SAG-v-Department for Social Development (ESA) [2011] NICom 171
Decision No:  C3/10-11(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 10 May 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal against a decision of a tribunal, affirming a decision of a decision-maker, to the effect that, from 15 December 2009, the claimant is not entitled to employment and support allowance (ESA) as she is not considered as having limited capability for work.

2.	The claimant claimed ESA from and including 22 August 2009.  In order to assess her capability for work the claimant completed questionnaire form ESA50 on 27 August 2009.  A health care professional of the Department examined the claimant on 17 November 2009.  On 10 December 2009 a decision-maker considered all the evidence available and determined that the claimant scored zero points and, therefore, did not have limited capability for work.  In light of this determination the decision-maker decided that the claimant was not entitled to ESA from 15 December 2009.  On 7 January 2010 the claimant appealed the decision to disallow her ESA.  This was received by the Department on 11 January 2010.  This was referred to a decision-maker who reconsidered the decision on 8 March 2010.  However, the decision was not changed.

3.	The appeal was heard by a tribunal on 10 May 2010.  At the hearing the claimant, who was present, was represented by Mr P Huddleson.  The tribunal upheld the decision of the decision-maker and disallowed the award of ESA from 15 December 2009.  The claimant’s representative applied for leave to appeal on 28 August 2010.  On 22 September 2010 the legally qualified member (LQM) of the tribunal granted leave to appeal to a Commissioner.  The point of law set out by the LQM was as follows:

“The extent to which variability of symptoms can be taken into account in the applicability of physical and mental descriptors.”

4.	The LQM had set out the reasons for the tribunal’s decision as follows:

“(The claimant) suffers from fibromyalgia, coeliac disease and neck pain. She also suffers from low mood and anxiety.

(The claimant) identified as a problem descriptors 1 to 5 (inclusive), plus descriptors 15 and 16 in the mental health assessment. Descriptor 10, regarding incontinence also considered.

(The claimant) attended for medical examination on 17.11.2009.  On that date the Medical Officer obtained a picture of Appellant with regard to her daily routine and carried out a physical examination to obtain a summary of (the claimant’s) functional ability.

Straight leg raising was full and equal right and left.  Hip, knees and ankle movements normal. It was noted forward bending was mildly restricted.

None of the descriptors in walking, standing and sitting and bending or kneeling applied, score zero for these 3 descriptors.

Power and sensation noted to be normal in upper limbs, grip normal both hands, (Box 12, medical examination).  None of descriptors apply in reaching, picking up and moving and manual dexterity.

No problem identified by Appellant regarding speech, hearing or vision.

At medical examination in November 2009, (the claimant) described faecal urgency – as a result of her coeliac condition.  It would appear since date of decision there may have been a deterioration in Appellant’s control of her bowels, unfortunately panel cannot take account of this, it would be a mater [sic] for Appellant to consider reporting this to the Department as a significant change of circumstance.

Total score for physical descriptors, zero.

Mental health was also considered.

(The claimant) identified descriptor 15 as a problem – Execution of Tasks.  Appellant said it depended on how she felt, which might vary according to day.

Descriptor 16, also considered, Initiating and Sustaining Personal Action. In her form Appellant said that due to tiredness she might just have to stop an activity, for example ironing, and then return to it after a rest.

None of the descriptors in 15 or 16 applied to Appellant.

Panel wish Appellant to know that they do appreciate she is suffering from fibromyalgia.  In a way it appears to the panel for (the claimant) to receive a score of zero is not appropriate, it is as if we are saying you do not have an illness.

One of the unfortunate symptoms of fibromyalgia is that physically there may be no outward manifestations of this illness, yet it still can cause the sufferer great discomfort at times.  Unfortunately the scoring system of the Work Capability Assessment is such that it does not appear to take account of the variability of symptoms.

Not having achieved a minimum score of 15 points (the claimant’s) appeal must fail.”

5.	At the hearing before me, the appellant (the claimant) was again represented by Mr Huddleson while the Department was represented by Mr D McKendry of Decision Making Services.

6.	The claimant’s representative made three points in the original application for leave to appeal.  They were as follows:

(i)	Firstly, Mr Huddleson stated that the statement of reasons indicated that:

	“ESA does not allow for any variability in a condition, allowing anyone to accumulate the relevant number of points”.

(ii)	The second point that Mr Huddleson raised was that the statement of reasons also suggested that:

	“… her score of zero is inaccurate as the panel wishes that the appellant know that there is agreement of the condition fibromyalgia.  The presence of the condition highlights the fact that the department decision to disallow is perverse, as there is no basis for variability in the benefit claimed.”

