AD-v-Department for Social Development (ESA) [2015] NICom 48
Decision No:  C4/15-16(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 26 June 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 26 June 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.  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.

3.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her 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

4.	The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 10 December 2013, which decided that as the Department had decided that the appellant did not have limited capability for work her entitlement to incapacity benefit (IB) did not qualify for conversion into an award of ESA from and including 2 January 2014.  An appeal against the decision dated 10 December 2013 was received in the Department on 3 January 2014.  On 11 April 2014 the decision dated 10 December 2013 was looked at again but was not changed.

5.	The appeal tribunal hearing took place on 26 June 2014.  The appeal proceeded by way of a ‘paper’ hearing.  Form REG2(i)d, signed and dated by the appellant on 22 May 2014, was received in The Appeals Service (TAS) on 27 May 2014.  On that form the appellant indicated that she was ‘… requesting a paper hearing’.  Attached to the returned Form REG2(i)d was correspondence from the appellant, also signed and dated 22 May 2014, in which she repeated that she was requesting a paper hearing as she was unable, for various reasons, to attend an oral hearing of the appeal.

6.	The appeal tribunal disallowed the appeal and confirmed the decision dated 29 July 2013.

7.	On 6 August 2014 correspondence was received in TAS from the appellant.  In that correspondence the appellant sought ‘… an extension of time to set aside my case.’  On 12 August 2014 the legally qualified panel member (LQPM) determined that (i) the application to have the decision of the appeal tribunal set aside was late, (ii) the time limit for making such an application could be extended and (iii) the application was refused.  On 28 August 2014 the LQPM made a further determination refusing the application to have the decision of the appeal tribunal set aside.

8.	On 5 September 2014 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 6 November 2014 the application for leave to appeal was refused by the LQPM) of the appeal tribunal.

	Proceedings before the Social Security Commissioner

9.	On 21 November 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  The appellant was, at this stage, represented by Ms McElroy of the Citizens Advice Bureau.  On 15 December 2014 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations received on 13 January 2015, Mr McKendry, for DMS, supported the application for leave to appeal on one of the grounds submitted by the appellant.  Written observations were shared with the appellant and Ms McElroy on 13 January 2015.

10.	On 12 June 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 failed to address an issue raised by the appeal.  On 12 June 2015 I also determined, having considered the papers, that I was satisfied that the appeal could properly be determined without an oral hearing.  On 19 June 2015 correspondence was received from Ms McElroy in which she indicated that she had no further submissions to make.

	Errors of law

11.	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?

12.	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

13.	In his written observations on the application for leave to appeal Mr McKendry made the following submission:

‘(The claimant’s) representative has contended that the tribunal did not consider “issues with the function of the bowel or bladder, staying conscious, and, it does not consider getting around unfamiliar places.”

In relation to her first contention (the claimant) in her ESA50 stated that she had to wash and change her clothes weekly due to difficulty in controlling her bladder and bowels.  She further stated that she sometimes wet her pants and that she experienced pain when her bowel’s release.  At her medical examination the HCP noted that (the claimant) had no diagnosed bowel condition and that she could generally make it to the bathroom on time.  In the personalised summary statement the HCP noted that (the claimant) did not suffer from a diagnosed bowel complaint, was on no treatment for same and that it would be unlikely that she would suffer from incontinence.

In the reconsideration telephone call, in relation to continence (the claimant) clarified that the problem was mainly due to her bowels.  She stated that she had irritable bowel syndrome for years and may struggle to make it to the toilet and at other times would not make it.  This occurred every 1 – 2 weeks.  She stated that when this occurs she would need to change clothes and shower.

The tribunal, in its SOR’s have made no reference whatsoever to any possible problem that (the claimant) may have with continence.  As stated above (the claimant), on her ESA50 and on her outbound reconsideration telephone calI clearly detailed that she suffered from problems from her bowels.  With the above in mind I would submit that the tribunal has erred in its inquisitorial role in either, not considering as to whether (the claimant) may have fallen within the ambit of Activity 9 of Schedule 2 to the Employment and Support Regulations (NI) 2008, or considering an adjournment to investigate this issue further.’

14.	As has been noted by Mr McKendry, the appellant, in her ESA50 and in oral evidence in a telephone call as part of the Department’s reconsideration process, submitted that she had problems with continence which impacted on her ability to function.  The issue having been raised by the appellant meant that the appeal tribunal was under a duty to consider it.  That required the appeal tribunal to acknowledge, in its statement of reasons, that the issue of continence was considered by the appeal tribunal.  It required the appeal tribunal to indicate what it made of the evidence concerning the appellant’s continence problems, and, having assessed that evidence, make sufficient findings of fact in connection with the issue.  Finally, the issue having been raised by the appellant, she was entitled to know, through the statement of reasons, what was the appeal tribunal’s determination in connection with the issue of continence, and the reasons for its conclusions in connection with it.

15.	In paragraphs 32 and 33 of my decision in C37/09-10(DLA), I said the following about the ambit of the inquisitorial role:

‘32.	In my view, the enabling role takes on its greatest significance in the following situations:

(i)	oral appeals where the appellant is unrepresented, and where the Department may be represented;

(ii)	oral appeals where the appellant is unrepresented and does not make an appearance, and where the Department may be represented; and

(i)	paper cases where the appellant is unrepresented.

33.	In these situations, and in a balanced and objective way, the appeal tribunal is under a duty to explore all of the relevant issues, and assess the evidence linked to those relevant issues, even where some or all of those issues have not been raised by the appellant.  Further, the appeal tribunal is under a duty to note, in any statement of reasons (SORs) for the appeal tribunal’s decisions, that it has addressed all relevant issues, assessed the evidence linked to those issues, found facts with respect to those issues and made an appropriate decision, related to entitlement to the benefit at issue.

16.	Having looked at the statement of reasons for the appeal tribunal’s decision, I cannot find any reference to the appellant’s submitted problems with continence, any assessment of the evidence in connection with that issue, any findings in fact in connection with that issue, and any conclusions as to whether the descriptors associated with the relevant activities in Schedules 2 and 3 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 applied.

17.	Having found that the appeal tribunal was under a duty to consider the continence issue, and having failed to consider that issue, and explain, in its Statement of Reasons, that it has so considered it, I find that the decision of the appeal tribunal is in error of law.

18.	Having found, for the reasons which are set out above, that the decision of the appeal tribunal is in error of law, I do not have to consider the appellant’s other grounds for appealing.

	Disposal

19.	The decision of the appeal tribunal dated 26 June 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.

20.	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 10 December 2013, which decided that as the Department had decided that the appellant did not have limited capability for work her entitlement to incapacity benefit (IB) did not qualify for conversion into an award of ESA from and including 2 January 2014;

(ii)	the Department is directed to provide details of any subsequent Departmental decision-making 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 claims to DLA 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

24 August 2015