DC-v-Department for Social Development (ESA) [2015] NICom15

 			Decision No: C33/14-15(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 25 November 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 Strabane.

2.	For the reasons I give below, I grant leave to appeal. However, I disallow the appeal. 

REASONS

Background

3.	The applicant claimed incapacity benefit (IB) from the Department for Social Development (the Department) from 3 January 2005 by reason of backache, anxiety state and depression. On 20 October 2011 the applicant was notified by the Department that his existing claim was to be converted into a claim for employment and support allowance (ESA) under the regulations implementing the Welfare Reform Act (Northern Ireland) 2007. The applicant was issued with and completed a Departmental questionnaire, form ESA50. A pro forma report was obtained from the applicant’s general practitioner. He was examined by a health care professional (HCP) on 12 March 2012, who prepared a report for the Department. On the basis of all the evidence, on 4 April 2012, the Department decided that the applicant did not satisfy the limited capability for work assessment (LCWA) and that his award of IB did not qualify for conversion into an award of ESA from 25 April 2012, resulting in an end to his entitlement. The applicant appealed. 

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 5 November 2013. The tribunal disallowed the appeal. The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 19 February 2014. 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 19 March 2014. On 17 April 2014, the applicant requested a Social Security Commissioner to grant leave to appeal. 

Grounds

5.	The applicant, represented by Ms Carla Rogers of Law Centre NI, submits that the tribunal has erred in law on the basis that:

(i)	the tribunal failed to address and deal with his dispute with the content of the HCP report;

(ii)	the tribunal had not dealt with the issues of Mobilising and Standing/sitting adequately;

(iii)	the tribunal failed to engage its inquisitorial function and to ask him about certain mental health difficulties.

6.	The Department was invited to make observations on the appellant’s grounds. Mr Toner responded on behalf of the Department. He submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application. Subsequently, the applicant withdrew his first two grounds. The remaining ground relied upon by the applicant is that the tribunal has erred in law as it has failed in its inquisitorial function. 

Assessment

7.	It is well established that a social security tribunal is inquisitorial in nature, as opposed to adversarial. That is to say, the tribunal is under a legal obligation to ensure that it has sufficient evidence to make findings of fact on the matters which it has to determine, which may - and typically does - involve the tribunal in adducing such evidence itself. It is also under an obligation to resolve any relevant factual matters which are in dispute. 

8.	The applicant submits that the tribunal has made inadequate findings of the issue of “Getting about”. He submits that the failings are that:

(i)	the tribunal did not ask him questions about his ability to get to places by himself or with others, whether familiar or unfamiliar;

(ii)	the tribunal misunderstood the HCP report to say that he came to the examination centre alone;

(iii)	the tribunal relied on his ability to drive, but failed to address the issue that he drove only infrequently. 
9.	The version of the LCWA which has to be interpreted and applied in the present appeal is that in operation from 28 March 2011 up to and including 27 January 2013. This was introduced by the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-related Activity) (Amendment) Regulations (NI) 2011 (the 2011 Regulations). During the period in issue in this appeal, the text of the “Getting about” activity read as follows:

SCHEDULE 2 
Regulation 19(2) and (3)
Assessment of whether a claimant has limited capability for work

PART 2
MENTAL, COGNITIVE AND INTELLECTUAL FUNCTION ASSESSMENT

(1) 					(2)	 				(3)

Activity 					Descriptors				 Points

15. Getting about.		(a) Cannot get to any specified place 		       15
with which the claimant is familiar.			     		        
 (b) Is unable to get to a specified place with
which the claimant is familiar, without
being accompanied by another person.		        9

(c) Is unable to get to a specified place with
which the claimant is unfamiliar without
being accompanied by another person. 		        6

(d) None of the above apply. 			        0

10.	At the relevant time, the legislation governing ESA fell to be interpreted in line with the decision of Chief Commissioner Mullan in YK v Department for Social Development [2012] NI Com 350. In other words there was no requirement that mental health descriptors were to be scored only in relationship to mental health conditions. This position has changed since the relevant legislative amendment from 28 January 2013. Nevertheless, the present case has to be viewed in the light of YK v DSD. 

11.	At the relevant section of his ESA50 questionnaire the applicant had stated:

“I only leave the house when I absolutely have to because I become anxious and stressed, before and during being away from home. The severe discomfort also means I become irritable and short-tempered. I now feel that I have become withdrawn and somewhat socially dysfunctional because I try to avoid leaving the house and generally can’t stand being around other people”.  

12.	The HCP reported that:

		“Got a lift here today. 
		Came to the examination centre alone.”
and 
“When he goes places he drives himself. 
He says he cannot drive very far. 
He could not drive further than about 10 miles due to leg or back pain.
Drives a manual car. 
He says he drives only once a fortnight. “
and
		“Can arrange and attend any appointments without difficulty”. 

