SS-v-Department for Social Development (ESA) [2016] NICom 22

Decision No:  C27/15-16(ESA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 23 October 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 Lurgan.

2.	For the reasons I give below, I grant leave to appeal.  I allow the appeal under Article 15(8)(b) of the Social Security (NI) Order 1998 and I refer the appeal to a newly constituted tribunal for determination.

REASONS

	Background

3.	The applicant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from 14 August 2013 by reason of anxiety state and depression.  On 12 September 2013 the applicant completed and returned a questionnaire (“the ESA50”) to the Department regarding his ability to perform various activities.  On 11 October 2013 a health care professional (HCP) examined the applicant on behalf of the Department and prepared a report (“the ESA85”).  On 27 November 2013 the Department considered all the evidence and determined that the applicant did not have limited capability for work (LCW) from and including 27 November 2013, and made a decision superseding and disallowing the applicant’s award of ESA.  The applicant appealed.

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 23 October 2014.  The tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 22 January 2015.  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 4 March 2015.  On 2 April 2015 the applicant applied for leave to appeal from a Social Security Commissioner.

	Grounds

5.	The applicant, represented by Mr McCloskey of Citizens Advice, submits that the tribunal has erred in law on the basis that:

	(i)	it failed to give adequate weight to a consultant psychiatrist’s evidence;

	(ii)	it misinterpreted activities 9 (Continence), 11 (Learning tasks), 13 (Initiating and completing personal action) and 16 (Coping with social engagement).

6.	The Department was invited to make observations on the appellant’s grounds.  Mr Collins of Decision Making Services (DMS) responded on behalf of the Department.  He initially 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

7.	The applicant attended the tribunal and gave evidence, represented by Mr McCloskey.  As well as considering the Department’s submission the tribunal had before it a number of appointment letters and reports, and two pro forma questionnaires completed by the applicant’s general practitioner and consultant psychiatrist respectively.  The applicant described his medical conditions and treatment.  The disputed activities were accepted as 9 (Continence), 10 (Consciousness), 11 (Learning tasks), 13 (Initiating and completing personal action), 14 (Coping with change), 15 (Getting about), 16 (Coping with social engagement) and 17 (Appropriateness of behaviour).

8.	The tribunal first considered the physical activities, finding that no scoring descriptors applied to the applicant in Continence and Consciousness.  It then considered the mental activities.  The tribunal noted that the applicant had attended Trasna House, the location of a Day Centre and the community mental health team, followed by telephone Cognitive Behaviour Therapy.  It accepted that the applicant would have some difficulty in social engagement with unfamiliar people, awarding 6 points for descriptor 16(c).  On the basis of the applicant’s account, the HCP report and the background evidence, the tribunal did not award points for any other mental health activity.  It concurred with the HCP’s assessment in relation to functional ability as regards the remaining descriptors.

	Legislation

9.	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 LCW assessment 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.

10.	The particular activities which are the focus of the submissions in the present case appears at Schedule 2 to the ESA Regulations.  The version of the Schedule which applies is that in force on 28 January 2013.

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)

11. Learning tasks. 	(a) Cannot learn how to 
	complete a simple task, such 
	as setting an alarm clock.	15

	(b) Cannot learn anything 
	beyond a simple task, such as 
	setting an alarm clock.	9

	(c) Cannot learn anything 
	beyond a moderately complex 
	task, such as the steps involved 
	in operating a washing machine 
	to clean clothes.	6

	(d) None of the above apply.	0

…

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

…

16. Coping with social 	(a) Engagement in social contact 
engagement due to 	is always precluded due to 
cognitive impairment or 	difficulty relating to others or 
mental disorder.	significant distress experienced
	by the individual.	15

	(b) Engagement in social contact 
	with someone unfamiliar to the 
	claimant is always precluded due 
	to difficulty relating to others or 
	significant distress experienced 
	by the individual.	9

	(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 the 
	individual.	6

	(d) None of the above apply. 	0

	Hearing

11.	I held an oral hearing of the application for leave to appeal.  Mr McCloskey of Citizens Advice, Lurgan, appeared for the applicant.  Mr Collins of DMS appeared for the Department.  I am grateful to both for their helpful submissions.

12.	Mr McCloskey’s first ground at hearing modified to some extent the formulation of the ground submitted in the OSSC1 form.  He challenged the weight given by the tribunal to the evidence of a consultant psychiatrist, and at hearing further submitted that the reasons for rejecting it were inadequate.

13.	Mr McCloskey’s second ground was that the tribunal had misapplied activity 9 (Continence) on the basis that its reasons were unclear and it was necessary to rely on inference or supposition to understand its decision.

14.	Mr McCloskey’s third ground was addressed to the tribunal’s application of activity 11 (Learning tasks).  He submitted that it considered tasks from the applicant’s everyday life which were simple but that it did not consider moderately complex tasks as would be required by the descriptors.

15.	Mr McCloskey’s fourth ground was addressed to the tribunal’s application of activity 13 (Initiating and completing personal action).  He submitted that the tribunal had not adequately addressed the descriptors in terms of the factors of planning, organising, problem-solving and prioritisation which appear in the activity heading.  In addition, Mr McCloskey submitted that the tribunal had not addressed the question of frequency in this context.

16.	Mr McCloskey’s final point was that the tribunal had not correctly applied activity 16 (Coping with social engagement).  He referred to the decision of the three judge panel of the Upper Tribunal in JC v Secretary of State for Work and Pensions [2014] UKUT 352 (AAC).

