YK-v-Department for Social Development (ESA) [2012] NICom 350

 				Decision No: C16/11-12(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 3 February 2011

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the  appeal can properly be determined without a hearing. 

2.	The decision of the appeal tribunal dated 3 February 2011 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. 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. 

4.	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.

5.	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

6.	The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 23 September 2010, which decided that: 

(i)	grounds existed to supersede an earlier decision of the Department, dated 24 May 2010, and which had awarded an entitlement to ESA from and including 11 May 2010; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 23 September 2010. 

7.	The appeal was received in the Department on 4 October 2010. On 26 October 2010 the decision dated 23 September 2010 was looked at again but was not changed.

8.	The substantive appeal tribunal hearing took place on 3 February 2011. The appellant was present and was accompanied by her mother. There was no presenting officer from the Department in attendance at the oral hearing. The appeal was disallowed and the appeal tribunal confirmed the decision dated 23 September 2010.

9.	On 3 June 2011 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service. On 17 June 2011, the application for leave to appeal was refused by the legally qualified panel member (LQPM). 

Proceedings before the Social Security Commissioner

10.	On 6 July 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 12 September 2011 observations were sought from Decision Making Services (DMS) and these were received on 7 October 2011. In these observations, Mr Young, for DMS opposed the application on the majority of the grounds cited by the appellant but supported the application on another identified ground. The written observations were shared with the appellant and her representative on 11 October 2011. On 8 February 2012 I granted leave to appeal. In granting leave to appeal, I gave, as a reason that:

‘… an arguable issue arises as to whether the appeal tribunal adopted the proper approach to the application of regulation 19 and Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.’

11.	There then followed a delay in the promulgation of this decision occasioned by the fact that the issue identified when granting leave to appeal was under consideration by the Social Security Commissioners in Northern Ireland and the Judges of the Upper Tribunal.

Errors of law

12.	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.

13.	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.” 

Why was the decision of the appeal tribunal in the instant case in error of law?

The relevant legislative background

14.	Section 1(4) of the Welfare Reform Act (Northern Ireland) 2007 provides that:

‘1(4) For the purposes of this Part, a person has limited capability for work if—

(a)his capability for work is limited by his physical or mental condition, and

(b)the limitation is such that it is not reasonable to require him to work.’

Section 8(1) of the Welfare Reform Act (Northern Ireland) 2007 provides that:
‘8(1) For the purposes of this Part, whether a person's capability for work is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to work shall be determined in accordance with regulations.’

Regulation 19(1)-(6) of the Employment and Support Allowance Regulations (Northern Ireland) 2008 provides that:

‘19(1) For the purposes of Part 1 of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.

(2) The limited capability for work assessment is 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 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

(3) Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against any descriptor listed in that Schedule, the claimant obtains a total score of at least—

(a)	15 points whether singly or by a combination of descriptors specified in Part 1 of that Schedule;

(b)	15 points whether singly or by a combination of descriptors specified in Part 2 of that Schedule; or

(c)	15 points by a combination of descriptors specified in Parts 1 and 2 of that Schedule.

(4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.

(5) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises from—

(a)	a specific bodily disease or disablement;

(b)	a specific mental illness or disablement; or

(c)	as a direct result of treatment provided by a registered medical practitioner for such a disease, illness or disablement.

(6) Where more than one descriptor specified for an activity apply to a claimant, only the descriptor with the highest score in respect of each activity which applies is to be counted.’

Analysis of the relationship between regulation 19 and Schedule 2 of the Employment and Support Allowance Regulations (Northern Ireland) 2008

15.	In a series of cases the Judges of the Upper Tribunal have analysed the relationship between regulation 19 and Schedule 2 of the Employment and Support Allowance Regulations 2008 in Great Britain. The wording of regulation 19 and Schedule 2 of the Employment and Support Allowance Regulations 2008 is identical to the equivalent regulation and Schedule to the Employment and Support Allowance Regulations (Northern Ireland) 2008, and as set out above. The decisions of the Upper Tribunal Judges were set out and analysed in some detail by Mr Young in his thorough and helpful submission. I set out the relevant passages from those decisions in order to draw these to the attention of appeal tribunals and decision-makers.  

