GL-v-Department for Social Development (ESA) [2011] NICom 231

Decision No:  C12/11-12(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 6 August 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.  The decision of the appeal tribunal dated 6 August 2010 is not in error of law.  Accordingly the decision of the appeal tribunal that the appellant does not have limited capability for work in accordance with the work capability assessment and is not entitled to employment and support allowance (ESA) from and including 30 November 2009 is confirmed.

Background

2.	On 30 November 2009 a decision-maker of the Department superseded an earlier decision of the Department dated 3 July 2009.  The decision-maker also decided that the appellant did not have limited capability for work and was not entitled to ESA from and including 30 November 2009.  An appeal against the decision dated 30 November 2009 was received in the Department on 3 December 2009.  On 31 January 2010 the decision dated 30 November 2009 was looked at again but was not changed.

3.	Following an earlier postponement of the appeal, an appeal tribunal hearing took place on 6 August 2010.  The appellant was present and was represented.  The appeal tribunal disallowed the appeal and confirmed the decision dated 30 November 2009.  On 1 December 2010 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service.  On 13 December 2010 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

Proceedings before the Social Security Commissioner

4.	On 11 January 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners, from the appellant’s representative, Ms Kyne of the Citizens Advice Bureau.  On 19 April 2011 written observations were sought from Decision Making Services (DMS) and these were received on 10 May 2011.  In these written observations, Mrs O’Connor, for DMS, opposed the application on the grounds submitted on behalf of the appellant.

5.	The written observations were shared with the appellant and his representative on 19 May 2011.  On 20 June 2011 a further submission was received from Ms Kyne which was shared with Mrs O’Connor on 28 June 2011.  On 8 July 2011 a further submission was received from Mrs O’Connor.

Errors of law

6.	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.

7.	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.” 

Was the decision of the appeal tribunal in the instant case in error of law?

The submissions of the parties

8.	In the application for leave to appeal to the Social Security Commissioner, Ms Kyne submitted that the decision of the appeal tribunal was in error of law on the basis that the appeal tribunal did not address the potential application of regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008.

9.	As was noted above, in written observations on the application for leave to appeal, Mrs O’Connor, for DMS, opposed the application on the submitted ground.

Analysis

10.	Regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 provides that:

‘Exceptional circumstances

29. (1)	A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

  (2) This paragraph applies if – 

	(a)	the claimant is suffering from a life threatening disease in relation to which – 

		(i)	there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and

		(ii)	in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or

	(b)	the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.’

11.	The wording and effect of regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 is similar to regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended.

12.	In Charlton v Secretary of State for Work and Pensions ([2009] EWCA Civ 42, reported as R(IB) 2/09) the Court of Appeal of England and Wales Lord Justice Moses stated, at paragraph 4:

‘Employment and Support Allowance has replaced incapacity benefit for new claimants.  The previous statutory scheme is the one which is relevant to this appeal but the question of interpretation remains relevant to the regulations made under the new scheme introduced by the Welfare Reform Act 2007.’

13.	In line with this authority, there are instances where the appellate authorities have applied the interpretation of the legislative provisions relating to the general scheme for incapacity benefit (IB), namely the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, and the Great Britain equivalent, namely the Social Security (Incapacity for Work) (General) Regulations 1995, to analogous legislative provisions relating to the general scheme for ESA, namely, the Employment and Support Allowance Regulations (Northern Ireland) 2008, and the Great Britain equivalent, the Employment and Support Allowance Regulations 2008.  See, for example, GF-v-Department for Social Development (ESA) ([2011] NICom 160 C7/10-11(ESA)), and GS v Secretary of State for Work and Pensions (ESA) ([2010] UKUT 244 (AAC)).

