GF-v-Department for Social Development (ESA) [2011] NICom 160
Decision No:  C7/10-11(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 6 August 2009

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. 	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 6 August 2009 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.	I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so having made fresh findings of fact.

3.	My revised decision is that the appellant has limited capability for work and is entitled to employment and support allowance (ESA) from and including 25 March 2009. I am aware there may have been further decisions in connection with the appellant’s entitlement to ESA. Accordingly, any award of entitlement to ESA, made on any decision of the Department since 25 March 2009, is treated as having been made on account of this award.

Background

4.	The description of the decision-making process giving rise to the appeal before the appeal tribunal set out in the original appeal submission is problematic. Paragraph 6 of section 4 of the appeal submission records that:

‘The Department considered all available evidence and determined on 23/03/09 that (the claimant) scored 6 points and does not have Limited Capability for Work in accordance with the Work Capability Assessment. [Tab nos. 5 and 6A]’

5.	At Tab No 5 of the appeal submission is a set of documents that do not relate to a determination by the Department. At Tab No 6A there is a copy of such a determination dated 23 March 2009. It reads, in part, as follows:

‘This determination is given in respect of (the claimant’s) claim for Employment and Support Allowance.

(The claimant) was examined in relation to limited capability for work on 27/02/09 and after consideration of all of the available evidence I have determined that the total points awarded are 6, which are calculated as follows:
  
ACTIVITY	POINTS	REASON	
Manual dexterity	6	6g	

As a result I have determined that (the claimant) does not have limited capability for work from and including 21/03/09 because he has not reached 15 points from physical functions arising from a specific bodily disease or disablement and mental, cognitive and intellectual functions arising from some specific mental illness or disablement and cannot be treated as having limited capability for work because there are no exceptional circumstances.’

6.	Paragraph 7 of section 4 of the appeal submission records that:

‘The decision awarding Employment and Support Allowance was superseded on 25/03/09. (The claimant) does not have Limited Capability for Work and therefore is not entitled to Employment and Support Allowance from and including 21/03/09 [Tab No 7].’

7.	One would have expected Tab No 7 to amount to a copy of a decision dated 25 March 2009. It does not but is a copy of a notification letter sent to the appellant on that date.

8.	The appeal against the decision was received in the Department on 30 March 2009. On 1 May 2009 reconsideration action was undertaken but which resulted in no change to the decision-making process.

9.	The substantive appeal tribunal hearing took place on 6 August 2009. The appellant was present, as was a Departmental presenting officer. The appeal was disallowed. The original decision notice for the appeal tribunal’s decision records that:

		‘Appeal disallowed

		The decision of 25.3.09 is confirmed.’

10.	It is clear that on 1 September 2009 the decision notice was altered by the legally qualified panel member (LQPM) to change the date of 23 March 2009 to 25 March 2009. The consequences of that change will be explored in more detail below. 

11.	On 8 October 2009 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service. On 12 October 2009, the application for leave to appeal was refused by the LQPM. 

Proceedings before the Social Security Commissioner

12.	On 28 October 2009 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.

13.	On 22 December 2009 observations were sought from Decision Making Services (DMS) and these were received on 15 January 2009. In these initial observations DMS opposed the application on the grounds cited by the appellant but made reference to what was submitted to be an error in the decision notice for the appeal tribunal’s decision. Observations were shared with the appellant and his representative Mrs Patricia Carty of the Law Centre (NI) on 27 January 2010. 

14.	On 4 February 2010 further written observations on the application were received from DMS. In these further written observations, there was a further reference to validity of the appeal tribunal’s decision as set out in the original and amended decision notices. The further written observations were shared with the appellant and his representative on 8 February 2010. 

15.	On 25 February 2010 I directed an oral hearing of the application. The oral hearing took place on 29 April 2010. At the oral hearing, the appellant was represented by Mrs Carty from the Law Centre (Northern Ireland), and the Department was represented by Mr Young of the DMS section. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

16.	There then followed a delay in the promulgation of this decision. I was aware that Judges of the Upper Tribunal were in the process of drafting decisions in connection with entitlement to ESA which might impact on the issues arising in the present appeal. One of the decisions – GS v Secretary of State for Work and Pensions ([2010] UKUT 244 (AAC), CE/0313/2010) - was subsequently shared with both parties to the proceedings for their further comments. The second decision – EH v Secretary of State for Work & Pensions ([2011] UKUT 21 (AAC)) was not made available to me until the end of January 2011. It did not require to be shared with the parties to the proceedings for further reasons which will be outlined below.

