AF-v-Department for Social Development (ESA) [2013] NICom 75

 				Decision No: C8/13-14(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 16 April 2012

	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 on 16 April 2012. 

2.	For the reasons set out below, I grant leave to appeal. I proceed to consider and determine the application as if it were an appeal. However, I disallow the appeal, holding that the tribunal has not materially erred in law. 

REASONS

Background

3.	The applicant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) on 20 July 2011 on the basis of incapacity for work following eye surgery. She was requested to complete a Departmental questionnaire (ESA50) and returned it. She was subsequently examined by a healthcare professional on behalf of the Department. On the basis of all the evidence the Department determined on 1 November 2011 that the applicant did not satisfy the limited capability for work assessment (LCWA) and superseded and disallowed her award of ESA from and including 4 November 2011. She appealed, but the tribunal disallowed the appeal.

4.	The applicant requested a statement of reasons for the tribunal’s decision which was issued to her on 17 July 2012. The applicant wrote to the clerk to the Appeals Service on 2 August 2012, disputing the accuracy of the record of proceedings and purporting to appeal against the tribunal’s decision setting out grounds. The legally qualified member (LQM) of the tribunal treated the letter as an application for leave to appeal to the Social Security Commissioner and refused leave to appeal by a determination issued on 11 December 2012. On 8 January 2013 the applicant wrote to the Appeals Service asking for the letter to be treated as a notice of appeal and asking for explanation of the letter of 11 December 2012.  It would appear that on 15 January 2013 the applicant received a response from the Appeals Service. Subsequently she made an application to a Social Security Commissioner to grant leave to appeal, received on 24 January 2013. 

Grounds

5.	The applicant submits that the tribunal has erred in law as:

(i)	it erred in its approach to the evidence produced by the applicant;

(ii)	the decision was not supported with any evidence of the Respondent to defeat the applicant’s evidence;

(iii)	the LQM failed to address the grounds identified in the applicant’s application for leave to appeal. 

6.	The Department was invited to make observations on the applicant’s grounds. Mr Toner replied on behalf of the Department. He indicated that the Department did not support the application. 

Lateness

7.	The application was late. However, by a determination of 10 September 2013 I decided to accept the late application in all the circumstances of the case. 

The tribunal’s decision

8.	The tribunal summarised the facts of the case, observing that the applicant had had surgery to remove cataracts from both eyes and had claimed ESA subsequently. It was accepted that the applicant ran a press clippings agency and that the applicant’s occupation involved long days reading newspaper print in order to identify relevant articles. 

9.	The tribunal found, however, that the conditions of entitlement to ESA contained no test of reading. Rather it concerned the claimant’s ability to navigate safely out of doors. The evidence was that the applicant had no difficulty navigating safely out of doors and accordingly the tribunal disallowed the appeal. The tribunal further applied the test for exceptional circumstances under regulation 29 of the ESA Regulations but found no evidence to suggest that there would be a substantial risk to the mental or physical health of any person if the applicant were to be found capable of work. 

Relevant legislation

10.	ESA was established under the provisions of the Welfare Reform Act (NI) 2007 (the 2007 Act). The core rules of entitlement were set out at section 1 of the 2007 Act. This reads:

“1(1) 	An allowance, to be known as an employment and support allowance, shall be payable in accordance with the provisions of this Part.

(2) Subject to the provisions of this Part, a claimant is entitled to an employment and support allowance if he satisfies the basic conditions and either

(a) …

(3) The basic conditions are that the claimant

(a) has limited capability for work,
(b) …

(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.

(5) …

The requirements of section 1(3)(a) are expanded upon in section 8. This provides:

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.

(2) Regulations under subsection (1) shall

(a) provide for determination on the basis of an assessment of the person concerned;

(b) define the assessment by reference to the extent to which a person who has some specific disease or bodily or mental disablement is capable or incapable of performing such activities as may be prescribed;

(c) make provision as to the manner of carrying out the assessment.
(3) …

The regulation making powers contained in section 8 were exercised in making the Employment and Support Allowance Regulations (NI) 2008 (the ESA Regulations). These provide for a specific test of limited capability for work at regulation 19. This reads:

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—

(a) fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or, as the case may be,

(b) wearing or using any aid or appliance which is normally, or could reasonably be expected to be, 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—

(a) in respect of any descriptor listed in Part 1 of Schedule 2, from a specific bodily disease or disablement;

(b) in respect of any descriptor listed in Part 2 of Schedule 2, from a specific mental illness or disablement; or

(c) in respect of any descriptor or descriptors listed in—

(i) Part 1 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific physical disease or disablement;

(ii) Part 2 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific mental 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.

(7) ...”