14.	I have considered the meaning and applicability of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, in a number of decisions, including C5/08-09(IB), C4/09-10(IB) and C24/10-11(IB).  In C24/10-11(IB) I stated, at paragraphs 39 to 40:

‘39.	It is important to note that at paragraphs 54 and 55 (of C5/08-09(IB)), I stated:

	‘54.	I would note, at this stage, that in the majority of cases in which an appeal tribunal is considering whether the appellant is incapable of work in accordance with the personal capability assessment, the further issues of whether he also satisfies the exceptional circumstances in regulation 27, will not be relevant.  Nonetheless, it will be safest and best practice for appeal tribunals to note that the regulation was considered.  I am aware that many LQPMs of appeal tribunals have aide-memoirs to assist in ensuring that all issues in connection with personal capability assessment appeals have been considered.  In my view, such aide-memoirs should also contain a reminder to consider regulation 27.  Where a statement of reasons for the appeal tribunal’s decision is requested it will also be safest and best practice to make a reference therein that the application of regulation 27 was considered but was discounted.  That will not be an onerous duty for appeal tribunals.  Where regulation 27 is not relevant a simple statement to that effect is sufficient.

	55.	Where, of course, regulation 27 has a potential relevance there is a greater duty on the appeal tribunal to consider that application, as indicated in paragraph 52 above.’

40.	In the instant case, and on the basis of an assessment of all of the relevant evidence, it is clear that the substantive issue raised by the appeal was whether the appellant was incapable of work in accordance with the personal capability assessment, the further issue of whether he also satisfied the exceptional circumstances in regulation 27, was not relevant.  While, in accordance with paragraph 54 of C5/08-09(IB), it would have been safest and best practice for the appeal tribunal, in the statement of reasons for its decision, to make a reference therein that the application of regulation 27 was considered but was discounted, its decision is not in error of law for having failed so to do.’

15.	I would state, firstly, that my conclusions with respect to an appeal tribunal’s duty with respect to the potential applicability of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as set out in C5/08-09(IB), C4/09-10(IB) and C24/10-11(IB) are equally applicable to the appeal tribunal’s duty with respect to the potential applicability of regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008.

16.	In the majority of the appeals involving ESA, the first task of the appeal tribunal will be to decide whether the decision-maker had grounds to supersede an earlier decision of the Department.  The ground for supersession on which the decision-maker usually relies is to be found in regulation 6(2)(q) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, namely that since the decision the Department has received medical evidence from a health care professional approved by the Department, or made a determination that the claimant is to be treated as having limited capability for work in accordance with regulation 20, 25, 26 or 33(2) of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.

17.	If the appeal tribunal decides that the decision-maker did have grounds to supersede an earlier decision of the Department, it must then go on to decide whether the appellant has limited capability for work in accordance with the work capability assessment.

18.	If the appeal tribunal determines that the appellant does not have limited capability for work in accordance with the work capability assessment then it must then decide whether any of the exceptional circumstances set out in regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, apply to the appellant.

19.	In the majority of cases in which an appeal tribunal is considering whether the appellant has limited capability for work in accordance with the work capability assessment, the further issues of whether he also satisfies the exceptional circumstances in regulation 29, will not be relevant.  Nonetheless, it will be safest and best practice for appeal tribunals to note that the regulation was considered.  Where a statement of reasons for the appeal tribunal’s decision is requested it will also be safest and best practice to make a reference therein that the application of regulation 29 was considered but was discounted.  That will not be an onerous duty for appeal tribunals.  Where regulation 29 is not relevant a simple statement to that effect is sufficient.

20.	In C5/0809(IB), it was clear, on the facts of the case, that the issue of the possible application of regulation 27 was one of the issues that was raised by the appeal and was one which required to be addressed by the appeal tribunal.  The appeal tribunal was in error of law in failing to address what was a real issue arising in the appeal.

21.	In the instant case, the medical officer of the Department, conducted a medical examination of the appellant on 9 November 2009.  At page 26 of that medical report, the medical officer gave advice that the appellant was not suffering from a life threatening disease in relation to which there was medical evidence that the disease was uncontrollable or uncontrolled, by a recognised therapeutic procedure and that the appellant was not suffering from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the appellant was found not to have limited capability for work.  The medical officer added:

‘epilepsy – longstanding – does not appear severe or life-threatening at present

No obvious risk within the usual parameters of a person with epilepsy eg driving, working with machinery, heights etc.’

