CB-v-Department for Social Development (ESA) [2016] NICom 35

Decision No:  C23/14-15(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 14 April 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

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

2.	For the reasons I give below, I allow the appeal and I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998.  I direct that the appeal shall be determined by a newly constituted tribunal.  

REASONS

	Background

3.	The appellant was awarded incapacity benefit (IB) by the Department for Social Development (the Department) from 17 March 2003.  On 21 December 2012 he was notified by the Department that his existing claim was to be converted into a claim for employment and support allowance (ESA) under the regulations implementing the Welfare Reform Act (Northern Ireland) 2007.  The appellant completed a Departmental questionnaire, form ESA50.  He stated that his current illnesses and disabilities were hypertension, chronic fatigue syndrome, back pain, depression and sleep apnoea.  He was examined by a healthcare professional (HCP) on 15 March 2013, who prepared a report for the Department.  On the basis of all the evidence, on 28 March 2013, the Department decided that the appellant did not satisfy the limited capability for work assessment (LCWA) and that his award of IB did not qualify for conversion into an award of ESA from 25 April 2013, resulting in an end to his entitlement.  The appellant appealed. 

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 14 April 2014.  The tribunal disallowed the appeal, awarding 6 points on the LCWA.  The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 5 June 2014.  The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 11 August 2014.  On 22 August 2014, the appellant requested a Social Security Commissioner to grant leave to appeal. 

	Grounds

5.	The appellant, represented by Mr Roddy of Omagh Independent Advice, submits that the tribunal has erred in law on the basis that:

(i)	the tribunal followed an unfair procedure by overlooking his challenge to the evidence of the HCP in his appeal notice and relying on it while stating that “these observations have not been called into question”;

(ii)	the tribunal did not apply the statutory test for “Mobilising” correctly, ignoring the issue of repeated mobilisation and fatigue;

(iii)	the tribunal placed undue weight on the fact that he was not being assessed by the Occupational Therapy service;

(iv)	the tribunal erred when assessing the mental health descriptors by placing weight on his ability to drive. 

6.	The Department was invited to make observations on the appellant’s grounds.  Mr McKendry 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

7.	The issues in dispute before the tribunal were the physical activities of “Mobilising” and “Standing-sitting”, and the mental health activities of “Personal action”, “Coping with change” and “Getting about”.  The Department’s award of 6 points for “Coping with social engagement” was not in dispute.  The tribunal heard oral evidence from the appellant and considered an MRI report dated 2009 and a report from Dr Deehan in addition to the Department’s submission. 

8.	The tribunal accepted that the appellant suffered from a number of medical conditions including chronic fatigue and low back pain secondary to osteoarthritis of the spine.  In considering the physical activities, the tribunal accepted that these were likely to give rise to some level of restriction but did not accept on the basis of all the evidence that the appellant satisfied relevant descriptors in the areas of “Mobilising” or “Standing-sitting”.  In relation to the mental activities, the tribunal accepted that the appellant should be awarded 6 points for the activity of “Coping with social engagement”.  The tribunal did not accept that the appellant had limitations which satisfied the descriptor for any other mental health activity.  As the total of points awarded was below the relevant threshold, the tribunal disallowed the appeal. 

	Procedural matters

9.	I considered that the appellant’s grounds gave rise to an arguable case and I granted leave to appeal.  I proposed to hold an oral hearing of the application and a date of hearing was arranged.  However, the appellant sought a postponement of the hearing pending the determination of another case on file C18/14-15(ESA), which was said to involve similar legal and factual questions on “Getting about”.  The Department concurred and the appeal hearing was adjourned.  On 27 November 2015 the Chief Commissioner gave his decision in C18/14-15(ESA) and I requested submissions from the parties on the implications of that decision for the present case. 

	Further Submissions

10.	Mr Roddy submitted that the tribunal had not applied the activity of “Getting about” properly in the case, relying on the decision of Chief Commissioner Mullan in C18/14-15(ESA).  He submitted that C18/14-15(ESA) dealt with adequacy of findings in the context of a tribunal equating evidence of ability to drive a car with ability to get to a specified place with which they are unfamiliar.  On this basis, he submitted that the tribunal had erred in law. 