17.	He submitted that the tribunal had not asked, in its consideration of the element of social contact with persons unfamiliar to the applicant, whether that social contact had the necessary elements of reciprocity, give and take, initiation and response required in socialisation.  He also challenged the tribunal’s interpretation of the psychiatrist’s evidence in this regard.

18.	In his submissions at hearing, Mr Collins resiled from his previous submissions in respect of the applicant’s third, fourth and fifth points.

19.	In relation to Mr McCloskey’s first ground he submitted that the tribunal’s overall conclusions were reasonable.  In relation to the second ground, relating to Continence, he submitted that the tribunal had clearly determined on the evidence that the applicant did not satisfy a descriptor higher than 9(c).

20.	Mr Collins observes Mr McCloskey’s criticism of the tribunal in relation to whether it had applied the descriptor in relation to a moderately complex, as opposed to a simple task.  He notes that the tribunal had evidence from the applicant of his ability to use a satellite navigation system, drive a car, engage in DIY activities, cook and shop.  However, he accepted that there were merits in the submissions of Mr McCloskey in so far as the tribunal had not specifically given consideration to the frequency with which activities could be performed.  He pointed to paragraph 24 of the decision of a Northern Ireland Tribunal of Commissioners in R3/01(IB)(T) where it was said that “it is necessary for a tribunal to indicate its findings of fact on every contested descriptor …”.  He submitted that the tribunal had not done that in relation to activities 11 and 13.

21.	Mr Collins further accepted the submission of Mr McCloskey that the tribunal had not considered social engagement by the applicant correctly in the light of JC v SSWP, in terms of whether visits to a supermarket would display evidence of the applicant’s ability to engage socially for the purposes of the activity.  He accepted that the tribunal had erred in law.

	Assessment

22.	I heard well-structured argument on a broad range of matters, and I accept that the applicant has made out an arguable case that the tribunal has erred in law.  Therefore I grant leave to appeal.

23.	Nevertheless, I do not accept certain of the points raised by Mr McCloskey.  He has criticised the tribunal’s treatment of the evidence of a consultant psychiatrist in the form of a completed questionnaire which was put before the tribunal by the representative.  The tribunal observed that this largely repeated the applicant’s account of his condition to the psychiatrist.  However, the tribunal did not ignore this evidence and was entitled to afford it such weight as it considered right.  The evidence of the consultant psychiatrist nowhere compelled a different conclusion on any issue to those reached by the tribunal, and I find that its decision was reasoned and rational.

24.	Mr McCloskey challenged the adequacy of the tribunal’s reasons on the activity of “Continence”.  The tribunal said that “the appellant does not satisfy descriptors 9(a) or 9(b) but on balance there may be a risk and therefore 9(c) has been applied”.  This is somewhat ambiguous, but I take it to mean that the tribunal accepts that there was a risk of incontinence for a minority of the time.  It is clear that the tribunal did not accept that there was a 9(b) risk which required the applicant to be at risk for the “majority of the time”.  The appropriate award for 9(c) is 0 points and the score sheet reflected that score.  I do not consider that this amounts to an error of law.

25.	There were differences between the parties on the mental health activity of “Learning tasks”.  These went to the question of whether temporary inability due to a mental health condition was relevant to the activity.  However, I do not need to determine that issue to decide the present case.

26.	Having heard from Mr McCloskey and Mr Collins, it seems to me that the submissions of Mr McCloskey in relation to the application of Activity 13 in the case have merit.  The activity in question involves consideration of completion of sequential personal actions.  The tribunal does not appear to have addressed the particular descriptor in terms of making express findings on relevant personal actions and whether these were satisfied with any frequency.

27.	The tribunal in the case heard evidence from the applicant.  It further put to him a summary of his daily activities recorded by the HCP and he has accepted this as a fair summary.  There was also a description by the HCP of the applicant as “unkempt”, which might suggest difficulty with personal action some of the time.  However, the tribunal has not referred to activity 13 by name or made any reference to the issue of initiating and completing personal actions expressly.  It is implicit from the tribunal’s completion of the AT3D that it found that the applicant did not score any points for activity 13.  However, the lack of any express reference to activity 13 in the reasons for the decision – either by name or by implication through using the words of the descriptors - is troubling.  The Tribunal of Commissioners in R3/01(IB)(T) said at paragraph 24:

“we consider that it is necessary for a Tribunal to indicate its findings of fact on every contended descriptor in the All Work Test … and those which are raised by implication of which a Tribunal is required to investigate.  This is part of the Tribunal’s duty of isolating the issues in the case and dealing with them”.

28.	In the present case, apart from the tick on the AT3D score sheet, it is not readily apparent that the tribunal has addressed activity 13.  I consider that this does not meet the standard required by the Commissioners in R3/01(IB)(T).  Therefore I accept that the tribunal has erred in law on this ground.

29.	The final ground advanced by Mr McCloskey addressed activity 16.  The tribunal had awarded 6 points for descriptor 16(c).  However, Mr McCloskey relied on the decision of the three judge panel of the Upper Tribunal in JC v SSWP to submit that the tribunal had not correctly addressed the meaning of “social contact”.  He submitted that dealing with an assistant in a supermarket was not social contact.  I consider that there is merit in the submission that the tribunal had not adequately investigated the issue of whether the applicant could engage in social contact with an unfamiliar person and that a finding on the basis of supermarket shopping is not sufficient for this purpose.

30.	For the above reasons I allow the appeal.  I set aside the decision of the appeal tribunal.

31.	I refer the appeal to a newly constituted tribunal for determination.

(signed):  O Stockman

Commissioner

22 March 2016