22.	In the written submission prepared for the appeal tribunal hearing, the appeals writer addressed the potential applicability of regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, at paragraphs 13 and 14 of section 5 of that submission.  The appeals writer submitted that regulation 29 had no application.

23.	In the statement of reasons for the appeal tribunal’s decision there is no allusion to the potential applicability of regulation 29.  There is no specific reference to the regulation itself and there is no analysis of the issues pertaining to that regulation or any related evidence.  Accordingly, is the decision of the appeal tribunal in error of law on the basis of that omission?  The answer is ‘no’.  To repeat what was said above, where the potential applicability of regulation 29 is clearly evident in the appeal, either because there has been a specific submission to that fact or, in the absence of a specific submission, the evidence which is before the appeal compels the appeal tribunal to consider the issues as part of its inquisitorial role, then an appeal tribunal will err in law in failing to deal with regulation 29 and/or demonstrating through the statement of reasons for its decision that it has dealt with it.  That is not the case here.  There was nothing in the evidence which was before the appeal tribunal to suggest that the appellant was suffering from a life threatening disease so as to trigger any aspect of regulation 29(2)(a).  Equally, there was nothing in the available evidence to activate an analysis as to whether regulation 29(2)(b) had a potential application.  While the appellant had given evidence concerning his problems with epilepsy, there was nothing to suggest that the appellant is suffering from a life threatening disease in relation to which there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure or that by reasons of his epilepsy, there would be a substantial risk to the mental or physical health of any person if the appellant were found not to have limited capability for work.

24.	It would have been best and safest practice for the appeal tribunal to have noted in the statement of reasons that it had considered, and discounted, the potential application of regulation 29.  Its failure to do so does not, however, render its decision as being in error of law.

25.	Even if I am wrong that the failure of the appeal tribunal to include a reference in the statement of reasons to the appeal tribunal’s conclusions with respect to the potential application of regulation 29 does not render its decision as being in error of law, I would have been prepared to make a finding that none of the exceptional circumstances set out in regulation 29 apply in this case.

26.	I would add this.  Careful consideration has to be given to a submission that a decision of an appeal tribunal is in error of law because of a failure by the appeal tribunal to consider, in an appeal involving ESA, the regulation 29 exceptional circumstances provisions, and in appeals involving IB, the parallel regulation 27 provisions.  That is not to dilute the extent of the duty on the appeal tribunal, in line with the direction given above, to consider the potential application of those provisions where there is a specific submission that one of the exceptional circumstances applies or the potential application is apparent from the evidence available to the appeal tribunal.  I am of the view, however, that a routine submission that a simple omission to refer to the exceptional circumstances provisions, in the statement of reasons, in appeals where it is clear that those provisions would not apply, is not likely to succeed.

27.	The only challenge to the appeal tribunal’s decision was on the basis of its failure to consider the potential application of regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.  I have decided that the decision of the appeal tribunal was not in error of law on the basis of that submitted ground.

28.	Having considered the remainder of the statement of reasons for the appeal tribunal’s decision, I am satisfied that no other error of law can be identified.

29.	It is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it.  The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.  The appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence.  None of the appeal tribunal’s findings are irrational, perverse or immaterial.

30.	The appeal tribunal applied the correct standard of proof, ie on the balance of probabilities, having no power to apply any other standard.  All issues raised by the appeal, either expressly or apparent from the evidence were fully examined by the appeal tribunal in conformity with its inquisitorial role.  The appeal tribunal’s application of the applicable legal rules and principles was wholly accurate.  The proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to, such principles.

31.	Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.

Disposal

32.	The decision of the appeal tribunal dated 6 August 2010 is not in error of law.  Accordingly the decision of the appeal tribunal that the appellant does not have limited capability for work in accordance with the work capability assessment and is not entitled to ESA from and including 30 November 2009 is confirmed.

(signed):  K Mullan

Chief Commissioner

28 November 2011