MB-v-Department for Communities (ESA) [2017] NICom 26

Decision No:  C8/16-17(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 18 April 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 18 April 2016 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.

3.	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.

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

5.	The decision under appeal to the appeal tribunal was a decision of a decision maker of the Department, dated 9 December 2015, which decided that: 

(i)	grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA from and including 23 November 2013; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 9 December 2015. 

6.	The appeal was received in the Department on 21 December 2015.  On 29 February 2016 the decision dated 9 December 2015 was looked at again but was not changed.

7.	The appeal tribunal hearing took place on 18 April 2016.  The appellant was present and was represented by Ms Peoples of the Citizens Advice organisation.  There was a Departmental Presenting Officer present.  The appeal was disallowed and the appeal tribunal confirmed the decision dated 9 December 2015.  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 6 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 limited capability for work - Regulation 19(3) of the Employment and Support Allowance Regulations (Northern Ireland), as amended.

8.	On 28 June 2016 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 3 August 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member.

	Proceedings before the Social Security Commissioner

9.	On 18 August 2016 a further application for leave to appeal was received in Office of the Social Security Commissioners.  On 7 September 2016 observations on the application for leave to appeal were sought from Decision Making Services (DMS).  In written observations received on 20 September 2016, Mr Collins, for DMS, supported the application.  The written observations were shared with the appellant and her representative on 21 September 2016.
10.	On 15 December 2016 I granted leave to appeal.  When granting leave to appeal I gave, as a reason, that an arguable issue arose as to whether the statement of reasons for the appeals tribunal’s decision was adequate to explain whether it addressed certain of the issues arising in the appeal.

	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.”

	Analysis

13.	In the application for leave to appeal, the appellant’s representative made the following submission:

‘An error of law – how the tribunal panel overlooked/did not explain why it rejected the medical evidence from (the appellant’s) GP who provided an ESA113 along with a GPFR giving an opinion based on several years of being the appellant’s GP.  

14.	In the record of proceedings for the appeal tribunal hearing, the appeal tribunal has recorded that it considered the following documents:

‘Submission from the Department

Submission from the Representative

Medical Report ESA113 dated 15 November 2013’

15.	In the written submission which was provided to the appeal tribunal by the appellant’s representative, there is a section headed ‘Points Raised in Regard to ESA85’.  The ‘ESA85’ referred to is the report of the medical examination which was conducted by a healthcare professional on behalf of the Department on 11 November 2015.  The completed ‘ESA85’ was attached to the original appeal submission as Tab No 4.

16.	In the section of her written submission to the appeal tribunal which addressed the ‘ESA85’ the appellant’s representative has challenged certain of the conclusions reached by the healthcare professional or statements made in the completed report.  As an example, the representative makes reference to page 5 of the completed report where the healthcare professional has stated:

‘Occupational History

Has not worked in the last 5 years.
Last occupation: Bar man.
Worked full time.
The main reason for leaving work was alcohol use.
Not currently working or studying.
The client is right-handed.

Description of a Typical Day

Usually goes to bed at different times.
Sleeps well at night
…
Uses a mobile phone to get take away delivered
…
Deals with different delivery drivers
…
Walks alone a 10 minute walk every 3 days to the local shop without difficulty’

17.	In her written submission, the appellant’s representative has stated the following about that extract from the ‘ESA85’ report:

‘… his last employment was as a labourer with the Barnabas trust not a Bar Man.  Reasons for leaving work was because the Barnabas Trust closed down.  The HCP states he sleeps well, yet his GP confirms he has sleep disturbance and that this is a “main problem.”  His girlfriend calls every morning to get him up.  She encourages him to get up, to get washed and dressed and she supervises his medication.  There are two delivery men who deliver to the house, and he has known them all his life.  It would take him 2 minutes not 10 minutes to walk to his local shop as it is just across the road.’

18.	This extract from the relevant section of the representative’s submission is just one example of several challenges to the contents of the ‘ESA85’ report.

