CB-v-Department for Communities (ESA) [2018] NICom 33

Decision No:  C24/17-18(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 16 June 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 16 June 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.	On 11 February 2016 a decision maker of the Department decided that: 

		(i) grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 22 September 2014; and

		(ii) the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 11 February 2016.

6.	An appeal against the decision dated 11 February 2016 was received in the Department on 11 March 2016.  On 4 May 2016 the decision dated 11 February 2016 was reconsidered but was not changed.

7.	The appeal tribunal hearing took place on 16 June 2016.  The appellant was present and was represented by Ms Williams of the Citizens Advice organisation.  There was no departmental Presenting Officer present. The appeal tribunal disallowed the appeal and confirmed the decision dated 11 February 2016. 

8.	On 23 August 2016 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 31 August 2016 the application was rejected by the Legally Qualified Panel Member.

	Proceedings before the Social Security Commissioner

9.	On 31 October 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 30 November 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 20 December 2016, Mr Kirk, for DMS, agreed that while there was an error in the decision of the appeal tribunal he was of the opinion that the error was not sufficient to vitiate the decision of the appeal tribunal. Written observations were shared with the appellant and Ms Williams on 20 December 2016.

10.	On 5 May 2017 I accepted the late application for special reasons.  On 10 August 2017 I requested that Mr Kirk provide a further submission on the applicability of the principles in JM v DSD (ESA) ([2015] NICom 40, C36/14-15 (ESA) (‘JM’)) and, in particular, paragraph 13 of that decision, to the issues arising in this case.  A further submission was received from Mr Kirk on 30 August 2017.  In this submission, Mr Kirk resiled from the support for the appeal which he had set out in his written observations on the application for leave to appeal.  The further submission was shared with the appellant and Ms Williams on 4 September 2017.

11.	On 20 December 2017 I granted leave to appeal.  When granting leave to appeal I gave as a reason that an arguable issue had arisen as to whether the appeal tribunal’s approach to the potential applicability of Activity 12 in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, was in keeping with the principles in JM.  On the same date I determined that an oral hearing of the appeal would not be required. 

	Errors of law

12.	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?

13.	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

14.	In the application for leave to appeal, Ms Williams advanced the following grounds of appeal on behalf of the appellant:

‘The tribunal was asked to consider Reg 29b but has not considered this. Activity 12 + 13 not considered due to the intake of alcohol and the effects of same – GP letter supported that client would not be able to reliably or safely work.’    

15.	In his initial observations on the application for leave to appeal, Mr Kirk made the following submissions in response:

	‘Point 1

It is stated that the tribunal was asked to consider Regulation 29 (b) but it has not considered this.  It is noted that the letter from (the appellant’s) GP stated that (the appellant) would not be able to reliably or safely work.  

In a letter dated 09 June 2016 which was handed in at the tribunal Mr Brown’s general practitioner (GP), Dr T J stated that he was (the appellant’s) GP.  The last sentence of page 1 of that letter states as follows:

“I am supporting his appeal as in my opinion, due to his alcohol dependency he would not be able to work reliably or safely.”

The record of proceedings for the hearing dated 16 June 2016 shows that (the appellant) attended the hearing with his representative, Ms Kathryn Williams of the Citizen’s Advice Bureau.  The following is recorded at paragraph 1 of the page1 of the record of proceedings:

“The Representative and Appellant confirmed that there had been no formal complaint regarding the Healthcare Professional’s report at Tab 3 of the submission.  The reason why this was raised was given the contents of the Appellant’s letter of appeal at Tab 1 of the submission when he indicated “the summary of my assessment often does not reflect the truth of what I said or was asked”.  They then indicated that Regulation 29(b) should be considered by the Tribunal.  A previous Tribunal had found the Appellant to have been deemed to have limited capability for work i.e. Regulation 29 was applied.  In addition they relied on the following mental, cognitive and intellectual function assessment activities.  Activity 12 awareness of every day hazards and 13 initiating and completing personal action.” 

