CMcG-v-Department for Social Development (ESA) [2015] NICom 56
Decision No:  C7/15-16(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 30 July 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

	This is a claimant’s appeal from the decision of an appeal tribunal sitting at Omagh.

	I granted leave to appeal on a single issue.  My reasons for this, and for refusing leave to appeal on other grounds, are set out in the determination previously issued on file A57/14-15(ESA).

	For the reasons given below, I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998.

	REASONS

	Background

	The applicant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from 9 August 2013 by reason of musculoskeletal problems.  She had previously been found not to have limited capability for work following an examination on 27 March 2012.  On 25 September 2013 the applicant completed and returned a questionnaire to the Department regarding ability to perform various activities.  On 20 November 2013 a health care professional (HCP) examined the applicant on behalf of the Department.  On 31 January 2014 the Department considered all the evidence and determined that the applicant did not have limited capability for work (LCWA) from and including 31 January 2014, and made a decision superseding and disallowing the applicant’s award of ESA.  The applicant appealed.  However, she did not request an oral hearing of the appeal.

	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 30 July 2014.  The tribunal awarded 6 points on the LCWA, but as this was insufficient to reach the statutory threshold of 15 points, disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 13 October 2014.  The applicant, represented by John Fahy Solicitors, applied to the LQM for leave to appeal from the decision of the appeal tribunal.  Leave to appeal was refused by a determination issued on 2 December 2014.  On 23 December 2014 the applicant applied for leave to appeal from a Social Security Commissioner.

	Grounds

	The applicant, represented by John Fahy & Co, solicitors, submits that the tribunal has erred in law by relying on evidence in the form of a previous HCP report dated 27 March 2012.  Mr Collins for the Department submits that this report may have formed part of the tribunal’s thinking on what descriptors were appropriate.  As the report was dated nearly two years before the date of the tribunal hearing, he questioned the tribunal’s apparent reliance on it, and submitted that there may have been a breach of the rules of natural justice.

	Hearing

I granted leave to appeal on this single point and I directed an oral hearing of the appeal.

At the hearing the appellant was not present but was represented by Mr McManus of John Fahy & Co, solicitors.  The Department was represented by Mr Collins of DMS.  I am grateful to both for their submissions.

Mr McManus pointed out that the tribunal in reaching its decision was in the slightly unusual position of having two HCP reports before it.  One was the report carried out in November 2013, following the August 2013 claim, which had led to the decision to disallow on 31 January 2014.  The other report predated the decision under appeal by some 22 months.

Mr McManus submitted that the tribunal placed express reliance on the report of March 2012 in reaching its decision.  However, he submitted that circumstances were materially different between the date of the decision under appeal and the date of that report.  Specifically, the appellant now complained of back pain which had led to a referral for MRI investigation.  The suspicion was that she had a prolapsed disc.

In addition, due to pregnancy, she was unable to take her normal level of painkilling medication.  However, at the time of the earlier report she was on diclofenac, an anti-inflammatory, co-codamol, an analgesic, and propranolol, for symptoms of anxiety.

Mr Collins could not explain why the older report was before the tribunal, but he observed that it had also been before the HCP on the occasion of the second examination.  Both parties agreed that the question to consider was what weight could properly be given to the older report and whether the tribunal had erred in placing reliance on it.

For the Department, Mr Collins accepted that it was unusual for the report to have been before the tribunal.  He further accepted that, on the facts of the present case, the tribunal was not entitled to place reliance on the older report to the extent that it did in assessing the activity of Mobilising.  It had drawn specific findings from the earlier report – such as that the appellant walked her dog for 10 minutes - and relied on them to justify the decision.

Assessment

For the reasons submitted to me by the parties, I allow the appeal.

The appellant’s health condition had changed in at least two material respects from the date of the report of March 2012.  She had developed a new condition of back pain, which those treating her suspected might be due to a prolapsed disc.  She was also pregnant and as a result of pregnancy was unable to continue to take her normal medication, which had included anti-inflammatories and painkillers.  This could be expected to have an effect on her functional ability.

There is no rule of law that a report which predates a decision by some time cannot be relied upon.  However, the weight to be given to it requires to be assessed carefully.  Where circumstances have materially changed since the date of the report, the weight to be given to it might be very slight.  In the particular case, the tribunal has drawn findings of fact from the report of March 2012 which the parties agree, and I accept, are not safe.  I conclude that the tribunal has erred in law by placing reliance on the report of March 2012 in relation to Mobilising, as there were relevant changes in place by the date of the decision under appeal.

The tribunal had awarded 6 points for the activity of Standing and Sitting.  Mr Collins, for his part, submits that points for Mobilising may have been appropriate.  Mr McManus stresses the aspect of mental disablement and the possibility of an award of points under mental health activities.  I accept that the tribunal decision contains a material error of law and I set aside its decision.

I direct that the appeal shall be determined by a newly constituted tribunal.

(Signed):  O Stockman

Commissioner

(Dated):  17 September 2015