RMcK-v-Department for Social Development (ESA) [2015] NICom 24
Decision No:  C7/14-15(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 2 January 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 2 January 2014 is in error of law.  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 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 there may be further findings of fact which require to be made.  As will be noted below, I directed an oral hearing of this appeal.  One of the reasons for so doing was, if I was to find that the decision of the appeal tribunal was in error of law, to avoid having to remit the appeal to a differently constituted appeal tribunal by making further findings of fact after having taken oral evidence from the appellant.  In the event, the appellant did not attend the oral hearing before me.  In those circumstances I have no option but to refer the case to a differently constituted appeal tribunal for re-determination.

3.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to employment and support allowance (ESA), for a particular period, remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

Background

4.	On 19 October 2012 a decision-maker of the Department decided that the appellant did not have limited capability for work and that his award of incapacity benefit credits/income support did not qualify for conversion into an award of ESA with effect from 13 November 2012.  An appeal against the decision dated 19 October 2012 was received in the Department on 14 November 2012.

5.	The oral hearing of the appeal took place on 2 January 2014.  The appellant was present.  The Department was represented by a Departmental Presenting Officer.  The appeal tribunal disallowed the appeal and confirmed the decision dated 19 October 2012.  The appeal tribunal did apply certain of the descriptors and activities in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 as amended, which the decision-maker had not applied.  The application of these descriptors meant that the appellant attracted a score of 6 points in connection with the work capability assessment.  That score was insufficient, though, for the appeal tribunal to make a determination that the appellant had limited capability for work - Regulation 19(3) of the Employment and Support Allowance Regulations (Northern Ireland), as amended.

6.	On 24 March 2014 an application for leave to appeal was received in the Appeals Service (TAS).  On 26 March 2014 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

7.	On 29 April 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 29 May 2014 written observations on the application for leave to appeal were sought from Decision Making Services (DMS).  In written observations received on 23 June 2014 Mr Collins, for DMS, opposed the application on the grounds submitted by the appellant.

8.	Written observations were shared with the appellant on 23 June 2014.  On 30 July 2014 correspondence was received from Ms Loughrey of the Law Centre (Northern Ireland) on behalf of the appellant.  The correspondence from Ms Loughrey was shared with Mr Collins on 7 August 2014.

9.	On 19 September 2014 I granted leave to appeal and directed an oral hearing of the appeal.  The oral hearing took place on 6 November 2014.  The appellant was not present but was represented by Ms Loughrey.  The Department was represented by Mr Collins.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

Errors of law

10.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.  What is an error of law?

11.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	The submissions of the parties

12.	In the application for leave to appeal which was received in the Office of the Social Security Commissioners the appellant set out details of how his ability to function is affected by his epilepsy.  In addition, the appellant submitted that:

‘Not being able to live a normal life due to my illnesses is having an effect on my mental health as it gets me down and I can sometimes feel like a burden on my family as I rely on them for taking me places and also for helping when I have any seizures.’

13.	The appellant added that his ability to go to places by himself was affected not only by his epilepsy but also by his ‘low mood’.  Attached to the application for leave to appeal was a letter dated 28 February 2014 from a Consultant Neurologist.

14.	As was noted above, Mr Collins prepared his written observations on the application for leave to appeal on the basis of the grounds which had been submitted by the appellant.  Ms Loughrey became involved in the proceedings before the appeal tribunal after Mr Collins’ written observations on the application for leave to appeal were forwarded to the appellant.  It was Ms Loughrey who prepared the written observations in reply.  In those observations in reply, Ms Loughrey made reference to the appeal tribunal’s conclusions on the applicability of descriptor 10(b) in Part 1 of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 (‘the 2008 Regulations’), as amended. Ms Loughrey submitted that:

‘Having awarded him 6 points, it would appear that the Tribunal accepted that (the claimant) did experience episodes of loss or altered consciousness.  The issue for the Tribunal appears to have been the frequency of those episodes.  In awarding him 6 points by reference to descriptor 10(b) of the Schedule, the Tribunal explained that having been presented with a somewhat confusing picture, it could not be certain of the extent to which these episodes occurred.

While we accept that (the claimant’s) evidence was inconsistent with regard to frequency, the Tribunal was assisted by (Ms L) who, according to the record told the Tribunal that she witnessed him having “turns” in the bar area at least once per week.  When they occur she said:

‘He has no coordination, he is staring, he is blank.’

