JD-v-Department for Social Development (IB) [2011] NICom 236
Decision No:  C4/11-12(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 1 July 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I find that the decision of the appeal tribunal dated 1 July 2010 is in error of law.  My reasons for finding that the decision is in error of law are set out below.

2.	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.

3.	I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because further findings of fact require to be made.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

4.	It is important that the appellant notes that, while the decision of the appeal tribunal has been set aside, the issue of his entitlement to incapacity benefit (IB) remains to be determined by another appeal tribunal.  The newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background circumstances

5.	The appellant claimed and was awarded IB from 6 December 1997 on the basis that he was incapable of work by reason of post-viral illness and depression.  Later doctor’s statements received in support of the claim refer to chronic fatigue, myalgic encephalomyelitis, anxiety and depression.
6.	The appellant was examined by a medical officer on behalf of the Department on 6 June 2006 and, following that examination, the Department decided that he continued to be incapable of work.

7.	The appellant was examined by a medical officer on behalf of the Department on 3 June 2009 and, following that examination, the Department decided that he scored no points on the personal capability assessment, as was not incapable of work.  A decision was made superseding and disallowing his entitlement to IB from and including 16 September 2009.  On 29 September 2009 the decision was looked at again by the Department but was not changed.

8.	The appellant appealed and on 1 July 2010 an appeal tribunal heard the appeal.  The appellant was present, accompanied by his wife, and represented by Mrs McCaffrey (then Ms Hanna) of Omagh Independent Advice Services.  The appeal tribunal disallowed the appeal.

	Grounds of Appeal

9.	The appellant made an application for leave to appeal to the legally qualified member of the appeal tribunal, who refused the application on 11 October 2010.  On 29 November 2010, an application for leave to appeal was received by the Office of the Social Security Commissioners and Child Support Commissioners.  This application was made after the relevant time limit had expired.  However, the former Chief Commissioner accepted the late application on 21 March 2011 for special reasons, this being the illness of the appellant’s wife at the relevant time.

10.	The application for leave was made on three grounds:

(i)	the appeal tribunal had prejudged the outcome of the appeal before the hearing had even started;

(ii)	the appeal tribunal did not address the appellant’s mental health state;

(iii)	the appeal tribunal erred in its approach to the assessment of the appellant’s hearing.

11.	On 24 March 2011 the Department was invited to make observations on the grounds of application for leave to appeal.  In his response of 7 April 2011, Mr Collins for the Department disagreed with the three grounds.

12.	Specifically, in relation to the first ground, he commented that the elements of a fair hearing, as set out by Commissioner Brown in C6/06-07(IB), were in place, that the tribunal gave a reasoned decision on all the available evidence and that he did not agree that the tribunal had made up its mind prior to the hearing or conducted the proceedings in a manner which could be construed as unfair.

13.	In relation to the second ground, he commented that the tribunal considered a written submission from the appellant’s representative which was handed in on the date of the hearing, which referred to specific physical and mental descriptors.  He noted that the appeal tribunal did not specifically record the mental health descriptors considered.  However, he submitted, the tribunal’s reasons as recorded clearly demonstrate that it (1) considered Ms Hanna’s submission (2) was aware of the appellant’s history of depression (3) considered the descriptors as identified by the Department but considered “any other descriptors/activities.”  (Mr Collins’ underlining.)  Consequently he did not agree that the appeal tribunal did not address the appellant’s mental health state and did not support the appellant’s second ground of appeal.

14.	In relation to the third ground, Mr Collins submitted that, there was nothing in either the record of proceedings or the appeal tribunal’s reasons to suggest that it drew incorrect conclusions regarding the appellant’s hearing.  Consequently he did not support the appellant’s third ground of appeal.

15.	The appellant’s representative was given the opportunity to respond on 5 May 2011.  On 23 May 2011, she commented that on the day of the appeal tribunal hearing, she had handed in a written submission asking the panel to look at specific physical and mental health descriptors.  She states that the appellant was not asked about the specific areas in relation to the mental health descriptors.  Rather, she states that the appellant and the representative were asked to leave the tribunal room.  She assumed that this was because the tribunal had gathered enough evidence from the physical health descriptors to reach a decision without putting the appellant over the mental health descriptors.  She was told that a written decision would be posted out without being given a decision on the day of the appeal hearing.  She was shocked to learn some days later that the appeal had been disallowed.  She submitted that as the appellant had not been asked questions on the areas of mental health that she had raised, she felt the decision was unsafe.

