CM-v-Department for Social Development (IB) [2011] NICom 164
Decision No:  C1/11-12(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

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 7 April 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

2.	The decision of the appeal tribunal dated 7 April 2010 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.

3.	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, and there may be further findings of fact which require to be made.  Further 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.

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 incapacity benefit (IB) credits 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 Department, dated 7 January 2010, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, dated 19 October 2007, and which had awarded an entitlement to IB credits, from and including 28 September 2007; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB credits from and including 7 January 2010.

6.	The appeal was received in the Department on 12 January 2010.  On 2 February 2010 the decision dated 12 January 2010 was looked at again but was not changed.  The substantive appeal tribunal hearing took place on 7 April 2010.  The appellant was present, and was accompanied by his mother.  The appeal was disallowed.

7.	On 10 June 2010 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.  On 12 July 2010, the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

8.	On 13 August 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 17 September 2010 observations were sought from Decision Making Services (DMS) and these were received on 27 September 2010.  In these observations DMS supported the application on the grounds cited by the appellant, identified two further errors of law and requested that the Commissioner consider making the decision which the appeal tribunal ought to have made.  Written observations were shared with the appellant on 7 October 2010.

	Errors of law

9.	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.

10.	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 error of law in the instant case

11.	In the application for leave to appeal to the Social Security Commissioner, the appellant submitted that the decision of the appeal tribunal was in error of law on the basis that:

(i)	the tribunal erred in accepting that his reluctance to go out alone was due to personal security considerations;

(ii)	the tribunal failed to explore his anger management difficulties and this may have resulted in a failure to award points under specific mental health descriptors.

12.	In written observations on the application for leave to appeal, Mr Collins, for DMS submitted in respect of the first cited ground that:

‘The tribunal recorded that points were not applicable for being unable to go out alone as this reluctance “was not based on a mental health problem.”  It went on to conclude that “his reluctance to go out alone appears to be based on personal security considerations.”  I would however submit that from the … evidence (the claimant’s) difficulties appear to extend to more than personal security concerns.  While such concerns may explain the CCTV cameras, his reluctance also appears to be related to the possibilities he may become involved in fights and/or theft.  Taken in conjunction with the evidence he provided in his questionnaire as well as the fact he was referred to anger management I would be of the opinion that the tribunal erred in concluding that his reluctance to go out was not based on a mental health problem.

I would therefore agree that the tribunal erred in law as stated in (the claimant’s) first ground of appeal.’

13.	Mr Collins cites as a potential reason why the appellant may be reluctant to go out, the fact that he may become involved in fights or the criminal activity of theft.  I cannot, with respect, see why that is very different to a reluctance to go out due to personal security considerations.  What I think that Mr Collins meant was that there was evidence which was before the appeal tribunal which suggested that the appellant’s problems with going out alone were based on mental health problems.  That evidence included his referral to anger management services, and as was noted in the report of the examination conducted by the medical officer of the Department, his paranoia.  It also included the evidence contained in the IB50 questionnaire concerning his agitation and inability to go out alone.  I agree, therefore, that there was other evidence available to the appeal tribunal that the appellant’s reluctance to go out alone was based on more than personal security considerations.

14.	In written observations on the application for leave to appeal, Mr Collins, for DMS submitted in respect of the second cited ground that:

‘As indicated at point I above it is my view that the tribunal erred in its consideration of descriptor 18f.  In relation to descriptor 16(c) (the claimant) told the tribunal:-

“I do have mood changes.  I become irritable and ignorant to people.”

The tribunal went on to state that it accepted the evidence of the examining medical officer and that this evidence was not contradicted in any significant way by (the claimant).  It is not clear from the reasons how it viewed the apparent contradiction between “no severe mood fluctuations” and “I do have mood changes.”  Neither is there any indication in the reasons that the tribunal considered if there was any frequent distress arising from any mood changes as the wording of the relevant descriptor requires.

I would therefore be of the opinion that the tribunal did not adequately investigate the applicability of specific mental health descriptors – in particular 16(c) and 18(f) both of which were identified by (the claimant) in his grounds of appeal.  Consequently I would submit that the tribunal erred in law and would agree with (the claimant’s) second ground of appeal.’

15.	I agree with the submissions of Mr Collins in respect of the second submitted ground.  I agree that the appeal tribunal has not explored the contradictory evidence from the report of the examination by the medical officer of the Department – ‘no severe mood fluctuations’ – and that of the appellant himself – ‘I do have mood changes’.  It is interesting to note that the appeal tribunal’s general conclusion was that ‘The Tribunal accepts the evidence of the examining doctor and finds that this evidence is not contradicted in any significant way by the Appellant.’  In respect of this specific issue there is such contradictory evidence and it was incumbent on the appeal tribunal to explore those contradictions and indicate how those inconsistencies were resolved.