The regulations make further provision for what it terms exceptional circumstances. These circumstances are prescribed at regulation 29 of the ESA Regulations as follows:

“Exceptional circumstances
29.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

(2) Subject to paragraph (3) this paragraph applies if—

(a) the claimant is suffering from a life threatening disease in relation to which—

(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and

(ii) in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or

(b) the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.

(3) Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by—

(a) reasonable adjustments being made in the claimant’s workplace, or

(b) the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.”

Submissions

11.	I held an oral hearing of the application. The applicant attended represented by Mr Morrow, Solicitor. The respondent was represented by Mr Toner of Decision Making Services. 

12.	Mr Morrow outlined the nature of the applicant’s business, where she was required to spend long hours reading newspaper print. He firstly submitted that the tribunal had erred in law by failing to have proper regard to the medical evidence of incapacity submitted by the applicant in the form of four sick notes advising her to refrain from work. The applicant had undergone surgery to remove cataracts from her eyes on four occasions. He submitted that she was unable to work during the period after surgery in order to protect her eyes and enable a full recovery. The applicant’s ESA50 questionnaire referred to an eight week period during which she could not wear glasses and her eyesight was expected to settle. He submitted that the evidence of the healthcare professional should not have been preferred to that of the applicant’s surgeon. Nevertheless, Mr Morrow acknowledged that the particular sick notes were not before me or the tribunal and therefore we did not know what they contained. 

13.	Mr Morrow submitted that the tribunal was asked to look at Activities 7, 8 and 13, but that it failed to make findings in relation to 7 and 13 and the facts relevant to those activities were not agreed. He submitted that there were material procedural deficiencies in that the tribunal had not given reasons for its decision on those activities. More generally, he submitted that the descriptors regularly used the expression “such as”, indicating that the activities in the descriptors were simply examples and not definitive. 

14.	Mr Morrow further submitted that the exceptional circumstances provisions were not adequately addressed and that they had application in the present case. He submitted that the sick notes issued to the applicant indicated that there was a danger to her health if she did not refrain from work. The danger to her from returning to her own work, he submitted, was not rebutted at hearing. 

15.	Mr Toner submitted that the issue of sick notes was relevant only to the assessment period following a claim.  Whereas a claimant was deemed incapable on the basis of medical evidence of incapacity before examination by a healthcare professional, once the examination had occurred the sick lines were no longer necessary evidence. 

16.	He indicated that, as he was not present at the hearing, he could not comment on whether the tribunal had fully addressed the particular activities which the applicant had sought to raise before it. He submitted that the applicant’s personal work situation did not fall to be considered due to the nature of the LCWA. He submitted that regulation 29 did not have application, referring to HA v DSD [2011] NI Com 213. He submitted that there was no evidence that the applicant’s health would be substantially at risk if she failed the LCWA. 

17.	I asked the parties whether there was any significance in the fact that activity 7 referred to the ability to read 16pt print, whereas the healthcare professional’s report referred to her ability to read text at “N12” and also referring to 6/9 vision. In other words, the evidence arising from the clinical examination did not directly address the criterion set out in Activity 7. I acknowledged that the medical member of the panel might have the specialist knowledge to address this issue. However, I was sitting without the benefit of a medical member. I therefore asked Mr Toner for evidence addressing the relationship between N12 print and 16pt print, which he provided a short time after the hearing. 

Assessment

18.	I am satisfied that the tribunal addressed and made findings on all the matters in dispute, or that if it did not, it has not materially erred in law. The tribunal in particular made findings under Activity 7 and Activity 8 and it addressed the issue of the applicant’s eyesight in terms of the particular descriptors, which were concerned with communication and navigation, rather than reading per se. 

19.	The tribunal indicated in its decision on the LCWA score sheet that Activity 13 was not in dispute. Mr Morrow submits that it was. However, Activity 13 refers to inability to initiate and complete personal actions due to impaired mental function. The applicant had impaired visual function. Had her eyesight been good, she would have had no difficulty processing the words. Therefore while the function of reading was impaired, her mental function was not. I am satisfied that no material error of law arises from the tribunal not considering and making express findings on Activity 13. 

20.	The report of the healthcare professional recorded the following relevant features of clinical examination: “Using both eyes was able to read N12 print on a reading test type chart from a distance of 40cm without correction. Visual acuity was 6/9 using both eyes without correction. Visual field testing was normal in both eyes”. I asked Mr Toner how this related to Activity 7 which includes in its heading the terms: “Understanding communication by … non-verbal means (such as reading 16pt print) using any aid it is reasonable to expect them to use …”. In particular, I was unsure about the relationship between N12 print and 16pt print. 