11.	For the Department, Mr McKendry accepted that there were clear similarities between the present case and that in C18/14-15(ESA).  He noted that the tribunal had not based its findings that the appellant could get to a specific unfamiliar place on any specific evidence, other than the ability to drive.  He resiled from his opposition to the application for leave to appeal. 

	Legislation

12.	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 limited capability for work (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. 

13.	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.  The question of which version of the legislation applies in a particular case is connected to the date on which the ESA50 questionnaire was issued to the appellant.  At the date of issuing the ESA50, the relevant activity read as follows:

SCHEDULE 2 Regulation 19(2) and (3)

Assessment of whether a claimant has limited capability for work

PART 1

PHYSICAL DISABILITIES

(1)	(2)	(3)

…
	(c) Cannot either— 	9

	(i) mobilise more than 100 metres
	on level ground without stopping
	in order to avoid significant
	discomfort or exhaustion, or

	(ii) repeatedly mobilise 100 metres
	within a reasonable timescale
	because of significant discomfort
	or exhaustion.

…

MENTAL, COGNITIVE AND INTELLECTUAL FUNCTION ASSESSMENT

…

15. Getting about.	(a) Cannot get to any specified place 
	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

14.	I held an oral hearing of the appeal.  The appellant attended, represented by Mr Roddy of Omagh Independent Advice Service. Mr McKendry of DMS represented the Department.  I am grateful to the representatives for their submissions. 

15.	The appellant submitted that the tribunal has erred in four respects.  The principal issues were the tribunal’s approach to activity 1 (“Mobilising”) and to activity 15 (“Getting about”).  Mr Roddy submitted that the HCP’s evidence was restricted to observation of the appellant walking for a limited amount of 15 metres at the examination centre.  He submitted that this would not enable the HCP to give an opinion on ability to repeatedly mobilise.  He relied on the medical evidence which tended to confirm the presence of back pain.  He noted that the HCP had observed the presence of back pain and discomfort in the thighs at examination.  He questioned how an assessment of the issue of whether the appellant could repeatedly mobilise could be made on the basis of the evidence of the HCP.  He submitted that, whereas he had expressly relied on descriptor 1(c)(ii), the tribunal had not made enquiry into the issue of repeated mobilisation.

16.	Mr Roddy had submitted that the tribunal had erred when it stated that the HCP’s “observations have not been called into question”.  The appeal letter had questioned the observations.  However, he accepted that nothing in the observations had a direct bearing on the question of whether the appellant could repeatedly mobilise, and that the issue was immaterial for that reason. 

17.	Mr Roddy further questioned the tribunal’s reliance on the absence of an occupational therapy referral in the case.  He submitted that there was a two year waiting list for occupational therapy in the Omagh area, which led to local GPs having a restrictive approach to referral.  This tended to occur where matters such as home adaptations were under consideration.  He submitted that no undue inference should have been drawn from the lack of an occupational therapy assessment. 

18.	On “Getting about”, the tribunal had made findings about the appellant’s ability to drive – giving evidence of concentration, responsiveness and alertness.  I asked whether a person who lacked motivation to go out should be awarded points for “Getting about”.  Mr Roddy submitted that the issue of motivation was not the primary issue, but that he was uncomfortable in crowded places. The appellant would rarely drive. 

19.	Mr McKendry agreed with the observations of Mr Roddy.  He concurred that the tribunal had not gone far enough in establishing whether the appellant could mobilise on a repeated basis, for the purposes of descriptor 1(c)(ii) or 1(d)(ii).  He accepted that the HCP report was of limited assistance to the tribunal on the issue of repeated mobilising.  Whereas Mr Roddy had expressly raised the issue of repeated mobilisation, Mr McKendry submitted that the tribunal had an obligation to apply the statutory test, whether or not it had been raised by the appellant. 

20.	Mr McKendry further submitted that the decision of Chief Commissioner Mullan in KC v Department for Social Development [2015] NI Com 65 was directly relevant on the issue of “Getting about”.  He submitted that the principle arising from that case was that ability to drive a car did not necessarily equate to an appellant’s ability to get to a specified place with which he was unfamiliar.  He resiled from the original submission by the Department which had opposed the appeal.  He submitted that in the present case the tribunal had not sufficient evidence to decide that the appellant could get to a specified unfamiliar place unaccompanied.    

