GP-v-Department for Social Development (ESA) [2013] NICom 47

Decision No:  C1/13-14(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 9 February 2012

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s appeal from the decision of an appeal tribunal sitting at Strabane on 9 February 2012.

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

REASONS

	Background

3.	The applicant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from 9 September 2010 by reason of depression.  He subsequently completed a questionnaire giving details about how his illness affected his ability to perform various activities and he was examined by a healthcare professional on behalf of the Department.  On the basis of the evidence the Department decided that the applicant did not satisfy the Limited Capability for Work Assessment (LCWA) from and including 31 October 2011.  He appealed.

4.	The appeal was considered by a tribunal on 9 February 2012.  The tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision.  This was issued on 20 April 2012.  On 31 May 2012 the applicant made a late application to the legally qualified member (LQM) of the tribunal for leave to appeal to the Social Security Commissioner.  The LQM admitted the late application on 17 June 2012 but refused leave to appeal in a determination issued to the applicant on 20 June 2012.  On 20 July 2012 the applicant applied to a Social Security Commissioner for leave to appeal.

	Submissions

5.	The applicant, through his representative Ms McElroy of Strabane Citizens Advice Bureau, submits that the tribunal has erred in law as:

	(i)	it has failed to resolve conflicts in material matters;
	(ii)	it has given inadequate reasons for its decision;
	(iii)	it has reached an irrational finding of fact.

6.	The Department was invited to make observations on the applicant’s grounds.  Ms O’Connor responded for the Department.  She submits that the tribunal has not erred in law and indicates that the Department does not support the application for leave to appeal.

	The tribunal’s decision

7.	The disputed activities were not specified by the tribunal but it appears from the Department’s submission that these were the physical activities of: reaching, making oneself understood, understanding communication, navigation, bowel or bladder control and consciousness.  The disputed mental activities were: learning tasks, awareness of hazards, initiating and completing personal action, coping with change, getting about, coping with social engagement and appropriateness of behaviour.

8.	The tribunal accepted the findings of the healthcare professional in the report dated 21 December 2011.  It considered that the applicant’s main problem was alcohol misuse.  The tribunal found that the appellant did not have any physical problems and could perform all the activities of daily living unaided.  The tribunal made specific findings in relation to mobilising, standing-sitting, use of upper and lower limbs, navigation and consciousness.  The tribunal reported that it “considered the mental health activities and did not believe that an award of points was merited in any of the activities, as the criteria for the award of points had not been satisfied”.

9.	The tribunal further recorded that “the appellant was still the owner of a bar …  He accepted that he attended the bar regularly, although denied working in the bar.  The tribunal believe that the appellant was still actively involved in the bar business and did not accept his evidence to the tribunal”.

10.	In the light of the tribunal’s findings I considered that the appellant had raised an arguable case and I granted leave to appeal.

	Hearing

11.	I held an oral hearing of the appeal.  The appellant was represented by Ms McElroy of Strabane Citizens Advice Bureau.  The Department was represented by Mr Toner of Decision Making Services.  I am grateful to both parties for their clear and realistic submissions.

12.	Ms McElroy maintained her argument that the tribunal had given inadequate reasons for rejecting the appellant’s choice of descriptors.  She referred to R2/01(IB) as support for her argument.  She submitted that the tribunal had erred by failing to record findings in relation to relevant descriptors, relying on C8/08-09(IB).  She submitted that the tribunal had failed to give adequate explanation of how it found the appellant was working.  She submitted that the panel did not make appropriate enquiries when asking about ownership of the appellant’s bar, relying on R(DLA)8/06 to submit that there had been a breach of natural justice rules.  It was submitted that the record of proceedings did not show that the tribunal’s suspicion that the appellant was still working in his bar had been put to the appellant for comment.

13.	Mr Toner acknowledged that the tribunal had made a finding about the appellant being still actively involved in the bar business, but submitted that the tribunal had nevertheless made safe findings on the relevant descriptors.  He accepted that it did not appear on the record of proceedings that the appellant had been asked directly by the tribunal if he was still actively involved in the bar business.  The statement of reasons nevertheless included the phrase [that the appellant] “denied working in the bar”.  His submission was that this was not a breach of the rules of natural justice.  So long as the tribunal had assessed the activities based on the evidence before them, the findings and reasons would be sound.

