MMcD-v-Department for Social Development (ESA) [2013] NICom 26

 				Decision No: C16/12-13(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 26 October 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal from the decision of a tribunal which sat at Enniskillen on 26 October 2011. 

2.	For the reasons given below, I set aside the decision of the tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998 and I direct that it should be remitted to a newly constituted tribunal for determination. 

REASONS

Background

3.	The applicant claimed employment and support allowance (ESA) from the Department for Social Development on 30 March 2009 by reason of sciatica. He had also lost the tips of three fingers on the left hand in an industrial accident. He was asked to complete a self-assessment questionnaire and he returned it on 1 March 2011. He was examined by a healthcare professional on 6 May 2011. Subsequently, the Department decided that the applicant scored no points on the limited capability for work assessment (LCWA). The Department superseded the decision awarding him ESA, deciding that he was not entitled to ESA from and including 4 June 2011. The applicant appealed. The tribunal disallowed the appeal, although it awarded six points for the physical heath descriptor of Standing and Sitting which had not been awarded by the Department. 

4.	At his request, the applicant was issued with a statement of reasons for the tribunal’s decision. He applied for leave to appeal to the Social Security Commissioner but the legally qualified member (LQM) of the tribunal refused leave to appeal, in a determination issued to the applicant on 17 February 2012. On 28 February 2012, the applicant applied to a Social Security Commissioner for leave to appeal. 

Submissions

5.	The applicant, represented by Ms Loughrey of Law Centre (NI), submits that the tribunal has erred in law in that:

(i)	its reasons are inadequate to explain how it dealt with each of the disputed activities, especially walking and manual activity;

(ii)	it has failed to provide an evidential assessment to explain how the decision [was] reached, particularly in relation to how it viewed the content of the medico-legal report. 

6.	On 31 May 2012 the Department was invited to make observations on the applicant’s prospective grounds of appeal. On 28 June 2012 Mr Toner responded on behalf of the Department. Mr Toner indicated that the Department opposed the application, submitting that the reasons were clear and that the tribunal was entitled to reach its conclusion on the evidence before it.

7.	On 3 August 2012, Ms Loughrey made submissions in response to the Department, relying on relevant case-law. On 16 August 2012 Mr Toner indicated that he had nothing to add by way of response to the applicant’s submissions.  

The tribunal decision

8.	The tribunal’s record of proceedings shows that the tribunal considered the Departmental submission and a Social Security Agency letter dated 10 August 2011, an extract from the applicant’s general practitioner (GP) records and a medico-legal report prepared for Murnaghan & Fee (Solicitors). The record further shows that the tribunal asked the applicant about four physical activities under the LCWA, namely walking, standing-sitting, bending-kneeling and manual dexterity. The representative asked the tribunal to consider the medico-legal report as regards dexterity and the GP evidence as regards walking. 

9.	The tribunal’s reasons for its decision, stated in their entirety are:

“Overall we had a young man with hand/back/leg problems (and some phantom pains in the hand). We accepted there was pain, discomfort, some reduction in functionality, reduced sensitivity of the left hand. However, on balance we did not find the reduction in functionality was sufficient to score the ‘15’ points required to pass the conditions for ESA and that the Department therefore, had grounds on the medical evidence, to supersede the decision awarding ESA from 4/6/11.” 
Hearing

10.	I held a hearing of the application. The applicant was represented by Ms Loughrey of Law Centre (NI). The Department was represented by Mr Toner. At the hearing I granted leave to appeal and with the consent of the parties proceeded to treat and determine the application as if it were an appeal. 

11.	Ms Loughrey submitted that the reasons given by the tribunal were inadequate and in particular those in relation to walking and manual dexterity. She observed that the tribunal had accepted evidence from the applicant in relation to the standing-sitting descriptor and noted that there was no evidential assessment on standing-sitting such as to explain why the evidence of the medical assessor was rejected. 

12.	She observed that there was a dispute on walking distance arising from evidence of 100 yards walking given by the applicant on the day and a distance of 200-250 yards said to have been stated to the medical assessor although the applicant asserted that he did not recall saying this. Ms Loughrey submitted that there was no way to assess why the tribunal preferred one statement over the other. She submitted that the record was so scant it did not reflect the content of the hearing.

13.	Mr Toner submitted that there was no actual conflict in the evidence in the case. While he had initially not been impressed with the tribunal’s record of proceedings and reasons he submitted that the score sheet together with the above reasons explained the decision. 

Assessment 

14.	At the hearing I asked the parties why six points were awarded for standing and sitting when the medical examiner found that the applicant could stand or sit for more than 30 minutes. It was impossible for the parties to reach a definite conclusion on this. I further asked, if the applicant’s evidence was preferred and accepted on this issue, why not on bending and kneeling. Again the parties could not explain this aspect of the tribunal decision.  

15.	After a lengthy consideration of the evidence, the parties and I speculated that the conclusions on standing-sitting were probably based on an entry in the GP records made by Dr P... some two months before the decision date. This noted, presumably based on the applicant’s statement, that due to pain he could only sit for 20 minutes in the car and was limited to ten minutes walking. However, it is purely speculation on our part that the tribunal based its decision on this evidence. 

16.	 In relation to bending and kneeling, the applicant accepted in oral evidence that sometimes he could do this. However, it was not evident from the record or the reasons that the tribunal had then enquired further into the frequency or regularity of his difficulties with the activity. No reasons were evident to show how the tribunal decided that he was not restricted in bending-kneeling with sufficiently reasonable regularity to score points under this activity. 

17.	Chief Commissioner Mullan in C8/08-09(IB) paragraph 60 has emphasised the duty on tribunals to undertake a rigorous assessment of all the evidence 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 arising in the appeal.  In C20/11-12(DLA) at paragraph 17 he also says:

		‘17.	I would say, at the outset, that there is no link between brevity of reasons and lack of adequacy of reasons.  The conclusions of an appeal tribunal can be explained in a succinct and brief manner provided those reasons are logical, coherent and are not perverse.…’

Here I am faced with a brief statement of reasons. As indicated by Chief Commissioner Mullan there is nothing wrong with that in itself. However, I consider that the particular decision is not adequate to explain to the parties why significant elements of the evidence were accepted or rejected. At the end of the day the reasons must be sufficiently clear to enable parties to understand why they have won or lost their case. The decision of the appeal tribunal does not reach that standard and for that reason I hold that the tribunal decision is erroneous in point of law. 

18.	I set aside the decision of the appeal tribunal and I direct that it should be remitted to a newly constituted tribunal for redetermination. 

	(Signed):  O Stockman

	COMMISSIONER

	26 March 2013