PM-v-Department for Communities (PIP) [2018] NICom 27

Decision No:  C7/17-18(PIP)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

PERSONAL INDEPENDENCE PAYMENT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 6 April 2017

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 6 April 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. 

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 her entitlement to Personal Independence Payment (PIP) 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.	On 6 October 2016 a decision maker of the Department decided that the appellant was not entitled to PIP from and including 8 July 2016. Following a request to that effect and the receipt of correspondence from the appellant’s parents, the decision dated 6 October 2016 was reconsidered on 18 November 2016 but was not changed.  An appeal against the decision dated 6 October 2016 was received in the Department on 15 December 2016.

6.	The appeal tribunal hearing took place on 6 April 2017. The appellant was present and was represented by Ms Williams of the Citizens Advice organisation.  There was a Departmental Presenting Officer present.  The appeal tribunal allowed the appeal in part making an award of entitlement to the standard rate of the daily living component of PIP for a fixed period from 8 July 2016 to 7 July 2018 but disallowing entitlement to the mobility component. 

7.	On 1 July 2017 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (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 7 August 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 24 August 2017 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 22 September 2017, Mr Donnelly, for DMS, supported the application for leave to appeal on one of the grounds advanced on behalf of the appellant.  Written observations were shared with the appellant and Ms Williams on 25 September 2017. 

9.	On 9 May 2018 I granted leave to appeal.  When granting leave to appeal I gave as a reason that it was arguable that the appeal tribunal’s reasons were inadequate to explain how it addressed an issue raised by the appeal.  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

10.	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?

11.	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

12.	In the application for leave to appeal, Ms Williams submitted that the decision of the appeal tribunal was in error of law on the basis that it had failed to consider activities 2 and 3 in Schedule 1 to the Personal Independence Payment Regulations (Northern Ireland) 2016 (‘the 2016 Regulations’).  More particularly, Ms Williams submitted that there was evidence that the appellant required prompting to take nutrition and given her body weight, it was evident that she did not take adequate nutrition even with prompting.  Further, the appellant required prompting to take medication with evidence that she would not take medication for days and then become ill.

13.	In his written observations on the application for leave to appeal, Mr Donnelly made the following submissions:

‘The application for leave to appeal contends that the Tribunal failed to consider the activity for taking nutrition, noting that the appellant requires prompting. It also refers to the appellant’s bodyweight, and highlights that this is evidence of inadequate nutrition.

Activity 2 of the Personal Independence Payment (PIP) Daily Living Activities relates to Taking Nutrition. This activity considers a person’s ability to be nourished, either by cutting food into pieces, conveying it to the mouth and chewing and swallowing; or through the use of therapeutic sources.
In the current case, the Tribunal awarded 0 points for this activity, despite the history of this case where one of the main factors of the appellant’s medical condition is a reluctance to ingest food.  In her claim form completed in August 2016, the appellant makes numerous contentions that relate to the activity of taking nutrition.  At page 11 she refers to severe gastric problems, depression, pain and acid reflux, as well as regular bouts of vomiting and diarrhoea.  She states that she does not feel the need to cook, and feels anxious at the thought of it.  She further refers to needing the support of her family just to eat a meal.  Further here and at page 12, the appellant refers to her depression, fear and tension resulting from this condition.

In a letter dated 13 November 2016, the appellant’s parents requested a reconsideration of the departmental decision and wrote in support of her claim.  The letter describes her weight loss, becoming socially withdrawn and how they have to prepare food and bring it to her to ensure she eats.  Further reference is made to her overall health, lack of motivation and support that she requires.

In the record of proceedings, the Tribunal has noted extracts from the GP records.  Included in this are references to her struggles with eating and vomiting, low weight, anxiety and more.  These records are from as far back as 2012 and appear to support the contentions made by the appellant.  As such I submit that there was a clear duty on the Tribunal to investigate this issue and offer relevant findings.  I submit that the Tribunal has failed to adequately do this.

At page 2 of the reasons for decision, activity 2 is addressed, albeit briefly. 

The Tribunal noted that the Appellant was able to eat the food prepared by her mother on days that it was brought over for her, on other occasions, she indicated that she could take cereal and make sandwiches for herself during the day.  The Tribunal did not believe that she needed prompting to be able to take nutrition, she was able to cut food into pieces and she was able to convey food and drink to her mouth and chew and swallow the food and drink.  She told the Health Care Professional that she had 3 small meals a day.  She also indicated that she could cut, peel and chop raw vegetables and prepare a meal from the start but lacked the motivation to do so.  The Tribunal did not believe that she needed encouragement in the circumstances to cut food into pieces, convey food and drink to her mouth and to chew and swallow food or drink she had taken. 

