SF-v-Department for Communities (ESA) [2017] NICom 67

Decision No:  C7/16-17(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 January 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 18 January 2016 is not in error of law.  Accordingly the appeal tribunal’s decision that (i) grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to Employment and Support Allowance (ESA), from and including 26 March 2014 and (ii) the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 23 August 2015, is confirmed.

	Background

2.	The decision under appeal to the appeal tribunal was a decision of the Decision Maker of the Department, dated 23 August 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 26 March 2014; and

	(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 23 August 2015.

3.	The appeal was received in the Department on 7 September 2015.  On 20 October 2015 the decision dated 23 August 2015 was looked at again but was not changed.

4.	The appeal tribunal hearing took place on 18 January 2016.  The appellant was present and was represented by Ms Peoples of the Citizens Advice organisation.  There was no Departmental Presenting Officer present.  The appeal was disallowed and the appeal tribunal confirmed the decision dated 23 August 2015.

5.	On 3 May 2016 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 18 May 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

6.	On 13 June 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners (OSSC).  On 20 June 2016 observations on the application for leave to appeal were sought from Decision Making Services (DMS).  In written observations dated 19 July 2016, Mr Kirk, for DMS, opposed the application for leave to appeal.  The written observations were shared with the appellant and Ms Peoples on 19 July 2016.

7.	On 29 November 2016 a Deputy Social Security Commissioner granted leave to appeal.  When granting leave to appeal the Deputy Commissioner gave the following reasons:

‘This case concerned an appeal against a finding that the applicant did not have limited capability for work.  The FTT accepted the report of the healthcare professional substantially on the basis that it did not accept the applicant’s allegation that he had not said some of the things written because he had not made an official complaint about the examination despite having had access to the report for some time.

I have read the papers, and I note the views of the respondent that the decision is sustainable.  The tribunal arguably accorded inordinate weight to the failure of the applicant to make an official complaint about inaccuracies in the report of the healthcare professional.  No questions are recorded asking why such a complaint was not made, and it seems not unlikely that the applicant thought these matters were to be dealt with at the appeal.  There is no legal requirement for a complaint to be made in tandem with an appeal, and it seems to me arguable error of law to treat the absence of a formal complaint as a significant credibility pointer.

Given the centrality to the tribunal decision of the care provided by the applicant to the youngest child of the family on weekdays between 3 and 8 PM the inaccuracies in the report were of significance.  It was arguably incumbent on the tribunal to itself establish the facts in relation to the applicant’s activities in caring for his children, perhaps in particular the youngest child who is likely to have had the most need, rather than implicitly accept what the healthcare professional recorded: as substantial parts were not accepted and objectively there was a significant factual error as to the age of the youngest child, the fact-finding may have been made on an infirm foundation, rendering it essential for the tribunal either to explain why it was prepared to accept all that was written despite the objective error, or why any errors did not matter, or to find its own facts based upon questioning the applicant.

Accordingly I find that there is an arguable error of law and I grant permission to appeal.’

8.	On 21 December 2016 I directed an oral hearing of the appeal.  The oral hearing was first listed for 7 February 2017 but was postponed at the request of Ms Peoples.  The oral hearing itself took place on 16 May 2017.  The appellant was present and was represented by Ms Peoples.  The Department was represented by Mr Kirk.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

	Errors of law

9.	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?

10.	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.”

	The submissions of the parties

11.	In the application for leave to appeal, Ms Peoples made the following submission on behalf of the appellant:

‘An error of law – how the Tribunal panel dealt with (the appellant’s) status as a parent, and failure to note inconsistencies between the two ESA85 reports regarding the ages of his children.’

12.	In his written observations on the application for leave to appeal, Mr Kirk made the following response:

‘Point 1

It is stated that the tribunal has erred in law in how it dealt with (the appellant’s) status as a parent and in its failure to note the inconsistencies in the two ESA85 reports regarding the ages of his children.

As the above essentially refers to two separate issues, I will deal with each issue individually.

(The appellant’s) status as a parent.