It is clear from the above that Regulation 29 (b) was raised as an issue in this case.  Regulation 29 (2) (b) and (3) of the Employment and Support Allowance Regulations (Northern Ireland) 2008 state:

(2) Subject to paragraph (3) this paragraph applies if-

(b) the claimant 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) Paragraph (2) (b) does not apply where the risk could be reduced by a significant amount by-

(a)	reasonable adjustments in the claimant’s workplace, or
(b)	
(c)	the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.

The reasons for decision run to three pages in this case.  Page 3 of the reasons is totally focussed upon the tribunal’s analysis of the Regulation 29 issue.  The tribunal begin by quoting Regulation 29(a) and then Regulation 29(2) (b).  In addition the tribunal make reference to Regulation 29(3).  At sentences 6 to 12 of this paragraph the tribunal stated:

“The Tribunal accepted that the Appellant suffered from a mental health problem i.e. anxiety and depression together with alcohol misuse.  The Tribunal noted his previous history of working in forestry whilst in Canada and also in factory work and in a butcher’s shop whilst working in Northern Ireland in recent years.  Having considered the totality of the evidence the Tribunal did not believe that the provisions of Regulation 29(2) (b) were satisfied in the case.  The Tribunal accepted that with reasonable supervision and a structured environment, the Claimant could similarly undertake work as previously i.e. either in butchery work or general food production.  The Tribunal believed that if this was supervised and structured this could be done 
without substantial risk to himself or others.  The Tribunal accepted that from time to time the Appellant would consume alcohol but this was not on most days of the week and giving his daily activities, he was able to function reasonably on most days.  The Tribunal concluded that providing the work which he did was structured and supervised then the Appellant could undertake such work without substantial risk to himself or others and accordingly Regulation 29(2)(b) did not apply in the circumstances........” 

It is clear from the above that the tribunal did consider if the provisions of Regulation 29(2) (b) could apply to (the appellant) and it has also explained its reasoning for deciding that this Regulation did not apply in this case.  It is true to state that the tribunal do not make any reference to the comments of Dr J in the letter dated 09 June 2016 in the above.  However it is also true to note that the tribunal had clearly considered if (the appellant’s) alcohol misuse would put him or someone else at substantial risk and concluded that this would not be the case if the work was supervised or structured.  That conclusion was I submit open to the tribunal.  Therefore I would submit that the tribunal has not erred as contended and that there is no merit in this ground of appeal

Point 2

It is stated that the tribunal erred in its consideration of Activities 12 and 13 with regard to (the appellant’s) alcohol intake.   

Activity 12 and Activity 13 are activities which are set out in part 2, the Mental, Cognitive and Intellectual Functions activities contained in Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland 2008).  

…

As previously noted the hearing of 16 June 2016 was an oral hearing and at paragraphs 2 of page 1 and 1 of page 2 the tribunal recorded Mr Brown’s description of a typical day.  At paragraphs 2 and 3 of page 2 of the reasons for decision the tribunal stated:

“In relation to the 2 activities relied upon by the Appellant the Tribunal considered them in detail.  As regards awareness of every day hazards, the Tribunal did not believe that an award of points was appropriate in respect of this activity.  The Tribunal did not believe that he had reduced awareness of every day hazards leading to a significant risk of injury to himself or others or damage to property or possessions such that he required supervision for the majority of the time or that he frequently required supervision or that he occasionally required supervision to maintain safety.  The Tribunal did not believe at all that he had reduced awareness of everyday hazards.  He was able to generally maintain all activities of daily living himself, he was able to wash, dress, shave and shower.  In relation to making food for himself, he tended to eat “snack” foods and was able to use the kettle to make Pot Noodles during the day.  He indicated that he would sometimes spill some hot water on his hand but the Tribunal did not accept that this occurred most of the time.  The Tribunal believed that he had total awareness of every day hazards and was not mentally, cognitively or intellectually disabled to such an extent that he had reduced awareness of every day hazards on the majority of occasions sufficient to require supervision to any extent.