Errors of law

17.	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.

18.	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.” 

The error of law in the instant case

The relevant legislative background

19.	Section 1(1)-(4) of the Welfare Reform Act (Northern Ireland) 2007 provides that:

‘1(1)  An allowance, to be known as an employment and support allowance, shall be payable in accordance with the provisions of this Part.

(2) 		Subject to the provisions of this Part, a claimant is entitled to an employment and support allowance if he satisfies the basic conditions and either—

(a) the first and the second conditions set out in Part 1 of Schedule 1 (conditions relating to national insurance) or the third condition set out in that Part of that Schedule (condition relating to youth), or

(b) the conditions set out in Part 2 of that Schedule (conditions relating to financial position).

(3) 	The basic conditions are that the claimant—

(a) has limited capability for work,

(b) is at least 16 years old,

(c) has not reached pensionable age,

(d) is in Northern Ireland,

(e) is not entitled to income support, and

(f) is not entitled to a jobseeker's allowance (and is not a member of a couple who are entitled to a joint-claim jobseeker's allowance).

(4) 	For the purposes of this Part, a person has limited capability for work if—

(a)	his capability for work is limited by his physical or mental condition, and

(b)	the limitation is such that it is not reasonable to require him to work.’

20.	Section 8(1) of the Welfare Reform Act (Northern Ireland) 2007 provides that:

‘8(1)  For the purposes of this Part, whether a person's capability for work is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to work shall be determined in accordance with regulations.’

21.	Regulation 19(1)-(6) of the Employment and Support Allowance Regulations (Northern Ireland) 2008 provides that:

		‘19(1) For the purposes of Part 1 of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.

		(2) 		The limited capability for work assessment is 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 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

		(3) 		Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against any descriptor listed in that Schedule, the claimant obtains a total score of at least—

(a) 15 points whether singly or by a combination of descriptors specified in Part 1 of that Schedule;

(b) 15 points whether singly or by a combination of descriptors specified in Part 2 of that Schedule; or

(c) 	15 points by a combination of descriptors specified in Parts 1 and 2 of that Schedule.

		(4) 		In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.

		(5) 	In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises from—

(a) a specific bodily disease or disablement;

(b) a specific mental illness or disablement; or

(c) as a direct result of treatment provided by a registered medical practitioner for such a disease, illness or disablement.

		(6) 	Where more than one descriptor specified for an activity apply to a claimant, only the descriptor with the highest score in respect of each activity which applies is to be counted.’

The proper approach to the descriptors in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 

22.	In GS v Secretary of State for Work and Pensions ([2010] UKUT 244 (AAC), CE/0313/2010), Upper Tribunal Judge Jacobs was considering the proper approach to the interpretation of the descriptors in Schedule 2 to the Employment and Support Allowance Regulations 2008, the Great Britain equivalent of the Employment and Support Allowance Regulations (Northern Ireland) 2008. He began with the following general observations, at paragraph 4:

‘Employment and support allowance is a relatively new social security benefit that was created by the Welfare Reform Act 2007. It is designed to replace incapacity benefit and income support on the basis of incapacity. That is why it follows the model of jobseeker's allowance by providing two bases for entitlement: the claimant’s contribution record and the claimant’s financial position. The provisions that I have to interpret apply to both. Like incapacity benefit, the allowance deals with capacity for work. Unlike that benefit, it distinguishes between limited capability for work (section 8) and limited capability for work-related activity (section 9). This case concerns the former and particularly Schedule 2 to the Employment and Support Allowance Regulations 2008. My reasoning applies equally to the latter and Schedule 3 to those Regulations.’

23.	Thereafter, at paragraphs 11 to 13, he set out the following:

‘11. In R(IB) 2/03, I considered a similar issue in relation to incapacity benefit. I undertook a functional and a linguistic analysis of the legislation, in each case considering the issue both in principle and on the authorities. The core of my reasoning was in paragraph 7:

‘The personal capability assessment is divided into two sections. One deals with physical disabilities, the other with mental disabilities. The activity of rising from sitting falls within the former. That section consists of a variety of activities that deal with different functions of the body. It is obviously designed to test in a systematic, analytical way the claimant’s various physical disabilities. The scores attached to each disability, when added together, indicate the extent of the claimant’s physical capacity for work. It is, therefore, to be expected that each of the activities will concentrate on different parts of the anatomy so as to isolate, as far as possible, the claimant’s ability in respect of each.’