With regard to the issue of (the appellant’s) status as a parent I can only assume that the contention being made is that the tribunal erred in finding that (the appellant) actually performed any caring actions for his children.  The record of proceedings for the hearing of 18 January 2016 notes that (the appellant) attended the hearing accompanied by his representative, Ms Siobhan Peoples of Fermanagh Citizens Advice Bureau.  The record of proceedings also records the oral evidence that was put forward by both (the appellant) and Ms Peoples.

I note that the following exchanges are recorded in the record of proceedings at paragraphs 8-10 of page 3, 1-3 of page 4, 5-10 of page 7 and finally 1-6 of page 8:

“Dr Baird

It was noted in the Healthcare Professional’s report that you were able to look after a young child?

(The appellant)

She’s 3-my wife starts work at 3 pm and the children get out of school at 2.30 and between us we manage her.

Legally Qualified Member

What is the child’s date of birth?

(The appellant)

She turned 3 last December.

Dr Baird

So she was aged 2 at the time of the decision.  Were you able to change her nappies?

(The appellant)

She was out of nappies from a year old.  The other children are 13, 10 and 7.  I don’t have to do anything I just have to make sure she comes to no harm.  The children come in from school and my wife has the dinner ready for them.  She goes out to work and the children go out to play and the baby goes with them.

Dr Baird

For how long every day are you the adult responsible for looking after your children?

(The appellant)

From roughly 3pm to 8

Dr Baird

Would you agree that there is both a certain degree of responsibility and physical input required in looking after young children?

(The appellant)

Well, I just can’t get anyone to look after them.  You’re making it sound as if I shouldn’t have children.

Dr Baird

No not at all, but we have to look at your functional abilities in relation to your typical day activities.

Legally Qualified Member

What are your children’s ages?

(The appellant)

13, 10, 7 and 3 now.

Legally Qualified Member

Younger last year?

Miss Peoples

The day we were preparing his appeal he said he thought his youngest child was 4 and seeing the mistakes made in the medical reports makes me wonder about other things too.

Legally Qualified Member

Invites any further submissions in relation to other matters Miss Peoples wants to raise or any other evidence, questions etc.

Miss Peoples

I want to go through the disputed things.  At page 2 of the Medical Healthcare Professional’s report it stated that he has a respiratory problem-he doesn’t-he suffers panic attacks and can’t breathe.  At page 3 it was stated that he drove here today-that’s not correct- his wife drove him.  At page 4 in the description of a typical day it stated that he gets his children out to school every morning-his wife does this.  He was never asked about mobilising around the home or asked if there were 2 steps at the front door-there is a ramp there.  Also washing his hair in the shower was not discussed and he doesn’t change the baby.

Legally Qualified Member

It is noted that you feed the baby every day.  Is that correct?

(The appellant)

She feeds herself.

It is clear from the above that the tribunal did ask (the appellant) about the ages of his children and also enquired as to the amount of supervision and care he provided when he was looking after them every day.  It is important to note that the issue for the tribunal was whether (the appellant’s) condition was such that he would satisfy the work capability assessment.  The reasons for decision run to 4 pages in this case.  Page 1 and paragraphs 1 to 3 of page 2 of the reasons consist of the tribunal’s reiteration of the pertinent evidence in this case.  At paragraph 4 of page 2 and page 3 of the reasons for decision the tribunal stated:

“(The appellant) attended the hearing today and was represented by Miss Peoples of Citizens Advice Bureau who handed in a written submission on his behalf.  He did not provide any further medical or other evidence.  It was asserted in the written submission on his behalf and in evidence to us, that he disputed only activities 1, 2, 13, 15 and 16.  When it was pointed out that his letter of appeal had indicated additional areas of dispute, both (the appellant) and Miss Peoples were adamant that only the activities stated in the submission as noted above were in dispute.  Given that these were also the only activities indicated as causing problems in the self-assessment form, we considered it appropriate to confine our assessment to these areas.  It was also asserted that the Healthcare Professional was cold and distant in her manner and told (the appellant) to answer questions with no other input provided and that many of the details recorded in the report were incorrect, specifically, that (the appellant) did not have a respiratory problem but could not breathe when stressed: that his wife drove him to the examination centre and he did not come alone: that his wife provided care for the children whose ages were not as stated, with his youngest child being 3 not 18 months: that he did not get his children out to school in the morning: that he was not asked about mobilising around the house, washing his hair in the shower or steps at the front door and there was a ramp not steps: that he did not change or feed the baby: that he did not stand for 5 minutes in the shower or sit for an hour to watch TV: that he did not walk normally for 5 minutes every day: that his ability to speak to strangers in shops was not discussed: that a peak flow reading was not taken at examination: that the examination had been light compared to others and that the Healthcare Professional had persisted in banging his knee to test his reflexes.

