KC-v-Department for Social Development (ESA) [2015] NI Com 65
Decision No:  C18/14-15(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 10 February 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 10 February 2014 is in error of law.  The error of law identified will be explained in more detail below.

2.	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.

3.	I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given having made fresh or further findings of fact.  The fresh findings of fact are set out below.

4.	I am satisfied that the appellant satisfies descriptor (c) in Activity 15 in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008.  The descriptor attracts a score of 6 points.  The appeal tribunal was satisfied (as was the decision maker) that descriptor (c) of Activity 16 applied to the appellant.  No issue has been taken in connection with the appeal tribunal’s conclusions with respect to the application of this descriptor.  Descriptor 16(c) attracts a score of 9 points.  The appellant’s cumulative score is, accordingly, 15 points.  He, has, therefore, limited capability for work.

5.	The decision under appeal to the appeal tribunal was a decision dated 20 May 2013, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, and which had awarded an entitlement to ESA, from and including 11 February 2013; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 20 May 2013.

6.	I have determined that the appellant does have limited capability for work.  Accordingly he satisfies the conditions of entitlement to ESA from 20 May 2013.  The case is remitted to the Department to calculate the relevant amount of ESA to which the appellant is entitled.

7.	Following the oral hearing of the appeal Mr Collins provided the following information:

‘ESA confirmed to me today their system shows a claim to ESA for the period 11 February 2013 to 17 February 2014 and a current JSA claim from 18 February 2014.  (I presume the ESA claim included a “pending appeal” award which then ceased on 17 February 2014 following the decision of the appeal tribunal on 10 February 2014.)’

8.	That information will, of course, have to be taken into account in assessing the amount of ESA to which the appellant is entitled.

9.	The parties are at liberty to bring this decision back to me should any further issue concerning the disposal of the appeal arise.

	Background

10.	The decision under appeal to the appeal tribunal was a decision of the Decision Maker of the Department, dated 20 May 2013, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, and which had awarded an entitlement to ESA, from and including 11 February 2013; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 20 May 2013.

11.	The appeal was received in the Department on 23 May 2013.  On 19 June 2013 the decision dated 20 May 2013 was looked at again but was not changed.

12.	The substantive appeal tribunal hearing took place on 10 February 2014.  The appellant was present and was represented by Mr Michael Roddy of Omagh Independent Advice Services.  The Department was represented by a Presenting Officer.  The appeal was disallowed and the appeal tribunal confirmed the decision dated 20 May 2013.

13.	On 19 June 2014 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service (TAS).  On 2 July 2014, the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

14.	On 13 August 2014 a further application for leave to appeal was received in OSSCSC.  On 1 October 2014 observations were sought from Decision Making Services (DMS) and these were received on 8 October 2014.  In these observations, Mr Collins, for DMS opposed the application on the majority of the grounds submitted on behalf of the appellant but supported the application on one ground.  The written observations were shared with the appellant and Mr Roddy on 8 October 2014.

15.	On 3 December 2014 I granted leave to appeal.  In granting leave to appeal I gave, as a reason that an arguable issue arose as to the manner in which the appeal tribunal addressed the potential applicability of Activity 15 in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.

16.	On 3 December 2014 I also directed an oral hearing of the appeal.  The oral hearing took place on 20 January 2015.  The appellant was not present but was represented by Mr Roddy.  The Department was represented by Mr Collins.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.  There then followed a delay in the promulgation of this decision caused, in part, by a backlog of work in the office of the Social Security Commissioners following the relocation of that office earlier this year.  Apologies for that delay are extended to all parties to the proceedings.

	Errors of law

17.	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?

18.	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

19.	In the Case Summary prepared for the oral hearing of the appeal Mr Roddy submitted that he was withdrawing four of the five grounds which had been set out in the original application for leave to appeal.  He asked that I focus on the one remaining issue.  That issue was the manner in which the appeal tribunal had addressed the potential application of the descriptors in Activity 15 in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.

20.	Mr Roddy went on to submit:

‘In respect to Activity 15 in Schedule 2 of the Employment and Support Regulations (Northern Ireland) 2008 as amended it is our submission that (the claimant) satisfies Activity 15(c) ‘Is unable to get to a specified place with which the claimant is unfamiliar without being accompanied by another person’ and the 6 points available for this Activity combined with the 9 points already awarded by the Department and upheld by the Tribunal, would see him satisfy the 15 point threshold required in order to be deemed as having limited capability for work in accordance with the Regulations.