12. The representatives are agreed that that is the correct approach to employment and support allowance. I accept their submissions. There are differences between incapacity benefit and the allowance, but they are not material to this issue. 

13. It follows that the tribunal was wrong to consider the practicalities of dressing, the type of shirt and so on. Even the Secretary of State’s representative, having submitted that a functional analysis was appropriate, was tempted into this type of speculation. It is important to appreciate the context. The ultimate purpose of the descriptors is to test a person’s capability for work. They test the claimant’s manual dexterity for work-related purposes. They do not test the claimant’s ability to self-care. The reference to shirts and blouses is for the purpose of illustration. They are not words of definition or limitation.’ 

24.	The reasoning of Upper Tribunal Judge Jacobs found favour with Upper Tribunal Judge Wikeley in EH v Secretary of State for Work & Pensions ([2011] UKUT 21 (AAC)). At paragraph 38 of his decision, Judge Wikeley stated:

‘… subject to any such differences, and whether dealing with Schedule 2 or Schedule 3, “the First-tier Tribunal should focus on the claimant’s functional ability to perform the particular aspect of the activity covered by a descriptor”, as Judge Jacobs explained in GS v Secretary of State for Work and Pensions (ESA) [2010] UKUT 244 (AAC) (at paragraph 14), a case concerning the manual dexterity descriptor. Further, as Judge Jacobs commented, “it is important to appreciate the context. The ultimate purpose of the descriptors is to test a person’s capability for work. They test the claimant’s manual dexterity for work-related purposes. They do not test the claimant’s ability to self-care. The reference to shirts and blouses is for the purpose of illustration. They are not words of definition or limitation” (GS at paragraph 13).’

25.	I accept and adopt the principles set out by Judge Jacobs in  GS v Secretary of State for Work and Pensions and agree that they represent the proper approach to the interpretation of the descriptors in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008. 

The activity in dispute in the instant case

26.	In the instant case, the Schedule 2 activity which was in dispute was Activity 5, which in Part 1 of Schedule 2 reads as:

‘Picking up and moving or transferring by the use of the upper body and arms (excluding all other activities specified in this Part of this Schedule)’

27.	In the form ESA50, completed by the appellant on 19 January 2009, the appellant stated, at pages 12 and 13, and by ticking the relevant boxes, that he could not pick up and move a litre (two pint) carton full of liquid using only one hand, could not pick up and move a half-litre (one pint) carton full of liquid using only one hand, and could not use both hands together to pick up and move something big but light, like an empty cardboard box. At page 12 of the form the appellant noted that:

‘Due to loss of function of my primary hand I am unable to grip objects securely to enable lifting or moving of objects’ 

28.	At page 13 of the form, he added:

	‘… loss of function of primary hand inhibits grip on all objects’

29.	In the report of the medical examination, conducted by a medical officer (MO) of the Department on 27 February 2009, the MO gave the opinion that the appellant should score 0 points for Activity 5 in that none of the scoring descriptors applied to him. The MO made the following clinical findings: 

‘Hand: normal colour. No local tenderness. Able to extend fingers. Reduced flexion of middle ring finger. Fist: incomplete. Thumb: full movement.’

		The MO also stated that:

‘… Ct has impaired and painful movements in Rt middle and ring finger which would support choice of descriptor Mg in Act 6.’

30.	What was meant by the latter part of that summary was that the MO was of the opinion that Descriptor (g) of Activity 6 (Manual Dexterity) should apply to the appellant in that he could not turn a ‘star-headed’ sink tap with one hand but could with the other. The application of that descriptor, which was accepted by the Departmental decision-maker, meant that the appellant scored 6 points for the Activity 6 (Manual Dexterity). 

31.	The appeal tribunal confirmed the decision of the decision-maker. In making that confirmation, the appeal tribunal agreed that the appellant should score 0 points for Activity 5 in that none of the scoring descriptors applied to him. In addition, the appeal tribunal decided that Descriptor (d) of Activity 6 (Manual Dexterity) should apply to the appellant, which increased the points awarded for that Activity from 6 to 9. That did not, however, make any difference in terms of the outcome of his appeal, as 9 points was less than the 15 required for satisfaction of the limited capability for work assessment.