16.	In KN -v- Secretary of State for Work and Pensions (ESA) ([2011] UKUT 229 (AAC), Upper Tribunal Judge Wikeley stated the following, at paragraphs 29 to 32 of his decision:

‘29.	It is worth highlighting in this context an important difference between the rules governing incapacity benefit and the ESA regime.  
30.	In incapacity benefit cases the physical health descriptors apply only to an incapacity arising “in respect of a disability... from a specific bodily disease or disablement”, whilst the mental health descriptors apply solely to “a disability... from some specific mental illness or disablement” (Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311), reg. 25(3)).  This provision undoubtedly poses some difficulty with complex conditions such as chronic pain syndrome (see e.g. CIB/5435/2002).
31.	The rules for ESA are different. Regulation 19(5) of the Employment and Support Allowance Regulations 2008 (SI 2008/794) provides as follows:
“(5) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises from—
(a) a specific bodily disease or disablement;
(b) a specific mental illness or disablement; or
(c) as a direct result of treatment provided by a registered medical practitioner, for such a disease, illness or disablement.”
32.	There is, therefore, no artificial partitioning in the legislation requiring mental health descriptors to be scored only in relation to mental health conditions and physical descriptors only being applicable to physical conditions.  It may be, of course, that as a matter of evidential weight a tribunal is not satisfied that a physical condition gives rise to a score for a mental health descriptor, or vice versa, but the linkage is possible in appropriate cases.’
 
17.	In KP -v- Secretary of State for Work and Pensions (ESA) ([2011] UKUT 216 (AAC)), (to be reported as [2012] AACR 5), in a decision promulgated the day after that in KN above, Upper Tribunal Mesher stated the following, at paragraphs 19 to 20:

                 ‘19.	I do not accept the submission for the Secretary of State, in the written submission of 12 January 2011 and repeated by Mr Cooper at the oral hearing, that there can only be qualification for a descriptor under Part 2 if the relevant problems stem from a mental health problem, whether existing completely independently or resulting itself from a physical disablement. I fear that that submission did not get much further than the assertion that that had to be so because the descriptors under Part 2 referred to limitations on activities that stemmed from mental health problems. The problem with that submission is that some of the descriptors in Part 2 refer to things that could also stem from physical problems. It was also thought necessary in some instances to make a specific reference to mental illness or disablement, sometimes of a specific kind (see, for example, paragraphs 15, 16 and 19), which points against the existence of the general condition put forward for the Secretary of State.

		             20.  	It seems to me first that the contrast between the headings to Parts 1 and 2 of Schedule 2 is very significant. The heading “Physical disablement” points to the underlying cause of the effect on physical function tested in the descriptors in Part 1. The heading “Mental, cognitive and mental function assessment” points to the nature of the function that is affected, regardless of the underlying cause, suggesting that if one of those functions is affected in a way that meets the terms of a descriptor there is no need to embark on the horrendously difficult task of separating out mental and physical origins. Second, the terms of regulation 19 of the ESA are very significant. Regulation 19(5) merely provides that there is qualification for points under the whole of Schedule 2 only if the incapability to perform the activity in question arises from some specific bodily disease or disablement, some specific mental illness or disablement or from the treatment of such conditions by a medical practitioner. There was the plain opportunity to connect Part 1 to physical disease or disablement and Part 2 to mental illness of disablement, which was not taken. In my judgment, the Secretary of State’s submissions involve the adding of words to the ESA Regulations that are not there. That could be justified only in cases of manifest absurdity or mistake or where there was a clear intention in the context of the Regulations as a whole that there should be an interpretation to that effect. The circumstances fall a long way short of that. Accordingly, in my judgment, if the tribunal was considering paragraph 14 of Schedule 2, it failed to give an adequate reason for not looking further at its conditions.’