In relation to the remaining activity relied upon, initiating and completing personal actions which meant planning, organising, problem solving, prioritising or switching tasks, the Tribunal believe that he could reliably initiate and complete 2 sequential personal actions most of the time.  The Tribunal noted as previously indicated that he completed all activities of daily living, essentially unaided and without assistance.  He was able to dress and undress, he was able to shower, he was able to shave, he was able to go to a local shop to buy goods and pay for goods.  He had attended the medical examination by walking to the centre.  On balance the Tribunal did not believe that an award of points was merited in respect of this activity.”    

It is clear from the above that the tribunal did consider if Activity 12 or Activity 13 could apply in (the appellant’s) case.  The contention being made is that the tribunal failed to consider if (the appellant) could complete those activities when he had consumed alcohol.  It is true to state that the above paragraphs make no reference to alcohol consumption.  It is also apparent that the tribunal clearly believed that (the appellant) did not satisfy either Activity 12 or Activity 13 for the majority of occasions.  I would submit that the tribunal has not erred in its consideration of Activity 13 in that it clearly considered (the appellant’s) ability to initiate and complete sequential personal actions.  However I note that Activities 12 (b) and (c) impose a requirement for frequent supervision or occasional supervision.  There is nothing in the above extract to indicate that the tribunal ever considered if (the appellant) required frequent supervision or if he required occasional supervision.  For that reason I would submit that the tribunal has erred in law as contended and that there is merit in this ground of appeal.

Whilst I am of the opinion that the tribunal has erred in law in not considering Activity 12(b) or (c) I am not of the opinion that this failure is sufficient to vitiate its decision.  I make that comment because I note that even if (the appellant) satisfied Activity 12 (b) or (c) then the total amount of points that could be awarded would be either 9 for 12(b) or 6 for 12 (c).  That would still leave (the appellant) short of the 15 points he would require to be found to have limited capability for work.  In view of that I would respectfully ask the Commissioner to consider this issue and to make findings as to whether (the appellant) actually satisfied either Activity 12(b) or (c).’

16.	In his response to the request for a further submission on the applicability of the principles in JM and, in particular, paragraph 13 of that decision, to the issues arising in this case, Mr Kirk stated:

‘In JM V Department for Social Development [2016] ESA NICom 40, C36/14-15 (ESA) it was decided that the appeal tribunal in that case had erred in its consideration of the effects of the claimant’s alcohol consumption with regard to activities 15, 16 and 12.  With regard to the applicability of the principles of the above decision to the present case I believe that the following part of paragraph 13 is relevant:

Activity 12 provided (at the relevant date):

"Awareness of everyday hazards
(a) Reduced awareness of everyday 
(such as boiling water or sharp hazards leads to a significant risk of – Objects)

(i)	injury to self or others, or

(ii)	 damage to property or possessions,

such that they require supervision for the majority of the time to maintain safety.

(b) Reduced awareness of everyday hazards leads to a significant risk of –

(i)	injury to self and others, or

(ii)	damage to property or possessions,

such that they frequently require supervision to maintain safety.

(c) Reduced awareness of everyday hazards leads to a significant risk of -

(i)	injury to self or others, or

(ii)	damage to property or possessions

such that they occasionally require supervision to maintain safety.”

There is no doubt that the ROP’s show that activity 12 was disputed.  The tribunal in its SOR’s noted that, in relation to memory and concentration the medical evidence did not suggest that (the claimant) had any reduced awareness of everyday hazards.  In his description of his typical day (the claimant) stated that he would have “vagueness when he is drinking large amounts of alcohol..”  The tribunal in its SOR’s accepted that (the claimant) had a high dependency on alcohol and noted his clinical past.  It further noted that the available evidence would support this.

It was clearly evident therefore that (the claimant) had a dependence on alcohol.  Given the ambit of activity 12, I would submit that the tribunal had an onus to investigate further and detail as to why Mr M did not fall within this activity.  (The claimant) had already stated at his medical examination he suffered from “a vagueness” when drinking.  At these times (the claimant) may well have satisfied the descriptors with activity 12.  With this in mind I would further submit that the tribunal failed in its inquisitorial role in not investigating further in relation to the possible applicability of activity 12.’

