TMcG-v-Department for Communities (ESA) [2018] NICom 19

Decision No:  C27/17-18(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 21 March 2017

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 21 March 2017 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.  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.

3.	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

4.	On 5 April 2016 a decision maker of the Department decided that the appellant was not entitled to ESA from and including 27 March 2015.  Following a request to that effect from the appellant’s solicitor, the decision dated 5 April 2016 was reconsidered on 4 May 2016 but was not changed.

5.	An appeal against the decision dated 5 April 2016 was received in the Department on 5 May 2016.

6.	Following an earlier adjournment, the substantive appeal tribunal hearing took place on 21 March 2017.  The appellant was present and was accompanied by his ex-wife.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 5 April 2016.  The appellant was provided with a copy of the statement of reasons for the appeal tribunal’s decision on 14 June 2017.

7.	On 13 July 2017 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 20 July 2017 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

8.	On 21 August 2017 a further application for leave to appeal was received in the office of the Social Security Commissioners.  On 5 September 2017 observations on the application for leave to appeal were requested from Decision Making Service (‘DMS’).  In written observations dated 5 October 2017, Ms O’Connor, for DMS, opposed the application for leave to appeal on the grounds identified by the appellant but supported the application for leave to appeal on other identified grounds.

9.	The written observations were shared with the appellant on 11 October 2017.  There has been no further response from the appellant.

10.	On 7 February 2018 I granted leave to appeal.  When granting leave to appeal I gave as a reason that I accepted that the submissions which had been made by Ms O’Connor in her written observations of 5 October 2017 were arguable.

	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 her constructive written observations on the application for leave to appeal, Ms O’Connor made the following submissions:

‘Reasons for Decision

The Statement of Reasons shows that the Tribunal had considered the arguments put forward by both (the appellant) and … at the hearing and the Department’s argument including the appeal response and the ESA medical report.  Having considered the “totality of the evidence” the Tribunal “was in no doubt whatsoever that between 2 November 2012 and 15 April 2016, the Appellant and his wife … were living together as husband and wife at …  The Tribunal noted in particular, and placed great reliance upon it, the Employment and Support Allowance medical report.”

The Tribunal noted that the medical examination had taken place on 18th April 2013, only 5 months after (the appellant) had moved into … house.  They noted that the Health Care Professional had stated that (the appellant) had confirmed that he had travelled to the examination centre with his wife, that he lived with his wife, his wife had helped him in and out of the shower, helped him to put on his socks, shoes and upper garments and that she did the housework and cooking.  The LQM noted that (the appellant) had stated at the appeal hearing that “there may well have been a misunderstanding in terms of the evidence he gave to the Health Care Professional.  However this evidence was in some way corroborated by Mrs D McG at hearing” ie with tying laces, washing his feet in the shower, with putting on upper clothing and helping with the preparation of potatoes.

The Statement of Reasons continues that “The Tribunal, simply could not ignore the evidence contained in the medical report….If the evidence contained therein was not correct ie the suggestions by the Appellant therein that he was living with his wife at this time, then the Tribunal had to conclude that they were either misrepresented by the Health Care Professional or quite simply the Appellant did not tell the Health Care Professional the truth on that occasion.”  

As well as considering the evidence, the medical report and the arguments proffered by the Department and (the appellant) and … , the Tribunal in making its decision considered the opinion of Justice Wolff in the case of Crake 1982 with regard to the evidence to be considered when considering whether two people are considered to be living together as husband and wife.