(iii)	Finally, Mr Huddleson stated that:

	“There has been a breach of the principle of natural justice as the statement of reasons while being an accurate record, highlights that there could not be any outcome other than disallowance due to the deficiencies with the ESA form, which suggests that many others will follow suit ural justice, as the panels comments about ESA would suggest that her appeal was doomed to fail from the outset.”

7.	However, at the hearing Mr Huddleson refined his submission and relied on the point that the tribunal had erred in law by failing to take into account the possibility that the claimant could be entitled to points being awarded under the work capability assessment, even though there was evidence before the tribunal that the claimant’s condition was variable.

8.	The question for the decision-maker and for the tribunal on appeal to decide was whether the claimant had limited capability for work in accordance with the limited capability for work assessment (section 8(2) of the Welfare Reform Act (Northern Ireland) 2007 and regulation 19 of the Employment and Support Allowance Regulations (Northern Ireland) 2008).  This is a comparatively new statutory test which has to be applied by decision-makers and appeal tribunals.  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 certain activities – the activities are those prescribed in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008.  To have limited capability for work the claimant would have had to have scored 15 points, whether for (i) physical descriptors, (ii) mental, cognitive and intellectual function descriptors, or (iii) a combination of both.  As has been made clear earlier in this decision, the tribunal upheld the decision of the decision-maker of the Department of 15 December 2009 that had awarded the claimant zero points.

9.	Mr McKendry took issue with the specific finding of the tribunal that the scoring system is such that it does not appear to take account of the variability of symptoms.  He pointed out that the issue of variability has been considered by Commissioners, both in Northern Ireland and Great Britain, in various incapacity benefit decisions.  He also submitted that the principles in these decisions are equally applicable to employment and support allowance and that the tribunal’s statement that the scoring system does not take account of the variability of symptoms is erroneous in law.

10.	In particular Mr McKendry relied on a decision of a Great Britain Tribunal of Commissioners in R(IB) 2/99 in which at paragraph 15, the Tribunal of Commissioners approved a statement of the Great Britain Chief Commissioner in R(A) 2/74, who stated at paragraph 35:

“In my judgment in answering the [statutory questions], ‘regard must be paid to … the claimant’s requirements over a period of time.’  I think that the delegate should take a broad view of the matter, asking himself some such question as whether in all the circumstances the words in the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts.  These are matters for the good sense and judgment of the delegate.”

11.	Mr McKendry also supported his proposition by quoting from a case of a Tribunal of Commissioners, R2/04(IB)(T), in which it was stated:

“21.	As Mr Fletcher stated, however, the Tribunal is entitled to consider evidence relating to a period prior to 19 July 2002 to determine whether at 19 July 2002 the claimant was incapable of work.  Both he and Mrs Gunning referred to decision R(IB)2/99, a decision of a Tribunal of Commissioners in Great Britain, which delineated the “broad brush” approach to be adopted in determining whether a person is or is not incapable of work in accordance with the PCA.  In general terms, we endorse that approach.  That broad brush approach will enable the Tribunal to give consideration to the past pattern of the claimant’s illness in determining whether, as at the date of the decision under appeal, he was or was not incapable of work.

22.	Adopting that broad brush approach, the Tribunal may find the claimant capable or incapable.  If it finds him incapable it may continue the previous award for an indefinite period leaving to the Department the date when same is to be reconsidered.  Alternatively the Tribunal may decide to continue the award for a limited period if on the circumstances obtaining at the date of the decision under appeal it had reason to believe there would be an improvement such as might render the claimant capable of work under the said personal capability assessment.”

12.	Mr McKendry submitted that, in light of the approach set out in R2/04(IB)(T), the tribunal in the present case ought to have made findings on the claimant’s overall condition and that, by not so doing, it failed in its inquisitorial role in relation to determining whether and, if so, how the claimant’s condition varied over a period of time.  In particular he submitted that the tribunal erred in not considering the broad brush approach as set out by the Tribunal of Commissioners in R2/04(IB)(T).

13.	Since this appeal was heard before the tribunal, a relevant case has been heard in the Upper Tribunal in Great Britain, namely, AF v Secretary of State for Work and Pensions (ESA) [2011] UKUT 61(AAC) in which Upper Tribunal Judge Turnbull dealt with a case which has some similarities to the present one.  In that case, as in the present one, the claimant also raised fibromyalgia as an issue in the case.  The first tier tribunal considered activity 3 – bending or kneeling – and compared the wording of the activity with activity 6 – bending and keeling, in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 (which were identical in form to the equivalent Northern Ireland Regulations).  It should go without saying that the present activity 3 under the Employment and Support Allowance Regulations (Northern Ireland) 2008 is also identical to activity 3 in the present Great Britain Regulations.

