LO’N-v-Department for Social Development (ESA) [2016] NICom 10
Decision No:  C20/15-16(ESA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 27 May 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

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

2.	For the reasons I give below, I grant leave to appeal.  However, I disallow the appeal.

	REASONS

	Background

3.	The applicant claimed incapacity benefit (IB) from the Department for Social Development (the Department) from 15 March 1996 on the basis of depression.  On 2 February 2013 the applicant 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 applicant was issued with and completed a Departmental questionnaire, form ESA50.  She was examined by a healthcare professional (HCP) on 23 April 2013, who prepared a report for the Department.  A factual report was received from the applicant’s general practitioner (GP) on 23 April 2013.  On the basis of all the evidence, on 2 May 2013, the Department decided that the applicant did not satisfy the limited capability for work assessment (LCWA) and that her award of IB did not qualify for conversion into an award of ESA from 28 May 2013, resulting in an end to her entitlement.  The applicant appealed.

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 27 May 2014.  The tribunal accepted that the applicant scored a total of 12 points on the LCWA for Activity 15 (Getting about) and Activity 16 (Coping with social engagement) but, as this was below the required threshold of 15, disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 23 September 2014.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 11 November 2014.  On 10 December 2014, the applicant requested a Social Security Commissioner to grant leave to appeal.

	Grounds

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

1.	its reasons for its decision on Activity 14 are inadequate;

2.	it has misdirected itself in law as to the meaning of Activity 14 and the word “cope” in particular.

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 not erred in law as alleged and indicated that the Department did not support the application.

7.	In response, Mrs Carty submitted that the tribunal should have addressed the issue of the onset of the applicant’s mental health problems which led to the ending of her employment.  Mrs Carty further referred to Upper Tribunal decision AS v Secretary of State for Work and Pensions [2013] UKUT 587 (AAC) and submitted that the tribunal should also have considered the applicability of the descriptors against the backdrop of the modern workplace.  Mr Collins in turn responded and continued to submit that the tribunal had not erred in law.

	The tribunal’s decision

8.	The tribunal was told that the score assessed by the Department for the Activity 15 (“Getting about”) and Activity 16 (“Coping with social engagement”) was not disputed.  It found that the applicant satisfied relevant descriptors within these activities and awarded 12 points.  The sole issue in dispute in the appeal was acknowledged by the applicant and her representative to be Activity 14 (“Coping with change”).

9.	The tribunal accepted that the applicant had a long-standing history of anxiety and depression and had been attending counselling.  Insofar as there was a conflict of evidence in the appeal, the tribunal preferred the evidence of the HCP, considering that the HCP’s assessment was fair and reasonable, being based on examination, observations and the applicant’s description of a typical day.

10.	The tribunal found that the applicant had primary responsibility for running a busy household of four children, two of whom had a diagnosis of autism.  The tribunal considered that she adapted to change when required, and did not accept that there was evidence that day to day life was made significantly more difficult by minor unplanned change.  It considered that particular evidence about difficulty with a change in an appointment time did not demonstrate inability to cope with planned change, as much as anxiety with going places and in the context of social engagement.  It did not accept that the applicant experienced difficulty coping to the extent that, overall, day to day life was made significantly more difficult.

	Relevant legislation

11.	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.

12.	The particular activity which is the focus of the submissions in the present case appears at paragraph 14 of Schedule 2 to the ESA (NI) Regulations 2008.  At the date of decision, the relevant activity read as follows:

SCHEDULE 2 Regulation 19(2) and (3)
Assessment of whether a claimant has limited capability for work
PART 2

	MENTAL, COGNITIVE AND INTELLECTUAL FUNCTION ASSESSMENT

	(1) 					(2) 						(3)

	14. Coping with change. 	(a) Cannot cope with any change to the
						extent that day to day life cannot be
						managed.					15

						(b) Cannot cope with minor planned change
(such as a pre-arranged change to the
routine time scheduled for a lunch
break), to the extent that overall day to
day life is made significantly more
difficult.					9

(c) Cannot cope with minor unplanned
change (such as the timing of an
appointment on the day it is due to
occur), to the extent that overall, day to
day life is made significantly more
difficult.					6

						(d) None of the above apply. 		0

	Hearing

13.	I held an oral hearing of the application.  The applicant was present and was represented by Mrs Carty of Law Centre (NI).  The Department was represented by Mr Collins of DMS.  I am grateful to each of the representatives for their helpful submissions.

14.	Mrs Carty submitted that the descriptors in Activity 14 have very precise wording and that it was important to interpret them correctly and set them in an appropriate context.  The tribunal had asked the applicant about a change in an appointment time.  Mrs Carty submitted that the tribunal was required to go further than that.

