JS-v-Department for Communities (ESA) [2017] NICom 17

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 1 February 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

	BACKGROUND

1. 	The appellant sought an award of Employment & Support Allowance (ESA) and, from 15 September 2014, he was awarded the assessment rate of that benefit while he awaited a Work Capability Assessment (WCA).  The WCA is provided for by Schedule 2 to the ESA Regulations (Northern Ireland) 2008 and is used to determine whether an individual has limited capability for work which is one of the basic conditions for ESA set out in section 1 of the Welfare Reform (Northern Ireland) Act 2007. 

2. 	The WCA, contained in Schedule 2 to the 2008 Regulations, is divided into 17 activity areas with associated points-scoring descriptors.  If an individual scores at least 15 points, he has limited capability for work.  An individual is also deemed to have limited capability for work if the provisions of regulation 29 apply to him, including where he “suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work”.

3. 	The appellant completed an ESA 50 disability questionnaire dated 17 January 2015.  He wrote that he suffered from depression, panic attacks, a drink problem, a bowel disorder that gave him chronic pain and meant he needed to go to the toilet five or six times a day, a weight problem and problems with his legs, especially his feet which would become sore and inflamed. 

4. 	In the ESA 50 questionnaire the appellant described problems with the following WCA functional areas: mobility including going up or down two steps, standing and sitting, manual dexterity, communicating with people, understanding other people’s communication, continence, starting and finishing tasks, coping with changes, going out, coping with social situations and behaving appropriately.

5. 	The appellant’s General Practitioner (GP) also supplied a short report on a standard form which listed his conditions as depression and anxiety, and a drink problem.  The GP also wrote that the appellant had problems coping generally and in social situations, was poorly motivated and suffered from loneliness and panic attacks.  In the report, the GP ticked boxes to indicate that the appellant had problems with the WCA functional areas of communicating with others, initiating and completing personal actions, coping with changes or social engagement and appropriateness of behaviour. 

6. 	On 18 May 2015 the appellant attended a medical examination in connection with his claim.  The Healthcare Professional (HCP) who examined him, a registered nurse, was of the view that he merited zero WCA points.  On 18 August 2015 the Social Security Agency agreed with the HCP and decided that the appellant scored zero WCA points, did not have limited capability for work and was not entitled to ESA.  The appellant appealed to an appeal tribunal.

	THE TRIBUNAL’S DECISION

7. 	The appeal tribunal heard the appellant’s appeal on 1 February 2016. The appellant attended the hearing and gave evidence.  He was accompanied by a representative from Fermanagh Citizens Advice Bureau who informed the tribunal he only sought WCA points under the mental health and functioning WCA areas described in his ESA 50. Despite that, the tribunal’s reasons spent as much time dealing with the appellant’s physical condition as with his mental condition. 

8. 	The tribunal dismissed the appellant’s appeal. In its reasons for its decision, issued on 21 March 2016, the tribunal:

		(a) made findings that the appellant was able to drive alone, care for himself, attend his GP and make appointments by himself, do his own shopping and “interact” with shop staff;
		(b) gave the main reason for deciding no mental health-related WCA points were justified as “the evidence of the Appellant to the [HCP] as indicated in the description of a typical day together with the Appellant at hearing did not indicate that an award of points was merited in these activities”;
		(c) the other reasons given for the tribunal’s conclusions were the appellant could cope with social engagement “very well given his engagement with persons in shops and others who he may meet when out walking” and “he did get in a bad mood sometimes but these moods were controllable”;
		(d) stated it “did not believe that any exceptional circumstances applied which would have deemed the appellant to have limited capability for work in the circumstances”.
9. 	The appellant’s representative applied to the tribunal chairman for leave to appeal to a Social Security Commissioner for Northern Ireland on the grounds that the tribunal did not consider regulation 29 of the ESA Regulations and made an (unspecified) error in its consideration of WCA activity area 17 (behaviour).  Leave was refused on 25 April 2016 and the appellant sought leave from a Commissioner, the application being received on 7 June 2016.  The application was made late (more than one month after the appeal tribunal sent its decision refusing leave).  The appellant’s representative wrote that the delay was due to “sickness on my behalf”. 