18.	In CE/175/2011, Upper Tribunal Judge Parker, accepted, at paragraph 19 of her decision, the reasoning of Judge Mesher in KP, as set out above. That reasoning was also accepted by Upper Tribunal Judge Jupp at paragraphs 11 and 12 of her decision in CE/433/2011.   

19.	The decisions in KN and KP were referred to by Upper Tribunal Judge Ward in his own decision in RM v Secretary of State for Work & Pensions ([2011 UKUT 454 (AAC)). He added the following, at paragraphs 10 to 13:

‘10.	Much of the relevant part of the regime for employment and support allowance has been adopted from the previous statutory regime of incapacity benefit.  Regulation 19 of the 2008 Regulations is to a large extent a direct lift from the equivalent provisions of the Social Security (Incapacity for Work)(General) Regulations 1995/311 (“the 1995 Regulations”).  It is not necessary to set the legislation out verbatim. However, as Judge Mesher noted, there was a clear opportunity in regulation 19(5) to limit part 2 to conditions arising from some specific mental illness or disablement, which was not taken.  Such a link existed in regulation 25(3) of the 1995 Regulations and, when so much was carried across from regulation 25 to regulation 19, I can only conclude that the omission of the link was deliberate.  This is particularly so as the link in the 1995 Regulations had been specifically created by an amending regulation (the Social Security (Incapacity for Work)(Miscellaneous Amendments) Regulations 1999/3109), thus the significance of the point under the 1995 Regulations was there to be seen  and, if thought fit, the point adopted, but it was not.

11. 	I accept that the wording of regulation 19(3) which sets out, in three sub-paragraphs, points thresholds before limited capability for work can be established does so in terms that suggest that there might be a difference between part 1 and part 2 (as there was for incapacity benefit) but in fact as the position is that the 15 point target can be met either from part 1, or from part 2, or from parts 1 and 2 together, it is presently a distinction without substance.  Insofar as it has a purpose, it is in my view to facilitate (in the sense that it would make for a simpler legislative amendment) the process, should it be desired at a future date, of setting different points targets in respect of descriptors under part 1 and part 2.  However, there is as they stand a distinction between the two parts as their cross headings  “Physical Disabilities” and “Mental, Cognitive and Intellectual Function Assessment” proclaim and that distinction might itself be a reason why it might be thought appropriate to set different points thresholds under the various sub-paragraphs of regulation 19(3).  It does not follow from that distinction (even with the help of the structure of points thresholds retained by regulation 19(3)) that part 2 is concerned with assessing such functions only insofar as problems with them arise from a specific mental illness or disablement.

12.	In my view the meaning of the legislation is plain, rather than ambiguous or obscure.  Nor does it lead to absurdity, in that in the case of conditions such as chronic fatigue syndrome and ME there may be sound practical reasons for considering the functional difficulties experienced by a claimant, rather than having to explore elusive questions as to whether the source of that limitation is mental or physical in origin.  Thus the test for permitting reference to Hansard as set out in Pepper v Hart [1992] UKHL 3; [1993] AC 593 in my view is not met.  The other material provided does not contain anything providing material assistance, nor do the extracts from Hansard provided to me in any event contain any clear statement directed to the very issue.

13.	Consequently the First-tier Tribunal created a barrier to the claimant’s ability to meet descriptors 14, 15 and 18 which was not justified by the 2008 Regulations.’

