PT-v-Department for Social Development (ESA) [2016] NICom 8
Decision No:  C22/15-16 (ESA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

EMPLOYMENT AND SUPPORT ALLOWANCE

Application by the above-named claimant for
leave to appeal to a Social Security Commissioner
on a question of law from a tribunal's decision
dated 26 February 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 Omagh.

2.	For the reasons I give below, I grant leave to appeal.  However, I disallow the appeal.

	REASONS

	Background

3.	The appellant claimed incapacity benefit (IB) from the Department for Social Development (the Department) from 11 August 2005 following serious injury to his right foot, ankle, leg and back in an accident at work.  On 31 August 2012 the appellant 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 was issued with and completed a Departmental questionnaire, form ESA50.  He was examined by a healthcare professional (HCP) on 6 December 2012, who prepared a report for the Department.  On the basis of all the evidence, on 7 January 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 26 January 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 26 February 2014.  The tribunal disallowed the appeal.  The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 10 June 2014.  The appellant applied late to the LQM for leave to appeal from the decision of the appeal tribunal.  The application for leave to appeal was rejected by a determination issued on 28 November 2014.  On 15 December 2014, represented by the SDLP Advice Centre, Strabane, the appellant requested a Social Security Commissioner to grant leave to appeal.

	Grounds

5.	The submission, made on the appellant’s behalf by Mr McCrossan of the SDLP Advice Centre, asserts that the tribunal has erred in law on the basis that:

(i)	the LQM did not extend time for the late application for leave to appeal;
(ii)	the appeal process has worsened the appellant’s health;
(iii)	medical practitioners have told the appellant that he is unfit for work;
(iv)	he seeks a reconsideration of the case.

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 submitted that the tribunal had erred in law and indicated that the Department supported the application.  The basis for Mr Collins’ support lies in the tribunal’s approach to ESA Activity 15.  He suggested that it was arguable that the tribunal did not explore apparent contradictions in the evidence, namely, the statement of the appellant that he could drive a motor car unaccompanied to collect his children from school, and his statement that he had difficulty going to an unfamiliar place on his own.

	The tribunal’s decision

7.	The tribunal identified that the appellant had claimed limitations in physical descriptors and mental descriptors, namely, mobilising (activity 1), standing-sitting (activity 2), and getting about (activity 15).  The tribunal noted evidence given to the HCP regarding mobilising.  While the tribunal acknowledged that there was a dispute over what the appellant had actually told the HCP, it assessed that he could walk 400 yards, taking into account all the evidence.  The tribunal also accepted that the appellant was able to sit and stand in church, to sit in a sauna for 40 minutes and to sit to help his children with homework.  On the basis of all the evidence the tribunal found that the appellant was not restricted in the area of standing-sitting.

8.	In relation to the activity of getting about, the tribunal found that the appellant could drive a car unaccompanied, and collect his children from school.  The tribunal noted that he was not taking any medication in respect of anxiety or depression and had not been referred to anyone in respect of this problem.  The tribunal found on all the evidence that the appellant was able to go to a place with which he was unfamiliar without being accompanied by another person.

9.	In making its assessment, the tribunal took into account that the appellant was the owner of a 50-acre farm which had not been “set out” to any other person and that he still owned and maintained a flock of 24 animals, rejecting his evidence that these were cared for by his neighbour.

	Hearing

10.	At this point it may be helpful to recall that the jurisdiction of the Social Security Commissioner arises from Article 15 of the Social Security (NI) Order 1998.  An appeal lies to a Commissioner on the ground that the decision of a tribunal was erroneous in point of law.  However, no appeal can be brought without the leave of the chairman of the appeal tribunal or a Commissioner.

11.	In the light of Mr Collins’ submissions, I directed a hearing of the application for leave to appeal.  However, I considered that the appellant had not, in the grounds accompanying his application, identified any matter which could amount to an error of law on the part of the tribunal.  I therefore directed the appellant’s representative to make written submissions to set out the basis on which he would argue that the tribunal had erred in law, to be received no later than 14 days before the hearing.

12.	The appellant’s representative did not comply with this direction.  After the date for compliance with the direction had expired, the appellant’s representative requested a postponement of the hearing, on the basis of the appellant’s inability to attend due to a risk to his health.  He did not furnish any evidence to support the stated need for postponement on the basis of the risk to the appellant’s health.  As the appellant’s attendance at the hearing was not required, the postponement was refused.  The appellant’s representative was also reminded of the direction regarding his grounds of application for leave to appeal.  He was asked to provide his written representations by a new extended date some three days prior to the date of hearing.  However, he did not respond by that date.

13.	Mr Collins of DMS attended the hearing on behalf of the Department.  The appellant’s representative failed to arrive at the hearing of the application.  He had not made any contact to indicate that he would not be attending.  Therefore his office was contacted by telephone to ask if it was known where he might be.  It was indicated that he was attending an appeal tribunal hearing elsewhere.  In all the circumstances, I decided to proceed with the hearing.

14.	I had considered that the appellant’s representative had not identified an arguable error of law in the tribunal’s decision on the basis of the grounds submitted with his application form.  I had therefore directed written submissions as to the basis on which he submitted that the tribunal had erred in law.  He had failed to comply with this direction and had not attended the hearing.  Therefore, at that point I considered that the appellant had not advanced any cogent grounds for consideration.

