JM-v-Department for Social Development (ESA) [2015] NICom 40
Decision No:  C36/14-15(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 September 2013

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 12 September 2013 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 his 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 5 February 2013, in which a decision-maker decided that the appellant did not have limited capability for work and, accordingly, his award of incapacity benefit (IB) did not qualify for conversion to ESA from and including 2 March 2013.

6.	An appeal against the decision dated 5 February 2013 was received in the Department on 7 March 2013.  On 4 April 2013 the decision dated 5 February 2013 was looked at again but was not changed.

7.	The appeal tribunal hearing took place on 12 September 2013.  The appellant was present and was represented by Miss Martin of the Citizens Advice Bureau.  The Department was represented by a Presenting Officer.  The appeal tribunal disallowed the appeal.  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 a score of 6 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 9 December 2013 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  The appellant was now represented by Ms Banks of the Citizens Advice organisation.  On 28 February 2014 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

9.	On 15 September 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 29 October 2014 written observations on the application for leave to appeal were sought from Decision Making Services (DMS).  In written observations received on 27 November 2014, Mr McKendry, for DMS supported the application for leave to appeal on the grounds submitted on behalf of the appellant.  The written observations were shared with the appellant and Ms Banks on 3 December 2014.  Written observations in reply were received from Ms Banks on 9 January 2015.

10.	On 8 April 2015 I accepted the late application for special reasons and granted leave to appeal.  In granting leave to appeal, I have as a reason that ‘… an arguable issue arises as to whether the appeal tribunal considered properly the potential application of Activities 12, 15 and 16 in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.’

	Errors of law

11.	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?

12.	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

13.	In his written observations on the application for leave to appeal, Mr McKendry, for DMS, made the following submissions on the grounds of appeal relied on by Ms Banks:

‘The tribunal in its SOR have considered activities 4, 12, 15, and 16.

(The claimant’s) first contention was in relation to activity 15.  His representative contended that the tribunal had “erred in law in failing to give reasons or adequate reasons for findings on material matters.”  The representative noted that the tribunal in its reasons for decision stated:

“In his evidence he describes drinking as variable, drinking with friends or going out alone to the off licence or the pub in the evening which does not immediately raise a suggestion of significant limitations with going out or coping with social engagement.”

The representative further contended that the tribunal did not consider descriptor (c).

Descriptor (c) provides:

“Getting about	(a)........

			(b)........

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

The tribunal in its SOR’s noted that in his oral evidence (and in his description of his typical day) (the claimant) stated that he spent most days with his friend P on his farm, 3-4 hours in his lorry and takes his meals at P’s house.  He further stated that he could go to the local shop and that he would go to the local pub for 2-3 hours most evenings.  The tribunal in its view held that the evidence, did not suggest a significant limitation in his daily functioning due to the effect of alcohol.

Given the above and the ambit of descriptor (c), I would submit that the tribunal’s findings in relation to same are not reliable in that (in agreeing with (the claimant’s) representative) the evidence presented related to (the claimant’s) evidence related to him being able to go to familiar places, (as opposed to unfamiliar places) as therefore as such has erred in law.

(The claimant’s) second contention similarly that the tribunal had not adequately considered the descriptors in activity 16, coping with social situations in that the tribunal did not provide adequate reasons as to why it failed to consider (the claimant’s) evidence in the ROP’s about his limited ability to interact socially and that the tribunal had to break due to (the claimant) not being able to cope.

The representative further contended that there was no mention that descriptors (b) and (c) were ever considered and in particular (c) which would have awarded (the claimant) 6 points.

Descriptor (c) provides:

“Coping with social engagement	(a).......
due to cognitive impairment or
mental health disorder			(b).......

(c) engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by individual.”

(The claimant) in his oral evidence (and in his description of his typical day) stated that, on most days he travels with P, a good friend who is in the farming business and that he would remain with P for most of the day.  He further stated that his drinking varied and that he would go to the pub or off licence and that his friends would bring him carry outs.  He further added that he had consumed alcohol on the day of the hearing and that he felt nervous (to the extent that a break had to be taken during the hearing) and that his sister had to dress him because he didn’t want to go to the tribunal.

The tribunal in its SOR’s again considered that the evidence in its view did not suggest a significant limitation in his daily functioning due to the effects of alcohol.  It further held that:

“.. in his evidence he describes his drinking as variable, drinking with friends or going out alone to the off licence or the pub in the evening which does not immediately raise a suggestion of significant limitations with going out or coping with social engagement.”

It further held that (the claimant) claimed to:

“... rely heavily on his sister with regard to daily functioning but again we attach little weight to this evidence, not having heard any evidence from her.”

I would submit that the tribunal should have explored further whether descriptors (b) or (c) were applicable.  (The claimant’s) evidence was that the places he went and the people that he interacted with (i.e. P, his friends and his sister) were all familiar to him and that in not fully exploring this, the tribunal in its inquisitorial role and as such has erred in law.

(The claimant’s) final contention was that it was unclear from the SOR’s if the descriptors in activity 12 (which the tribunal was asked to consider) were considered in detail at each rate or simply dismissed as parts of (the claimant’s) evidence were rejected based on a general impression without reasoned explanations.

Activity 12 provided (at the relevant date):

"Awareness of everyday hazards
(a) Reduced awareness of everyday 
(such as boiling water or sharp hazards leads to a significant risk of – Objects)

(i)	injury to self or others, or

(ii)	 damage to property or possessions,

such that they require supervision for the majority of the time to maintain safety.

(b) Reduced awareness of everyday hazards leads to a significant risk of –

(i)	injury to self and others, or

(ii)	damage to property or possessions,

such that they frequently require supervision to maintain safety.

(c) Reduced awareness of everyday hazards leads to a significant risk of -

(i)	injury to self or others, or

(ii)	damage to property or possessions

such that they occasionally require supervision to maintain safety.”

There is no doubt that the ROP’s show that activity 12 was disputed.  The tribunal in its SOR’s noted that, in relation to memory and concentration the medical evidence did not suggest that (the claimant) had any reduced awareness of everyday hazards.  In his description of his typical day (the claimant) stated that he would have “vagueness when he is drinking large amounts of alcohol..”.  The tribunal in its SOR’s accepted that (the claimant) had a high dependency on alcohol and noted his clinical past.  It further noted that the available evidence would support this.

It was clearly evident therefore that (the claimant) had a dependence on alcohol.  Given the ambit of activity 12, I would submit that the tribunal had an onus to investigate further and detail as to why Mr M did not fall within this activity.  (The claimant) had already stated at his medical examination he suffered from “a vagueness” when drinking.  At these times (the claimant) may well have satisfied the descriptors with activity 12.  With this in mind I would further submit that the tribunal failed in its inquisitorial role in not investigating further in relation to the possible applicability of activity 12.’

14.	I accept the submissions made by Mr McKendry and, for the reasons which he has set out, agree that the decision of the appeal tribunal is in error of law.

	Disposal

15.	The decision of the appeal tribunal dated 12 September 2013 is in error of law.  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.

16.	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 5 February 2013, in which a decision-maker decided that the appellant did not have limited capability for work and, accordingly, her award of IB did not qualify for conversion to ESA from and including 2 March 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

27 July 2015