32.	The appeal tribunal gave the following reasons for its decision with respect to Activities 5 and 6:

‘Pick up and Move  5(d) – 0 points.  He has problems with his right hand only and this rules out (a) and (b) which require incapacity of both hands.  In his ESA50 he claimed “(c) cannot pick up and move a light but bulky object, such as an empty cardboard box, requiring the use of both hands together.”  He based this on problems with his “primary” hand due to inhibited grip.  What Schedule 2 actually says is, “5.  Picking up and moving or transferring by the use of the upper body and arm (excluding all other activities specified in this part of this Schedule).”  So we cannot take into account eg problems with bending, kneeling, reaching or manual dexterity.  At the oral hearing he said he could not do 5(c) because he cannot put pressure on his right hand.  However on examination the Medical Officer found a normal left upper limb and an almost normal right upper limb apart from reduced flexion of the middle and ring finger and an incomplete fist but full movements of the thumb.  Accepting this, clearly he could manoeuvre the box into the palm of his right hand and use his other fingers and thumb to pick it up and move it using this other upper limb and upper body.  0 points appropriate.

Manual dexterity 6(d) – 9 points.  The original award here was 6 points for “Cannot turn a “star-headed” sink top with one hand but can with the other”.  We have increased this to 9 points (although it makes no difference to the outcome) for 6(d) “Cannot physically use a pen or pencil” which we think is reasonable given that he is right hand dominant and given the clinical finding in respect of his right hand ie reduced flexion of the ring and middle finger and incomplete fist but full thumb movements.’

The submissions of the parties

33.	In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative submitted, in respect of Activity 5, that:

‘… the tribunal erred in finding that it could not take into account manual dexterity in the evaluation of this descriptor. While we appreciate that the wording of the Activity limits somewhat the functional limitations that are relevant to the award of points, in the case of 5(c) the descriptor expressly requires consideration of ability, “requiring the use of both hands together.” It is submitted that this would be consistent with guidelines of safe manual handling practices. In the circumstances the tribunal erred in failing to assess the very specific problems which (the claimant) has with performing such a task with his right hand. (The claimant) instructs that he cannot hold his right hand straight as it curves inwards. When he tries to put pressure on his figures [sic] it is painful. It isn’t possible for him to get a good grip on objects of the prescribed nature due to his functional limitations. He would be unable to lift such an object in a safe manner.’  

34.	In the case summary prepared for the oral hearing of the application, the appellant’s representative repeated the arguments concerning the relevance of grip to Activity 5. In addition, on an application of the decision of the Chief Commissioner in R1/96(IB), she submitted that the interpretation and application of the Activity should be subject to considerations of what is reasonable. Finally, the appellant’s representative submitted that the appellant had been the subject of a further examination by a MO of the Department on 9 December 2009 and that the conclusions and findings of the MO should be taken into consideration. 

35.	In the initial written observations on the application for leave to appeal, and in respect of the appeal tribunal’s conclusions with respect to Activity 5, DMS submitted that:

‘This activity relates mainly to the upper body and is intended to reflect the ability to pick up and transfer articles at waist level that requires neither bending down nor lifting, nor reaching upwards as these activities are covered elsewhere in the test. From the above reasons for decision the Tribunal clearly considered the wording of this activity and each descriptor. Descriptors (a) and (b) were ruled out as (the claimant) had problems with his right hand only and these descriptors required incapacity of both hands. With regards descriptor (c) the Tribunal referred to (the claimant’s) contention in the ESA50 questionnaire that he could not do (c) because of his inhibited grip and at the hearing he said he could not put pressure on his right hand. The Tribunal relied on the evidence of the health care professional on examination that (the claimant) had a normal left upper limb and an almost normal right upper limb apart from reduced flexion of the middle and ring finger and an incomplete fist but full movements of the thumb. Having accepted this evidence the Tribunal was of the view that he could manoeuvre the box into the palm of his right hand and use his other fingers and thumb to pick it up and move it. I would submit therefore that the Tribunal has carefully considered this descriptor and worked through the mechanics of how (the claimant) is able to pick up and move an empty cardboard box using both hands …

This clearly indicates that this activity is to assess a person’s ability to pick up and move or transfer and not to assess the ability to carry out any other activity mentioned elsewhere in that part of the Schedule.  Since manual dexterity is a separate activity (No. 6 of Schedule 2) then it cannot be considered in the assessment of activity 5. I would submit therefore that the Tribunal acted in accordance with the legislation and was correct in not taking manual dexterity in the evaluation of activity 5, and in particular descriptor 5(c), into account.

