JC-v-Department for Social Development (ESA) [2016] NICom 31
Decision No: C24/15-16(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 19 May 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 19 May 2015 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.  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.

3.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her 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

4.	The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 5 November 2014, which decided that:

(i)	grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 5 June 2014; and

(ii)	the appellant did not have limited capability for work (LCW) and was, therefore, not entitled to ESA from and including 5 November 2014. 

5.	The appeal was received in the Department on 19 November 2014.  On 13 January 2015 the decision dated 5 November 2014 was looked at again but was not changed.

6.	The appeal was first listed for hearing on 17 April 2015.  The appeal was adjourned in order to permit the appellant and her representative to adduce additional medical evidence.  Further medical evidence was subsequently forwarded to the Department.  In a further submission dated 6 May 2015 an officer of the Department submitted that following receipt of the additional medical evidence the decision dated 5 November 2014 was looked at again but was not changed.

7.	The substantive appeal tribunal hearing took place on 19 May 2015.  The appellant was present and was represented.  There was no Departmental Presenting Officer present.  The appeal was disallowed and the appeal tribunal confirmed the decision dated 5 November 2014.  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 12 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 LCW - Regulation 19(3) of the Employment and Support Allowance Regulations (Northern Ireland), as amended.

8.	On 1 October 2015 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 7 October 2015 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

9.	On 30 October 2015 a further application for leave to appeal was received in the Office of the Social Security Commissioners (OSSC).  On 9 November 2015 observations on the application for leave to appeal were sought from Decision Making Services (DMS).  In written observations received on 26 November 2015, Mr Kirk, for DMS, supported the application on the grounds cited by the appellant. The written observations were shared with the appellant and her representative on 26 November 2015.

10.	On 10 March 2016 I granted leave to appeal.  When granting leave to appeal I gave, as a reason, that it was arguable that the appeal tribunal had relied on evidence which post-dated the decision under appeal in contravention of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, as amended.  On the same date I directed that having considered the circumstances of the case and any reasons put forward in the request for a hearing, I was satisfied that the appeal could properly be determined without a hearing.

	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.”

	Why was the decision of the appeal tribunal in the instant case in error of law?

13.	In the grounds of appeal to the Social Security Commissioner the appellant’s representative had asserted that, among other errors in the statement of reasons for its decision, the appeal tribunal misidentified the decision under appeal and, accordingly, failed properly to assess the evidence from the correct decision under appeal.  In his written observations on the application for leave to appeal, Mr Kirk has agreed that the decision of the appeal tribunal is in error of law.

14.	In the statement of reasons for its decision the appeal tribunal recorded the following:

‘In her letter of appeal she refers again to the abuse she suffered at the hands of her former partner.  She said that she had started to attend a condition management program and wanted to be back at work if possible.  She was hoping to engage in various training programs.

…

The appellant provided a letter dated 17 November 2014 from the condition management program member.  The letter states that the program is designed to enable participants to develop strategies to cope.

…

There is an entry dated 4 June 2014 referring to her partner being due for release.  She was allowed to ventilate and advised regarding appropriate safety measures.  Her mood was judged to be satisfactory at that stage.  In August 2014 the issues at home remained and it was recorded that her mood was not great.  Again she was allowed to ventilate and indicated she was striving to return back to work.  She was seen in November 2014 when she continued to be worried about encountering her former partner … In February it was recorded the appellant was finding the courses she was attending a self-esteem and weight management beneficial.  In April 2015 it is recorded that she was keeping well and feeling brighter and planning for the future.  

…

It is the decision of 13 January 2015 which is the subject matter of the appeal.  It seemed to us the appellant experienced heightened stress in the lead up to her partner’s release.  She said a bad period for her was from the summer onwards of 2014.  This is reflected in the GP printout and the reference to August to her mood still not being great and in November to her being worried about her former partner.  In the interval she had been attending various courses which she found helpful and by the spring of this year she was feeling much better.  We did not intend to take a snapshot but our view was that the appellant had benefitted from the various courses and with the passage of time felt a little more at ease.  