14.	I questioned the parties on the reasoning process in relation to the mental health descriptors.  I asked whether the tribunal’s view that the appellant was working in the bar had coloured the tribunal’s findings on the mental health descriptors.  Ms McElroy expressed concern that the tribunal had based its mental health findings on very general evidence about daytime activities and did not make specific findings in relation to particular mental health descriptors.  For example, in the area of “Getting about” Ms McElroy submitted that the issue of getting to a specific place with which the claimant is unfamiliar was not addressed.  The tribunal had made findings only in relation to familiar places.

15.	Ms McElroy accepted that there was no clear evidence on the day to support an award of points for any particular mental health descriptor.  She submitted that there was information before the tribunal, such as the award of low rate care component of DLA, which would have suggested problems with daily activities.  However, these were not investigated by the tribunal.  She submitted that the DLA award was consistent with an award of points in the area of initiating action.  She submitted that the Great Britain Upper Tribunal decision of CE/2894/2011 was authority for the proposition that although the tests for DLA and ESA were not the same there was sufficient common ground for one to provide evidence for the other.  In a new ESA claim from January 2013 the appellant had been awarded 6 points for the activity of getting about.  The appellant also had a two year award of DLA consisting of the low rate mobility component and the high rate care component from 22 July 2012.

	Assessment

16.	The tribunal in the present case has made a finding to the effect that the appellant was still actively involved in the bar business.  If the tribunal had been considering the question of the application of regulation 40 of the ESA Regulations, which is to the effect that a person who works is to be treated as not entitled to ESA, such a finding would have been directly relevant to the issues before the tribunal.  However, the tribunal was here applying the LCWA.  Such a finding could still be indirectly relevant to the extent that such a finding could have a bearing on the assessment of the claimant’s ability to perform various physical and mental descriptors.  It might indicate a lifestyle incompatible with particular claimed descriptors.

17.	However, there was no evidence before the tribunal that the appellant was still involved in the bar business.  He is recorded in the statement of reasons as having denied that he was.  The tribunal can only have based its finding on its disbelief on this denial.  However, it is not clear to me why that question was even put to the appellant, as it was nowhere alleged that he was working.  There was no evidence that he was working.  The finding to the effect that he was working was not based on evidence but rather speculation on the part of the tribunal.  As such, it was not a finding which was open to the tribunal to make.  Therefore the decision of the tribunal is in error of law.

18.	Mr Toner has submitted that despite the tribunal’s finding, the reasoning behind its decision is nevertheless robust and sustainable on the evidence.  Ms McElroy concedes as much in relation to the physical descriptors and I think that she is right to make that concession.  The tribunal had found that the appellant had no physical problems whatsoever and had made express findings on certain physical descriptors in the reasons for its decision and on the score sheet issued with the summary decision on the day of hearing.

19.	When it came to the mental descriptors, the tribunal did not hold that the appellant had no mental health problems.  It was accepted that he misused alcohol.  However, the tribunal considered that an award of points was not merited for any of the descriptors.  The tribunal did not address each claimed descriptor but rather asked about aspects of the appellant’s typical day.  It made the judgement that he should not score points for mental descriptors on its understanding of the typical day.  However, I consider that, as the typical day as understood by the tribunal included the appellant’s active involvement in the bar business, a finding which was not supported by evidence, the findings were tainted.

20.	Ms McElroy further submits that in the specific descriptor of “Getting About”, the tribunal has made findings only on the appellant’s ability to go to familiar places.  The report of the healthcare professional referred to “goes out to shops”, which are not specified as being a familiar or unfamiliar place.  However, the particular test for descriptor 15c refers to the ability to get to an unfamiliar place.  She submits that points for this descriptor could have been awarded to the appellant, but that the tribunal has not made adequate findings on the issue to determine the question.  I accept that there is merit in this point and find that the tribunal has erred on this basis also.

21.	Ms McElroy further submits that the tribunal should have been alert to the question of whether the appellant’s award of low rate care component of DLA suggested that there was evidence relevant to the “Initiating and completing personal action” activity.  I do not need to decide that issue and I will not decide it on this occasion.

22.	I set aside the decision of the appeal tribunal.

23.	I do not consider that this is a case in which I can give the decision the tribunal should have given.  I remit the appeal to a newly constituted tribunal for redetermination.

(signed):  O Stockman

Commissioner

24 June 2013