JK-v-Department for Social Development (ESA) [2016] NICom 16

Decision No:  C25/15-16(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 22 July 2014

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 Belfast.

2.	For the reasons I give below, I grant leave to appeal and with the applicant’s consent I proceed to treat and determine the application as an appeal.

3.	I allow the appeal.  I set aside the decision of the appeal tribunal.  I direct that the appeal shall be determined by a newly constituted tribunal.

REASONS

	Background

4.	The applicant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from 12 September 2009 by reason of anxiety, depression and colitis.  On 29 April 2013 the applicant completed and returned a questionnaire to the Department regarding ability to perform various activities.  Her general practitioner (GP) provided a report to the Department on 8 May 2013.  On 22 May 2013 a health care professional (HCP) examined the applicant on behalf of the Department.  On 3 June 2013 the Department considered all the evidence and determined that the applicant did not have limited capability for work (LCW) from and including 3 June 2013, and made a decision superseding and disallowing the applicant’s award of ESA.  The applicant appealed.

5.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 22 July 2014.  The tribunal disallowed the appeal, awarding 6 points on the limited capability for work assessment (LCWA).  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 2 October 2014.  The applicant 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 19 November 2014.  On 17 December 2014 the applicant applied for leave to appeal from a Social Security Commissioner.

	Grounds

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

	(i)	it made inadequate findings on concentration to determine the question of whether the applicant should have been awarded points for activity 13 (Initiating and completing personal action) or otherwise made an irrational decision;

	(ii)	it made irrational findings in relation to activity 14 (Coping with change) or otherwise failed to explain how the HCP’s report of the applicant’s anger at being kept waiting for her assessment was considered in terms of the activity;

	(iii)	it gave inadequate reasons for its decision that the applicant was not entitled to points for activity 15 (Getting about).

7.	The Department was invited to make observations on the appellant’s grounds.  Mr McKendry of Decision Making Services (DMS) 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.

	The tribunal’s decision

8.	The panel noted on the basis of the medical evidence that the applicant suffered from the medical conditions of recurrent severe depressive disorder, ulcerative colitis and proctitis, well-controlled asthma, problems relating to social isolation and that a psychiatrist had stated the impression that the applicant was suffering from a paranoid personality disorder.  The panel considered the physical activities of “Mobilising”, “Standing-sitting”, “Reaching”, “Picking up and moving”, “Communication”, “Navigation” and “Continence”.  The panel considered the mental health activities of “Initiating and completing personal action”, “Coping with change”, “Getting about”, “Coping with social engagement” and “Appropriateness of behaviour”.

9.	The panel asked the applicant about aspects of her physical limitations and her lifestyle.  It found no significant limitation in each of the physical health descriptors, stating individual findings of fact in relation to each activity.  It found no significant limitation in each of the mental health descriptors with one exception.  The panel awarded 6 points for the activity of “Coping with social engagement”.

10.	The panel further considered the application of regulation 29, but decided that it did not apply.

	Relevant legislation

11.	ESA was established under the provisions of the Welfare Reform Act (NI) 2007 (“the 2007 Act”).  The core rules of entitlement were set out at sections 1 and 8 of the 2007 Act.  These provide for an allowance to be payable if the claimant satisfies the condition that he or she has LCW.  The Employment and Support Allowance Regulations (NI) 2008 (“the ESA Regulations”) provide for a specific test of LCW.  In particular, regulation 19(2) provides for a LCWA as an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 of the ESA Regulations, or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

12.	The particular activity which is the focus of the submissions in the present case appears at paragraph 1 of Schedule 2 to the ESA Regulations.  At the date of decision, the relevant 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)

13. Initiating and completing	(a) Cannot, due to impaired
personal action (which means	mental function, reliably initiate
planning, organisation, problem	or complete at least 2 sequential
solving, prioritising or switching	personal actions	15
tasks).
	(b) Cannot, due to impaired mental
	function, reliably initiate or complete
	at least 2 personal actions for the
	majority of the time.	9

	(c) Frequently cannot, due to
	impaired mental function, reliably 
	initiate or complete at least 2 
	personal actions. 	6

	(d) None of the above apply.	0

14. Coping with change.	(a) Cannot cope with any change
	to the extent that day to day life
	cannot be managed.	15

	(b) Cannot cope with minor planned
	change (such as a pre-arranged 
	change to the routine time scheduled
	scheduled for a lunch break), to the
	extent that overall day to day life is 
	made significantly more difficult. 	9

	(c) Cannot cope with minor 
	unplanned change (such as the 
	timing of an appointment on the 
	day it is due to occur), to the extent 
	that overall, day to day life is made
	significantly more difficult.	6

	(d) None of the above apply.	0

15. Getting about.	(a) Cannot get to any place outside
	the claimant’s home with which the
	claimant is familiar.	15

	(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

	Hearing

13.	I held an oral hearing of the application.  The applicant did not attend but was represented by Ms Loughrey of Law Centre (NI).  The Department was represented by Mr McKendry of DMS.

