WMcB-v-Department for Social Development (ESA) [2015] NICom 33
Decision No:  C24/14-15(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 12 February 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 12 February 2014 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.	For further reasons set out below, 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 is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access.  An appeal tribunal which has a medically qualified panel member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

3.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

4.	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) 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

5.	The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 30 January 2013, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, which had awarded an entitlement to ESA, from and including 19 October 2012; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 30 January 2013.

6.	The appeal was received in the Department on 12 February 2013.  On 4 May 2013 the decision dated 30 January 2013 was looked at again but was not changed.

7.	The substantive appeal tribunal hearing took place on 12 February 2014.  The appellant was present and was accompanied by his wife.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 30 January 2013.

8.	On 18 February 2014 correspondence was received in the Appeals Service (TAS) from the appellant.  In this correspondence the appellant asked ‘… to have my appeal set aside.’  On 10 March 2014 the legally qualified panel member (LQPM) of the appeal tribunal issued a determination refusing the application to set aside the decision of the appeal tribunal under regulation 57(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  The LQPM directed, however, that the set-aside application should also be treated as a request for a statement of reasons for the appeal tribunal’s decision.  The statement of reasons was forwarded to the appellant on 28 May 2014.

9.	On 11 August 2014 an application for leave to appeal against the decision of the appeal tribunal was received in TAS.  On 21 August 2014, the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

10.	On 9 September 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners (OSSC).  On 9 October 2014 observations were sought from Decision Making Services (DMS) and these were received on 7 November 2014.  In these observations, Mr Collins, for DMS, supported the application on one of the grounds cited by the appellant.  The written observations were shared with the appellant on 7 November 2014.

11.	On 29 January 2015 I granted leave to appeal.  In granting leave to appeal, I gave as a reason that an arguable issue arose as to whether the appeal tribunal had undertaken an adequate assessment of the evidence which was before it.  On 29 January 2015 I also decided that the appeal could properly be determined without an oral hearing.

	Errors of law

12.	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?

13.	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.”

	Analysis

14.	In his application for leave to appeal, the appellant has made reference to evidence which he had brought to his appeal.  More specifically, the appellant referred to three appeals which he had in connection with his entitlement to disability living allowance (DLA).  He submitted that two of his appeals were successful:

‘… and back dated, with the same evidence and the third is adjourned to be reset as to the future and as my mobility badge and mobility is closed as back dated to this translates to 15 points, limited ability to work.  On ESA and DLA is back dated to 16-04-12, this concerns ESA dates in question in my view natural justice has been failed in this appeal as on my appeal I was not allowed to elaborate on being questioned about evidence I brought to the appeal.’

15.	In summary, the appellant has submitted that he gained an entitlement to DLA through successful appeals before an appeal tribunal; that the evidence which had been submitted in connection with the DLA appeals was also relevant to his present ESA appeal; that the period for which he had gained an entitlement to DLA was parallel to the period in connection with his ESA entitlement; that he had brought the evidence in relation to the DLA appeals to the appeal tribunal; and that he had not been given the opportunity by the appeal tribunal to elaborate on this evidence.

16.	In the record of proceedings for the appeal tribunal hearing, under the heading ‘Documents Considered’, the appeal tribunal has recorded:

‘Documents handed in – 22 pages

…

The papers received by Appellant

…

The appellant had sought throughout the hearing to complain about the benefits process and decision making.  He was informed that our task is to consider his own individual appeal.’

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

‘The Appellant had requested that the Tribunal’s decision be set aside.  I refused that application.  Instead I directed that his application be treated as a request for a statement of reasons pursuant to Regulation 57 (4A) of the Social Security and the Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.  The Appellant appears to maintain that the Tribunal may not have given sufficient weight to medical evidence submitted by him at the hearing.  This is incorrect.  It will be noted from the record of proceedings that the Appellant submitted 22 pages of evidence at the hearing.  Those documents were considered in detail by the Tribunal (see below).’

18.	The post oral hearing sequence was that the first action taken by the appellant was to make an application for the decision to be set aside.  A copy of that application is in the file of papers which is before me.  The appellant submitted:

‘I write to the clerk of the appeal, to have my appeal set aside.  As to the panel was presented with, Evidence that they could not have read with in the time.  Before I joined them as in the words of the Legal member YOU CAN GO NOW WE HAVE A LOT OF READING TO DO, indicating to the evidence I previously had given to the clerk.

This would give rise to the panel, not giving my case and the medical evidence Full consideration as to their professional care, and their failure in law to examine all the evidence.  Before the panel and question any persons who is before them to the evidence they present at the hearing.  As I was denied in law my right to explain, defend, and have my evidence read at the hearing and with such a weight of medical evidence dated before the panel I feel that there has been no application of natural justice applied in this hearing.’

19.	As was noted above, the LQPM refused to set aside the decision of the appeal tribunal but indicated that the set aside application was to be treated as a request for a statement of reasons for the appeal tribunal’s decision.  It is for that reason that the LQPM has made reference to the set aside application in the statement of reasons.

20.	Elsewhere in the statement of reasons for its decision, the appeal tribunal recorded:

‘Nothing in the Appellant’s oral evidence at hearing or in the documents handed in by him at hearing causes the Tribunal to disagree with any of the findings and conclusions of the Healthcare Professional.’