It is unclear what is meant by the term ‘guidelines of safe manual handling practices’.  I would suggest that such guidelines are more appropriate for employees in the workplace and that such manual handling would involve a variety of the activities which are listed in Schedule 2. Indeed the Manual Handling Operations Regulations (NI) 1992, as amended, form the basis of any such guidance issued by the Health and Safety Executive in Northern Ireland. These Regulations are intended to give effect to the substantive provisions of Council Directive 90/269/EEC on the minimum health and safety requirements for the manual handling of loads where there is a risk particularly of back injury to workers.

I would submit that it would be inappropriate to compare any such guidelines for manual handling with activity 5 of the limited capability for work assessment to establish entitlement to Employment and Support Allowance. As I mentioned in my response to point 1 above activity 5 relates mainly to the upper body and is intended to reflect the ability to pick up and transfer articles at waist level that requires neither bending down nor lifting, nor reaching upwards as these activities are covered elsewhere in the test. 

With regards the contention that the Tribunal erred in failing to assess the very specific problems which (the claimant) has with performing the task described at descriptor (c) with his right hand, I would refer to the fact that the Tribunal considered carefully the limitations he experiences with his right hand. Indeed when considering activity 6 (manual dexterity) the Tribunal increased the original award of 6 points to 9 points in view of their conclusion that it was reasonable in light of the clinical findings of reduced flexion of the ring and middle fingers, incomplete fist and full thumb movements. Therefore I would submit that the Tribunal was well aware of the difficulties (the claimant) has with his right hand however it was of the view that for activity 5 these difficulties would not prevent him carrying out the task in descriptor (c).’ 
 
36.	In the case summary prepared for the oral hearing of the application, DMS repeated the arguments which had been set out in the initial written observations. In addition, they submitted that:

‘… it is implied within the wording of the descriptors under activity 5 that manual dexterity is to be considered and is thus excepted from the exclusion referred to in the wording of the activity (in brackets). Whilst the tribunal quoted verbatim in their Statement of Reasons what the activity states in Schedule 2, Part 1 of the Employment and Support Allowance Regulations (NI) 2008, it still considered each descriptor in activity 5 fully.  The Statement of Reasons clearly identifies that the tribunal examined each descriptor under activity 5 and in effect it applied the common sense approach to be taken in such matters as was outlined by Commissioner L T Parker in a reported Incapacity Benefit decision, R(IB) 4/03 (paragraph 16), and did not apply the literal interpretation outlined above.  I submit that in so doing the tribunal did not err in the interpretation it applied to activity 5 even though it states in the Statement of Reasons that manual dexterity was not taken into account.’

R(IB) 4/03

37.	In R(IB) 4/03, what was at issue was the interpretation of Activity 8 of Parts I to the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995, as amended. The amended wording of Activity 8 was ‘Lifting and carrying by the use of the upper body and arms (excluding all other activities specified in Part I of this Schedule).’ The Deputy Commissioner concluded, at paragraph 11 of her decision, that:

‘The amendment to activity 8 has undoubtedly introduced a scoring limitation. The claimant is not able to score by a descriptor for lifting and carrying where the activity impaired is ancillary to lifting and carrying and is itself a separate activity under Part I. Thus a person may, depending upon his original position, have to bend or reach before lifting and carrying an object or after having done so; usually, a person walks while carrying. But none of these activities are essential concomitants of the action of lifting and carrying. A person may pick up and carry and object from a table nearby and at waist level and may even do so while moving around in a wheelchair. Therefore, it is possible to isolate the activity of lifting and carrying from other activities specified in Part I of the Schedule which are otherwise often associated with lifting and carrying, because they are each separate components of one continuous manoeuvre. In addition to walking, reaching and bending, other such activities might be walking up and down stairs, standing and rising from sitting. The limitation introduced by amendment seems certainly to preclude taking into account impairment of these activities when considering whether the claimant is able to lift and carry by the use of upper body and arms.’

38.	That was not the end of the matter, however. At paragraphs 14 to 16 of her decision, the Deputy Commissioner explored the proper interpretation of the relevant wording, as follows:

‘14. The issue is certainly not without difficulty. The activity under item 7 is: “manual dexterity”. The ordinary dictionary definition of dexterity is “skill in handling”. Skill in handling necessarily encompasses a wider group of movements than those involved in the manual aspects of lifting and carrying. Nevertheless, there is an overlap. Although a person can carry some objects under an arm (in some countries, even on their heads!), the usual method of carrying is by use of the hands. Unlike the other activities mentioned above such as bending and reaching, which precede or follow an act of lifting and carrying, use of the hands is an integral part of lifting and carrying in all but the most exceptional cases. Impairment of lifting and carrying may, of course, arise from problems in, for example, the shoulders or the arms rather than the hands. But if one is to exclude any problem with the use of the hands which affects lifting and carrying, on the basis that manual dexterity is another activity specified in Part I of the Schedule, then this negates a very significant aspect of what is, on common-sense terms, included in the concept “lifting and carrying”.