I submit that the Tribunal has failed to adequately address both the appellant’s mental and physical conditions and how they affect her in relation to this activity.  The issue of depression and overall mental health has not been addressed, despite the clear contentions made.  Further, despite as detailed history of vomiting and other physical symptoms, the Tribunal has failed to consider this issue. 

As such I submit that the Tribunal has made a material error by failing to offer adequate reasons, and therefore I support this ground of appeal.

The application for leave to appeal contends that the Tribunal failed to consider the activity for prompting to take medication.  It notes that the appellant would not take her medication for days then become sick.

Activity 3 of the Personal Independence Payment (PIP) Daily Living Activities relates to Managing Therapy or Monitoring a Health Condition.  This activity considers a claimant’s ability to appropriately take medications, monitor and detect changes in a health condition and manage therapeutic activities.

The Tribunal addressed the issue of nutrition at page 2 of the reasons for decision:

“In relation to the activity for managing therapy or monitoring a health condition, the Tribunal did not believe that an award of points was merited in respect of this activity.  The Tribunal did not believe that she needed supervision from or assistance to be able to manage therapy that takes no more than 3.5 hours per day.  She had told the Health Care Professional that she managed her own medication but on the odd occasion may forget medication for example a couple of days per week.  She took one stomach tablet in the morning and one in the afternoon and she told the Tribunal that the odd day she may forget to take it.  However that the Tribunal believed that this was only the odd occasion and the requisite time period in respect of the qualification for an award of points in this activity had not been satisfied.”

I submit that based on the above extract, the Tribunal has adequately considered the issue of the appellant requiring prompting to take her medication.  The Tribunal noted her comments that she may forget to take a tablet on “the odd day”, but did not consider that this met the test for an award of any points based on the descriptors in activity 3 of the (PIP) Daily Living Activities.

As such I submit that there is no merit in this ground of appeal.’

	Analysis

14.	As was noted above one of the issues raised in this appeal is the potential applicability of descriptor 2(d) in Part 2 of Schedule 1 to the 2016 Regulations.  The equivalent descriptor in Great Britain, found in Part 2 of Schedule 1 to the Personal Independence Payment Regulations 2013 (‘the 2013 Regulations’), was considered, albeit in an indirect way, by Upper Tribunal Judge Wright in MM and BJ v Secretary of State for Work and Pensions (PIP) ([2017] AACR 17) (‘MM and BJ’). 

15.	What Judge Wright had to say about descriptor 2(d) can only be understood in the context of the principal issue which was before him which related to the meaning of ‘taking nutrition’ in activity 2 to the 2013 Regulations. Judge Wright noted the definition of ‘take nutrition’ in Part 1 of Schedule 1 to the 2013 Regulations which was:

‘“take nutrition” means— 

(a)	cut food into pieces, convey food and drink to one’s mouth and chew and swallow food and drink; or 

(b)	take nutrition by using a therapeutic source;’

16.	He concluded, in paragraphs 24 and 25 that the wording “take nutrition” had a limited and narrow statutory meaning which focused on the act of eating and drinking and no more – namely, cutting food into pieces, conveying food and drink to the mouth and chewing and swallowing food or drink.  Therefore, any enquiry under the PIP legislative scheme had to be on whether a person’s ability to carry out these activities was limited by their physical or mental condition, and not the nutritious quality of what was being eaten or drunk – which was irrelevant under the scheme. Accordingly, any reliance on the “acceptable standard” provision in regulation 4(2A) of the 2013 Regulations so as to bring the nutritious quality of food or drink into account was flawed because what had to be assessed was the claimant’s ability to eat and drink in the statutorily limited sense of cutting food into pieces, conveying food and drink to the mouth and chewing and swallowing food or drink. 

	Judge Wright considered the decision of Upper Tribunal Judge Mark in SA v Secretary of State for Work and Pensions (PIP) ([2015] UKUT 512 (AAC) (‘SA’)). He stated, at paragraph 34:

‘It follows from what I have said above that if what was said in SA, about “[l]iving on soup and coffee, even with the occasional sandwich, cannot be seen as taking nutrition to an acceptable standard”, and the later statement in the same paragraph of that decision that the claimant “would still need encouragement to eat properly even if somebody else had done the cooking”, was ruling that the nutritious quality of food fell within the scope of “taking nutrition” under activity 2 then I respectfully disagree with it and would decline to follow SA. I have had the advantage, which as far as I can tell Judge Mark did not in SA, of contested argument, and at an oral hearing, on the meaning of activity 2 and have arrived at my decision with the benefit of that input.’