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

‘At the assessment on 30 November 2009 (the claimant) told the tribunal (page 4 of tab no. 5) that he cannot read or write.  The EMO considered descriptor 15(d) – “Can he or she use a telephone book or other directory to find a number?”  The EMO chose “no” and recorded “can use mobile phone.”  The Department on 07 January 2010 awarded no points for this particular descriptor.  In his appeal letter (tab no. 8) (the claimant) reiterated that he cannot read or write.  In a medical statement received with the appeal letter (tab no. 8a) Dr A confirmed (the claimant) has difficulties writing and spelling.  At the tribunal the applicability of the above descriptor was considered.  (The claimant) told the tribunal:-

“I can use mobile by speed dialling.  Would not know where to start with telephone book – do not know how to read.”

As (the claimant) submitted he couldn’t use a telephone book and had medical evidence supportive of this I would submit there was an onus on the tribunal to investigate further the possibility that points under the above descriptor applied.  This would have involved exploring the reasons why he could not read or write and in particular whether it was as a result of his mental health.  I would therefore be of the opinion that the tribunal failed to fulfil its inquisitorial role in relation to this descriptor and consequently erred in law.’

17.	I agree with the submission made by Mr Collins and agree that the decision of the appeal tribunal was in error of law on this submitted ground.

18.	In the written observations on the application for leave to appeal, Mr Collins added that:

‘I would point out that there is another error in the ‘summary of the decision notice of the tribunal’ in that (the claimant) scored 6 points in total but this has been incorrectly rounded up to 9 points.  Regulation 26(1)(a) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 allows for an aggregate score of between 6 and 9 points under the mental health descriptors to be treated as 9 points when added to the score in respect of the physical descriptors.  As he did not score any points under the physical descriptors his total points should therefore remain 6 points.’

19.	Once again, I agree with this submission.  It is important for appeal tribunals to give careful consideration to the recording of the scores for the activities in Parts I and II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.  In the instant case, the activities in Part I of the Schedule were not in dispute.  Accordingly, the aggregation permitted by regulation 26(1)(a) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, did not apply.

	Disposal

20.	The decision of the appeal tribunal dated 7 April 2010 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.

21.	In the written observations on the application for leave to appeal, Mr Collins invited me to give the decision which the appeal tribunal ought to have made.  This was on the basis that ‘ … descriptors 15(d), 16(c) and 18(f) each attract a score of 1 point and if it is accepted that these points apply (the claimant) would score a total of 9 points which is still below the threshold for an award of incapacity benefit.’  I have not had the opportunity of hearing from or seeing the appellant.  The errors in law noted above relate to the failure of the appeal tribunal to explore aspects of the appellant’s case and other evidence to ascertain whether he satisfies certain of the descriptors associated with the activities in Parts II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.  A further exploration of that evidence may indeed lead to the outcome that descriptors 15(d), 16(c) and 18(f) in Part II apply to the appellant.  Equally, it may be the case that additional descriptors apply.  Accordingly, my decision is to refer the case to a differently constituted appeal tribunal for re-determination.

22.	The decision under appeal to the appeal tribunal was a decision of the Department, dated 7 January 2010, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, dated 19 October 2007, and which had awarded an entitlement to IB credits, from and including 28 September 2007; and

(ii)	the appellant was not incapable of work in accordance with the personal capability assessment and not entitled to IB credits from and including 7 January 2010.

23.	Accordingly, the first task of the appeal tribunal will be to decide whether the decision-maker, on 7 January 2010 had grounds to supersede the decision of the appeal tribunal dated 19 October 2007.  The ground for supersession on which the decision- maker relied is to be found in regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, namely that since the decision awarding IB was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, from a doctor referred to in paragraph (1) of that regulation.

24.	The test of incapacity for work, applicable to the appellant, was the personal capability assessment.  The personal capability assessment is an assessment of the extent to which a person who has some specific disease or bodily or mental disablement to perform certain of the activities as prescribed - section 167A(1), 167C(1) and (2) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  The prescribed activities are to be found in Parts I and II to the Schedule to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

25.	If the appeal tribunal determines that the appellant is not incapable of work in accordance with the personal capability assessment then it must then decide whether any of the exceptional circumstances set out in regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, apply to the appellant. Guidance as to the approach to be taken to regulation 27 is to be found in R4/01(IB), C22/01-02(IB), CIB/14667/1996 and CIB/1381/2008.

26.	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.  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

Commissioner

28 April 2011