	Assessment

21.	The parties are in agreement that the tribunal has erred in law.  Specifically, against a background of a submission based on the ability to repeatedly mobilise, the parties submit that the tribunal has not investigated and made express findings on this issue.  The tribunal has placed reliance on the medical evidence – namely, the HCP report, an MRI scan and a letter from the appellant’s GP - and specifically the HCP’s “findings, observations and the description of a typical day”.  However, none of this evidence bears on the ability to repeatedly mobilise. 

22.	In the case of AH v Secretary of State for Work and Pensions [2013] AACR 32, Upper Tribunal Judge Jacobs made observations about the assessment of the issue of repeated mobilisation.  That case was in the context of Schedule 3 to the ESA Regulations, but the same principles apply.  At paragraph 18, Judge Jacobs said:

“18. The words “repeatedly”, “significant discomfort or exhaustion” and “reasonable timescale” are normal words in everyday use.  Like all words, they take their meaning from their context, or at least the context colours their meaning. …

19. I am not going to attempt to define what these words mean.  That would be wrong.  It would be the wrong approach to statutory interpretation and would trespass impermissibly into the role of the First-tier Tribunal.  It is not for the Upper Tribunal to give more specific content to the law than the language used in the legislation.  The Upper Tribunal will not decide that “repeatedly” means five times, ten times or any other number.  Nor will the Upper Tribunal decide that “reasonable timescale” means five seconds, five minutes or any other time. 

20. The correct approach was explained by Lord Upjohn in Customs and Excise Commissioners v Top Ten Promotions Ltd [1969] 1 WLR 1163, at 1171:

“It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look up examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition.  The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved or admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament.”

21. The key to applying the words of Activity 1 lies in making findings of fact relevant to those words that are as specific as the evidence allows.  And, if the claimant is present at the hearing, the tribunal should ensure that it obtains evidence that is sufficient to that purpose.  Just to take one example: the tribunal should have probed Mr H’s evidence that he “could not repeatedly do 50 metres”.  How far could he walk before stopping? What made him stop? How did he feel? How soon could he proceed?  How often could he repeat that process?  This was particularly important in this case, because of the content of Mr H’s evidence to the tribunal.  At least as it was recorded by the judge – the record of proceedings does not have to be verbatim – his evidence was expressed in the language of the Schedule.  The tribunal had to obtain evidence that would allow it to assess Mr H’s answers by reference to that language.  It could not do that if the evidence repeated that language.  The tribunal would at least need to know what Mr H meant by “repeatedly”, as he might not be using it in the same way as in Activity 1.

22. I accept Mrs Mitchell’s argument that the tribunal failed to make findings of fact on the terms of the Activity with sufficient detail to show whether or not it applied.  For this reason, the tribunal’s decision involved an error of law.  I am not able to say that the tribunal came to the right decision, because the evidence is not sufficient to allow me to do so”. 

23.	The parties submit, and I agree with them, that the findings of fact are not sufficient to tell whether or not the tribunal has come to the right conclusion on the issue of repeated mobilisation.  

24.	In the present case the parties point out, relevant to the activity of “Getting about”, that the tribunal stated in its reasons that the appellant, 

“.... had the ability to drive a car, when necessary, which requires a reasonable level of concentration, responsiveness, and alertness.  He can make the 9 to 10 mile journey to his doctor and dentist alone. We are not satisfied that for most of the time he is unable to get to a specified place, either familiar or unfamiliar, without being accompanied by another person.” 	

25.	While the ability to drive a car was taken into account, the tribunal had then gone on to comment, referring to the issue of “Getting about” in a broader way, that “there is simply no compelling evidence to support this claim.”  It seems to me that the tribunal has not decided the appeal on the basis of the evidence of driving alone.  I will not state a concluded view on this aspect of the appeal, therefore. 

26.	Nevertheless, as submitted by the parties, for the reason that the tribunal has not adequately investigated the aspect of repeated mobilisation, I consider that it has erred in law.  I set aside the decision of the appeal tribunal and I direct that the appeal should be determined by a newly constituted tribunal.   

(signed):  O Stockman

Commissioner

31 May 2016