BD-v-Department for Social Development (ESA) [2012] NICom 2

Decision No:  C12/12-13(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 4 July 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal from the decision of the appeal tribunal which sat at Enniskillen on 4 July 2011.

2.	For the reasons given below, I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998, and remit the appeal to a newly constituted tribunal for redetermination.

REASONS

	Background

3.	The applicant claimed employment and support allowance (ESA) from 12 February 2010 by reason of an injury to his right arm in an industrial accident.  He was examined by a healthcare professional on 22 July 2010 and on 21 September 2010 the Department decided that he scored 12 points under the work capability assessment.  This was fewer than the 15 points required to satisfy the assessment.  In consequence it was determined that the applicant did not have limited capability for work with the result that the Department superseded his entitlement to ESA.  The applicant appealed to a tribunal who heard his appeal on 4 July 2011.  The tribunal disallowed his appeal.

4.	On 7 July 2011 the applicant requested a statement of reasons for the tribunal’s decision.  This was sent to him on 7 September 2011 together with a record of the tribunal’s proceedings.

5.	The applicant was represented in the tribunal proceedings by Ms McElroy of Fermanagh Citizens Advice, who prepared a written submission on his behalf.  In these proceedings he is represented by Laura Banks, legal officer of Citizens Advice.

6.	On 6 October 2011 the applicant’s representative sought leave to appeal to the Social Security Commissioner.  The legally qualified member (LQM) of the tribunal refused leave on 12 October 2011 in a determination which was notified to the applicant on 19 October 2011.  The applicant made his application to a Social Security Commissioner for leave to appeal on 7 November 2011.

	Submissions

7.	The applicant’s grounds of appeal are in essence the same as those brought before the legally qualified member of the tribunal.  He submits that the tribunal has erred in law:

	(i)	by making perverse or irrational findings in relation to his upper arm functionality;

	(ii)	by failing to give adequate reasons for finding that the applicant minimised what he could do with his left hand, and for not making conclusions as regards reasonable regularity and exceptional circumstances;

	(ii)	by failing to resolve conflicts in material matters, namely evidence regarding the psychological response of the applicant to his injury and to other evidence and submissions.

8.	On 25 January 2012, the Department was invited to make observations on the applicant’s grounds of application.  Mrs O’Connor responded for the Department on 23 February 2012.  She did not support the application for leave to appeal.

9.	The applicant was given the opportunity to comment on the Department’s submissions.  He submitted that the tribunal should have given reasons, having raised the regulation 29 exceptional circumstances issue, for finding that it did not apply.  He further submitted that the tribunal had erred by failing to consider the difficulties the applicant might have encountered in using a mobile phone and by finding the applicant to be “clear headed”.

10.	I decided to hold an oral hearing of the application.  In advance of the hearing I issued a direction to the parties to make submissions on two further questions.  The first was whether the findings of the tribunal were adequate in respect of the "manual dexterity” descriptors.  In particular, I asked whether the tribunal was required to make a specific finding in relation to the descriptor “Cannot physically use a pen or pencil” and “Cannot physically use a conventional keyboard or mouse”.  In the context of these descriptors, I further asked for submissions on what is meant by “use”.

11.	The second question was, in the light of KP v SSWP [2011] UKUT 307 (AAC), paragraphs 19-20, whether the tribunal’s implied view that only the applicant’s depression was relevant to the question of the applicability of the Part 2 descriptors, but not his physical condition, was correct.  I requested submissions on whether the tribunal was required to consider any Part 2 descriptors on the basis of the applicant’s physical condition, or his physical condition combined with his mental condition, and whether it was arguable that any such descriptors applied to him.

	Hearing

12.	I held an oral hearing of the application.  At the hearing I granted leave to appeal and with the consent of the parties proceeded to treat and determine the application as an appeal.

13.	Mrs Banks relied upon the grounds previously submitted.  She further submitted that the tribunal had made inadequate findings in respect of the manual dexterity descriptors and that the tribunal should have considered the mental health descriptors.

14.	Mrs O’Connor for the Department continued to oppose the applicant’s primary grounds.  She was prepared to concede however, that the tribunal had not correctly approached the mental health descriptors bearing in mind the decision of Upper Tribunal Judge Mesher in KP v SSWP.

	My assessment

15.	The applicant through an injury at work sustained what the Department’s medical assessor subsequently described as “fairly catastrophic damage to [his] right arm with effectively no function at all”.

16.	In its written submission to the tribunal, Fermanagh Citizens Advice asked to tribunal to consider awarding points for the picking up and moving things descriptor and for manual dexterity.  The tribunal was also asked to consider the mental health descriptors of memory and concentration, execution of tasks, initiating and sustaining personal action, going out and coping with social situations.  Among various reports from consultants who considered his injuries, a letter from Dr Kirby, the applicant’s general practitioner, indicated that he had been treated for depression from January 2010.  The tribunal was well supplied with medical evidence concerning the nature and extent of the applicant’s disability following his injury.

17.	The tribunal was concerned with the form of the ESA descriptors in operation under the Employment and Support Allowance (NI) Regulations 2008 (“the ESA Regulations”), prior to their amendment by the introduction of a new Schedule 2 from 28 March 2011.

18.	In relation to the physical descriptors set out in Schedule 2 to the ESA Regulations, the tribunal accepted that the applicant satisfied descriptor 5.c – that he cannot pick up and move a light but bulky object such as an empty cardboard box, requiring the use of both hands together – and descriptor 6.g – that he cannot turn a “star-headed” sink tap with one hand but can with the other.

