EH-v-Department for Social Development (ESA) [2015] NICom 54

 						Decision No: C22/14-15(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 23 April 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s appeal from the decision of an appeal tribunal sitting at Belfast.

2.	For the reasons I give below, I allow the appeal. I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998. I direct that the appeal shall be determined by a newly constituted tribunal. 

REASONS

Background

3.	The appellant claimed incapacity benefit (IB) and income support (IS) from the Department for Social Development (the Department) from 7 January 2008. On 13 September 2012 the appellant was notified by the Department that her existing claim was to be converted into a claim for employment and support allowance (ESA) under the regulations implementing the Welfare Reform Act (Northern Ireland) 2007. The appellant was issued with and completed a Departmental questionnaire, form ESA50, stating that she suffered from depression, panic attacks, inter-cranial hypertension and psoriasis. She was examined by a healthcare professional (HCP) on 5 November 2012, who prepared a report for the Department. On the basis of all the evidence, on 13 November 2012, the Department decided that the appellant did not satisfy the limited capability for work assessment (LCWA) and that her award of IB and IS did not qualify for conversion into an award of ESA from 27 November 2012, resulting in an end to her entitlement. She appealed. 

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 23 April 2014, who awarded 9 points on the LCWA. As this points total was insufficient to satisfy the LCWA, the tribunal disallowed the appeal. The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 9 October 2014. The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal. Leave to appeal was granted by a determination issued on 27 November 2014. The ground on which the LQM has granted leave to appeal is that it is arguable that the tribunal had given inadequate reasons regarding the appellant’s ability to engage socially.  On 17 December 2014, the appellant submitted an appeal to the Social Security Commissioner. 

Grounds

5.	The appellant, represented by Mrs Carty of Law Centre NI, submits that the tribunal has erred in law on the basis that:

(i)	it failed to set out adequate reasons for its decision not to award points for the activity of Coping with Social Engagement, descriptor 16.c; 

(ii)	alternatively, it had erred in its interpretation and application of the activity of Coping with Social Engagement, descriptor 16.c. 

6.	The Department was invited to make observations on the appellant’s grounds. Mr Collins of Decision Making Services (DMS) responded on behalf of the Department. He submitted that the tribunal had erred in law as alleged and indicated that the Department supported the appeal. For the appellant, Mrs Carty submitted that the Commissioner should accept the Department’s concession and proceed to determine the appeal. 

Relevant legislation

7.	ESA was established under the provisions of the Welfare Reform Act (NI)  2007 (the 2007 Act). The core rules of entitlement were set out at sections 1 and 8 of the 2007 Act. These provide for an allowance to be payable if the claimant satisfies the condition that he or she has limited capability for work. The Employment and Support Allowance Regulations (NI) 2008 (the ESA Regulations) provide for a specific test of limited capability for work. In particular, regulation 19(2) provides for a LCWA as an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 of the ESA Regulations, or is incapable by reason of such disease or bodily or mental disablement of performing those activities. 

8.	The particular activity which is the focus of the submissions in the present case appears at paragraph 16 of Schedule 2 to the ESA Regulations. At the date of decision, the relevant activity read as follows:

16. Coping with social engagement		(a) Engagement in social contact is always
due to cognitive impairment or mental	precluded due to difficulty relating to
disorder.					others or significant distress experienced
by the individual.				15

(b) Engagement in social contact with
someone unfamiliar to the claimant is
always precluded due to difficulty
relating to others or significant distress
experienced by the individual.		9

(c) Engagement in social contact with
someone unfamiliar to the claimant is
not possible for the majority of the time
due to difficulty relating to others or
significant distress experienced by the
individual.					6

(d) None of the above apply.			0

Hearing

9.	I held an oral hearing of the appeal. Mrs Carty submitted that the tribunal had failed to give reasons for its decision that the appellant should not be awarded points for descriptor 16(c) on the basis that “engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the claimant”. 

10.	Mrs Carty referred to the decision of the three-judge panel of the Upper Tribunal in Great Britain in the case of JC v Secretary of State for Work and Pensions [2015] AACR 6. She submitted that the tribunal had not given enough consideration to the appellant’s ability to engage in “social” contact within the meaning of the terms as determined by the panel in that case. At paragraph 16 of JC v SSWP the three-judge panel had said, “we therefore accept the submission of the Secretary of State that the activities and their descriptors are intended to assess whether a person is able to engage with others for the purpose of work”. 

11.	Mrs Carty submitted that the appellant stopped work as a shop worker eight years previously and that her anxiety condition arose from being attacked when on holiday. She submitted that the tribunal made no findings about the applicability of the relevant descriptors in a work setting and submitted that it should have done so in order to assess whether the appellant would be able to engage with others for the purposes of work. She noted that the three-judge panel had endorsed the decision of Judge Wikeley in AS v Secretary of State for Work and Pensions [2013] UKUT 587, where he stated that the activities and descriptors in Schedule 2 do not exist in some sort of artificial or parallel universe, entirely divorced from the real world of work”.

12.	Mrs Carty submitted that the facts of the present case were similar to CE/1972/2013, one of the two cases decided in JC v SSWP. She observed that the applicant had required a helper at school, that she had a support worker to help her get out, and that the support worker had in fact attended the HCP examination with her. Despite this it was still recorded by the HCP that she had some difficulty coping at interview, that increased sweating was apparent and that she was tearful during the assessment. Mrs Carty submitted that, if even when accompanied by a support worker and meeting a medical professional person trained to deal with the public the appellant was tearful, social contact with someone unfamiliar in a work setting would be much more difficult. 