Despite having had the benefit of (Ms L’s) evidence with regard to the nature and extent of (the claimant’s) episodes of loss or altered consciousness, its reasons are silent on how it viewed her input.  Even if in light of the inconsistency in his evidence as to frequency the Commissioner holds that the Tribunal was entitled to select activity 10(b) in preference to activity 10(a) of the Schedule, (the claimant) was entitled to an explanation as to why the Tribunal did not accept (the claimant’s) evidence.  This is especially so given that its decision appears to have been based on the extent of episodes it accepted.’

15.	In the Case Summary prepared for the oral hearing of the appeal, Ms Loughrey sought to present two additional grounds on the basis of which she submitted the decision of the appeal tribunal was in error of law, as follows:

1.	The reasons given by the Tribunal do not adequately explain how it formed the view that (the claimant) did not have any difficulties whatsoever in any of the remaining physical disabilities nor in the mental, cognitive or intellectual activities.

2.	Being aware that he had been engaged in bar work in the past and that in its view he could do so again at some time in the future, it is unclear if the Tribunal fully considered the potential relevance of either Regulation 29 or 35 of the ESA (General) Regulations at the date of the decision to disallow ie 19 October 2012.

16.	In connection with the first additional ground, Ms Loughrey noted that:

‘Whilst epilepsy was undoubtedly his main disabling condition, we respectfully submit that as indicated in his ESA50 questionnaire, remaining conscious was not the only activity in which he experienced difficulties.  By this, he indicated that he also had limitations in the activity of mobilising.  When asked to indicate if any of the mental, cognitive or intellectual activities were relevant, he confirmed that he sometimes had difficulties with:

11. Learning tasks;

12. Awareness of everyday hazards;

13. Initiating and completing personal action;

15. Getting about;

17. Appropriateness of behaviour due to cognitive impairment or mental disorder.

…

As the record made of evidence taken at the hearing appear only to deal with (the claimant’s) asserted limitations with mobilizing and remaining conscious, the Tribunal appears to have taken the view that as he confirmed epilepsy was his main problem, his difficulties with other unrelated activities ie the mental, cognitive and intellectual activities were not sufficient for the award of points.  That said, and as its reasons are otherwise silent on if and why it considered that he did not attract any points by satisfaction of any activities apart from remaining conscious, we respectfully submit that it has erred.’

17.	At the oral hearing of the appeal, Ms Loughrey expanded on her written arguments in connection with all three grounds.

18.	In reply, Mr Collins conceded that when one looked at the record of proceedings for the appeal tribunal hearing and the statement of reasons for its decision, there was evidence in relation to frequency of episode which was in favour of the appellant.  In connection with the submission that the appeal tribunal had failed to consider other potentially relevant activities and descriptors, particularly those activities and descriptors in Part 2 of Schedule 2 to the 2008 Regulations, Mr Collins noted the content of regulation 19(5) of those Regulations which provides:

‘19(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—

(a) in respect of any descriptor listed in Part 1 of Schedule 2, from a specific bodily disease or disablement;

(b) in respect of any descriptor listed in Part 2 of Schedule 2, from a specific mental illness or disablement; or

(c) in respect of any descriptor or descriptors listed in—

(i) Part 1 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific physical disease or disablement;

(ii) Part 2 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific mental illness or disablement.’

19.	Mr Collins submitted that, although based on conjecture, it might have been the case that the appeal tribunal omitted to consider the Schedule 2, Part 2 activities and descriptors on the basis that the appellant had not been diagnosed from a specific mental illness or disablement or, alternatively, had concluded that the appellant was not receiving treatment provided by a registered medical practitioner for a specific mental disease or disablement.  I would note, at this stage, that the present version of regulation 19(5) was substituted by regulation 3(2)(b) of the Employment and Support Allowance (Amendment) Regulations (Northern Ireland) 2013 with effect from 28 January 2013.  The decision under appeal in the instant case is dated 19 October 2012.  Mr Collins submitted that the appeal tribunal appeared to have focused on the appellant’s problems with epilepsy and there may have been an onus on the appeal tribunal to give a further explanation as to why it considered that the Schedule 2, Part 2 activities and descriptors were not applicable.