14.	Ms Loughrey made submissions relating to three aspects of mental health activities.  These were “Initiating and completing personal action”, “Coping with change” and “Getting about”.  She also sought to rely on the physical activity of “Continence” for the first time at the hearing.  As this had not been raised in the original application for leave and was now considerably out of time, I decided to hear Ms Loughrey’s submissions and Mr McKendry’s response before deciding whether there were special reasons for admitting this ground at this late stage.

15.	Ms Loughrey noted that the tribunal had accepted that the applicant would have difficulties with social engagement.  She asked me to consider, in particular, whether the tribunal’s reasons were adequate to explain why no points were awarded for descriptors 13(c), 14(c) and 15(c).

16.	In relation to Initiating and completing personal action, Ms Loughrey referred to the applicant’s evidence in her self-assessment questionnaire and from a consultant psychiatrist regarding housework being left undone, maintenance of personal appearance, and difficulties completing tasks.  The tribunal did not accept that she had limitations in this area because she was able to dress daily and cook when motivated to do so, and Ms Loughrey questioned what evidence the tribunal had relied on in making these findings.  She submitted that the tribunal was nowhere told that the applicant could dress daily.

17.	On “Coping with change”, Ms Loughrey submitted that the relevant descriptor related to unplanned minor changes.  The tribunal had asked about ability to cope with the change of a tribunal hearing date or the date of a doctor’s appointment.  However, the evidence of the consultant psychiatrist demonstrated a reaction more in keeping with descriptor 14(c).  Ms Loughrey argued that the tribunal had relied on an inappropriate example – submitting that the change of a tribunal hearing date is not a minor change in terms of the stress involved in attending.

18.	On “Getting about”, the tribunal had taken into account the applicant’s ability to attend the hearing and to attend a hospital appointment.  She submitted that the applicant presented as an isolated person who had no choice but to get around alone.  She observed that the applicant had cried at the commencement of the hearing.  The tribunal should have enquired about how she felt in order to assess whether this had been achieved with difficulty.

19.	Mr McKendry accepted that the evidence contained nothing about dressing on a daily basis.  The finding of the tribunal to this effect was therefore not sustainable on the evidence.  However, he submitted, the appropriate descriptor might be that which applied where a claimant “frequently” cannot reliably initiate or complete at least two personal actions.

20.	He observed that the consultant psychiatrist’s letter related an example of extreme anger on the part of the applicant when her appointment with him was delayed.  Nevertheless, he submitted that she was still able to engage in the consultation, indicating an ability to cope with change.

21.	He accepted that some overlap between activities 15 and 16 was possible.  He accepted that there was evidence of a paranoid personality disorder, but submitted that the applicant in this case was nevertheless able to undertake some voluntary work, and to go to the library twice a week to access the Internet.

22.	Ms Loughrey made submissions on the issue of continence.  In particular, she submitted that evidence from the applicant regarding the applicability of activity 9 evidence should have triggered more extensive investigation by the tribunal.  Ms Loughrey candidly accepted that she did not know if the applicant would have been awarded points due to inconsistency in the evidence.  She pointed to evidence of night time soiling due to the applicant’s colitis and to evidence which indicated that she experienced difficulty when employed due to the restricted availability of toilet breaks.  Mr McKendry pointed out that there was no evidence of the applicant soiling herself while conscious before the tribunal.

	Assessment

	The issue of Continence

23.	This matter was raised for the first time at the hearing before me.  While the application on other grounds had been submitted in time, this issue was not raised in the application to the Commissioner or in the application to the LQM.  The last date for an in-time application was 19 December 2014.  The ground was therefore raised some nine months late.  There was no evidence of special reasons for the admission of the ground late.  Moreover, Ms Loughrey did not submit that the evidence before the tribunal was decisive on the issue.  In all the circumstances, I decline to admit the late ground of application.

