questionnaire to the Department regarding ability to perform various activities.  On 8 June 2016 a health care professional (HCP) examined the appellant on behalf of the Department.  On 3 July 2016 a report was received from the appellant’s general practitioner (GP).  On 28 June 2016 the Department considered all the evidence and determined that the appellant did not have limited capability for work from and including 28 June 2016, and made a decision superseding and disallowing the appellant’s award of ESA.  The appellant appealed, but it appears that he waived his right to an oral hearing of the appeal. 

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 12 October 2016. The tribunal disallowed the appeal.  The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 2 March 2017.  The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal.  Leave to appeal was refused by a determination issued on 24 May 2017.  On 15 June 2017 the appellant applied for leave to appeal from a Social Security Commissioner. 

	Grounds

5.	The appellant, now represented by Mr O’Donnell of Citizens Advice, submits that the tribunal has erred in law on the basis that:

(i)	it found that the accounts given by the appellant to the HCP and in his appeal letter were in conflict without investigation;

(ii)	it found that because he went out by taxi he should not be awarded points for activity 15, but that going out by taxi was not going out alone.

6.	The Department was invited 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 application. 

7.	I granted leave to appeal.  As I was not minded to hold an oral hearing, I invited further written submissions from the appellant.  However, none were forthcoming. 

	The tribunal’s decision

8.	The LQM has prepared a statement of reasons for the tribunal’s decision. It appears that an oral hearing of the appeal was not requested and therefore that no oral evidence was given.  The tribunal considered an ESA50 questionnaire completed on 28 March 2016, the report of a HCP examination dated 8 June 2016, the appellant’s reconsideration application of 26 July 2016 and appeal letter of 11 August 2016, along with three previous HCP reports dated 4 February 2013, 13 November 2013 and 5 November 2015, a GP letter dated 5 April 2016 and an ESA113 dated 16 June 2016. 

9.	The tribunal noted that the appellant did not dispute any physical descriptors with the exception of Activity 8 (Navigation).  While acknowledging that the appellant had lost the vision in his left eye, it found on the basis of his own oral evidence that he was able to cross the road safely, had been able to navigate his way around an airport safely and had no difficulty navigating around the examination centre.  It awarded no points for physical descriptors. 

10.	The tribunal noted that the appellant’s own evidence was that he had no difficulty with Activity 11, 12 or 13.  It found that his daily activity suggested no problems in these areas and awarded no points.  The tribunal considered the mental descriptors in Activities 14, 15, 16 and 17. It found no evidence of difficulty coping with change, getting about, coping with social engagement or appropriateness of behaviour with others.  It found no evidence that regulation 29 was satisfied. 

	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.  The Employment and Support Allowance Regulations (NI) 2008 (the ESA Regulations) provide for a specific test of limited capability for work. In particular, regulation 19(2) provides for a limited capability for work assessment 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. 

	Assessment

12.	The appellant first submits that the tribunal has erred in law on the basis that it has not fully investigated the applicability of Activity 13 (Initiating and completing personal action).  The appellant submits that there was no assessment made of the ability to carry out sequential actions and no attempt to investigate his ability to carry out these activities reliably in a sequential manner.  Further, the tribunal in its statement of reasons says: “In his appeal letter received on 11 August 2016 he states that he would stay in bed or lie on the sofa and he would lose his appetite, this conflicts with the account given to the HCP and he does not say how often this would happen”.  However, the appellant submits that the two accounts are not in conflict.  The appellant submits that an oral hearing should have been directed in order to make further enquiries, or that his general practitioner records should have been requested. 

13.	It appears to me that the evidence of the HCP addressed the appellant’s ability to initiate and complete personal action for the purposes of Activity 13.  For example, he was stated to be able to do housework, cook and use a computer.  He lived alone and was able to wash and dress himself. He managed to attend appointments with healthcare professionals independently.  I consider that on the basis of the HCP report, there was ample evidence for the tribunal to determine the question of whether due to impaired mental function the appellant could not reliably complete sequential personal actions.  The appellant himself had accepted that he could get up, wash, dress, cook a meal and go shopping in his ESA50 self-assessment questionnaire.  As far as having sufficient evidence to decide whether Activity 13 applied, I consider that these statements of the appellant’s real world activities were perfectly adequate. 

14.	The appellant submits that his appeal letter had asserted that on some days he would stay in bed or lie on the sofa due to depression.  He submits that the tribunal erred in law by not investigating this aspect further, and by accepting the statements made to the HCP regarding how he spent his days (see HCP report page 20 of 25).  As stated by the appellant, it appears to me that it is not necessarily the case that there is a conflict between what the appellant told the HCP and the appeal letter. This is because the appeal letter dealt with the position on some days only.  Nevertheless, the appellant generally submits that the tribunal should have adopted an inquisitorial approach which assessed the appellant’s ability to carry out activities reliably in a sequential manner in the light of this. 

15.	On the question of whether the tribunal was under an obligation to investigate matters more fully, it appears to me that the appropriate legal standards derive from Article 6 ECHR and the principles of natural justice.  Here, the appellant had asked for his appeal to be decided without an oral hearing.  As envisaged in RGS v Department for Social Development [2016] NI Com 39, this was a case where the appellant had essentially waived his Article 6 rights.  It seems to me that by not requesting a hearing, he could similarly not rely on any argument relating to a breach of Article 6 ECHR (or, as it was historically described, a breach of the rules of natural justice) by the tribunal.  Any obligation on the tribunal would have been restricted to the situation in which it found itself – in other words having to resolve any conflict of evidence in the case on the basis of documentary evidence alone.  It cannot be faulted for the way in which it went about doing this in the context of the appellant’s waiver of the right to an oral hearing.  I do not consider that an arguable error of law arises. 

16.	The appellant submits that the tribunal has erred in its approach to Activity 15 (Getting about).  The tribunal had referred to his ability to take a taxi.  Essentially he submits that while he indicated that he could take a taxi to get to unfamiliar locations, this was not a case of getting to a specified place unaccompanied.  He relies on the Upper Tribunal decision in AB v Secretary of State for Work and Pensions [2016] UKUT 96.  I consider that he therefore establishes an arguable case of error of law and I grant leave to appeal. 

17.	In that case, Upper Tribunal Judge Hemmingway accepted that a tribunal had erred in law by placing sole reliance on evidence that the appellant was able to travel by taxi.  He rightly pointed out that this was not an unaccompanied journey. 

18.	However, in the present case, while hearing that the appellant preferred to be accompanied because of a fear of losing the sight in his remaining eye, and that he would take taxis, there was other evidence relied upon. In particular, the tribunal found that he could attend his optician and GP alone and had travelled by air to England, negotiating the airport on his own.  The tribunal found that there was clear evidence that he could get to a specified place with which he is unfamiliar without being accompanied by another person.  The tribunal noted that his GP’s letter did not mention depression or anxiety and that he was on no medication for depression. 

19.	I do not accept that the tribunal has erred in law and I disallow the appeal. 

	(signed) O Stockman

	Commissioner

	14 March 2018