We have given serious consideration to the above contentions which would if correct, cast significant doubt on the accuracy, reliability and credibility of the Healthcare Professional’s report.  We note that the report was carried out in June 2015 and (the appellant) made no contemporaneous complaint about the Healthcare Professional’s manner, nor about his knee being persistently banged, nor was there any reference to such problems in the letter of appeal.  He had access to the full report from at least October 2015, when the submissions were sent to him by the Department and has made no complaint to either the Department or the Appeals Service about any of the issues raised today regarding the alleged inaccuracies in the report.  We feel that the absence of any timely complaints regarding the perceived conflict or accuracy of the report prior to the appeal hearing tends to undermine (the appellant’s) credibility with regard to these contentions.  Some of the complaints made are demonstrably without foundation, such as the assertion that the examination was  “light” compared to others-the contemporaneous record indicates that the examination took 40 minutes with a further 55 minutes spent in writing up, compared to previous reports in the papers provided (2014 report, 45 minutes examination, 40 minutes writing up, 2013 report 18 minutes examination, 12 minutes writing up).  These figures suggest to us that the 2015 examination was at least as thorough and comprehensive as previous examinations, with no basis for a conclusion that it was “light”.  Also the complaint that the Healthcare Professional had incorrectly attributed a respiratory problem to (the appellant) has no merit to it- (the appellant) himself indicated in his ESA 50 form that he had a lump on his lung and the Healthcare Professional who had access to his ESA 50, properly included it as “other conditions reported” but clarified in relation to his medical history that the information was incorrect and that he had no respiratory problems and no lump on his lung.  (The appellant) is in effect asking us to believe that the Healthcare Professional has, after recording essentially correctly the details of his conditions and treatment, then fabricated an inaccurate and misleading account of what was said and done at examination, including fabricating a peak flow reading.  Taking all of the above circumstances into consideration we do not find (the appellant’s) contentions credible and we believe that the Healthcare Professional has accurately recorded details, not only of the conditions (the appellant) suffers from and their treatment, but also of the circumstances at examination and his typical daily activities as reported; we further accept that the Healthcare Professional has carried out appropriate and thorough physical and mental health examinations and reached conclusions based on findings at examination, the typical daily activities noted and the history, management and treatment of his various conditions.  Those conclusions were that (the appellant) has no significant functional limitations in either physical or mental activities within the scope of the Work Capability Assessment, nor were any of the exceptional circumstances criteria applicable to him.

In the first paragraph above the tribunal has I submit set out the details of (the appellant’s) complaints regarding the HCP’s report.  In the second paragraph the tribunal has set out its reasoning for rejecting the complaints regarding the HCP’s report.  In addition the tribunal has clearly explained why it accepted the record of daily activities as noted in that report.  In this case those daily activities included the fact that (the appellant) was involved in caring for and supervision his children.  A tribunal is entitled to accept or reject evidence as long as it gives it reasons for doing so.  In the present case the tribunal has I submit clearly explained why it did not accept the contended complaints regarding the Healthcare Professional’s report.  In accepting that evidence the tribunal has also clearly accepted that (the appellant) was involved in performing some caring activities for his children.  That is a finding that the tribunal was entitled to reach.

It is also stated that the tribunal erred in failing to note the inconsistencies in the two ESA85 reports regarding the ages of his children.