It has always been our contention that the Tribunal did not apply Activity 15(c) correctly and this is now supported by the Department.

In the ESA50 Questionnaire dated 25 March 2013 (the claimant) states ‘I am reluctant to leave my home and need people to be with me to encourage me to go out and even then I need them to come along with me to encourage me to continue.’  He also states in the ESA50 ‘I suffer from depression and feel that people are always looking at me or talking about me.’

At the Tribunal on 10 February 2014, (the claimant) in his oral evidence reiterated what he had recorded in the ESA50 and told the Tribunal that he could go to local places but could not go to unfamiliar places due to feeling paranoid, confused and stressed out.  However the Tribunal rejected this evidence and instead preferred the evidence of the Health Care Professional which concluded that he went alone to visit family, was able to attend his appointments alone and occasionally went to the supermarket getting a lift there.  As has been agreed none of the above should be deemed as an unfamiliar place.

It is our submission that (the claimant) has been consistent in his evidence in respect to his ability to get to a specified place with which he is unfamiliar without being accompanied by another person and as the only relevant evidence in respect to Activity 15(c) is the oral evidence provided by (the claimant) and that which is recorded in the ESA50 he should therefore be awarded the appropriate 6 points.’

21.	At the oral hearing of the appeal, Mr Roddy expanded on the written submissions which he had made in his Case Summary.  In addition he submitted that I had sufficient evidence before me to make findings of fact, and, accordingly, to give the decision which the appeal tribunal should have given.

22.	In his Case Summary, Mr Collins addressed all five grounds which had been set out in the original application for leave to appeal not realising, at that stage, that four of those five grounds had been withdrawn by Mr Roddy.  In connection with the remaining ground Mr Collins summarised the comments which he had made in his written observations on the application for leave to appeal.  These were as follows:

‘In relation to this activity (the claimant) contends that the tribunal reached an incorrect conclusion as it was based on evidence regarding his ability to go to familiar places as opposed to the “unfamiliar places” referred to in the relevant legislation.

It is worth noting the wording of the relevant legislation – Activity 15(c) - contained in Schedule 2 to the ESA Regulations (NI) 2008:-

“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...................................6”

As can be seen one of the key elements of the above piece of legislation is the fact that it is an unfamiliar place to which the claimant must not be able to get to in order to attract points.

It is also worthwhile considering the tribunal’s conclusions regarding getting about as a whole:-

“With regard to the activity of getting about, the Tribunal did not accept that the appellant needed someone with him going to familiar places or unfamiliar places.  In his self-assessment he stated that his ability to go places on his own was variable and that if he was feeling down he needed encouragement to leave his home.  In his oral evidence he indicated that he was able to go out on his own to local places but was paranoid, confused and stressed out in unfamiliar places.  He indicated however that he had a driving licence and sometimes borrowed a friend’s car although he did not go far.  The Tribunal accepted the evidence of the Healthcare Professional that he went alone to visit family was able to attend appointments alone and occasionally went to the supermarket getting a lift there.”

I would submit that it is not clear from the above extract how the tribunal viewed (the claimant’s) evidence that he was “paranoid, confused and stressed” in unfamiliar places.  It is arguable that because he occasionally borrowed a car this coloured its view as to whether he could get to a specified unfamiliar place unaccompanied.  However I note that “he did not go far” in this car and I would submit that it would therefore seem unlikely that he would be going to an “unfamiliar” place.  Furthermore I would agree with (the claimant) that visiting family, going to appointments and to the supermarket would generally involve going to familiar places.

I would therefore submit that the tribunal has erred by not, in the first instance, exploring the issue of familiar/unfamiliar places thoroughly enough and in the second instance, by, as (the claimant) suggests applying an incorrect test.

Consequently I would support (the claimant’s) third ground of appeal.’

23.	Mr Collins expanded on his written submissions at the oral hearing of the appeal.  In addition he agreed that there was sufficient evidence before me to make findings of fact and, accordingly, to give the decision which the appeal tribunal should have given.  In particular, Mr Collins submitted that the appellant satisfied Activity 15(c).

24.	I agree with the written and oral submissions which have been made by Mr Roddy and Mr Collins and for the reasons which have been set out by them I agree that the decision of the appeal tribunal is in error of law.