10. 	The Department for Communities were invited to make observations on the appellant’s application.  Their observations did not support the application. The Department’s observations:

		(a) correctly noted that the appellant’s representative had not explained why the tribunal was said to have misapplied WCA activity area 17;

		(b)  having recited the evidence relevant to WCA activity area 17 and submitted that its key features were that, in the appellant’s evidence to the tribunal, he only gave two examples of behaviour that occurred six years previously, and the HCP’s observation that the appellant “gets angry”, argued the tribunal reasonably concluded that none of the scoring activity 17 descriptors applied;

		(c) referred to Chief Commissioner Mullan’s decision in C611-12 (ESA) where he said, at paragraph 25, that in most cases where a tribunal is considering whether a claimant has limited capability for work, “the further issue of whether regulation 29 is satisfied will not be relevant” (quotation taken from the Department’s observations);

		(d) there was nothing in the case papers or oral evidence “to specifically raise the applicability of regulation 29”;

		(e) the evidence showed that the appellant was not having specialist input for depression and anxiety, “his medication was not changed” which meant, according to the Department, “there were no grounds suggestive that substantial risk was an issue”;

		(f) did not address the lateness issue.

11. 	The appellant’s representative was supplied with a copy of the Department’s observations and invited to comment by 7 August 2016.  No comments were received.

	CONCLUSIONS ON APPLICATION FOR LEAVE TO APPEAL

12. 	I refuse to grant leave on ground 1.  As the Department observed, the ground was not developed in the appellant’s application for leave to appeal and I see no obvious error of law in the appeal tribunal’s conclusion that no scoring activity 17 descriptors applied.

13.	 I do, however, grant leave to appeal on ground 2.  In the circumstances of this case, arguably the appeal tribunal gave insufficient reasons for its determination that regulation 29 did not apply.  The tribunal dealt with the point and, as a result, was required to give adequate reasons for its decision. 

14. 	I have also decided to accept the appellant’s late application despite his representative having improperly provided no details of her sickness nor explained why no other representative could take over conduct of the appellant’s case.  I make that decision taking into account the appellant’s documented mental health problems from which I think it is reasonable to infer that he would have had difficulties in ‘chasing’ his representative and because the Department did not in their written observations take any point on lateness.  These amount to special reasons for accepting a late application for the purposes of regulation 9 of the Social Security Commissioners (Procedure) (Northern Ireland) Regulations 1999.

	DECISION ON THE APPEAL

15. 	The Department’s observations state they are content for the Commissioner to treat this application as an appeal and to determine any question arising on the application as if it arose on an appeal.  Since the appellant did not object, I treat the application as an appeal under regulation 11(3) of the Social Security Commissioners (Procedure) (Northern Ireland) Regulations 1999.

16. 	The appellant requested a hearing of his appeal but I do not consider a hearing is necessary in order fairly to decide this case.

17. 	I decide that the appeal tribunal’s decision involved an error on a point of law.  The tribunal gave inadequate reasons for determining that regulation 29 did not apply to the appellant. 

18. 	The bare conclusion that no exceptional circumstances applied did not amount to adequate reasons for determining that regulation 29 did not apply to the appellant.  The evidence showed that the appellant had not worked for some 15 years or so and his GP report stated that, despite an unchallenging lifestyle, he suffered from panic attacks and generally had difficulty coping. In those circumstances, the tribunal was required to grapple with the potential health-related consequences for the appellant should he return to the workplace (Charlton v Secretary of State [2009] EWCA Civ 42).  The tribunal should have explained why a return to the workplace was unlikely to cause a deterioration in the appellant’s mental health such as to amount to a substantial risk to his mental health. 

19. 	I set aside the appeal tribunal’s decision and direct:

		(1) the appellant’s appeal is to be re-heard by the appeal tribunal. This is to be an entirely fresh re-hearing of all the issues arising on the appeal and must not take into account any circumstances not arising at the date of the Social Security Agency’s decision;

		(2) the constitution of the tribunal should not include any member who sat on the tribunal whose decision I have set aside;

		(3) if either party wishes to rely on any further written evidence or argument such must be received by the appeal tribunal within one month of the date on which this decision is issued (although this direction may be varied by direction of an appeal tribunal chairman).

(signed) E Mitchell

Deputy Commissioner (NI)

27 February 2017