20.	In relation to the potential application of regulations 29 or 35 of the 2008 Regulations, Mr Collins submitted that his initial view had been that the appeal tribunal had addressed this question.  Mr Collins referred to my own decision in C6/11-12 (ESA).  Mr Collins noted that the appeal tribunal did not have the advantage of having the letter dated 28 February 2014 from the Consultant Neurologist before it.  Nonetheless, Mr Collins submitted that the appeal tribunal might have asked more detailed questions in connection with the potential application of regulations 19 and 35.

	Analysis

21.	The appeal tribunal applied descriptor 10(b) in Part 1 of Schedule 2 to the 2008 Regulations.  This descriptor reads as follows:

‘At least once a month, has an involuntary episode of lost or altered consciousness resulting in a significantly disrupted awareness of concentration.’

22.	This descriptor attracts a score of 6 points in connection with the limited capability for work assessment.  Descriptor 10(a) is in the following terms:

‘At least once a week, has an involuntary episode of lost or altered consciousness resulting in a significantly disrupted awareness of concentration.’

23.	This descriptor attracts a score of 15 points in connection with the limited capability for work assessment, sufficient to lead to a determination that a claimant has limited capability for work.  The difference between the 10(a) and 10(b) descriptors is clearly one of frequency of episode.

24.	The appeal tribunal gave the following reasons for its choice of descriptor:

‘The Appellant’s evidence to the hearing is recorded in the record of proceedings.  Therein, he indicated that his epilepsy was his main problem, he had 30% eye sight in his left eye, he did not wear glasses.  He told the hearing that he had 3/4 seizures per week, some ones not as bad as others.  In the severe seizures, which happen once or twice per week, he “blacks out”.  In the other seizures, he is aware of his surroundings, but he is not aware of his surroundings in the severe seizures.  He had said in the claim form at Part 1 …. “Sometimes when I would take a epileptic fit I would forget where I am …”. Also at section 10 of the claim form when asked how often he had fits or blackouts he replies … “monthly”.  The Health Care Professional recorded in her report “… describes seizures without loss or alteration of consciousness occurring every four weeks… “.  Accordingly, there was a somewhat confusing picture of how often the appellant has a seizure, and the extent of the same.  On balance, the Tribunal accepted that at least once per month, he had an involuntary episode of loss or altered consciousness; in accordance with his assertion in the claim form.  The Tribunal could not be certain of the extent of the loss of consciousness or altered consciousness on these occasions, but on balance, it accepted that he met the statutory criteria for the award of 6 points in this activity.  It did not accept at all that he had such episodes of lost/altered consciousness at least once per week.  The appellant led a reasonably active lifestyle, he would attend to his own personal care, he can make food for himself and take his medication, he can go for walks, he can attend his father’s pub and his father’s partner’s bar/business on a very regular basis watching racing and pool.  There was no evidence in the documents or at hearing, that the Appellant was currently working in the bars at the present time, but he had actually done so in the past, and it was the Tribunal’s view that he could do so again at sometimes in the future.’

25.	In my view the appeal tribunal has gone to some considerable length to set out the evidence which it had taken into account and to explain its assessment of that evidence.  The appeal tribunal conceded that the evidence provided a ‘confusing’ picture as to the frequency and extent of episode of altered consciousness.  It looked at the evidence provided by the appellant in the ESA questionnaire which he had completed as part of the information-gathering process giving rise to the decision under appeal, the evidence given by the appellant to the healthcare professional who had prepared a report on behalf of the Department and the appellant’s own oral evidence to the appeal tribunal.

26.	What is missing from the analysis is an assessment of the evidence which was given in support of the appellant at the oral hearing by (Ms L) who was described as the appellant’s father’s fiancée.  In the record of proceedings for the appeal tribunal hearing, the following is recorded:

‘Ms L: 	She has known him for 14 years.

He takes the turns, she sees him taking a turn in the bar area or at home about once per week.

He has no co-ordination, he is staring, he is blank.

He is getting worse.’

27.	There is nothing in the statement of reasons for the appeal tribunal’s decision to state how the evidence from (Ms L) was assessed.  The evidence of (Ms L), as recorded, had the potential, and I emphasise the potential only, to be supportive of a finding that the ‘turns’ which she was describing were, for the purposes of the relevant legislative provisions, episodes of lost or altered consciousness and that such episodes were occurring on the frequency of at least once per week.  It may have been the case that (Ms L)’s evidence was rejected by the appeal tribunal but that has not been stated by the appeal tribunal.  I am of the view that the appeal tribunal was obliged to set out what was its assessment of (Ms L)’s evidence.