20.	In his written observations on the application for leave to appeal, Mr Young made reference to the decision of Upper Tribunal Judge May QC in RA v Secretary of State for Work & Pensions (ESA) ([2010] UKUT 301 (AAC). At paragraph 10 of that decision, the judge stated that:

‘Schedule 2 is in two parts Part 1 relates to physical disabilities and part 2 relates to mental disabilities.  The activity of remaining conscious during waking moments is in part 1 and is accordingly related to physical disablement.  The claimant in these circumstances requires to establish that his incapacity to perform any descriptor in activity 11 is caused by a specific bodily disease or disablement which is physical.   It does not appear to me that on the evidence accepted by the tribunal the claimant has established as a matter of fact a specific physical disablement which would allow for the satisfaction of a points scoring descriptor in relation to activity 11. That is sufficient to dispose of the appeal.  It was not necessary in these circumstances to go into the meaning of involuntary episodes of lost or altered consciousness.’

21.	Further, at paragraph 12, he added:

‘12.	Employment Support Allowance is as set out in paragraph 10 above related to incapacity to perform as an activity arising from specific bodily disease or disablement or specific mental illness or disablement or as a direct result of treatment provided for them.  The activities are also as indicated clearly categorised into physical or mental.  These distinctly different statutory provisions have to be applied in relation to their own terms.’

22.	Mr Young is correct to submit that the reasoning of Upper Tribunal Judge May QC in RA appears to run contrary to the alternative reasoning of five other decisions of Upper Tribunal Judges in Great Britain, beginning with KN and KP and ending with RM. He is equally correct, however, to submit that the question of the relationship between regulation 19 and Schedule 2 to the Employment and Support Regulations 2008 was considered in some significant detail in KP which, as a decision which is to be reported, must be given considerable weight. Further the reasoning of Upper Tribunal Judge Mesher in KP has been approved of by three other Upper Tribunal Judges in separate decisions, including RM¸ where, once again, there was detailed analysis. 

23.	Accordingly, I conclude that to the extent that the decision in RA conflicts with the reasoning in KP and KN, as approved of in RA, I accept and prefer the reasoning in those latter decisions. Further, I agree with that reasoning and adopt and apply it as representing the correct legal analysis of the relationship between regulation 19 and Schedule 2 of the Employment and Support Allowance Regulations (Northern Ireland) 2008. Further, and while accepting that many decisions of appeal tribunals at first-tier level in Northern Ireland were being made at a time when the legal principles set out above were being developed at second-tier appellate level and the relevant reasoning may not have permeated to appeal tribunals and found their way into submissions made by the Department for individual appeals, I would exhort appeal tribunals to give careful consideration to, and apply those principles when determining appeals where the issue is relevant.     

The application of the principles in KP in the instant case

24.	In the original application for leave to appeal, which was before the LQPM, the appellant had stated that:

‘On the day of my appeal I was asked if I suffered from depression and I said “yes”. Then the doctor asked me if I wasn’t sick and sore would I still be depressed, I answered “probably not” so he asked would I be happy to go on ahead without mentioning mental health and without thinking I agreed. I suffer from constant stress, anxiety and depression …’  
25.	As was noted by Mr Young, in his written observations on the application for leave to appeal, the appellant, in the ESA50 questionnaire which was completed as part of the decision-making process, and a copy of which is attached to the original appeal submission as tab No 2, the appellant indicated that she had difficulties with memory and concentration, execution of tasks and initiating and sustaining personal action, all resulting from problems with pain, sickness and fatigue. All of these activities are contained within Part 2 of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008.

26.	In the record of proceedings for the appeal tribunal hearing, the following is recorded:

‘Mental health issues – changed Doctor in October was often offered anti-depressants but not psychologically affected.

No mental health issues. Happy for Tribunal to consider physical activities only.      

27.	In the statement of reasons for its decision, the appeal tribunal included the following:

‘Although she completed the mental health assessment in her self assessment form the difficulties she specified related to her physical problems. The appellant was adamant at her oral hearing that she did not have a mental health problem and that this did not need to be considered by the tribunal. Accordingly the issue for the tribunal was the impact the appellant’s medical conditions had on her physical function at the relevant date 23 September 2010.’       