13.	Mr Collins submitted that when looking at the tribunal’s reasons, he could not see what aspects of social engagement were considered. He accepted that the reasons were inadequate. He observed that the appellant had had a support worker with her throughout the HCP’s examination, but accepted that it may not be reasonable to expect the appellant have a support worker accompany her to a place of work. 

14.	He submitted that paragraphs 38 and 39 of JC v SSWP were acceptable as a general statement of law. These read: 
38.	The fact-finding exercise can be, and in our view generally should be, carried out separately from, although with an eye to, the value judgements that have to be applied to those findings. It identifies and particularises, by reference to primary facts, the situations and events that will be taken into account and so the bedrock of the decision on the application of the activities and their descriptors. In reaching that decision the tribunal will have to address and decide whether those findings show that:
i)	the claimant has cognitive impairment or mental disorder,
ii)	a causative link between that impairment or disorder and his difficulty relating to others or significant distress, and
iii)	a causative link between that difficulty and distress and a preclusion for all of the time or an impossibility for a majority of the time of contact with all other people, or those who are unfamiliar to the claimant, that has the necessary degree of reciprocity, give and take, initiation and response.
39.	In addressing whether the contact with other people has the necessary nature and quality the tribunal should consider in each individual case how the nature and quality of the communications and behaviour would impact on the ability of the individual to work and so whether or not it would be an effective barrier to him working.
15.	Mr Collins accepted that the first two limbs were satisfied in the present case, but did not concede that the available evidence established that the third limb was satisfied. For her part, Mrs Carty submitted that there was already available objective evidence that the appellant was entitled under descriptor 16(c) – which would lead to an award of 6 points - and to a finding that the LCWA was satisfied when these were combined with the accepted 9 points for descriptor 15(b). 

Assessment

16.	The appellant submits that the tribunal has not given adequate reasons for its decision and has not applied the correct approach to Activity 16, relying on the decision of the three-judge panel of the Upper Tribunal in Great Britain in JC v Secretary of State for Work and Pensions [2014] UKUT 352. In that decision, the three judge panel viewed the issue of social engagement in terms of whether it would be an effective barrier to the claimant working. 

17.	Mrs Carty for the appellant submits that the approach taken by the tribunal is not consistent with that in JC v SSWP. Mr Collins accepts that JC v SSWP, while post-dating the tribunal, correctly clarifies the approach a tribunal should take when considering the possible applicability of Activity 16. He further submits that the evidence recorded by the HCP was not conclusive on the issue of social engagement. 

18.	At the hearing, at my invitation, the parties made submissions about the scope of AS v SSWP and JC v SSWP, and the implications for tribunals interpreting the Schedule 2 descriptors. Despite the submissions of the parties, I expressed reservations about the correctness of an approach based upon AS v SSWP and JC v SSWP which would seemingly apply the descriptors within a real world workplace setting, involving concepts such as reasonable adjustment to avoid discrimination on grounds of disability. It appears to me that the descriptors are abstract functional measures which have been refined over time to more closely address the requirements of the real world of work. This does not mean that they have to be assessed on the basis of how they would apply to a particular claimant within a theoretical workplace. However, as I understand JC v SSWP, the evidence of difficulties from day to day life which a tribunal might hear would need to be such as could be read across as presenting likely barriers to work.  

19.	Both Mrs Carty and Mr Collins submit that I am bound by JC v SSWP in the sense that it is a highly persuasive authority of the Upper Tribunal which has been reported and which should normally be followed by a single Commissioner in Northern Ireland. I am not convinced that JC v SSWP bears the meaning which each of the representatives sought to place upon it. However, I do not have to reach a conclusion on that issue in order to decide the present appeal. 

20.	Each of the parties, and indeed the legally qualified member who granted leave to appeal on this ground, finds that the reasons of the tribunal on the issue of Activity 16 are inadequate. I agree with them. It appears to me that the applicant had clear difficulties with social engagement which were not addressed fully. For that reason, I allow the appeal and I set aside the decision of the appeal tribunal. 

Disposal 

21.	Mrs Carty submits that there was enough evidence to determine the appeal in favour of the applicant by awarding 6 points for 16(c). Mr Collins submitted that the tribunal had not investigated the matter sufficiently to determine the appeal and that the documentary evidence is not conclusive. Mrs Carty further submits that the mental health problems of the appellant make it preferable that the decision be made quickly and not referred back to another tribunal with the further delay which this will entail. 

22.	Regrettably I feel that I cannot determine the particular case on the evidence. In particular, I have not seen or spoken to the appellant. It is of particular benefit in the case of assessing difficulty with social engagement for the decision making authority to have its own engagement with the claimant. I consider that I must direct that the appeal be determined by a newly constituted tribunal. 

23.	The new tribunal should consider the meaning of Activity 16 in the light of JC v SSWP and paragraphs 32-39 of that decision in particular. This will require it to address whether the appellant has difficulty coping with social engagement to the extent that this might present an effective barrier to the claimant working. 

	(Signed):  O Stockman

COMMISSIONER	

15 September 2015