	Mental health descriptors

24.	Ms Loughrey framed her challenge to the tribunal’s decision in terms of the adequacy of its reasons.  However, I do not consider that there was any lack of clarity in the tribunal’s reasons.  It found on the evidence before it that the applicant’s lifestyle did not suggest that she satisfied any of the descriptors apart from “Coping with social engagement”.  The evidence before the tribunal was largely not in dispute.

25.	I did not understand her to make the submission that the tribunal has misdirected itself on the meaning of any of the descriptors.  In essence she was challenging the tribunal’s findings of fact – either in terms of their adequacy for determining whether a descriptor applied, or in terms of the legitimacy of the conclusions drawn by the tribunal from the primary facts.

26.	In relation to “Getting about”, Ms Loughrey submitted that the tribunal should not simply determine that the applicant could get to a specified unfamiliar place unaccompanied on the basis of her attendance at the tribunal unaccompanied.  However, this was not the sole basis of the decision to this effect.  The tribunal asked the applicant how she would cope getting to a hospital appointment in an unfamiliar part of a hospital.  She replied that she would give herself plenty of time and would find out where she had to attend and, if necessary, she could ring up and ask for directions.  I do not accept that the tribunal has erred in law on this ground.

27.	In relation to “Coping with change”, Ms Loughrey questioned the adequacy of the examples of change which the tribunal had used.  It had asked the applicant about how she would react to a change in a tribunal hearing date or a GP appointment.  She said that she would be “annoyed, very annoyed but would just have to put up with the change”.  A piece of documentary evidence before the tribunal was the report of the consultant psychiatrist.  He had kept the applicant waiting for her appointment and reported that “… it was rather a difficult interview.  She was extremely angry at the start as she was late being taken and informed me that on a previous appointment when she was late she was not seen”.  It seems to me that this documentary evidence is consistent with the applicant’s oral evidence to the tribunal.  It demonstrates that while she might react to changes in an angry way, she would nevertheless deal with the change.  This does not support a conclusion that overall day to day life would be made significantly more difficult due to an inability to cope with minor unplanned change.  Again, I do not accept that the tribunal has erred in law on this ground.

28.	In relation to “Initiating and completing personal action”, the tribunal referred to the applicant’s ability to wash and dress daily and cook for herself when in the mood to do so.  Mr McKendry accepted that there was no evidence that the applicant could wash and dress daily.  However, he pointed out that evidence to this effect may not be necessary.  He submitted that there was evidence of personal action from other activities, such as voluntary work and going to the library, which demonstrated that the activity did not apply for the majority of the time.  He submitted that descriptor 13(c), which used the term “frequently cannot”, might apply to the applicant but would only attract 6 points.

29.	The issue in activity 13 is whether a claimant can initiate and complete personal action (which means planning, organisation, problem solving, prioritising or switching tasks).  Any functional limitation in this activity has to result from impaired mental function.  I accept that the applicant satisfies the condition that she has impaired mental function on the basis of evidence from her GP and psychiatrist.  The evidence of the applicant was that she neglected housework, would often stay in nightclothes, would not always cook, would run out of basic provisions and medication, and was apathetic about the condition of her house.  I further observe that in the medical evidence from the applicant’s GP on form ESA113, when ticking the box “Initiating and completing personal actions” the GP has stated “sometimes needs assistance”.

30.	Mr McKendry accepted that this could demonstrate evidence that the applicant frequently cannot reliably initiate or complete at least two personal actions.  He accepted that the tribunal had erred in law in relation to this activity.  However, he submitted, this would only lead to an award of 6 further points, which would be insufficient to satisfy the LCWA.

31.	I am satisfied that the applicant does have a recurrent severe depressive disorder for which she is prescribed an antidepressant at a high dosage.  She has also been diagnosed as having a paranoid personality disorder.  In the light of Mr McKendry’s concession I accept that the tribunal has erred in law in finding that the applicant was able to dress daily, and that it was not entitled to reach the conclusion on activity 13 that it did.

32.	It may be that there is not a material error in the tribunal’s decision in the sense that it would have led to a different outcome.  However, in view of the submissions I have heard, I am prepared in all the circumstances of the case to allow the appeal.

33.	I set aside the decision of the tribunal and I direct that the appeal shall be determined by a newly constituted tribunal.

(signed):  O Stockman

Commissioner

14 March 2016