DMcN-v-Department for Social Development (ESA) [2015] NICom 27
Decision No:  C29/14-15(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 12 June 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 12 June 2014 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

2.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access.  An appeal tribunal which has a medically qualified panel member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

3.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

4.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to employment and support allowance (ESA) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background

5.	The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 18 July 2013, in which a decision-maker decided that the appellant did not have limited capability for work and, accordingly, her award of incapacity benefit (IB) did not qualify for conversion to ESA from and including 14 August 2013.

6.	An appeal against the decision dated 18 July 2013 was received in the Department on 12 August 2013.  On 3 September 2013 the decision dated 8 July 2013 was looked at again but was not changed.

7.	The substantive appeal tribunal hearing took place on 12 June 2014.  The appellant was present and was represented by Ms McElroy of the Citizens Advice Bureau.  There was no Departmental presenting officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 18 July 2013.  The appeal tribunal did apply certain of the descriptors and activities in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, which the decision-maker had not applied.  The application of these descriptors meant that the appellant attracted an increased score of 12 points in connection with the work capability assessment.  That score was insufficient, though, for the appeal tribunal to make a determination that the appellant had limited capability for work - regulation 19(3) of the Employment and Support Allowance Regulations (Northern Ireland), as amended.

8.	On 25 September 2014 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service (TAS).  On 1 October 2014, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

9.	On 24 October 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 27 November 2014 observations were sought from Decision Making Services (DMS) and these were received on 10 December 2014.  In these observations, Mr Collins, for DMS, supported the application on the grounds submitted on behalf of the appellant.  The written observations were shared with the appellant and Ms McElroy on 12 December 2014.

10.	On 20 March 2015 I granted leave to appeal.  In granting leave to appeal, I gave, as a reason, that:

‘… an arguable issue arises as to the manner in which the appeal tribunal addressed the potential application of the descriptors associated with the ‘mobilising’ activity in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.’

11.	On the same date I also directed that an oral hearing of the appeal would not be required.

	Errors of law

12.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.  What is an error of law?

13.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	Analysis

14.	In the application for leave to appeal, Ms McElroy, on behalf of the appellant, submitted that the appeal tribunal had erred in law by failing to provide adequate reasons for its conclusions with respect to the ‘mobilising’ activity in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.

15.	In his written observations on the application for leave to appeal, Mr Collins reviewed the evidence and submissions which were before the appeal tribunal in connection with mobilising.  This included her responses to specific questions on the ESA questionnaire completed by the appellant on 9 May 2013; the submissions made on behalf of the appellant by Ms McElroy in advance of the oral hearing of the appeal; and the appellant’s own oral evidence to the appeal tribunal.  Mr Collins submitted:

‘The tribunal went on to conclude that it accepted the clinical findings of the HCP.  In relation to mobilising it further concluded:-

“The Tribunal did not believe that she had any problems in the activities of mobilising....It did not believe that the evidence as depicted in her daily activities suggested any great difficulties in these areas.”

In concluding that none of the descriptors relevant to the activity of mobilising applied I would submit that the tribunal effectively found that Mrs McN would have no problem mobilising in excess of 200 metres, thereby taking her out of the range of the lowest descriptor which would attract points – 1(d).  While the above evidence from Mrs McN in relation to how far she could walk is contradictory - “ten yards” or “one hundred yards” when bad - I would submit that in the first instance it should be viewed in the context that she stated she had good days and bad.  I can find nothing to indicate the tribunal tried to ascertain what sort of pattern these good and bad days established. If, as contended by her representative, Mrs McN could manage 100 metres then arguably descriptor 1(c) which attracts a score of 9 points would apply, but to rule it out I would submit that the tribunal would first have had to question Mrs McN about what she meant by good and bad days and how she was affected in terms of the distance she could travel.

Similarly the tribunal heard evidence that Mrs McN could walk to her brothers’ or sisters’ houses – apparently a distance of “a few hundred yards.”  Again I would submit that there was a responsibility on the tribunal as part of its inquisitorial role to explore further when this was achievable for Mrs McN as it seems at least possible from the evidence which was before the tribunal that this was not a distance she would have considered she would have completed most of the time – depending, among other factors - on what constituted good or bad days.