15.	Mrs Carty referred to AS v Secretary of State for Work and Pensions [2013] UKUT 587, where Judge Wikeley at paragraph 20 had referred to the requirement of a reasonable degree of repetition.  She submitted that the legislative scheme as a whole requires consideration of the activities in terms of a modern workplace.  Although AS v SSWP referred to the physical activity of “Mobilising”, she nevertheless submitted that it would apply to the mental health descriptors.  She referred to paragraph 32 of AS v SSWP where it was stated that:

“the tests set out in the mobilising descriptors have to be seen in the context of the workplace, rather than in splendid isolation.  The tribunal fell into error by not considering the question of what was a “reasonable timescale” against the background of a working environment.  What might well be a reasonable timescale for the Appellant at home would not necessarily be a reasonable timescale in the workplace.  The consequence of the tribunal’s approach was to rob the word “repeatedly” of any real meaning, as the tribunal’s findings would equally well meet a statutory test predicated on the activity in question being performed only “occasionally ... in the course of a day”.  Whilst I am not prepared to draw a precise line, I am satisfied that on any reasonable analysis this tribunal’s conclusion was the wrong side of the line.  The ability to perform a function in a working environment “repeatedly ... within a reasonable timescale” must be something more than “occasionally ... in the course of a day”.

16.	She further referred to the decision of the three-judge panel of Upper Tribunal in JC v Secretary of State for Work and Pensions [2014] UKUT 352 (AAC), which concerned mental health activity 16, where it was said at paragraph 16:

“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.  We also agree with the following general comments made by Upper Tribunal Judge Wikeley in AS v Secretary of State for Work and Pensions (ESA) [2013] UKUT 587 (AAC):

“19. It follows 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.  They have to be applied on their own terms, but understood against the backdrop of the modern workplace”.”

17.	She submitted that this expressly approved the approach taken in AS v SSWP in the context of a mental health activity.  In the particular case, the tribunal had made no reference to consideration of how the activity might apply in the workplace, contrary to the direction of travel of recent case law.

18.	Mrs Carty further referred to the case of SP v Secretary of State for Work and Pensions [2014] UKUT 522 (AAC), where Upper Tribunal Judge Parker said at paragraph 3 that coping with change was coping with change unsupported, whereas the specific context in which the tribunal considered this issue was a supported one, involving the applicant’s husband giving her a lift to a later appointment.  Mrs Carty submitted that the tribunal should have enquired further what the applicant meant when she said that an unexpected event “knocks her down”.

19.	Mrs Carty further submitted that the Upper Tribunal case of GC v Secretary of State for Work and Pensions [2013] UKUT 405 (AAC) may have required the tribunal to ask about the applicant’s previous employment and its effect on her.  In that case, Judge Ward had found that the fact that the appellant’s main reason for leaving a previous job was work-related stress invited consideration of why he had been unable to cope in that job.  Mrs Carty submitted that the tribunal should have considered the history of the applicant’s depression and should have considered what was stressful about her past employment.  She submitted that the tribunal needed to go beyond the applicant’s general lifestyle and attempt the exercise of applying her functional limitations to the modern workplace.

20.	Mr Collins opposed the application.  He submitted that the tribunal had explained that the details of the applicant’s daily life precluded an inability to cope with change and that the tribunal’s decision was reasonable and sustainable on the evidence.  He submitted that SP v SSWP could be distinguished from the present case.

21.	Mr Collins submitted that it is not a failure to cope in every context which will result in an award of points.  He submitted that the applicant’s own evidence had been that she could cope with the change of the time of an appointment.

22.	Mr Collins submitted that the evidence showed that the applicant’s anxiety and depression had their origins in post-natal depression and not something specifically related to the workplace.  He submitted that this distinguished the present case from GC v SSWP, and that there was no error in the tribunal’s approach to questioning about mental health.  She had not been in employment for some 18 years, and he submitted that there was no particular onus to address work-related health problems from 18 years ago.

23.	As to the application of Activity 14 in the workplace, Mr Collins submitted that, as stated by Judge Wikeley in AS v SSWP at paragraphs 19-20, the descriptors have to be applied on their own terms but understood against the background of the modern workplace.  He submitted that, had the tribunal not considered that the applicant could adapt to change when required, it would then have to consider what arrangements, if any, an employer could put in place in a workplace to accommodate any difficulties the applicant might experience with regard to coping with change.  He submitted that this reasonable adjustment approach was supported by the authority of several recent cases.

24.	Mrs Carty emphasised that the applicant had good family support.  She referred me to the case of PD v SSWP [2012] UKUT 255 (AAC) where the appellant was a carer for elderly parents who couldn’t adjust his routine.  Judge Ward had found that he could only cope with assistance from others.  She invited me to give direction on the correct approach to Activity 14 in this context.