15. It seems self-evident therefore that this was not the anticipated result of the amendment, which was clearly designed to reinforce the policy behind the guidance for examining doctors already referred to, i.e. that activities which could be compartmentalised from lifting and carrying, such as walking, climbing stairs etc. should not assist the claimant to score points for lifting and carrying in addition, simply because they were sometimes associated with lifting and carrying. It surely cannot have been intended that by a side wind an impairment of the hands, and whether or not for the purposes of a separate manoeuvre it fulfilled a descriptor under manual dexterity, would thereby preclude a score in lifting and carrying.

16.	 Happily, a purposive construction of activity 8 seems to support the common-sense approach. The activities and descriptors have to be read together. It is only by satisfaction of descriptors, that a claimant can satisfy the all work test. All the descriptors under item 8 which attract points, refer to the use of a hand in picking up and carrying. Any possibility of a score for activity 8 would very often be blocked by a literal interpretation of the wording of activity 8, read in isolation from its accompanying descriptors, if this entails having to put any matter of manual dexterity aside. I conclude that because one may not be able, for example, to determine whether someone “cannot pick up and carry a 0.5 litre carton of milk with one hand, but can with the other” without considering the dexterity of the hand in question, then therefore the phrase “excluding all other activities specified in Part I of this Schedule” impliedly excepts from that exclusion the activity of manual dexterity.’

39.	As was noted above, the comments and conclusions of the Deputy Commissioner were in the context of the interpretation of Activity 8 of Parts I to the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995, as amended. I can see no reason, however, why the principles set out in R(IB) 4/03 should not be extended to the interpretation of Activity 5 in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008. The wording of Activity 5 (ESA) is parallel to that of Activity 8 (IB). Each scoring descriptor in Activity 5 (ESA) refers to the use of the hands as an integral part of the activity – a key finding in R(IB) 4/03. I also agree that the same illogicality, as was found by the Deputy Commissioner in relation to Activity 8 (IB), could apply in relation to Activity 5 (ESA), namely that any possibility of a score for Activity 5 could very often be blocked by a literal interpretation of the wording of that activity. Accordingly, I accept and adopt the principles of interpretation in R(IB) 4/03, and find that these should be extended to the interpretation of Activity 5 in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008. I conclude, therefore, that the decision of the appeal tribunal, insofar as it concluded that it could not take into account manual dexterity in the interpretation of Activity 5, is in error of law. 

Does taking account of manual dexterity make any difference?

40.	To be fair to Mr Young, for DMS, he concedes that the principles in R(IB) 4/03 should apply to the interpretation of Activity 5 in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008. Mr Young submitted, however, that:

‘Whilst the tribunal quoted verbatim in their Statement of Reasons what the activity states in Schedule 2, Part 1 of the Employment and Support Allowance Regulations (NI) 2008, it still considered each descriptor in activity 5 fully.  The Statement of Reasons clearly identifies that the tribunal examined each descriptor under activity 5 and in effect it applied the common sense approach to be taken in such matters as was outlined by Commissioner L T Parker in a reported Incapacity Benefit decision, R(IB) 4/03 (paragraph 16), and did not apply the literal interpretation outlined above.’

41.	With respect to that submission from Mr Young, I cannot accept it. The appeal tribunal also had in its mind that it was precluded from taking aspects of manual dexterity into account when interpreting Activity 5. Accordingly, it was always approaching the assessment of the appellant’s ability to pick up and move from the wrong perspective. I accept that the appeal tribunal attempted to analyse how the appellant might go about picking up and moving a light but bulky object, such as an empty cardboard box, requiring the use of both hands together, but conducted that analysis from an improper standpoint.    

My further findings in fact

42.	In the case summary prepared for the oral hearing of the application, Mrs Carty urged me to consider additional evidence from a medical examination conducted by a MO of the Department on 9 December 2009. If I am to make the decision which the appeal tribunal ought to have made, I am obliged, under Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, as amended, from taking into account any circumstances not obtaining at the time when the decision appealed against was made. The date of the decision under appeal in the instant case is 25 March 2009. 
 