The Tribunal noted that there “seemed to be some stability in the relationship” since they both lived under the “same roof:”  He felt that they “seem to cook together and his wife provided assistance to him in terms of emotional support and support in terms of washing and showering for example.”  The Tribunal also believed that “they were emotionally together, there appeared to be a stable and loving and caring relationship between them during the period which was not intended to be a temporary arrangement, this only ended when the Appellant moved out to a different property when his benefit was stopped.  There seemed to be a strong element of personal attachment and devotion to one another and there was no nature of a casual or transitory nature to the relationship….The Appellant’s wife was clearly willing to care for and look after the Appellant given his incapacity at the relevant time.”  The Tribunal concluded that the Department was “correct in revising that decision to decide that he was not entitled to it (ESA) from 27 March 2015 as between that date and 15 April 2016, he and his wife had been living together as husband and wife at …”

…

I will now move to the actual legal test that the Tribunal applied to the issues in this appeal. Regulation 2 of The Employment and Support Allowance Regulations (NI) 2008 states:

2.—(1) In these Regulations—

“couple” means—

(a) a man and woman who are married to each other and are members of the same household;

(b) a man and woman who are not married to each other but are living together as husband and wife;

(c) two people of the same sex who are civil partners of each other and are members of the same household; or

(d) two people of the same sex who are not civil partners of each other but are living together as if they were civil partners,

and for the purposes of paragraph (d), 2 people of the same sex are to be regarded as living together as if they were civil partners if, but only if, they would be regarded as living together as husband and wife were they instead 2 people of the opposite sex;

From this legislative interpretation of the term “couple” it would appear that the only question that needs to be considered when two people are actually married and living under the same roof is whether they are “members of the same household.”  The terms “household” and “members of the same household” are not defined in legislation as postulated by Commissioner Mitchell in the reported decision R(SB)4/83 and must therefore be given their “normal everyday meaning.”  The Commissioner stated at paragraph 19 “…it is undesirable that I should here attempt my own definitions- and I do not do so.  It is a matter of common-sense and common experience.”

This then brings me to the unreported Northern Ireland decision C1/16-17 (TC), one of the principles of which is that the “Living Together as Husband and Wife” test cannot apply to persons who are married to each other.  At paragraph 11 of the decision it is stated that “as the claimant and Mr D are undeniably still married, I submit that HMRC failed to fully appreciate the distinction between the tests applied to married and unmarried couples and as such, their reasoning and subsequent response is flawed.”  In this case it was asserted that the Tribunal had erred in law “by virtue of applying undue consideration to the wrong legal test…I reiterate that the claimant and Mr D are not living together in circumstances akin to those of a husband and wife; upon the claimant’s evidence, they are husband and wife.”  Although Tax Credits are not a benefit I believe that the principles regarding “living together” matters are the same as they are for benefit purposes.

In the instant case there is no dispute that (the appellant) and … are a married couple.  The test that therefore needs to be applied is not whether they are living together as husband and wife but whether they are members of the same household.  The Tribunal’s main emphasis does appear to be on the “living together as husband and wife” aspect in the present case.  Having said that, it stands to reason that no matter which of the two tests is to be applied to a case, consideration does need to be given to similar issues to varying degrees.  This could explain why the Tribunal continually makes reference to the term “living together as husband and wife” throughout the Reasons for Decision.  It is therefore arguable, in my opinion, that the Tribunal has applied the wrong legal test to the issues arising in the appeal.

I am now going to turn to the Department’s decision making, which is after all what led the Tribunal in its approach.  A “living together as husband and wife” determination alone is not a reason to disallow a claim.  There must be further evidence to support the subsequent disallowance decision such as the alleged partner was engaged in remunerative work or had capital in excess of the prescribed amount.

In the determination dated 31st March 2016 the decision maker has stated that “I have determined on the balance of probabilities that (the appellant) and … are a married couple who are members of the same household since 02/11/2012.”  The decision maker mentioned briefly in the narrative that (the appellant) had been asked to provide proof that he was legally separated ((The appellant) had asserted in form CP2 completed on 21/03/16 that he and his wife were “legally separated”) and then added that (the appellant) had confirmed in a phone call he had made on 31/03/16 that the separation was not legal.

The disallowance that was issued to (the appellant) on 5th April 2016, after the award was disallowed on the ESA computer system, stated that he had been “found to be living together as husband and wife and further information is required to consider an award of Income Related ESA.”  The inference is that his award is being disallowed because of the living together determination and because he has failed to provide further information.  I have no idea what this information would be: the decision maker has already highlighted that (the appellant) had confirmed there was no legal separation and hence it was known that evidence he was asked to provide (of the legal separation) does not exist.  There is nothing in the paperwork to suggest that (the appellant) was asked to provide any other information anyway.