17.	In his own cases, Judge Wright had the following to say about activity 2(d) in paragraph 28 of his decision:

‘Likewise, if the focus is on satisfying, say, descriptor 2d, the analysis still has to be, on the statutory wording, on needing prompting to be able to “cut food in to pieces, convey food and drink to one’s mouth and chew and swallow food or drink” to an acceptable standard.  The content of the food and drink is irrelevant.  It is the actions involved in eating and drinking that have to be to an acceptable standard and not the food and drink consumed.’

18.	On the facts of one the cases which was before him, Judge Wright concluded, in paragraph 40:

‘BJ’s case, as I have already highlighted, was argued by Mr Gee on the basis BJ met descriptor 2d because he needed to be prompted to eat sensibly and nutritiously. For the reasons given above, those considerations are legally irrelevant to whether descriptor 2d is satisfied. Once that point falls away it seems to me that the First-tier Tribunal was entitled on the evidence before it to conclude that BJ was physically able to carry out the acts of eating and drinking encompassed in the definition of “taking nutrition” under the PIP Regulations and did not need to be prompted to carry out those acts. The focus of the evidence presented on his behalf to the First-tier Tribunal was on BJ needing to be prompted to prepare meals for himself and “eating properly” (ie eat nutritious food), rather than on his needing to be prompted to eat food when it was in front of him. This together with the evidence he gave to the health care professional – Ms Atkin – that he could prepare himself sandwiches (which I infer showed he had the ability to cut up food without prompting) and had no problems eating was sufficient to justify the First-tier Tribunal’s finding that no point scoring descriptor under activity 2 in Schedule 1 to the PIP Regulations was satisfied.’

19.	Returning to SA, he added:

‘… even though Judge Mark found SA was entitled to the standard rate of the daily living component of PIP because she satisfied descriptor 2d under the “taking nutrition” activity in the PIP Regulations (as well as other scoring descriptors), it is arguable on one reading of the decision that he did so because SA needed to be prompted to carry out the acts of eating even when she had nutritious food in front of her. In other words, the decision turned on SA needing to be prompted to eat any food and so the comments in it about taking nutrition to an acceptable standard were obiter (that is, not necessary to the decision arrived at).

… it may be that what Judge Mark was concerned with on the facts of the case in front of him was that the claimant, without encouragement and prompting, would not cut food into pieces and then eat but instead mainly existed on liquid foods (soup), and a liquid only diet would not satisfy the statutory definition of “take nutrition” in the PIP scheme.  If that is the essential force of the analysis underpinning the decision in SA, I would agree with it because the statutory test includes having the mental and physical ability to cut food into pieces and so if a person cannot carry out this act without prompting or supervision then they should score points under activity 2.’

20.	The decisions in MM and BJ are reported decisions of the Administrative Appeals Chamber of the Upper Tribunal and address legislative provisions in Great Britain which have a direct equivalence in Northern Ireland.  I adopt and accept the reasoning and analysis of Judge Wright, which, in my view, properly reflects the law in Northern Ireland.

21.	Turning to the facts of the instant case, there is a very strong argument that the appeal tribunal, while not making any reference to the decisions in MM and BJ had the proper test in mind.  As noted above, there is a reference in the statement of reasons for the appeal tribunal’s decision to an ability to cut food into pieces, convey food and drink to the mouth and chew and swallow food and drink.  The issue is marginal but I do accept that there was further evidence, including weight loss, vomiting and anxiety and depression which the appeal tribunal has failed to address when it was required to do so in the context of the potential application of descriptor 2(d).  With a degree of reluctance, therefore, I agree that the decision of the appeal tribunal is in error of law on this submitted ground.

22.	I would add that I also agree with Mr Donnelly that the appeal tribunal did not err in the manner in which it addressed the potential application of activity 3 in Part 2 of Schedule 1 to the 2016 Regulations.

	Disposal 
 
23.	The decision of the appeal tribunal dated 6 April 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. 

24.	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 6 October 2016, which decided that the applicant was not entitled to PIP from and including 8 July 2016;

(ii)	the Department is directed to provide details of any subsequent claims to PIP and the outcome of any such claims to the appeal tribunal to which the appeal is being referred;

(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

22 June 2018