43.	In C2/10-11(IB), I reviewed the jurisprudence which is relevant to the circumstances in which an adjudicating authority is permitted to take into account evidence which post-dates the decision under appeal. In paragraph 43 I cited the following extract from paragraph 9 of the decision of Commissioner Jacobs in R(DLA) 2/01 – 

‘…If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’
 
44.	I have concluded that the evidence contained within the report of the medical examination relates to the period under consideration in the appeal. It cannot be the case that there was a significant difference between the limitation in function in the appellant’s hand between 25 March 2009 and the date of the second medical examination on 9 December 2009. Having considered the clinical findings on examination on 9 December 2009, and as set out at Box 12 of the report of the medical examination, I conclude that the appellant has a limitation in function in his right hand of a reasonable significance. He cannot make a full fist and his grip in his right hand is poor. He has only partial flexion of the middle joints of the first, second and third fingers of his right hand and the other joints are stiff. He has a significant right hand problem on a daily basis. The clinical findings with respect to the right hand and limitation in function on examination on 9 December 2009 are not significantly out of keeping with the parallel clinical findings on examination on 27 February 2009. Further, it has been accepted by both MOs that the appellant has problems with manual dexterity.  

45.	Applying this evidence to Activity 5 in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, in light of the principles set out in R(IB) 4/03, I find that the appellant satisfies Descriptor (c), that is he cannot pick up and move a light but bulky object, such as an empty cardboard box, requiring the use of both hands together. The application of this descriptor carries 6 points which, when added to the 9 points awarded by the appeal tribunal for Descriptor (d) in Activity 6 (Manual Dexterity) means that the appellant scores 15 points and has, accordingly, limited capability for work.

46.	The appellant does not satisfy any of the descriptors in Schedule 3 to the Employment and Support Allowance Regulations (Northern Ireland) 2008.

The effective date of supersession

47.	In the case summary prepared for the oral hearing of the application, Mr Young submitted that:

‘I submit that the tribunal erred in failing to establish the correct effective date of supersession:

		Although the Legally Qualified Member has amended the date of the Department’s decision from 23 March 09 to 25 March 2009 on the record of the Tribunal’s decision, I would submit that the tribunal failed to identify that the Department had removed (the claimant’s) entitlement to Employment and Support Allowance from 23 March 09 instead of 25 March 09 in accordance with the provisions governing the effective date of supersession.  The decision maker on behalf of the Department incorrectly removed (the claimant’s) entitlement from the date the determination on limited capability for work was made, 23 March 09, rather than the date the decision was made, 25 March 09 (see decision CIB/2338/2000 on the distinction between decisions and determinations).

However I would highlight that although (the claimant’s) award of Employment and Support Allowance should have ended on 25 March 09, a further award of Employment and Support Allowance was made effective from 23 March 09 because he lodged an appeal against the Department’s decision removing entitlement.  Therefore (the claimant) has been paid for 23 March & 24 March 09 and has not been financially disadvantaged as a result of this error.

I would respectfully ask the Commissioner in this case to exercise the power conferred by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given in relation to the effective date of decision.’

48.	I accept this submission from Mr Young and accept that entitlement should have been removed from 25 March 2009.

Other matters arising

49.	My findings and conclusions are sufficient to dispose of the issue arising in this appeal. During the course of the application for leave to appeal, the oral hearing of that application and the subsequent exchange of further written submissions, a number of additional issues were raised and discussed. In deference to the hard work undertaken by the two advocates in the appeal, I regard it as essential that some mention is made of these issues and my conclusions on them, always in the knowledge that is what is set out below will not necessarily be binding on subsequent decision-makers and appeal tribunals. 

50.	Section 8(1) of the Welfare Reform Act (Northern Ireland) 2007 provides that:

‘8(1) For the purposes of this Part, whether a person's capability for work is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to work shall be determined in accordance with regulations.’

51.	Section 9(1) of the Welfare Reform Act (Northern Ireland) 2007 provides that:

‘9(1) For the purposes of this Part, whether a person's capability for work-related activity is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to undertake such activity shall be determined in accordance with regulations.’

52.	Regulation 19(1) of the Employment and Support Allowance Regulations (Northern Ireland) 2008 provides that:

‘19(1) For the purposes of Part 1 of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.’