16.	In a determination of 31 August 2011, Deputy Commissioner May granted leave to appeal, holding that the appellant’s second ground was arguable.

17.	An oral hearing has not been requested and I consider that I can decide this matter without the need to conduct an oral hearing.  With the Department’s consent, I treat their observations as if made under regulation 18(1) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999.

	The proceedings before the appeal tribunal

18.	The appeal tribunal states in the record of proceedings that it had before it the submission from the representative in addition to the Department’s submission and a medical report from the appellant’s general practitioner.

19.	The submission from the representative identifies a number of physical and mental health descriptors which were in dispute.  Ten mental health descriptors are identified which could at their height attract an award of 14 points under the personal capability assessment.  In order to satisfy the personal capability assessment an award of at least ten points would be required.  The disputed descriptors relate to matters including motivation, mood and anxiety.

20.	The appeal tribunal was given evidence in the form of Dr Brannigan’s report that the appellant experienced disturbed sleep, low mood and irritability, was on a 40mg dose of paroxetine daily and that he had been referred back to the mental health team.  In a report of Dr Hackett it was stated that the appellant had been recommended to undertake a few hours work each week for therapeutic purposes.

21.	Turning to the record of proceedings of the appeal tribunal the following is set out:

“Mental Health

He last saw his General Practitioner about 2 weeks ago for a chest infection.
He last saw Dr Manley psychiatrist 1997-1998
He sleeps on the sofa for last year. In the family room.
He gets up about 7.30/8.00. He watches television.  He breakfasts etc.
He sits about, takes a walk, sits outside, he likes being out in the good weather.
His money is paid into post office account.  He does not go to the post office.
Income support is payable as a couple.
He does some gardening.  He cuts the grass with the lawnmower.
He calls and sees his mother once per month.
Kids and wife are with him during the day.  He does nothing with the kids.  Her sister in law has really adopted them.
…
Representative: Nothing further to add.”

22.	In the statement of reasons, the appeal tribunal further states:

“The Tribunal accepted the clinical findings of the Departmental Medical Officer in the Medical Report dated 19/8/2009, as it considered that it was a fair reflection of the Appellant’s medical condition.  It noted the contents of Dr Brannigan’s report, but preferred the clinical findings of the Departmental Medical Officer.  The Tribunal considered all the activities relied upon by the Appellant as specified in the submission by the Department.  The Tribunal did not believe that an award of any points was merited in respect of any of the activities/descriptors relied upon.  It did not believe that the evidence revealed that any award of points in respect of any other descriptors/activities was merited.

The Tribunal believed that he led a typically normal lifestyle.  He drives the car, he is a driving instructor and gives lessons on a regular weekly basis.  He is reasonably active, he can walk for about 20 minutes for example; he can do gardening.  The Tribunal believed that he exaggerated how his conditions affected him.  The Tribunal did not believe that award of points in any of the activities relied upon was merited.”

	Assessment

23.	In the decision of the Tribunal of Commissioners reported as R2/01(IB)(T), the Commissioners stated at paragraph 17:

“As has been stated in previous decisions we do not consider it necessary in every case that reasons be given for each descriptor chosen and we would not necessarily consider that it was necessary in this particular case.  However, where, as in this case, there is a conflict of crucial evidence the Tribunal should give some indication of its evidential preference and the reasons for that preference.  To give a hypothetical example, if it considers that a claimant is overstating his or her case, whether consciously or otherwise, it should clearly say so.  The assessment of evidence is a matter for the Tribunal as the fact finding body and it is quite entitled to exercise its judgment in making that assessment.  It must, however, give adequate reasons for its decision and in this case we do not consider that it has done so.  The reasons do not adequately explain to the claimant why she lost her case.”

24.	They further recommend at paragraph 43:

“There will be cases where detailed findings of fact are necessary to explain adequately the decision.  There will be other cases where the evidential assessment clearly indicates the Tribunal’s view of the fact situation, for example, where it expressly states it accepts a medical report because it is more independent and, credible than a claimant’s evidence, or that it accepts a claimant’s evidence as a more accurate assessment of his limitations than other evidence.  However, Tribunals are much less likely to err if they record express findings on all disputed factual matters relevant to the decision under appeal and we would strongly recommend this practice.  The dangers of adopting any other practice are quite apparent e.g. all relevant facts may not be found or accepted evidence may be unclear as to certain material facts.  We strongly recommend that Tribunals record a clear statement of the facts found material to the decision.  This is the best and safest practice.”