21.	Mr Toner has provided background information, sourced from the Department for Work and Pensions website, on the test used for near vision, which is based on the Snellen Test Card. The explanatory information indicates that the card has a number of paragraphs of varying print sizes. Each paragraph is measured in terms of “points” measuring the body of the text – where a point is 1/72 of an inch. In terms of the print and computer industry, I take judicial notice of the fact that the point sizes of various typefaces are similarly based around the unit of 1/72 of an inch. Therefore 16 point text is 16/72 of an inch in height. As I understand the information provided by Mr Toner, the meaning of N12 text is text which is 12/72 of an inch in height. N12 text is therefore smaller than 16 point text. Accordingly, ability to read N12 text indicates a visual acuity which enables a person to read 16 point print. 

22.	Mr Morrow nevertheless submits that the use of “such as” indicates that this is only one example. However, I consider that the fact that the applicant could read 16 point text indicates that she could understand a written message for the purposes of Activity 7. Mr Morrow further submits that the applicant could not perform the reading which her work required her to do over the course of a working day. That may well be the case. However, it is not the test which decision-makers have to apply. It is well established that the test incorporates a requirement that a claimant can reliably and repeatedly carry out a particular task – the reasonable regularity requirement first read into the equivalent test for incapacity benefit by former Chief Commissioner Chambers in C1/95(IB). If the applicant could read 16 point text with reasonable regularity she could not satisfy the descriptors in Activity 7. Reasonable regularity does not require an ability to constantly read over the course of a full working day. The context of Activity 7 is communication – reading a note from a stranger in 16 point text for example. I am satisfied that the tribunal was entitled to come to the conclusion it reached on this issue and that it applied the law correctly in doing so. 

23.	Mr Morrow submitted that the tribunal did not address potential exceptional circumstances within regulation 29 of the ESA Regulations correctly. He submitted that there would be harm to the applicant’s eyesight if she went back to her usual occupation in the months following her eye surgery. A difficulty with this submission, however, is the lack of evidence to this effect. The sick notes supplied by the applicant in support of her claim for ESA were not before the tribunal or me. As far as I can gauge, however, these at best indicated that the applicant should refrain from her usual work involving intensive reading for up to eight weeks after each operation on her eyes. The ESA50 questionnaire completed by the applicant suggested that her final hospital attendance had been 15 September 2011. The decision under appeal was made on 4 November 2011. Conceivably, therefore, she might have been under medical advice at that time to refrain from her usual occupation. 

24.	Another consideration relates to the scope of regulation 29. The predecessor provision in regulation 27 of the Social Security (Incapacity for Work) Regulations 1995 (IFW) was considered by the Court of Appeal in England and Wales in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42. This case was further considered by Chief Commissioner Mullan in AH v Department for Social Development [2012] NI Com 343. Chief Commissioner Mullan approved and applied the approach adopted by the Court of Appeal of England and Wales in Charlton - technically a persuasive authority only - in Northern Ireland.  

25.	As submitted by Mr Toner, the provision considered in Charlton was regulation 27(b) of the IFW Regulations, which addressed the question of whether “he suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work”. This is slightly different from regulation 29 of the ESA Regulations which addresses the question of whether the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work”. Nevertheless, I am not sure that much turns on the difference in the wording of the two paragraphs. 

26.	What Charlton does make clear, is that the risk anticipated must be considered not in the context of the claimant’s last workplace, but in workplaces generally where she might find herself. Charlton requires the decision-maker or tribunal to assess the range of work of which the claimant is capable for the purposes of assessing risk to health. However, the process of adjudication as indicated by Baroness Hale at paragraph 61-62 of Kerr v. Department for Social Development [2004] UKHL 23 (also reported as an annex to R1/04(SF)), is inquisitorial rather than adversarial. In determining entitlement to benefit, both the claimant and the Department must play their part. The height of the case submitted by the applicant is that she would have needed to refrain from her usual occupation for a period post-surgery. However, this advice would have related to the particular intensive reading necessary for her usual occupation and it is clear that the advice was for a finite period of weeks. Furthermore, there was no evidence that the same advice would have applied to the range of alternative occupations that would have been open to her which did not involve close reading. 

27.	In the absence of specific evidence raising the issue of a possible substantial risk to the applicant’s physical health were she found not to have limited capability for work, I cannot accept that the tribunal can be faulted for not exploring this issue in greater depth. I do not consider that it has materially erred in law by not identifying the types of work which the applicant could perform without substantial risk to her physical health. 

28.	In the light of what has been written above, I consider that the applicant has presented an arguable case that the tribunal has erred in law and I grant leave to appeal. With the consent of the parties, I proceed to consider and determine the application as if it were an appeal. However, I am not persuaded that the tribunal decision contains a material error of law. I therefore disallow the appeal. 

	(Signed):  O Stockman

	COMMISSIONER

	19 December 2014