21.	As was noted above, the appeal tribunal in the earlier part of its statement of reasons had referred to having considered ‘in detail’ the documents which the appellant had submitted in connection with his appeal.  The only further reference to these documents is the very general reference in the paragraph noted above.

22.	In the file of papers which is before me are copies of the documents which the appellant submitted in connection with his appeal.  These documents include the decision notices from appeals in connection with entitlement to DLA.  On 17 September 2013 an appeal tribunal awarded the appellant an entitlement to the middle rate of the care component and the higher rate of the mobility component of DLA for two periods from 16 April 2012 to 21 June 2012 and from 22 June 2012 to 23 January 2013.  The remainder of the papers which were submitted by the appellant are concerned with medical investigations in connection with his medical conditions.

23.	I can understand why the appellant placed significance on the awards of entitlement to DLA.  The award of the higher rate of the mobility component is indicative of the appeal tribunal concluding that the appellant had a significant limitation in his mobility.  Likewise the award of the middle rate of the care component (with a further statement that it was for ‘daytime attention’) is indicative of a conclusion that the appellant had a reasonable requirement for frequent attention throughout the day in connection with his bodily functions.  Further the periods of the award coincided with the period of decision-making giving rise to the decision under appeal in the instant case.

24.	In his written observations on the application for leave to appeal, Mr Collins has submitted that:

‘In the intervening 7 paragraphs I can find no specific reference to what was contained in the “22 pages of evidence” that (the claimant) submitted at the hearing.  In the case papers, filed along with the tribunal’s Decision notice are 22 pages of documents which contain, for example, a Consultant’s report dated 10 February 2013, a report from a Consultant Urologist dated 30 April 2012 and copies of the decision notice for (the claimant’s) DLA appeal dated 17 September 2013.

The responsibility of a tribunal in considering evidence has been the subject of a number of Northern Ireland Commissioners decisions.  In C15/08-09(DLA) Commissioner Mullan considered an appeal where reliance had been placed on evidence contained in GP records and the adequacy of the tribunals reasoning in addressing this evidence was challenged.  In paragraph 84 the Commissioner noted that “It is clear that an appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence, when that assessment has already been fully and thoroughly undertaken.”  In paragraph 88 the Commissioner went on to conclude:-

“It will be safest and best practice for the parties to the proceedings to make reference to specific aspects of the GP records in submissions to the appeal tribunal.  For example, a representative might indicate that reliance is placed on a report ...In turn, the appeal tribunal should note the specificity of the medical evidence to which reference is being made, in the record of proceedings for the appeal tribunal.  In the statement of reasons for the appeal tribunal’s decision, reference should be made to specific medical reports, or other entries on which the appeal tribunal has relied or which it has rejected.”’

25.	I remind myself, of course, that there are considerable differences between the conditions of entitlement to DLA and ESA.  It is also important to note that, as a general rule, entitlement to one social security benefit is not an automatic passport to entitlement to another.  It is for decision-makers and other adjudicating authorities, such as an appeal tribunal, to be satisfied that the legislative conditions for entitlement to an individual benefit are satisfied.

26.	In the instant case, it is clear that the appellant placed significant reliance on his award of entitlement to DLA.  As was noted above, I can understand why.  It is not uncommon for a claimant who is successful in gaining entitlement to a particular social security benefit to seek to utilise the fact of that entitlement and, more significantly, the evidence which underpinned it, in a claim to a different social security benefit, or, as in the instant case, an appeal against a refusal of entitlement to that different benefit.  There is no doubt that the appellant had gone to considerable lengths to garner evidence in support of his appeal.  That evidence included details of the successful DLA appeals but also documentation in connection with his medical conditions and their treatment.

27.	The appeal tribunal, in the statement of reasons for its decision, has indicated that it rejected the assertion made in the set aside application that it had not given sufficient weight to the medical evidence which the appellant had adduced at the oral hearing.  The appeal tribunal maintained that it had considered the documentation ‘in detail.’  It is unfortunate that the next reference to the considerable evidence which the appellant had adduced was in the very general paragraph where the appeal tribunal maintains that there is nothing in his oral evidence or in the documents which were submitted that caused the appeal tribunal to disagree with the findings and conclusions of the healthcare professional.  I say ‘unfortunate’ because I am satisfied that the appeal tribunal did consider the submitted documentary evidence.  What it did not do was to provide the appellant with an adequate explanation of what it made of that evidence or sufficient reasons to clarify why that evidence was rejected.  In those circumstances I find that its decision is in error of law and must be set aside.

	Disposal

28.	The decision of the appeal tribunal dated 12 February 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.

29.	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 30 January 2013, which decided that: grounds existed to supersede an earlier decision of the Department, which had awarded an entitlement to ESA, from and including 19 January 2012 and that the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 30 January 2013;

(ii)	the Department is directed to provide details of any subsequent decision-making activity in connection with ESA and the outcome of any such decision-making to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent decision-making into account in line with the principles set out in C20/04-05(DLA);

(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; and

(iv)	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

17 July 2015