I am therefore confused as to the grounds on which (the appellant’s) ESA was disallowed.  It cannot be because he was being treated as “living together” for the reasons I have mentioned in paragraph 54 above: it is not mentioned in the determination or disallowance notice that the disallowance was on the grounds that he was found to be living together and that (as it turns out) his wife was working 24 hours or more a week.

To add to this confusion there is another determination that was completed on 22nd April 2016 (I previously mentioned this in paragraphs 13 and 14) which states that “I have determined that (the appellant) and … are a married couple who are members of the same household since 02.11.2012 – 14.04.16.”  As I mentioned, this determination as it turns out, is a JSA determination although this fact is not explicitly stated anywhere.

The dates quoted in this JSA determination confusingly overlap with the dates that (the appellant) was on ESA ie the dates that he was found to be living together (supposedly for the purposes of JSA) were 2nd November 2012 to 14th April 2016 yet he was claiming ESA from 27th March 2015.  This may account for why (the appellant) stated on the form requesting leave to appeal to the Commissioner on 17/08/17 that “the dates are completely wrong.  I wasn’t even claiming ESA at the time the Dept said I was.”  I am of the opinion, because of the way the JSA determination is worded and also because I was initially confused and mistaken myself (about what benefit this determination was relevant to) that the Tribunal may have been under the impression that this was a ESA determination.  Its decision on the appeal could therefore have been influenced, in part anyway, by what it mistakenly thought was a ESA determination but which in fact was a JSA determination.

Over and above these technical matters I contend that the Department has made its decision based on scant information and evidence.  I do recognize that decision making on “living together” cases is largely based on limited evidence and relies heavily on inference and “on the balance of probabilities.”  I feel however that in this case an attempt to obtain further information, other than that solely found in the medical report and the CP2 forms, should have been made so that a more balanced decision based on fewer unknowns and inconsistencies could have been reached.

For the reasons explained I would submit that the Tribunal has failed in its inquisitorial role.  There are several instances where there is either contradictory or insufficient evidence on which to base a decision, yet the Tribunal has proceeded without questioning the principle people who were both in attendance at the hearing.

Furthermore, it is arguable that the Tribunal has applied the wrong legal test to the case.  As (the appellant) and … are undeniably still married I submit that, to quote from paragraph 11 of the aforementioned unreported NI decision C1/16-17 (TC), the Tribunal has “failed to fully appreciate the distinction between the tests applied to married and unmarried couples and as such, their reasoning and subsequent response is flawed.”

Finally, I am also of the opinion that the Department’s decision making on the case is flawed and that even if it is decided that the correct legal test has been applied the Tribunal has been asked to make a decision on an appeal in a case where the determinations fail to use correct terminology, have incorrect dates and in which the Department has used scant information to make their decision.’

14.	I accept Ms O’Connor’s analysis and for the reasons which she has set out agree that the decision of the appeal tribunal is in error of law.  The principles set out in KD-v-HMRC (TC) ([2016] NICom 56, C1/16-17(TC)) have never been doubted.

	Disposal

15.	The decision of the appeal tribunal dated 21 March 2017 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.

16.	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 5 April 2016 in which a decision maker of the Department decided that the appellant was not entitled to ESA from and including 27 March 2015.

	(ii)	The appeal is to be listed as an oral hearing.

	(iii)	The Department is to prepare a new submission for the appeal tribunal hearing.  The submission should draw on the analysis undertaken by Ms O’Connor for the proceedings before the Social Security commissioner and as outlined above.

	(iv)	On receipt of the submission from the Department the appellant may wish to prepare his own submission in response.

	(v)	The Department is directed to provide details of any subsequent claims to ESA and the outcome of any such claims 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).

	(vi)	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

23 May 2018