JMcC-v-Department for Social Development (ESA) [2014] NICom 50
Decision No:  C14/14-15(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 23 August 2013

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Belfast.

2.	For the reasons I give below, I grant leave to appeal.  I allow the appeal.  I set aside the decision of the appeal tribunal under Article 15(8)(a)(i) of the Social Security (NI) Order 1998 and I give the decision which I consider the tribunal should have given, without making fresh findings of fact.  I determine that the applicant satisfies the limited capability for work assessment (LCWA) from and including 17 July 2012.

	REASONS

	Background

3.	The applicant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from 1 May 2012 by reason of diarrhoea.  On 1 June 2012 the applicant completed and returned a questionnaire to the Department regarding ability to perform various activities, indicating that she suffered from anxiety attacks, depression, irritable bowel syndrome (IBS) and ankle pain.  She further provided a report on the condition of her ankle from a consultant orthopaedic surgeon dated 10 March 2010.  On 27 June 2012 a healthcare professional (HCP) examined the applicant on behalf of the Department.  On 8 July 2012 the Department considered all the evidence and determined that the applicant did not have LCWA from and including 17 July 2012, and made a decision superseding and disallowing the applicant’s award of ESA.  The applicant appealed.

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 23 August 2013.  The tribunal disallowed the appeal, awarding 12 points on the LCWA – six each for “Mobilising” and “Getting about”.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 11 November 2013.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 3 January 2014.  By an application received on 7 February 2014 the applicant requested a Social Security Commissioner to grant leave to appeal.

5.	The application was late, but by a determination of 4 July 2014 the Chief Commissioner accepted the late appeal for special reasons.

	Grounds

6.	The applicant, represented by Gavin Ferris of Belfast Citywide Tribunal Service, submits that the tribunal has erred in law on the basis that:

(i)	the tribunal made inadequate findings of fact;
(ii)	the tribunal’s reasons were inadequate;
(iii)	the tribunal’s decision was irrational.

7.	The grounds were framed in relation to the tribunal’s assessment of the activity of “Absence or loss of control…” in respect of bowel incontinence.

8.	The Department was invited to make observations on the appellant’s grounds.  Mr McKendry of Decision Making Services (DMS) responded on behalf of the Department.  He submitted that the tribunal had erred in law as alleged and indicated that the Department supported the application.

	The tribunal’s decision

9.	The tribunal heard evidence from the appellant and accepted that she had a condition which in all probability impacted on her ability to walk and in terms of speed and gait.  It found that it was probable that her ability to repeatedly mobilise more than 200 metres within a reasonable timescale was compromised due to significant pain and discomfort.  This led to an award of six points for the activity of Mobilising.  The tribunal did not accept that the appellant had significant difficulty with Standing/sitting or Navigation.

10.	In relation to Continence the tribunal found that absence or loss of control was not probable on the evidence before the tribunal, indicating that the appellant did not describe loss of control but rather accidents due to delay in reaching a bathroom.

11.	The tribunal considered the mental health descriptors and, while finding that the appellant had no difficulty in relation to Awareness of Hazards or danger, Coping with change, or Social Engagement, the tribunal accepted that it was probable that the appellant had a need for company to visit an unfamiliar place given her anxiety and depression, leading to an award of six points for “Getting about”.

12.	As the award of 12 points was below the relevant threshold of 15, the tribunal disallowed the appeal.

	Relevant legislation

13.	The decision under appeal was made on 8 July 2012.  At that date the relevant activity was prescribed for the purposes of the LCWA by paragraph 9 of Schedule 2 to the Employment and Support Allowance (NI) Regulations 2008 as follows:

“(1) Activity	(2) Descriptors	(3) Points	
9. Absence or loss of control leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting) despite the presence of any aids or adaptations normally used.	9	(a)	At least once a month experiences: 

(i) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder; or 

(ii) substantial leakage of the contents of a collecting device sufficient to require cleaning and a change in clothing. 	15	
		(b)	At risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly.	6	
		(c)	None of the above apply.	0”	

	Hearing

14.	I held an oral hearing of the application.  The applicant was present and was represented by Mr Ferris of Belfast Citywide Representation Service.  The respondent was represented by Mr McKendry.

15.	Mr Ferris submitted that the tribunal had erred in law on the basis that it wrongly applied the relevant incontinence descriptor by discounting the fact that the applicant’s mobility problems contributed to delay in her reaching a toilet.  He relied on the decision of Upper Tribunal Judge Mark in EM v SSWP [2014] UKUT 34 (AAC) at paragraphs 24 and 25.  He referred to the wording of the descriptor which included the phrase “… if not able to reach a toilet quickly”.  Judge Mark found that the fact that a claimant was unable to reach a toilet in time because of other physical problems was irrelevant.  He submitted that the decision of Judge Mark should be followed and that the tribunal had erred by taking the contrary approach.