19.	The ‘Medical Report ESA113’ referred to by the appeal tribunal in the record of proceedings is a copy of a medical report which was completed by the appellant’s General Practitioner (GP) on 15 November 2013. The report was submitted to the appeal tribunal by the appellant’s representative on the day of the oral hearing of the appeal. In the report the GP was asked to tick boxes which, to the GP’s knowledge, might apply to the appellant and was asked, in addition, to provide a brief explanation if the appellant had difficulties with any of the activities in respect of which the boxes were ticked. The GP ticked the following boxes:

‘Communicating with others
Initiating and completing personal actions
Coping with changes or social engagement’

20.	The GP also added the following statement:

‘Main problem related to agitated depression, anxiety and panic attacks.  Will withdraw.  Girlfriend a very positive influence on his life/wellbeing.’

21.	In the statement of reasons for its decision, the appeal tribunal has recorded the following:

‘The Tribunal considered all the evidence in the case in the Department’s Submission, the representative’s submission and the additional evidence submitted at hearing by the representative in the form of an ESA113 dated 15 November 2013.’

22.	Thereafter, though, there was no reference whatsoever to the contents of the ‘ESA113’ report or the written submission from the appellant’s representative.

23.	In his written observations on the application for leave to appeal, Mr Collins has made the following submissions:

‘… there is relevant case law in Northern Ireland which is particularly clear on a tribunal’s responsibilities when considering evidence.  At paragraph 60 of unreported Northern Ireland decision C8/08-09(IB) Commissioner Mullan stated:-

“...there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.”

In the circumstances of the present case the tribunal recorded that it considered the Department’s submission, a submission from the Representative as well as a Medical Report ESA113 dated 15 November 2013.  In the opening sentence of its reasons the tribunal states:-

“The Tribunal considered all the evidence in the case including the evidence in the Department’s Submission, the representative’s submission and the additional evidence submitted at hearing by the representative in the form of the ESA113 dated 15 November 2013.”

However I can see nowhere in the remainder of the tribunal’s reasons that the tribunal deals with the points raised in the relevant submission regarding the ESA85 medical report.  At paragraph 61 of the above Northern Ireland decision the Commissioner referred to R2/04(DLA) where a tribunal of Commissioners noted that a tribunal must explain its reasons for rejecting evidence, “even if, as will often be appropriate, such reasons are fairly short.” In the present case I would submit that the tribunal’s reasons are inadequate as they fail to deal with this issue.  Consequently I would agree that the tribunal erred in law and would support (the appellant’s) application.’

24.	The appellant’s representative had gone to the trouble of preparing a detailed written submission for the appeal tribunal hearing.  That submission included direct challenges to the contents of the report of the healthcare professional on which the Department (and eventually the appeal tribunal itself) relied.  Further the appellant’s representative adduced specific evidence from the appellant’s GP which she asked the appeal tribunal to consider.

25.	The issues concerning the contents of the report of the healthcare professional and the fresh evidence in the form of the report from the appellant’s GP, having been raised by the appellant’s representative, meant that the appeal tribunal was under a duty to consider them.  That required the appeal tribunal to acknowledge, in its statement of reasons, that the specific issues and the fresh evidence were considered by the appeal tribunal.  It required the appeal tribunal to indicate what it made of the fresh evidence, and having assessed that evidence, make sufficient findings of fact in connection with it.  Finally, the appellant and his representative were entitled to know, through the statement of reasons, what was the appeal tribunal’s determination in connection with the fresh evidence, and the reasons for its conclusions in connection with it.

26.	Having found that the appeal tribunal was under a duty to consider the fresh evidence, and having failed to consider that evidence, and explain, in its statement of reasons, that it has so considered it, I find that the decision of the appeal tribunal is in error of law.

	Disposal

27.	The decision of the appeal tribunal dated 18 April 2016 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.

28.	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 9 December 2015, which decided that grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA from and including 23 November 2013 and the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 9 December 2015;

(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

30 May 2017