14.	At paragraph 10 of that decision Judge Turnbull, referring to the first tier tribunal’s decision, stated as follows:

“10.	In relation to bending or kneeling, the Tribunal’s reasoning included the following:

“The tribunal notes the appellant’s representative’s submissions as to the need to take into account the appellant’s ability to repeatedly and reliably undertake such actions.  The tribunal rejects the submission to the effect that such considerations are a necessary aspect of assessment of this descriptor.  The tribunal notes that the descriptors under the previous incapacity benefit scheme specifically made provision for “sometimes” not being able to undertake the activity of bending and kneeling.  The present scheme has deliberately excluded the “sometimes” component of functioning in relation to bending, as well as recasting the descriptor as a whole.  In those circumstances the reasonable inference is that under the new scheme (ESA) the inability to repeatedly undertake the bending as set out in the descriptor has been deliberately excluded from the definition of the bending descriptor.””

15.	However, as Mr McKendry has submitted, Judge Turnbull held specifically that such reasoning was flawed as the judge stated as follows in the same decision:

“11.	In my judgment the absence of the “sometimes” descriptor (6(c) of the incapacity for work descriptors) does not have the effect stated by the Tribunal.  It means merely that there is no descriptor under which the claimant can score points merely because he is sometimes unable to perform the relevant activity.  However, the need for the decision maker to take into account whether the claimant can perform the relevant activity with some degree of repetition (cf. in particular CIB/13161/96) in my judgment subsists in relation to the work capability assessment descriptors as in relation to the incapacity for work descriptors.  In particular, if the effect of performing the activity is likely to be to disable the claimant from performing it for a substantial period, that will need to be taken into account, both in relation to bending or kneeling and the other activities.  The only “sometimes” descriptors in the personal capability assessment were in relation to the activities of rising from sitting and bending and kneeling, but it has never been doubted that the need to take into account whether the activity can be performed with a degree of repetition applies to all the activities.

12.	A tribunal is of course unlikely to need expressly to consider this issue unless there is something in the facts which suggests that the claimant might not be able to perform the activity with some degree of regularity.  It is likely to arise, in particular, in cases such as those of chronic fatigue syndrome.  The Secretary of State submits that the Tribunal’s error in this case can have made no difference, in that there was no question of the Claimant satisfying any of the bending and kneeling descriptors in any event.  However, the effect of fatigue was a theme in the Claimant’s answers in the ESA 50 questionnaire, and had been relied on in the written and oral submissions.  I am unable to say that the Tribunal’s error could not have made a difference.”

16.	Accordingly Mr McKendry submitted that AF v Secretary of State for Work and Pensions (ESA) [2011] UKUT 61 (AAC) copper fastens the ‘rationale’ behind previous incapacity benefit decisions where a claimant’s condition was variable and carries this principle forward to employment and support allowance.

17.	Mr McKendry accepted in the present case, as in the case of AF v Secretary of State, that the tribunal ought to have taken into account whether the particular activities can be performed with a degree of repetition and that, in light of the relevant issue of fibromyalgia in this case, the tribunal ought to have dealt with these issues using the broad brush approach as set out in R2/04(IB)(T).

18.	In my view Mr McKendry is correct in his submissions that support the case made by Mr Huddleson.  Accordingly I conclude that the tribunal has erred in law in this respect.

19.	In addition there is an additional point in the case.  The tribunal has clearly accepted the evidence of the healthcare professional (always, as I understand the position to be in Northern Ireland, a medical practitioner) as opposed to the evidence proffered on behalf of the claimant.  It seems to me that it is important for a tribunal to remember to make findings in relation to such issues and, in particular, why it should prefer some evidence rather than other.  It might appear trite but it is always necessary for a tribunal to give reasons, however brief, explaining why it accepts (either in whole or in part) or rejects (either in whole or in part) evidence which is relevant to the issues in the case and, in my view, the tribunal has also erred in law in this respect.

20.	Therefore, for the reasons set out at paragraphs 18 and 19, I allow the appeal, set aside the tribunal’s decision and remit the case for re-determination by an entirely differently constituted tribunal.  The new tribunal, in so far as the issue of variability is still relevant in the proceedings before it, ought to bear in mind the decision of the Tribunal of Commissioners in R2/04(IB)(T) paragraphs 21 and 22, and also the decision of Judge Turnbull in AF v Secretary of State for Work and Pensions (ESA) [2011] UKUT 61(AAC).

(signed):  J A H Martin QC

Chief Commissioner

11 May 2011