As I have previously stated the hearing of 18 January 2016 was an oral hearing and (the appellant) was represented at that hearing by Ms Peoples of Fermanagh Citizens Advice Bureau.  I have reproduced much of the oral evidence put forward by both Ms Peoples and (the appellant) in the previous point.  I note that at paragraphs 4 and 5 of page 8 of the reasons (reproduced above) The Legally Qualified Panel Member invited Miss Peoples to make any further submissions in topics she considered to be pertinent.  Miss Peoples responded by raising certain issues yet she made no reference to any discrepancies regarding the ages of the children as recorded in either of the ESA85 reports.  In addition at paragraph 5 of page 9 of the reasons the Legally Qualified Panel Member invited further comments and it is noted that nothing further was added.

For completeness sake I have considered the information regarding the children as contained in the ESA 85 reports.  The first examination was conducted on 22 October 2014 and at page 3 of that report the children’s ages are noted as 12, 9, 5 and 2.  The second examination was conducted on 30 June 2015 and at page 4 of that report the children’s ages are recoded as being 13,10,6 and 18 months.  Before considering this issue I would like to point out that in those pages of the reports the Healthcare Professional is recording the evidence given to them by (the appellant).

I believe that it is the child being noted as 18 months that Miss Peoples is referring to.  The first point I would make is that the other children’s ages are consistent in that the second report was conducted some 8 months after the first report so it is not unusual to see the children being noted as 1 year older.  In contrast the youngest child is actually younger in the second report than they were in the first report.  As noted previously the evidence contained in the ESA 85 report pages is evidence that is given to the HCP by (the appellant).  It is also important to note that the youngest child could at most have been 28 months old at the date of the second examination (I make that comment because I note that (the appellant) in his oral evidence to the tribunal as recorded above stated that the youngest child’s birthday was in December).  It is also important to note that in the oral evidence submitted that the tribunal accepted that (the appellant’s) youngest child was aged 2 at the date of the decision under appeal i.e. 23 August 2015.  Therefore the tribunal did not consider the child to be aged 18 months as detailed in the HCP’s report but was rather of the opinion that the child was aged 2 at the time of that report.

Therefore it is not correct to state that the tribunal had not addressed this issue.  It is correct to state that the tribunal make no reference to this issue in its reasons for decision apart from mentioning it at paragraph 4 of page 2 of the reasons.  However this is not in itself an error by the tribunal.  The issue for the tribunal was whether (the appellant) had limited capability for work.  The tribunal clearly accepted that the HCP’s report did indicate that (the appellant) did not demonstrate limited capability for work and that was the finding it had to reach.  There was I submit no need for the tribunal to make any more findings regarding the age of (the appellant’s) youngest child as it had explored this issue in the oral evidence.

For the reasons stated above I submit that the tribunal has not erred as contended and that there is no merit in either of the grounds of appeal raised.’

13.	In her Case Summary, provided in advance of the oral hearing, Ms Peoples made the following additional submissions:

‘…

At the Tribunal Hearing, the Medically Qualified Member questioned (the appellant) at length but did return several times to the issue of the children needing care.  (The appellant) was very upset at this point of the tribunal hearing as he felt that his role as a parent/entitlement to be a parent was being questioned because he was disputing a benefit decision.  He did directly ask the Panel if they were stating he was not entitled to have children because he was unwell.  (The appellant) became unwell after the birth of his youngest child.

It is submitted the Tribunal erred in law in that they were unable to look at the 5 no. activities 1, 2, 13, 15 and 16 independently as a Tribunal should without being influenced by the fact that (the appellant) is the parent of 4 no. children.  By their decision, they interpreted (the appellant) would not have any difficulties with these activities because of his status as a parent.’