	Assessment

25.	Judge Wikeley in AS v SSWP has stated that the descriptors must be applied in their own terms, but be understood against the backdrop of the modern workplace.  This statement was approved by the three judge panel of the Upper Tribunal in JC v SSWP.  I therefore accept this as an authoritative statement of the law.  While the parties have not opened any relevant admissible policy material to me, I accept that the descriptors have been refined on a number of occasions since 2008 in order that they may better assess functionality relevant to the needs of the workplace.  However, while the descriptors may now be more relevant to a modern workplace, this does not imply to me that the descriptors should be assessed as if all of the relevant functions were to be conducted within a modern workplace.  If this was the intention of the legislature, it would have been an easy matter to say so.  While some descriptors directly apply only to the workplace, such as 2(b) which involves remaining at a work station, others, such as those within Activity 9 and Activity 10, clearly do not.

26.	In the present case, I am concerned with Activity 14.  This concerns the ability of a claimant to cope with change in the context of ability to manage day to day life.  Within Activity 14, descriptor 14(b) uses the example of a lunchbreak, and descriptor 14(c) uses the example of an appointment.  Each of these could relate to the workplace, but they are only examples.  The task for the tribunal was to consider whether the applicant would fail to cope with any change, minor planned change, or minor unplanned change to the extent that day to day life could not be managed by her, or that day to day life would be made significantly more difficult.

27.	The applicant in the present case last worked before March 1996.  Therefore, by the date of decision in the case, 17 years had elapsed since she was last in the workplace.  She was originally certified as unfit for work on the basis of post-natal depression and has given birth to three more children since then.  There is no evidence connecting her illness to the workplace.  Unlike in GC v SSWP, therefore, where the appellant had been more recently employed, and where he offered evidence of inability to cope in the workplace, I see no error of law in the tribunal not having asked the applicant about the effect of her previous employment on her health.

28.	The case of PD v SSWP involved an appellant with mental health problems, who had taken a job in a café sometime after the date of the decision under appeal.  Judge Ward found that the tribunal had not fully understood the circumstances of the applicant’s mental health problems, as it had not adopted an appropriately inquisitorial approach.  Having set aside the tribunal’s decision, Judge Ward made his own findings of fact and allowed the appeal.  Among his findings was an acceptance that the applicant’s evidence of difficulty departing from routine activities, together with his likely response to such change, established that he could not cope with minor unforeseen changes in routine to the extent that his day to day life would be made significantly more difficult.

29.	This was a case under an older version of Activity 14 than the tribunal in the present case had to apply.  I do not consider that much turns on that fact.  However, the case merely illustrates Judge Ward’s approach to the evidence in the particular case.  It seems to me that the case of PD v SSWP is not of particular assistance in determining this application, beyond establishing the general proposition that the tribunal should exercise its inquisitorial jurisdiction to adduce relevant evidence.

30.	The tribunal in the present case asked the applicant about coping with day to day change.  It talked to her about her household activities, and she explained that she would do the cooking and washing for the family.  She gave the example of her 16 year old wanting clothes as an example of inability to cope.  She also talked about changes in appointments.  In this context, the record of proceedings reads “Would be able to go to a later appointment if needed to.  Husband would give lift”.  In its statement of reasons the tribunal said that it:

“considered that the appellant would not have difficulty coping with change within the remit of the descriptors.  In her self-assessment form dated 18/03/13 the appellant indicated that because it had taken so much courage to agree to a planned appointment it knocked her off base when it was changed.  The Tribunal accepted that she had anxiety about going places and social engagement but considered an appropriate award of points had already been made in these activities.  The appellant described her difficulties in coping with change in the context of her difficulties planning her journey mentally and then having to adapt to the fact that the journey was happening at an alternate time.  However she did acknowledge that she would be able to attend a re-arranged appointment”.

31.	The tribunal had accepted for the purposes of Activity 15 that the applicant would require to be accompanied in order to get to a specific place with which she was unfamiliar.  The question in Activity 14 was whether she “cannot cope” to the extent that “overall, day to day life is made more difficult”.  I consider that there is no rule which would preclude the tribunal from awarding points under different activity headings for the same event.  However, it was reasonable for the tribunal to assess that, notwithstanding the fact that the applicant’s husband might be required to accompany her to a rescheduled appointment – just as he would have had to accompany her to the original appointment – the fact that the applicant could attend a rescheduled appointment indicated that the change would not have made her day to day life significantly more difficult.

32.	The tribunal considered general evidence of the applicant’s ability to manage a household including four children, two of whom had autism.  While the tribunal acknowledged that the applicant sought to maintain routine in the interests of the needs of the children, it found that the applicant could adapt to change.  Mrs Carty submits, relying on SP v SSWP, that activity the applicant could perform while supported should not be taken into account, but only activity on her own.  I agree with this as a general proposition.  However, I consider that the tribunal addressed the applicant’s ability to cope on her own and that it had adduced sufficient evidence of the applicant’s day to day life to determine the issue.  I consider that it was entitled to reach the conclusion that the applicant should not be awarded points for Activity 14 on the evidence before it.

33.	Mrs Carty has demonstrated an arguable case of error of law and presented the case on behalf of the applicant attractively. Therefore, I grant leave to appeal. However, I conclude that the tribunal has not erred in law and I disallow the appeal. 

(signed)  O Stockman

Commissioner

25 January 2016