13.	The tribunal recorded that the applicant had stated:

“He still drives short distances – not more than 10 minutes each way. Problem is pain.”
and  
“Got a lift to the examination centre with his sister. He can drive short distances by himself. Could not drive far.
He would need someone to drive him to Belfast.”

14.	In addressing the Getting about activity, the tribunal stated:

“In his questionnaire [the applicant] indicated that his ability to leave home and go out to places he knew if someone went with him and to leave home on his own varied. He wrote that he only left the house when he absolutely had to and the Health Care Professional reported that he came to the examination centre alone and that when he went places he drove himself. The tribunal accepted that [the applicant] only left home when he had to but on consideration of all the evidence concluded that he was able to get to a specified place with which he was familiar or unfamiliar without being accompanied by another person so none of the getting about descriptors applied.”

15.	The applicant’s evidence was that his ability to go places was restricted by anxiety and stress, and that he could drive, but that his ability to drive was restricted by physical pain. On the basis of the evidence set out above, which includes evidence of driving on local car journeys and attending appointments, the tribunal could reasonably have made the finding that the applicant had the ability to get to a specific familiar place outside his home unaccompanied, which would have in turn supported a finding that he could get to a specified familiar place accompanied. This would have entitled the tribunal to find that he was not entitled to an award of points for descriptors 15(a) and 15(b). 

16.	The remaining issue was the applicant’s ability to get to an unfamiliar place unaccompanied for the purpose of descriptor 15(c). I accept that the tribunal did not ask for instances of the applicant’s ability to get unaccompanied to a specified unfamiliar place. Nevertheless, I observe that no specific submission had been made by the applicant that he had greater difficulty with unfamiliar places.  

17.	In the case of Mongan v Department for Social Development [2005] NICA 16 at paragraph 17, Kerr LCJ (as he then was) said:

“Whether an issue is sufficiently apparent from the evidence will depend on the particular circumstances of each case. Likewise, the question of how far the tribunal must go in exploring such an issue will depend on the specific facts of the case. The more obviously relevant an issue, the greater will be the need to investigate it. An extensive inquiry into the issue will not invariably be required. Indeed, a perfunctory examination of the issue may often suffice.”

18.	As stated by Kerr LCJ, how far the tribunal must go in exploring an issue will depend on the facts of the case. I accept, as did the tribunal, that anxiety or stress may have limited the applicant’s motivation to leave his home, and that pain may have restricted his ability when driving. However, it appears to me that pain would not differentiate between familiar and unfamiliar places. I accept that it is arguable that stress and anxiety might well be heightened in the context of going to an unfamiliar place. However, the evidence did not suggest that this was the case. 

19.	It is submitted that the tribunal misunderstood the applicant to have come to the examination centre alone. However, it is clear that the tribunal recorded that the applicant’s sister had driven him. What is also clear is that it found that the applicant then came into the examination centre alone. The question before the tribunal was whether the applicant could get to a specific place with which he was unfamiliar without being accompanied by another person. Even on the uncontested evidence that the applicant went unaccompanied from his sister’s car into the examination centre and to the correct area for his examination appointment, it was open to the tribunal to find that he had the ability to get unaccompanied to a specified unfamiliar place on that occasion. 

21.	The applicant submits that the tribunal failed to address the issue that he drove only infrequently. The evidence was that he would drive fortnightly – a matter which he did not dispute in the letter submitted to the tribunal and taking issue with aspects of the HCP report and examination.  This of course does not establish that he could not drive on any other days. However, it does establish that on particular days he was able to go out unaccompanied and it can be reasonably used to infer that on other days, when he did not go out, he nevertheless could have done so. 

22.	The descriptor in question employs the absolute expression “is unable”. On one reading, therefore, the fact that the applicant is able to do the activity in question on some occasions would rule out a score for the particular descriptor. I do not consider that that would be the correct approach. Rather, where a condition is found to be variable, it is necessary to consider the approach advocated in R(IB)2/99, R2/04(IB)(T) and SAG v Department for Social Development [2011] NI Com 171 (reported as [2012] AACR 6) – the so-called “broad brush” approach. The applicant has stated that his ability to go out unaccompanied is variable. The tribunal made express reference to his statement regarding variability. It went on to consider the evidence in a manner which is consistent with the “broad brush” approach. 

23.	The tribunal had the responsibility for making findings of fact and had a range of evidence in front of it, and had an opportunity to see and hear from the applicant. I am satisfied that the tribunal had enough evidence before it from which it could safely infer that the applicant did not satisfy descriptors 15(a), (b) or (c), taking a broad brush approach. I do not accept that the tribunal misunderstood the evidence regarding the applicant’s attendance at the examination centre, nor that it erred by having regard to the occasions when the applicant drove a car. 

24.	The applicant has advanced an arguable case and I grant leave to appeal. However, for the reasons I have given I disallow the appeal. 

	(Signed):  O Stockman

COMMISSIONER

31 March 2015