25.	In the statement of reasons for its decision the appeal tribunal clearly sets out its misgivings about the evidence given by the appellant, finding that he exaggerated how his conditions affected him.  I have not had the benefit of seeing the appellant give evidence, and I consider that the tribunal is entitled to its view of the appellant’s evidence on what it has heard.

26.	However, the complaint by the appellant is that his evidence has not been fully heard, as the tribunal has not asked him about a number of descriptors which he has flagged up in the submission from his representative.

27.	In applying the personal capability assessment to the mental health descriptors, it is a common and legitimate approach to seek evidence from an appellant in the form of questioning about a typical day, rather than to work step by step through a series of questions derived directly from the wording of each descriptor.  Questions addressed to physical health descriptors may also elicit helpful evidence about an appellant’s mental state.  It appears that the appeal tribunal in the present case has adopted such an approach.

28.	However, there are limitations to such an approach.  This is because the answers volunteered in response to general or more oblique questions may not always be such as to bear directly on the relevant descriptors.

29.	The appellant makes the complaint that the tribunal never addressed his mental health state.  Looking at the record of proceedings and the statement of reasons, it is difficult to gainsay that complaint.  In particular, the appellant raises issues such as sleep disturbance, irritability, lack of motivation, anxiety, giving up leisure activities, difficulties with changes in routine and looking after himself and disruptive behaviour.  However, there is no record of anything being asked of him around these descriptors or of any conclusion being reached on them.  It is difficult to see how the answers to some of the general questions about his lifestyle could be extrapolated into a finding that these descriptors were not satisfied.

30.	The appeal tribunal explains that it believed that the appellant’s evidence was exaggerated.  The Tribunal of Commissioners in R2/01(IB)(T) said that where the only evidence in support of a claimant’s contentions is that claimant’s own evidence and a tribunal clearly expresses its view that that claimant’s evidence is completely unreliable, no further findings of fact may be necessary.  The finding that the claimant is a completely unreliable witness may be enough.

31.	However, this was not such a case.  The appellant presented medical evidence supportive of his account in relation to the mental health descriptors from Dr Brannigan.  I consider that, merely because the appeal tribunal found the appellant’s evidence lacking in credibility on the physical descriptors, it was not entitled simply to make a judgment that the appellant’s evidence would lack credibility in respect of the mental descriptors.  The appeal tribunal was obliged to hear and consider the appellant’s full evidence.

32.	I have had regard to the fact that the appellant was represented on the day of hearing.  His representative did not seek to question the appellant on any descriptors which the appeal tribunal had not asked him about.  She states that in the absence of direct questioning on mental health descriptors, when asked to leave the tribunal room she understood that the appeal tribunal was adjourning to consider its decision on physical descriptors before proceeding to consider mental health descriptors.  I note that the record of proceedings indicates that the representative stated that she had “nothing further to add”.

33.	The representative relates that on being called back into the tribunal room the appellant was told that the appeal tribunal would post a decision to him.  From the record of proceedings it indeed appears that a decision was not given on the date of hearing but a day later.  It is not clear from the papers why the decision was not given on the day of hearing.  However, as this was the case, I accept that the representative was not alerted to the fact that a decision unfavourable to the appellant was to be issued and that on the day of the hearing she was not in a position to correct what she saw as the appeal tribunal’s failure to address the mental health descriptors.  In general, however, I would have expected that the representative would raise any perceived failure by the appeal tribunal to address issues when the appeal was still at hearing.

	Conclusions

34.	It follows from what I have said that the tribunal in this case has not followed best practice in terms of what was said in R2/01(IB)(T).  Failure to follow best practice is not in itself an error of law.  However, the consequence of the failure is that I cannot say with certainty that the appeal tribunal in the present case has made findings of fact material to all the issues in dispute in the appeal.  I cannot say that the reasons adequately explain to the appellant why he lost his case in terms of the application of the mental health descriptors, or even whether the appeal tribunal has fully considered them.  For these reasons I find the decision of the appeal tribunal to be in error of law.

35.	I therefore set aside the decision of the appeal tribunal and remit the appeal to a differently constituted appeal tribunal for rehearing.  That appeal tribunal when dealing with disputed descriptors should set out its assessment of the evidence clearly and give, albeit briefly, the reason or reasons for accepting the evidence it prefers.  It should clearly indicate its views on the appellant’s limitations in relation to the descriptors within the personal capability assessment which are material to its decision, including the mental health descriptors.

(signed):  O Stockman

Commissioner

1 December 2011