	Analysis

14.	There are three principal matters which I am required to explore.  The first is the submission made by Ms Peoples concerning the manner in which the appeal tribunal addressed the appellant’s evidence concerning the age of his children and the extent to which he was involved in the care of those children.  More significantly, Ms Peoples submitted that the appeal tribunal, in its reasoning on the issues arising in the appeal, particularly the potential applicability of certain of the activities and descriptors in Part 2 of Schedule 2 to the Employment and Support Regulations (Northern Ireland) 2008, as amended, (‘the mental, cognitive and intellectual function assessment’) placed an undue emphasis on the appellant’s ability to care for his children, particularly his youngest child.  Ms Peoples submitted that in making an assessment as to whether the Schedule 2, Part 2 activities and descriptors did apply, it was improper to take into account whether a claimant had caring responsibilities, particularly for a very young child.  In her view, the fact that a claimant is a parent with young children should not influence whether particular activities or descriptors should apply.  Ms Peoples asserted that during the course of the oral hearing the appeal tribunal kept returning to the issue of the appellant’s caring responsibilities.

15.	Looking at the record of proceedings for the appeal tribunal hearing, it has to be accepted that the appeal tribunal did question the appellant about his children, their ages and the extent to which he was involved in their care.  It also has to be conceded that the issue was raised by the LQPM and the Medically Qualified Panel Member (MQPM) on more than one occasion which, in my view, could reasonably lead to a conclusion that there was an over-emphasis on this particular aspect of the appellant’s day-to-day living.  I note that the appellant is recorded in the record of proceedings as replying to one question from the MQPM:

‘Well, I just can’t get anyone to look after them.  You’re making it sound as if I shouldn’t have children.’

16.	That slight degree of exasperation is, in my view, understandable.  Nonetheless, when one looks at the statement of reasons for the appeal tribunal’s decision, it is clear that any confusion about the ages of the appellant’s children and the extent to which the appellant was involved with their care, did not play a significant part in the appeal tribunal’s reasoning.  Further, and with respect to Ms Peoples, I do not accept that the appeal tribunal placed an undue emphasis on this evidence.

17.	In its summary of a report of an examination conducted by a healthcare professional on 30 June 2015, the appeal tribunal has made reference to the healthcare professional having recorded that the appellant:

‘… lived with his family and cared for 4 children aged 18 months to 13 years.  A description of his typical day indicated that he would get to bed around 11 pm, get himself and his children up in the morning and get his children out to school … care for his children every day when his wife was at work from around 2 pm till night time, including changing and feeding the baby, heat microwave meals for himself and the children …’

18.	That section of the statement of reasons is, however, no more than the appeal tribunal abridging what the healthcare professional had recorded.

19.	It is important to note, however, that the appellant challenged the contents of the report of the examination conducted by the healthcare professional.  I accept the submission made by Ms Peoples that in her pre-tribunal hearing consultation with the appellant, he was ‘extremely upset’ as to the contents of the examination report, that he had a clear recollection of what was said and done at the examination and that his dissatisfaction at the tenor and substance of the report was the basis of the submission which she had made to the appeal tribunal.  Nonetheless, and as will be noted in greater detail below, I am satisfied that the appeal tribunal both noted and addressed, in a rigorous manner, the concerns about the report including the issues which the appellant had raised about the ages of his children and the extent to which he was responsible for their care.  To repeat, therefore, I cannot accept that the appeal tribunal’s reasoning was unduly influenced by any confusion as to the ages of the appellant’s children or his caring responsibilities for them.

20.	I would add, in addition, that Ms Peoples conceded, at the oral hearing before me, that even she was confused about the age of the appellant’s youngest child.

21.	The second issue is linked to the first.  Ms Peoples submitted that the uncertainty of the ages of the appellant’s children was but one error in the content of the report of the examination conducted by the healthcare professional.  Further, she submitted that the appellant had clear concerns about the manner in which the examination had been conducted and was of the view that it was different to two other parallel examinations which had been conducted by other healthcare professionals.  Finally, in respect of this issue, Ms Peoples asserted that the appeal tribunal had relied on the content of the report of the examination conducted by the healthcare professional on 30 June 2015 without addressing the submitted errors therein and the inconsistencies between the content of that report, and the manner in which the examination had been conducted, and the substance of the earlier reports.