28.	It seems to me that the approach which the appeal tribunal has adopted to the application of the activities and descriptors in Part 2 of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, is that as the evidence was that the appellant did not have a specific mental health problem, there was no requirement to consider the potential application of the Part 2 of Schedule 2 activities and descriptors. The line of reasoning, starting with KN and KP, and culminating in RM, confirms that this was the incorrect approach to take. 

29.	As was noted above, the activities in Part 2 of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, which had the potential to apply in the instant case, on the basis that they were identified by the appellant in her completed ESA50 questionnaire were activities 14, 15 and 16. I accept, as did Upper Tribunal Judge Mesher in KP, that:

‘… some of the descriptors in Part 2 refer to things that could also stem from physical problems. It was also thought necessary in some instances to make a specific reference to mental illness or disablement, sometimes of a specific kind (see, for example, paragraphs 15, 16 and 19).’
30.	It is clear that by ‘paragraphs 15, 16 and 19’ Judge Mesher meant activities 15, 16 and 19. There is a specific reference to mental illness or disablement in each of these activities. For example, the wording of the descriptors in activity 15 makes a comparison with a’… person without any form of mental disablement’. Similarly the wording of activity 16 refers to ‘cognitive impairment or severe disorder of mood or behaviour’. I have also noted that, in any event, the appellant is now submitting that she has always had mental health problems and any concession on her part to the appeal tribunal that she did not was misplaced. Such a contention may be addressed, as part of the issues arising in the appeal, when it is remitted to the differently constituted appeal tribunal for re-determination.

31.	With some regret therefore, given the appeal tribunal’s judicious consideration of the other aspects of the appeal I find that its decision is in error of law.

The appellant’s other grounds for seeking leave to appeal

32.	As was noted above, I granted leave to appeal on the sole ground that an arguable issue arose as to whether the appeal tribunal adopted the proper approach to the application of regulation 19 and Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended. Having found that the decision of the appeal tribunal was in error of law on this ground I do not have to consider the appellant’s additional grounds for seeking leave to appeal. I would add this, however. The appellant has submitted that she was denied the right to a fair hearing on the basis that (i) she was ill on the day of the hearing (ii) she had additional evidence which she wished to submit and the appeal tribunal ought to have adjourned in order for the submission of the additional evidence to be facilitated and (iii) that the proceedings were not conducted properly. I reject this ground in its entirety. Throughout the entirety of the appeal proceedings and the further proceedings before the Social Security Commissioner, the appellant has come across as an articulate and competent individual. In the record of proceedings for the appeal tribunal hearing there is no allusion to the appellant feeling unwell on the day of the oral hearing of her appeal or of her wish to submit additional evidence which was not then before the appeal tribunal. It seems to me that if an adjournment was required because of ill-health or the requirement to adduce further evidence, then an application might have been made to the appeal tribunal and that the appeal tribunal would have given the appropriate consideration to such an application. Further, I cannot agree that the proceedings were unfair. On the contrary, it seems to me that 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.          

33.	The appellant has also submitted that the appeal tribunal has been selective in the manner in which it assessed the evidence which was before it, particularly, the evidence from the appellant’s general practitioner. Once again, I reject that submission. 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. I would also agree with the submissions which were made by Mr Young, in connection with this submitted ground, as set out in the written observations on the application for leave to appeal. 

Disposal

34.	The decision of the appeal tribunal dated 3 February 2011 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. 

35.	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 23 September 2010, which decided that grounds existed to supersede an earlier decision of the Department, dated 24 May 2010, and which had awarded an entitlement to ESA from and including 11 May 2010 and that the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 23 September 2010

(ii)	the Department is directed to provide details of any subsequent claims to ESA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred. The appeal tribunal is directed to take any evidence of subsequent claims to ESA 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. In this regard the appellant, or her representative may wish to make submissions on the potential applicability of the activities and descriptors in both Parts to Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008;  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

7 January 2013