…

In the present case the appellant has a background of clerical work and has expressed a desire to return to the workforce.  It was our view the appellant could return to clerical work without a substantial risk to her health.  We acknowledge that getting to work and performing at work would be an additional burden upon the appellant.  However, in itself we do not see how a return to work would present a substantial risk to health.  It is perhaps notable that in the letter from the GP in April 2015 her doctor was of the view that at that stage she would be in a position to go back to work.  In conclusion, therefore, we do not find that regulation 29 assists the appellant.’

15.	The reference to ‘regulation 29’ is to regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 (‘the 2008 Regulations’), as amended.  The first paragraph above is part of the appeal tribunal’s conclusions as to whether the appellant had LCW in accordance with the LCW assessment (section 8(2) of the Welfare Reform Act (Northern Ireland) 2007 and regulation 19 of the 2008 Regulations).

16.	The seminal decision on the interpretation of the legislative provisions on social security decision-making and appeals is that of a Tribunal of Commissioners in Great Britain in R(IB) 2/04.  At paragraph 38, the Tribunal was considering rights of appeal under section 12(1) of the Social Security Act 1998 (‘the 1998 Act’) against decisions under section 9 of the Act. Section 9 of the 1998 Act makes provision for revision of decisions made under section 8(1) of the Act. Sections 8(1), 9 and 12(1) of the 1998 Act are in identical terms to articles 9(1), 10 and 13(1) of the Social Security (Northern Ireland) Order 1998 (‘the 1998 Order’).

17.	In paragraph 38 of its decision, the Tribunal stated:

‘So far as decisions under section 9 (revision) are concerned, section 12(1) provides a right of appeal, not against the decision under section 9 as such, but only against the original decision as either revised or not revised.

…

In form, therefore, an appeal against a decision under section 9 is an appeal against the original decision (as either revised or not revised), not against the section 9 decision itself.’

18.	The Tribunal of Commissioners added, at paragraph 53:

‘In our judgment, the parties are correct in submitting (as they do) that, when faced with an appeal following a decision under section 9 or section 10, an appeal tribunal must start by identifying the decision under appeal.  The legislation is clear in providing that, in the case of a decision under section 10, it is the section 10 decision itself which is the subject of the appeal.  In the case of a decision under section 9, whatever the substance of the position may be, it is the original decision which is required to be treated as under appeal.  The identification of the decision under appeal is vital because, in deciding the appeal, the appeal tribunal cannot take into account circumstances arising after the date of that decision (section 12(8)(b)).’

19.	Section 12(8)(b) of the 1998 Act has its parallel in Northern Ireland in article 13(8)(b) of the 1998 Order. It provides : 

‘(8) In deciding an appeal under this Article, an appeal tribunal – 

(a)……….

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.’

20.	The Tribunal of Commissioners was undoubtedly correct to state that the first task of an appeal tribunal is to identify the decision under appeal.  If an article 10 decision is made then the appeal lies against the original decision (as either revised or not revised) and not against the Article 10 decision itself.  The imperative to identify the decision under appeal is that article 13(8)(b) prevents the appeal tribunal from taking into account circumstances not obtaining at the time when the decision appealed against was made.

21.	In the instant case, there is a clear error in the appeal tribunal’s reasoning.  The decision under appeal to the appeal tribunal was not the decision of 13 January 2015. As was noted above, on 13 January 2015 a decision-maker reconsidered the decision of 5 November 2014.  The decision of 5 November 2014 had decided that: 

(i)	grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 5 June 2014; and

(ii)	the appellant did not have LCW and was, therefore, not entitled to ESA from and including 5 November 2014. 

22.	The ‘reconsideration’ decision of 13 January 2015 was, in terms of the legislative provisions relating to decision-making, an Article 10 revision (or, more likely, a ‘refusal to revise’).  Accordingly, the decision under appeal was not the Article 10 revision decision of 13 January 2015 but the original decision of 5 November 2014.  In turn, the appeal tribunal was not permitted to take into account circumstances not obtaining when the decision of 5 November 2014 was made.

23.	Having, incorrectly as it turns out, identified the decision under appeal, as the decision of 13 January 2015, the appeal tribunal, in its assessment of the evidence available to it, and in its reasoning, formed the view that it was entitled to take into account circumstances obtaining up to 13 January 2015.  Looking again at the appeal tribunal’s reasoning, particularly in connection with the potential application of regulation 29(1) of the 2008 Regulations, the appeal tribunal relied on evidence which post-dated the decision under appeal.