25.	I am satisfied that the appeal tribunal has made findings of fact in connection with the appellant’s ability, to paraphrase the wording of Activity 15(c), to get to a specified place with which the claimant is familiar without being accompanied by another person.  The emphasis here is my own.  Accordingly, the appeal tribunal’s conclusions that the appellant is able to ‘…able to go out on his own to local places’ is consistent with an ability to get to a specified place with which he is familiar.  I agree that the appeal tribunal has equated the appellant’s ability to drive with an ability to get to a specified place with which he is unfamiliar.  Such an equation is not always necessarily appropriate.  There are many people who are able to drive, do drive but would not drive to a specified place with which they were not familiar.  In addition, the appeal tribunal found that the appellant did not go ‘far’ when he borrowed a car which, as Mr Collins submits, suggests that car journeys were likely to be to specified places with which the appellant was familiar.

26.	Further, the appeal tribunal accepted the evidence contained within the report of the examination conducted by the Healthcare Professional that the appellant went alone to visit family, was able to attend appointments alone and occasionally went to the supermarket getting a lift there.  Once again, visits to his family and to the supermarket are to specified places with which the appellant is familiar.  The Healthcare Professional noted that the appellant’s family lived a ten-minute walk away.  The appeal tribunal did not explore further the nature of the appointments that the appellant was able to attend on his own.  The Healthcare Professional noted that the appellant attended his GP but required a lift to get there as he lived in the country and that the appellant could go to the Post Office and a place of worship.  Once again, such places could only be characterised as being familiar.  The Healthcare Professional noted that the appellant entered the examination centre alone but travelled to the examination centre with a friend.  I also have some concern that the appeal tribunal did not explore in greater detail the appellant’s evidence that he was paranoid, confused and stressed out in unfamiliar places.

27.	I held an oral hearing of the appeal in order that I could take oral evidence from the appellant so that, in the event that I found that the decision of the appeal tribunal was in error of law, that I might exercise my power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given having made fresh or further findings of fact.  As was noted above, the appellant did not attend the oral hearing of the appeal.  Mr Roddy informed that the reason for the appellant’s non-attendance was based on his inability to attend places with which he was not familiar.

28.	I am of the view that there has been a consistency to the appellant’s evidence concerning his ability to get to specified places which he is both familiar and unfamiliar.  That consistency is to be found in his responses in the ESA50 questionnaire, his evidence to the Healthcare Professional and his evidence to the appeal tribunal.  His consistent evidence was that he had no difficulty in getting to a specified place with which he was familiar.  His equally consistent evidence was that he would have difficulty getting to a specified place with which he is unfamiliar without being accompanied by another person.  In the ESA50 questionnaire he stated that he was reluctant to leave his home and that even when he had been encouraged to go out he had a requirement for someone to accompany him.  His difficulty is that he becomes paranoid, becomes confused and gets ‘stressed out.’  Further, he would be shy about asking for directions.  Corroboration of this is to be found in the fact that he required someone to go with him to the examination centre for the examination conducted by the Healthcare Professional.  He told the Healthcare Professional that he is moody and can be abrupt.  He would not answer his doorbell unless he knew who was ringing it.  I accept all of this evidence as factual.

29.	I am satisfied that the appellant satisfies descriptor (c) in Activity 15 in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008.  The descriptor attracts a score of 6 points.  The appeal tribunal was satisfied (as was the decision maker) that descriptor (c) of Activity 16 applied to the appellant.  No issue has been taken in connection with the appeal tribunal’s conclusions with respect to the application of this descriptor.  Descriptor 16(c) attracts a score of 9 points.  The appellant’s cumulative score is, accordingly, 15 points.  He, has, therefore, limited capability for work.

30.	The decision under appeal to the appeal tribunal was a decision dated 20 May 2013, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department, and which had awarded an entitlement to ESA, from and including 11 February 2013; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 20 May 2013.

31.	I have determined that the appellant does have limited capability for work.  Accordingly he satisfies that conditions of entitlement to ESA from 20 May 2013.  The case is remitted to the Department to calculate the relevant amount of ESA to which the appellant is entitled.

32.	Following the oral hearing of the appeal Mr Collins provided the following information:

‘ESA confirmed to me today their system shows a claim to ESA for the period 11 February 2013 to 17 February 2014 and a current JSA claim from 18 February 2014.  (I presume the ESA claim included a “pending appeal” award which then ceased on 17 February 2014 following the decision of the appeal tribunal on 10 February 2014.)’

33.	That information will, of course, have to be taken into account in assessing the amount of ESA to which the appellant is entitled. 

(signed)  K Mullan

Chief Commissioner

27 November 2015