15.	However, Mr Collins had indicated some disquiet with the tribunal’s decision.  I asked Mr Collins to address me on the matters he had raised in the Department’s response to the application for leave to appeal.  Specifically he had stated that there appeared to be a contradiction between the appellant stating a need to be accompanied when he is out and his ability to drive unaccompanied.  He submitted that the tribunal has failed to investigate this contradiction and that the tribunal should have asked the appellant why he needed someone with him.  He submitted that the tribunal should have investigated this aspect more fully.

	Post-hearing submission by the appellant

16.	After the hearing, a written submission was received from the appellant’s representative.  This addressed aspects of the evidence before the tribunal, submitting that it was “incorrect” and called the HCP examination ill-informed and flawed.  It made observations about the appellant not having claimed benefit previously.  It submitted that the appellant had taken extra painkillers on the date of his examination by the HCP.

17.	These matters are all matters of the weight to be given to the evidence before the tribunal.  They would properly form part of a submission to a tribunal considering the merits of the substantive appeal.  However, none of the grounds are addressed in any way to the tribunal’s interpretation of the law, fact-finding or procedure, and no direct criticism is made of the tribunal decision.  The appellant’s submissions therefore do not identify any arguable error of law in the tribunal’s decision.

	Post-hearing submission by the Department

18.	In a further submission the Department re-iterated the circumstances of the industrial accident which had caused the appellant’s initial incapacity for work.  He had been involved in an explosion which had blown him off a roof and into a bath containing acid.  A work colleague died as a result of the explosion.

19.	Mr Collins points to some post-hearing evidence from the appellant’s general practitioner (GP) dated 23 May 2014 in which it is stated that the appellant “refuses any anti-anxiolytic medication.  In addition he has always declined any psychological referral in coming to terms with the initial accident and loss of his work colleague”.  He further refers to a letter from the appellant’s wife dated 8 July 2014 stating that he cannot be relied upon to pick the children up from school and bus stop.

20.	The HCP assessment had found the appellant’s mental health to be normal.  However, Mr Collins submits that the tribunal could have reasonably concluded that mental health was an issue and that its questioning was inadequate.  He submitted that if the tribunal considered that mental health was not an issue then the tribunal should have made a conclusion to that effect.

21.	In the light of the Department’s submissions, I grant leave to appeal.

	Assessment

22.	The appellant had indicated problems with a number of activities in the mental health part of the ESA50 form, but the HCP reported at page 20 of the ESA85 “on questioning he denies any mental health problems and states he was referring to a physical problem”.  It can be seen from the ESA50 that, to the extent that any mental health activities are ticked, the appellant relates them to pain, including activity 15.

23.	The HCP on examination of the appellant found no abnormal features in relation to his mental health.  Further, the appellant’s GP reports (in post-hearing evidence) that the appellant had refused any psychological referral or treatment for mental health difficulties.

24.	It is clear that the appellant has undergone an experience which had the potential to cause psychological trauma.  He had told the tribunal that he has difficulty going to a place with which he is unfamiliar.  However, he had not been prescribed medication for anxiety or depression and has not been referred to anyone in respect of that problem.  He does not indicate any psychological problems in his ESA50 questionnaire.

25.	As I understand the submission of Mr Collins, he is suggesting that the appellant’s accident has probably caused psychological injury, but that the appellant refuses referral and treatment for his own personal reasons.  He submits that the tribunal should have investigated this further.  However, I feel that this submission goes too far.  There was no evidence before the tribunal which would have allowed it to determine that the appellant was suffering from a mental disablement, let alone that this resulted in the claimed functional limitation of being able to go out unaccompanied.  The appellant denied psychological problems and was receiving no relevant treatment.

26.	The role of the tribunal is difficult enough, where it has to assess the disablement claimed by an appellant, without having to also investigate a disablement denied by an appellant.  In most cases, it is entitled to take the view that, if an appellant denies mental disablement and is not seeking or receiving treatment for a functional limitation due to mental disablement, the degree of functional limitation is unlikely to make him incapable of the relevant activity.  Having said that, there will of course be cases where an appellant has limited insight into their own mental health condition.  In such cases a tribunal is certainly entitled to investigate matters further where, in the light of evidence of symptoms or diagnosis, it feels that such investigation is warranted.

27.	Here, however, the tribunal had the benefit of seeing the appellant and of hearing his evidence both in relation to his physical problems and his claimed difficulty in going out unaccompanied.  It had heard his evidence that he drove a car unaccompanied.  It had taken an adverse view of the credibility of the appellant’s evidence in relation to mobilising and standing-sitting.  It had further rejected his evidence that the livestock on his farm was looked after by someone else.  The tribunal was able to assess the appellant’s lack of treatment for problems with anxiety or depression against the background evidence as a whole.  In all the circumstances, I consider that the tribunal was entitled as a matter of law to reach its conclusion on the activity of getting about without further investigation.  It follows that I do not accept Mr Collins’ submission.

28.	The appellant has not made out an arguable case that the tribunal has erred in law on the grounds he has submitted and I disallow the appeal.

(signed)  O Stockman

Commissioner

18 January 2016