28.	In the ESA questionnaire which was completed by the appellant and which was received in the Department on 2 October 2012, the appellant, when asked about his illnesses or disabilities at page 3 of the questionnaire mentions epilepsy and a ‘bad eye’.  In Part 2 of the questionnaire the appellant is asked to indicate difficulties which he might have with mental, cognitive and intellectual functions.  This part of the questionnaire is clearly designed to elicit information as to the potential applicability, in the first instance, of the activities and descriptors in Part 2 of Schedule 2 to the 2008 Regulations.  The appellant indicated that he had difficulties with ‘awareness of hazard or danger’, initiating actions’, ‘going out’, ‘coping with social situations’ and ‘behaving appropriately with other people’.

29.	In the report of the examination conducted by the healthcare professional on 12 October 2012, under the heading ‘Conditions Medically Identified’, the healthcare professional has recorded ‘Epilepsy’ and ‘Visual problem – Left.’  Under the heading ‘Other Conditions Reported’, the healthcare professional has recorded ‘Client states no other problems.’  The healthcare professional, in the relevant part of the form recording the outcome of the medical examination, did consider whether any of the Schedule 2, Part 2 activities and descriptors applied.  The answer was ‘no’ with the healthcare professional setting out the basis on which that conclusion had been arrived at.  At page 19 Section 27 of the report, the healthcare professional has recorded:

‘He reports having mental health problems in his ESA50.  On questioning (the claimant) denied having any mental health problems and had been referring to a physical problem.  From his typical day it appears he is self caring, goes out alone in the fields and interacts with others.  This is consistent with his normal mental health state findings.  There is no evidence to suggest significant functional impairment as a result of mental health problems.’

30.	In his letter of appeal the appellant makes no reference to any problem other than his epilepsy.

31.	From the record of proceedings for the appeal tribunal hearing, it is clear that the appeal tribunal took evidence from the appellant in connection with (i) his leg which was broken when he was aged 7, (ii) his problems with his eyesight and, most significantly, (iii) his problems with epilepsy.  In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has recorded:

‘The Tribunal did not believe that the Appellant had any difficulties whatsoever in any of the remaining ‘physical disabilities’ activities, nor indeed any mental, cognitive or intellectual functional difficulties in Parts 1 and 2 of Schedule 2 to the Employment and Support Allowance (LCFW and LCfWRA) (Amendment) Regulations (Northern Ireland) 2011.’

32.	The reference to Parts 1 and 2 of Schedule 2 as being to the ‘Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-related Activity) (Amendment) Regulations (Northern Ireland) 2011’ is unusual as the 2011 Regulations do not have any Schedules but are passed to deal with technical aspects of the work capability assessment.  I accept, however, that what was meant was that none of the activities in Parts 1 and 2 of Schedule 2 to the 2008 Regulations applies.

33.	It is possible that the appeal tribunal, having considered the report of the examination conducted by the healthcare professional, determined that the appellant had not been diagnosed from a specific mental illness or disablement or, alternatively, had concluded that the appellant was not receiving treatment provided by a registered medical practitioner for a specific mental disease or disablement, and, accordingly, there was no possibility of the Schedule 2, Part 2 descriptors applying.  What would be telling in that regard is the statement which is recorded by the healthcare professional in the report of the examination that the appellant ‘… denied having any mental health problems and had been referring (in his ESA questionnaire) to a physical problem.’  It is clear, however, that if the appeal tribunal concluded that there could be no consideration of the Schedule 2, Part 2 activities and descriptors because the appellant’s problems were entirely physical then such a conclusion would be wrong in law.  As was noted above, the linking of the satisfaction of the Schedule 2, Part 2 activities and descriptors to a specific mental illness or disablement or treatment for a specific mental illness or disablement was established through amendments to regulation 19(5) which took effect from 28 January 2013.  The decision under appeal in the instant case is dated 19 October 2012.  The position prior to 28 January 2013 is set out with clarity by Upper Tribunal Judge Mesher in KP v SSWP (ESA) ([2011] UKUT 216 (AAC)).

34.	Although the issue is marginal, I am satisfied that the appeal tribunal might have done more to clarify with the appellant the reasons why he identified, in the ESA questionnaire, that he had problems with mental, cognitive and intellectual functions.