53.	Regulation 34(1) of the Employment and Support Allowance Regulations (Northern Ireland) 2008 provides that:

‘34(1) For the purposes of Part 1 of the Act, where, by reason of a claimant’s physical or mental condition, at least one of the descriptors set out in Schedule 3 applies to the claimant, the claimant’s capability for work-related activity shall be limited and the limitation shall be such that it is not reasonable to require that claimant to undertake such activity.’

54.	The emphasis in all four citations is mine. One issue which arose during these proceedings was whether, for the purposes of the limited capability for work test, there is an additional test of ‘reasonableness’ over and above the limited capability for work assessment. My provisional view is that there is no additional test of ‘reasonableness’. In relation to determinations of limited capability for work-related activity, regulation 34(1) makes it clear that an application to the claimant of at least one of the descriptors in Schedule 3 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 means that the claimant’s capability for work-related activity must be limited and the limitation must be such that it is not reasonable to require the claimant to undertake such activity. One follows from the other. I am of the view that similar principles must apply to the limited capability for work tests. 

55.	‘Reasonableness’ arose in another way. In the case summary prepared for the oral hearing of the application, the appellant’s representative submitted, on an application of the decision of the Chief Commissioner in R1/96(IB), that the interpretation and application of Activity 5 should be subject to considerations of what is reasonable. The comments of the Chief Commissioner on ‘reasonableness’ were made in the context of an assessment of ‘reasonable regularity’ and an ability of a claimant to carry out the relevant activities. I am of the view that the concept of ‘reasonableness’ in R1/96(IB) is, accordingly, confined to the concept of ‘reasonable regularity’ as set out in that decision and that the decision is not authority for the more general proposition set out in the submission from Mrs Carty. 

56.	It is to be noted that the ability of a claimant to perform a relevant ESA Schedule 2 Activity with some degree of repetition was considered recently by Upper Tribunal Judge Turnbull in AF v Secretary of State for Work and Pensions ([2011] UKUT 61 (AAC)). 

57.	There was some discussion as to whether consideration could be given to the Department for Work and Pension’s Training and Development Handbook, which has an equivalence in Northern Ireland in a document issued by Medical Support Services. There was a brief reference to this ‘ESA Handbook’ in GS v Secretary of State for Work and Pensions ([2010] UKUT 244 (AAC), CE/0313/2010). There was a wider discussion of the relevance of the handbook in EH v Secretary of State for Work & Pensions ([2011] UKUT 21 (AAC)). At paragraphs 39 and 40 of his decision, Judge Wikeley stated:
‘39. So far as descriptor 1 in Schedule 3 is concerned, which deals with “walking or moving on level ground”, Mr Page helpfully refers to the Department’s Training and Development ESA Handbook, prepared by the Office of the Chief Medical Officer on behalf of the Department for Work and Pensions (DWP).  For reasons that are not obvious, this handbook is available on the Disability Alliance and Rightsnet websites but not on the Department’s own website.  It is, of course, fundamentally a training and development handbook and, as Mr Page points out, is not binding on either decision-makers or tribunals (see also RA v Secretary of State for Work and Pensions [2010] UKUT 301 (AAC) at paragraph 9).

40.	 Bearing those qualifications in mind, the discussion of descriptor 1 in Schedule 3 in the Training and Development ESA Handbook is as follows (at p.21; “FME” is an abbreviation for further medical evidence) …’

58.	Similar comments were made by Upper Tribunal Judge May in RA v Secretary of State for Work and Pensions ([2010] UKUT 301 (AAC)) at paragraph 9. I agree with Upper Tribunal Judge Wikeley that the ESA Handbook may be considered in the circumstances set out above. 

59.	Mrs Carty, for the appellant, also submitted that in seeking the proper interpretation of the wording of Activity 5 in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, consideration should be given to the Health and Safety Executive’s publication ‘Manual Handling’ which is a guide to the Manual Handling Operations Regulations 1992. The document which Mrs Carty supplied was a Great Britain document relating to regulations applying in Great Britain. There is available, however, equivalent guidance in Northern Ireland on the operation of the Manual Handling Operations Regulations (Northern Ireland) 1992. I cannot agree, however, that consideration should be given to the contents of these guidance documents. The Manual Handling Operations Regulations (Northern Ireland) 1992 impose specific duties on employers and employees with respect to manual handling in the workplace. It is not appropriate, however, to interpret rules in relation to social security benefit entitlement in light of these very different regulations.

(signed):  K Mullan

Commissioner

24 March 2011