24.	It is important to emphasise that Article 13(8)(b) does not command the appeal tribunal to ignore any evidence which post-dates the decision under appeal.  In C24/03-04(DLA), at paragraph 8, the Commissioner approved of the following statement of law set out in paragraph 9 of R(DLA) 2/01:

‘… In the case of a claim for a Disability Living Allowance, the jurisdiction (of an Appeal Tribunal) is limited to the inclusive period from the date of claim to the date of the decision under appeal.  The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction.  However it is the time to which the evidence relates that is significant, not the date when the evidence was written or given.  It does not limit the tribunal to the evidence that was before the officer who made the decision.  It does not limit the tribunal to evidence that was in existence at that date.  If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates.  If it relates to the relevant period, it is admissible.  If it relates to a later time it is not admissible.’

25.	Although the principles in the cases cited above were in the context of disability living allowance they are applicable, in my view, to how appeal tribunals in social security appeals should address the issue of consideration of evidence which post-dates the decision under appeal.

26.	The principles in R(DLA)2/01 give an accurate summary of the relevant legal principles.  Accordingly, the appeal tribunal in the instant case was limited to taking account of evidence that was relative to the period over which it had jurisdiction under Article 13(8)(b).  I return to the appeal tribunal’s assessment of the evidence, particularly the evidence contained in a report from the appellant’s General Practitioner (GP), dated 28 April 2015. In that report the GP had stated:

	‘…

Her mood deteriorated in June, however, and she would only now be in a position to be able to get back to work.

…

I do not feel that she would have been capable of working or attending back to work schemes in November 2014 and I feel that it would have been detrimental to her mental health to have been made to do so at that time.’  

27.	As was noted above, the appeal tribunal has placed emphasis on the contents of that report in its conclusions that regulation 29(1) of the 2008 Regulations did not apply to the appellant.  Its reasoning was that the GP was asserting that as of 28 April 2015 the appellant was in a position to consider returning to work.  It seems to have related this evidence back to its misidentified date of decision under appeal and concluded that as of 13 January 2015 regulation 29(1) of the 2008 Regulations did not apply to the appellant.

28.	There is a further example as to how the misidentification of the correct decision under appeal clouded the appeal tribunal’s reasoning.  As was noted above, in its conclusions on the more general test of LCW, the appeal tribunal assessed the medical evidence over the period of the second half of 2014.  During that assessment it noted an entry in the appellant’s GP records which recorded that in November 2014 she ‘… was worried about her former partner.’  The actual entry is dated 25 November 2014 and reads:

‘Depression interim review attending control management program to help with anxiety, worried re ex husband, discussed and ventilated.’   

29.	The appeal tribunal has reasoned that in the period through November 2014, and up to what it perceived to be the date of the decision under appeal, the appellant’s condition had improved – ‘she felt a little more at ease.’  It noted that in February 2015 the appellant was deriving benefit from the courses which she had been attending.  Once again, the appeal tribunal has related this evidence back to its misidentified date of decision under appeal and concluded that as of 13 January 2015 the appellant did not have LCW.  It is clear, from the correspondence dated 17 November 2014, some 12 days after the date of the decision under appeal, that the appellant had yet to commence the Condition Management Programme.

30.	The error of law is that the appeal tribunal has failed to identify the decision under appeal and has, accordingly, misapplied the provisions of Article 13(8)(b) of the 1998 order, such that it was taking into account circumstances not obtaining when the decision under appeal was made.  When that decision was made, that is on 5 November 2014, there was evidence available which might have led the appeal tribunal to conclude that the appellant did have LCW in accordance with the LCW assessment or that regulation 29 of the 2008 Regulations applied to the appellant. 

	Disposal

31.	The decision of the appeal tribunal dated 19 May 2015 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.

32.	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 November 2014, had decided that: 

(a)	grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 5 June 2014; and

(b)	the appellant did not have LCW and was, therefore, not entitled to ESA from and including 5 November 2014. 

(ii)	the Department is directed to provide details of any subsequent decision-making with respect to 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 claims to ESA 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

10 May 2016