35.	I turn to the issues of the potential application of regulation 29 (or 35) of the 2008 Regulations.  At page 17 of the report of the examination the healthcare professional has recorded:

‘The evidence does not suggest that the client has a condition which means there would be a substantial risk to the mental or physical health of any person if they were found capable of work or work related activity.’

36.	In the statement of reasons for its decision, the appeal tribunal has recorded:

‘No exceptional circumstance applied which would have deemed the Appellant to have limited capability for work.’

37.	This statement is, of course, strongly indicative that the appeal tribunal has given active consideration to the potential application of regulations 29 or 35.  I have noted, above, that the appeal tribunal also recorded:

‘There was no evidence in the documents or at hearing, that the Appellant was currently working in the bars at the present time, but he had actually done so in the past, and it was the Tribunal’s view that he could do so again at sometimes in the future.’

38.	It is difficult to put this statement into the context of the issues arising in the appeal.  The test of limited capability for work is not, of course, a test as to whether an individual claimant can return to work or not.  The nature of the test was set out by Upper Tribunal Judge Jacobs in GS v Secretary of State for Work and Pensions (2010] UKUT 244 (AAC), CE/0313/2010).  I am content to give the appeal tribunal the benefit of the doubt that it was not conflating the legislative test with an ability to work.  In HA-v-Department for Social Development (ESA) ([2011] NICom 213, C6/11-12 (ESA)), I gave detailed guidance on the proper approach to the applicability of regulation 29.  In the instant case, it seems to me that if the appeal tribunal had concluded that there was a real possibility of the appellant returning to work and, given his age, such a conclusion was reasonable in the circumstances, it was appropriate, given the appellant’s diagnosed problems with epilepsy, for the appeal tribunal to give active consideration to the potential application of regulation 29.  The issue is very marginal but I am not satisfied that, in the instant case, the plain acknowledgement that the potential application of regulation 29 was considered was enough.

39.	I accept that the appeal tribunal endeavoured to get to grips with the appellant’s diagnosed medical condition of epilepsy and went to great lengths to assess the impact of that medical condition on his ability to function in accordance with the relevant legislative tests.  Although it is marginal, I am satisfied, on the basis of what I have set out above, that the appeal tribunal could have done more in connection with setting out its assessment of (Ms L)’s evidence and with the ‘marginal’ issues of the Schedule 2, Part 2 activities and descriptors and with the potential application of regulations 29 and 35.  With a degree of reluctance, therefore, I have concluded that the decision of the appeal tribunal is in error of law.

	Disposal

40.	The decision of the appeal tribunal dated 2 January 2014 is in error of law.  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 and refer the case to a differently constituted appeal tribunal for re-determination.

41.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	The decision under appeal is a decision of the Department dated 19 October 2012 when a decision-maker decided that the appellant did not have limited capability for work and that his award of incapacity benefit credits/income support did not qualify for conversion into an award of ESA with effect from 13 November 2012.

(ii)	I have been informed that the appellant has been awarded an entitlement to ESA from 20 June 2014 and was placed in the ‘support’ group from 23 July 2014.  Accordingly the period under consideration by the appeal tribunal will be from 13 November 2012 to 19 June 2014.  The Department is directed to provide details of any other social security benefits which were paid during the period now under consideration by the appeal tribunal and which, potentially, might be offset against any award for the relevant period which the appeal tribunal might make.

(iii)	It will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal.  In the proceedings which were before me, the appellant adduced additional medical evidence in the form of a report from a Consultant Neurologist dated 28 February 2014.  It may be that the appellant, or Ms Loughrey, if she continues to represent the appellant, will wish to adduce this evidence in the proceedings before the differently-constituted appeal tribunal.  If so, the appeal tribunal will note that although the medical evidence post-dates the decision under appeal to the appeal tribunal, it may be relevant to the circumstances obtaining at the date of the decision under appeal – see the decision of the Commissioner in C24/03-04(DLA).

(iv)	It will be for the appellant or Ms Loughrey to decide the issues which are relevant to the appeal and, on the basis of what was argued in the proceedings before the Social Security Commissioner, there may be submissions on the potential application of the Schedule 2, Part 2 activities and descriptors and regulations 29 and 35.

(v)	It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed)  K Mullan

Chief Commissioner

1 July 2015