I would also submit that it is not clear how the tribunal linked the specific descriptors associated with activity 1 with Mrs McN’s “daily activities.”  For example I would submit that it is difficult to gauge the significance of her ability to go to local shops unless there is an explicit consideration as to the distances she mobilises when shopping and whether or not significant discomfort or exhaustion are factors in terms of the distances she can achieve.  Furthermore, the tribunal has referred to Mrs McN leading “a reasonably active lifestyle” but I would submit that it would be possible for someone to lead a reasonably active lifestyle but still be able to satisfy one of the mobilising descriptors and any consideration of the issues should involve a more focussed consideration of the relevant activity and its associated descriptors than appears to have happened in the present case.  On the face of it I would submit that the tribunal’s reasons give the impression that an ability to visit her relatives is what has ruled out limitations with mobilising applying.  However without the type of evaluation to which I have referred above it is not clear how or why the tribunal arrived at its conclusion.’

16.	The evidence which was before the appeal tribunal confirmed that the appellant’s medical condition was variable.  In the ESA questionnaire, for example, the appellant, in response to a specific question concerning her ability to move around or use steps, and when asked to indicate how far she can move safely and repeatedly on level ground without needing to stop, ignored the reply boxes opposite specific distances and, instead, replied by ticking the box opposite the phrase ‘It varies’.  The appellant went on to state ‘Again it varies.  I have good times and bad times’ and ‘The pain comes and goes throughout the day.’  As was noted above, in the written submission prepared for the oral hearing of the appeal there is a further reference to the appellant having good days and bad days.  The appeal tribunal has recorded the appellant’s own evidence concerning her ability to mobilise on good days and bad days.

17.	In the reported decision of SAG v Department for Social Development ([2012] AACR 6, [2011] NICom 171) the then Chief Social Security Commissioner gave clear guidance to decision-making authorities on the proper approach to the application of the limited capability for work test where the claimant’s condition is variable.  At Paragraphs 10 to 16, the Chief Commissioner stated:

‘10.	In particular Mr McKendry relied on a decision of a Great Britain Tribunal of Commissioners in R(IB) 2/99 in which at paragraph 15, the Tribunal of Commissioners approved a statement of the Great Britain Chief Commissioner in R(A) 2/74, who stated at paragraph 35:

“In my judgment in answering the [statutory questions], ‘regard must be paid to … the claimant’s requirements over a period of time.’  I think that the delegate should take a broad view of the matter, asking himself some such question as whether in all the circumstances the words in the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts.  These are matters for the good sense and judgment of the delegate.”

11.	Mr McKendry also supported his proposition by quoting from a case of a Tribunal of Commissioners, R 2/04 (IB)(T), in which it was stated:

“21.	As Mr Fletcher stated, however, the tribunal is entitled to consider evidence relating to a period prior to 19 July 2002 to determine whether at 19 July 2002 the claimant was incapable of work.  Both he and Mrs Gunning referred to decision R(IB) 2/99, a decision of a Tribunal of Commissioners in Great Britain, which delineated the “broad brush” approach to be adopted in determining whether a person is or is not incapable of work in accordance with the PCA.  In general terms, we endorse that approach.  That broad brush approach will enable the tribunal to give consideration to the past pattern of the claimant’s illness in determining whether, as at the date of the decision under appeal, he was or was not incapable of work.

22.	Adopting that broad brush approach, the tribunal may find the claimant capable or incapable.  If it finds him incapable it may continue the previous award for an indefinite period leaving to the Department the date when same is to be reconsidered.  Alternatively the tribunal may decide to continue the award for a limited period if on the circumstances obtaining at the date of the decision under appeal it had reason to believe there would be an improvement such as might render the claimant capable of work under the said personal capability assessment.”

12.	Mr McKendry submitted that, in light of the approach set out in R 2/04 (IB)(T), the tribunal in the present case ought to have made findings on the claimant’s overall condition and that, by not so doing, it failed in its inquisitorial role in relation to determining whether and, if so, how the claimant’s condition varied over a period of time.  In particular he submitted that the tribunal erred in not considering the broad brush approach as set out by the Tribunal of Commissioners in R 2/04 (IB)(T).

13.	Since this appeal was heard before the tribunal, a relevant case has been heard in the Upper Tribunal in Great Britain, namely, AF v Secretary of State for Work and Pensions (ESA) [2011] UKUT 61 (AAC) in which Upper Tribunal Judge Turnbull dealt with a case which has some similarities to the present one.  In that case, as in the present one, the claimant also raised fibromyalgia as an issue in the case.  The First-tier Tribunal considered activity 3 – bending or kneeling – and compared the wording of the activity with activity 6 – bending and keeling, in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 (which were identical in form to the equivalent Northern Ireland Regulations).  It should go without saying that the present activity 3 under the Employment and Support Allowance Regulations (Northern Ireland) 2008 is also identical to activity 3 in the present Great Britain Regulations.