22.	Once again, and with respect to the submissions which have been made by Ms Peoples, I cannot accept them.  Looking at the record of proceedings for the appeal tribunal hearing it is clear that both the appellant and Ms Peoples were given every opportunity to outline their concerns with the relevant report.  It cannot be said, therefore, that those concerns were not addressed and recorded.  More fundamentally, however, in a significant section of the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has, in a rigorous and painstaking manner set out those concerns and addressed them.  The appeal tribunal stated that it had given ‘serious concern’ to the challenges to the report but had, for the detailed and careful reasons which it had set out, dismissed those challenges as lacking in substance and without foundation.  I cannot accept, therefore, that the decision of the appeal tribunal was in error of law on the basis of this submitted ground.

23.	I would add that during the course of the oral hearing Mr Kirk noted that the appeal tribunal had recorded in its statement of reasons, in a summary of the claim and adjudication history that:

‘(The appellant) had been awarded Employment and Support Allowance from 26.03.2014 when he was suffering from back pain and depression.  During the course of his claim he was examined by a Healthcare Professional on 22.10.2014 when he was found to have no significant functional limitations in mental or physical activities and did not come within any of the scoring descriptors in the Work Capability Assessment.  However, in view of the an impending biopsy, it was thought there could be a substantial risk to his physical health if he were not found to have limited capability for work until investigations were complete.  A Healthcare Professional considering the matter afresh on 09.02.2015 on the basis of documentation, reached the same conclusions but also gave a prognosis that work could be considered within 3 months.’

24.	Mr Kirk made the perfectly valid point that the conclusions of the healthcare professional in the report of the examination conducted on 26 March 2014, namely that the appellant had no significant functional limitations in mental or physical activities were entirely in keeping with and not at all inconsistent with the conclusion of the healthcare professional in the report of the examination conducted on 30 June 2015.

25.	The final issue which I have to address is the ground on which leave to appeal was granted by the Deputy Social Security Commissioner in this case.  As was noted above, the Deputy Commissioner determined that:

‘The tribunal arguably accorded inordinate weight to the failure of the applicant to make an official complaint about inaccuracies in the report of the healthcare professional.  No questions are recorded asking why such a complaint was not made, and it seems not unlikely that the applicant thought these matters were to be dealt with at the appeal.  There is no legal requirement for a complaint to be made in tandem with an appeal, and it seems to me arguable error of law to treat the absence of a formal complaint as a significant credibility pointer.’

26.	It has to be accepted that in the statement of reasons for its decision the appeal tribunal has stated that:

‘We feel that the absence of any timely complaint regarding the perceived conflict or accuracy of the report prior to the appeal tribunal, tends to undermine (the appellant’s) credibility with regard to these contentions.’

27.	During the course of the oral hearing before me, Ms Peoples made the wholly reasonable submission that official complaint procedures are not readily publicised to claimants and that, in any event, many claimants are very reluctant to make an official complaint in case it affects their ongoing benefit claims or appeals.  I also accept her additional point that by the time a claimant consults with her about an appeal, it is often too late to make a complaint, as the emphasis by that stage is on the appeal to a wholly independent body.

28.	As the Deputy Commissioner observed, the issue is a narrow one but I am of the view that if the appeal tribunal’s reasoning had stopped with the statement on credibility set out above, and if this was as far as the appeal tribunal had gone in its reasoning on the substantive issues arising in the appeal, then I would have agreed that its decision was in error of law.  It is the case, however, that the appeal tribunal’s reasoning did not stop there.  It went on to set out why, it had concluded that the appellant did not have limited capability for work in accordance with the work capability assessment and in any event, it concluded that the challenges which the appellant was making about the contents of the report, and the manner in which the examination had been conducted, were without substance.  That latter analysis and reasoning had nothing to do with the appellant’s credibility.  Accordingly, I cannot accept that the decision of the appeal tribunal is in error of law on the basis on which leave to appeal was granted.

	Disposal

29.	The decision of the appeal tribunal dated 18 January 2016 is not in error of law.  Accordingly the appeal tribunal’s decision that (i) grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 26 March 2014 and (ii) the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 23 August 2015, is confirmed.

(signed):  K Mullan

Chief Commissioner

9 November 2017