19.	It appears to me that there was no legitimate scope for argument as to any other physical descriptor which might apply to the applicant apart from the range of descriptors under the heading of “Manual dexterity” at 6(d) to 6(f), and the mental health descriptors.

20.	Turning to the arguments advanced by the parties before me, I am satisfied that there is no merit in the applicant’s first submission.  This is to the effect that there was no evidential basis for the statement of the tribunal that the applicant “minimised what he could do”.  From the statement of reasons I understand that by this the tribunal felt that the applicant’s oral evidence contrasted with other evidence before it.  For example, in the Citizens Advice submission to the tribunal it was related that the applicant has had to train himself to write with his left hand, that this has been a painstaking process, and that it has taken time for him to develop his left hand as his dominant hand.  However, in oral evidence the applicant says “Use of the left hand has not improved much, even three years on”.  Similarly, the applicant stated that no power was returning to his injured right arm, despite three years of weekly physiotherapy.  Yet he related that he could drive a manual car, holding the steering wheel steady with his right thumb while changing gears.  It appears to me that there was evidence here of the applicant minimising what he could do.

21.	The applicant’s second ground challenged the adequacy of the tribunal’s reasons.  The challenge was maintained at hearing in respect of two findings that the applicant “minimised what he could do” and that he would be back at work but for his physical problems.  There were further submissions about aspects such as regulation 29 of the Employment and Support Allowance Regulations (NI) 2008, relevant to the question of whether exceptional circumstances existed.  As the applicant did not rely on the exceptional circumstances provision, I see no material error in the tribunal’s implied finding that it did not apply.

22.	The applicant’s third point overlaps with the second to an extent.  In particular the applicant here criticises the tribunal for failing to point out why it has preferred a particular part of the evidence over another.  Mrs Banks relied upon the decision of Chief Commissioner Mullan in C16/08-09(DLA) at paragraph 54.  Here the Chief Commissioner emphasises the duty of the tribunal to “undertake a rigorous assessment of the all the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues in the appeal”.

23.	In particular, at hearing Mrs Banks points out that no express findings were made by the tribunal in relation to whether the applicant would have difficulty with the activities of using a pen or pencil, or doing up or undoing small buttons, as raised by the applicant in his submission to the tribunal.

24.	I agree with the applicant that the reasons of the tribunal are inadequate. I have a half-page of reasons.  They are brief enough to quote in their entirety:

“He can attend the many appointments he has to attend. (Physiotherapist, hand therapist, etc.).
He minimised what he could do with his left hand, some years after losing the effective use of right upper limb.
He was clear-headed, concise, used phone reminders for appointments (as well as his wife’s help).
He would be at work but for his physical problems.
We considered in respect of all the descriptors the “Reasonable Regularity” Test and Section 29 “Exceptional Circumstances”.
Overall we did not find, given the above, we were not convinced, on the balance of the evidence, that points should be awarded for the mental health descriptors and accordingly the points remained at “12” as awarded by the Examining Medical Practitioner, whom the panel felt had given a very fair assessment of the Appellant’s problems and whose findings the panel could not disagree with.
Appeal disallowed.”

25.	 It is not clear from the reasons, for example, why the tribunal accepted that the particular “picking up and moving” and “manual dexterity” activities were satisfied and others not satisfied.  The physical activity descriptors are simply not dealt with.  The mental health descriptors are rejected on the basis of a number of statements which bear no direct relevance to the activities in question.  While it may not have been necessary to go through each descriptor and activity in turn, the reasons for the tribunal’s decision are not such as would enable either party to understand why it made the findings it did.  I consider that the tribunal decision is therefore in error of law.

26.	Further, Mrs Banks submits that the tribunal, which sat on 4 July 2011, had not applied the law correctly with regard to the mental health descriptors. KP v SSWP, now reported as [2012] AACR 5, was promulgated on 11 June 2011 and therefore could have been considered by the tribunal.  The tribunal erred in law by confining consideration of the impact of the injury to the applicant’s right arm to the physical activities.  She submitted that it equally required the tribunal to look at mental health activities, referring to activity 14.c as an example.

27.	For the Department, Mrs O’Connor submitted that the tribunal erred as alleged in the light of KP v SSWP, albeit that it was difficult to pinpoint a mental health activity which actually applied.  She further accepted that the tribunal’s findings on the mental health descriptors were inadequate as a result.  KP v SSWP is a reported decision of the Upper Tribunal in Great Britain applying essentially the same law, albeit in different regulations, as applies in Northern Ireland.  Furthermore, it has now been expressly approved by Chief Commissioner Mullan in C9/12-13(ESA).  Therefore, I accept that the submissions of the parties on this point are correct and that the tribunal has erred in law as alleged.

28.	At hearing, in order to assess whether this was a material error, I requested submissions on the application of mental descriptors and which might apply in the present case.  I am not entirely satisfied that the parties have identified a particular descriptor which arguably applies to the applicant.  However, that is a matter for evidence, and in the circumstances of the present case, although asked to do so by Mrs Banks, I did not consider it appropriate to make my own findings in the absence of any expert medical support.

29.	I set aside the decision of the appeal tribunal and remit the appeal to a newly constituted tribunal for reconsideration.

30.	The new tribunal will need to conduct a complete rehearing of the appeal, making adequate findings on each of the descriptors which are in dispute and giving reasons for its findings.

31.	The new tribunal will need to have regard to KP v SSWP [2011] UKUT 307 (AAC), and make its assessment of the applicant’s physical and mental disablement in the light of that decision.

(signed):  O Stockman

Commissioner

10 January 2013