14.	At paragraph 10 of that decision Judge Turnbull, referring to the First-tier Tribunal’s decision, stated as follows:

“10.	In relation to bending or kneeling, the tribunal’s reasoning included the following:

‘The tribunal notes the appellant’s representative’s submissions as to the need to take into account the appellant’s ability to repeatedly and reliably undertake such actions.  The tribunal rejects the submission to the effect that such considerations are a necessary aspect of assessment of this descriptor.  The tribunal notes that the descriptors under the previous incapacity benefit scheme specifically made provision for ‘sometimes’ not being able to undertake the activity of bending and kneeling.  The present scheme has deliberately excluded the ‘sometimes’ component of functioning in relation to bending, as well as recasting the descriptor as a whole.  In those circumstances the reasonable inference is that under the new scheme (ESA) the inability to repeatedly undertake the bending as set out in the descriptor has been deliberately excluded from the definition of the bending descriptor.’”

15.	However, as Mr McKendry has submitted, Judge Turnbull held specifically that such reasoning was flawed as the judge stated as follows in the same decision:

“11.	In my judgment the absence of the ‘sometimes’ descriptor (6(c) of the incapacity for work descriptors) does not have the effect stated by the tribunal.  It means merely that there is no descriptor under which the claimant can score points merely because he is sometimes unable to perform the relevant activity.  However, the need for the decision-maker to take into account whether the claimant can perform the relevant activity with some degree of repetition (cf. in particular CIB/13161/1996) in my judgment subsists in relation to the work capability assessment descriptors as in relation to the incapacity for work descriptors.  In particular, if the effect of performing the activity is likely to be to disable the claimant from performing it for a substantial period, that will need to be taken into account, both in relation to bending or kneeling and the other activities.  The only ‘sometimes’ descriptors in the personal capability assessment were in relation to the activities of rising from sitting and bending and kneeling, but it has never been doubted that the need to take into account whether the activity can be performed with a degree of repetition applies to all the activities.

12.	A tribunal is of course unlikely to need expressly to consider this issue unless there is something in the facts which suggests that the claimant might not be able to perform the activity with some degree of regularity.  It is likely to arise, in particular, in cases such as those of chronic fatigue syndrome.  The Secretary of State submits that the tribunal’s error in this case can have made no difference, in that there was no question of the claimant satisfying any of the bending and kneeling descriptors in any event.  However, the effect of fatigue was a theme in the claimant’s answers in the ESA 50 questionnaire, and had been relied on in the written and oral submissions.  I am unable to say that the tribunal’s error could not have made a difference.”

16.	Accordingly Mr McKendry submitted that AF v Secretary of State for Work and Pensions (ESA) [2011] UKUT 61 (AAC) copper fastens the ‘rationale’ behind previous incapacity benefit decisions where a claimant’s condition was variable and carries this principle forward to employment and support allowance.’

18.	In the instant case, and to use the language of paragraph 12 of the decision of Upper Tribunal Judge Turnbull in AF, there was something in the facts which suggested that the appellant might not be able to perform the activity with some degree of regularity.  Accordingly, there was a requirement on the appeal tribunal to explore the pattern of ability to carry out the relevant activity by assessing the evidence and finding facts.  The appeal tribunal’s general conclusion that it did not believe that the appellant had any problem in the activity of mobilising (together with three other diverse activities) based on an assessment that ‘… It did not believe that the evidence as depicted in her daily activities suggested any great difficulties in these areas …’ is insufficient to satisfy the proper approach to variable conditions as set out by the Chief Commissioner in SAG.  There was evidence that the appellant had difficulty with mobilising and that her ability to carry out that activity fluctuated because of the variable nature of her medical condition.  In those circumstances it was incumbent on the appeal tribunal to explore in greater detail the issue of variability and set out its conclusions in respect of it.  Its failure to do so renders its decision as being in error of law.

	Disposal

19.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the decision under appeal is a decision of the Department, dated 18 July 2013, in which a decision maker decided that the appellant did not have limited capability for work and, accordingly, her award of incapacity benefit (IB) did not qualify for conversion to ESA from and including14 August 2013;

(ii)	the Department is directed to provide details of any subsequent decision-making activity in connection with ESA and the outcome of any such decision-making to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent decision-making into account in line with the principles set out in C20/04-05(DLA);

(iii)	it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

(iv)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed)  K Mullan

Chief Commissioner

6 July 2015