16.	Mr Ferris submitted that the applicant, on the evidence, should be entitled to an award of 15 points under descriptor 9(a)(i).  However, he further submitted that the evidence also supported an award of points under descriptor 9(b) which related to a risk of loss of control.  He relied on the decision of Upper Tribunal Judge Lane in NH v SSWP (ESA) [2011] UKUT 82 (AAC), and in particular paragraph 12 where Judge Lane stated that “A risk is a chance.  It may exist without it ever actually occurring”.

17.	For the Department, Mr McKendry accepted the submissions of Mr Ferris.  In a post-hearing memorandum, he further confirmed that the Department for Work and Pensions in Great Britain had accepted the correctness of the decision in EM and did not seek to appeal it to the Court of Appeal in England and Wales.  He further observed that an extract from the Medical Services Handbook referred to in Judge Mark’s decision at paragraph 24 was in the process of being amended.

	Assessment

18.	Although she was applying an earlier version of the descriptor, following Judge Lane’s analysis I consider that there are three relevant factors to consider here.  These are:

(a)	the risk of losing control;
	
(b)	so that the claimant cannot control extensive evacuation of the bowel sufficient to require cleaning and a change of clothing;
	
(c)	if not able to reach a toilet quickly.

19.	Judge Lane’s approach has been approved by other Upper Tribunal Judges, notably Judge Rowland in KB v SSWP [2014] UKUT 126 (AAC) at paragraph 12 where he says, “The most important point made by Judge Lane is that a risk may exist notwithstanding that there are few, or no, occasions when it materialises”.  I too accept that this is a correct analysis.

20.	Judge Mark found that the context of the continence descriptor was that of personal dignity and social acceptability.  He found that the fact that the risk of loss of control was due to mobility problems was irrelevant.  I agree with this approach.  It seems to me that the question of whether there is a risk of loss of control must address the particular bowel or bladder condition of a given claimant.  The degree of loss of control must be assessed in terms of the necessity for the claimant to clean himself or herself and change clothing.  The factor of ability to reach a toilet must logically involve consideration of any mobility problem, if any, particular to the claimant.

21.	I consider that the tribunal, having decided that “The appellant herself does not describe a loss of control but rather accidents due to delay in reaching a bathroom”, has erred in law.  It may well be that, but for the inability to reach a toilet quickly, the applicant would not be at risk of a loss of bowel control.  However, the contribution of her mobility problems to her ability to reach a toilet is a relevant factor and one which the tribunal should have taken into account.

22.	I grant leave to appeal. With the consent of the parties, I proceed to treat the application as if it were an appeal. As I consider that it has erred in law, I set aside the decision of the appeal tribunal. 

	Disposal

23.	The evidence of the applicant in her ESA50 form was “I have IBS and I have change regularly as I have a lot of accidents”.  This account was also given to the HCP, who recorded in the ESA85 “Has to wash and change her clothing weekly”.  The applicant’s general practitioner stated in a letter dated 16 August 2012 that “She has a history of frequent bowel motions which is documented.  She reports that she would be incontinent of faeces once a month”.

24.	The tribunal does not appear to have directly asked the applicant about the frequency of any loss of control.  It was put to the applicant: “Most people with IBS would not have trouble with incontinence, why do you?” and she responded “Because of difficulty with pain in leg getting to the bathroom.  That is why I spend most time upstairs.  No OT [occupational therapy] involvement.  Would have problem 3-4 times a day – that is now.  A year ago maybe once or twice a day”.

25.	Mr Ferris submitted that there was enough evidence before me to determine the appeal in the applicant’s favour, based on the issue of a risk of loss of control.  Mr McKendry similarly submitted that there was enough evidence to allow the appeal.  The parties submitted that the tribunal had enough evidence of risk of loss of control to award a further six points, but wrongly discounted the risk as arising from mobility problems rather than the bowel condition. I accept the submissions of the parties.

26.	The tribunal had previously awarded 12 points for the activities of “mobilising” and “getting about”.  I accept the findings of the tribunal on these activities.  I further accept that the applicant is entitled to an award of six points for “Absence or loss of control …, 9.b.”  This would lead to an award of 18 points.

27.	As this is sufficient to reach the threshold of 15 points, I determine that the applicant satisfies the LCWA from and including 17 July 2012.

(signed)  O Stockman

Commissioner

6 November 2014