The contention raised in the above is that the tribunal failed to consider the vagueness that the claimant experienced when he was consuming large amounts of alcohol.  It is important to note that this submission is not stating that alcohol consumption on its own would lead to a need for supervision due to reduced awareness of everyday hazards but rather the vagueness caused by consumption of large amounts of alcohol has to be considered.  This may appear to be a slight distinction but it is important in my opinion.  The evidence in the decision indicates that the vagueness is caused by the consumption of large amounts of alcohol.  It would not be caused if the claimant was simply engaging in social or moderate alcohol consumption, this would only be caused by severe alcohol consumption.  Therefore in the above a tribunal would have to consider the pattern and severity of the claimant’s alcohol consumption and then apply it to the issue under consideration i.e. is the vagueness caused by consuming large amounts of alcohol of a nature that would engage any of the descriptors contained within activity 12.

In order to see if the principle expressed above is relevant to the present case it is necessary to consider the evidence regarding alcohol consumption and its effects upon (the appellant). I note that the following is recorded in the ESA85 dated 09 February 2016 (Tab no 3 of the scheduled documents):

“Drinks alcohol everyday will drink anything vodka or cans of beer 
Last drinks alcohol was last night and states he is sober at assessment 
Drinks 15-20 cans of beer a day in friends flats and pubs and has done for many years – GP is aware” (Pages 2 and 3)

“Has bowel incontinence when he is drinking but denies this problem when he is not drinking

Has not seen his GP for this condition and is on no medication

Does not wear pads” (Page 3)

“He reports having bowel incontinence when he is drinking alcohol but denies this problems with continence when he is not drinking.  He manages this condition himself and does not wear pads.  Significant functional restriction is unlikely.” (Page 20.)

“He has anxiety and depression and a history of alcohol misuse which is managed solely by his GP.  He is prescribed a low dose antidepressant which has not been changed.  He drinks 15-20 cans of beer every day and has done for many years and GP is aware….he gets his medication monthly from the GP.”  (Page 20)

I also note that on page 11 of his ESA50 questionnaire form (tab no. 2) (the appellant) stated:-

“Most of the time I feel down and anxious and when it’s really bad I consume alcohol that takes the stress away…”

From the above I would submit that the evidence before the tribunal was that (the appellant) drank substantially on an everyday basis and this resulted in continence problems and was interlinked with his mental health problems.

(The appellant) gave oral evidence to the tribunal on 16 June 2016 and the tribunal recorded that:-

“Generally he has a few cans of beer when he gets up and would go back to sleep again…He can drink a bottle of vodka and a few cans of beer each day and this may go on for a few days and then be abstinent from alcohol for a few days afterwards.”

In its reasons the tribunal concluded that:-

“The Tribunal noted his typical day as recorded at hearing and as recorded by the Healthcare professional.  It appeared that the appellant drank alcohol to some extent each day but then was abstinent for several days afterwards.” 

In decision C36/14-15(ESA), with particular reference to paragraph 13 the Chief Commissioner accepted arguments made on behalf of the Department that the tribunal erred by failing to correctly address descriptor (c) of activity 15 as the evidence related to familiar, rather than unfamiliar places.  Similarly with activity 15 the tribunal failed to consider whether the claimant could engage with claimants who were unfamiliar to him.  In relation to activity 12 the argument advanced by the Department was to the effect that the claimant had given evidence of “vagueness” when drinking and the tribunal failed in its inquisitorial role to investigate whether this “vagueness” could have had an effect on the claimant’s ability to carry out activity 12.

In the circumstances of the present case I would submit that the evidence recorded by the HCP above indicates considerable alcohol consumption on a daily basis.  The evidence given by (the appellant) at the oral hearing was of a pattern of considerable alcohol consumption with intervals of abstinence.  The HCP (see pages 20-21 of her report) indicated that his mental health issues were largely managed by visits to his GP and self-medication and that he was essentially able to maintain an independent lifestyle.  It was also the HCP’s view - (see page 20 of her report) – that significant functional restriction with regard to continence was unlikely.  I would submit therefore that the circumstances of the present case can be distinguished from those in C36/14-15(ESA) in that the tribunal has clearly given consideration to the frequency and pattern of (the appellant’s) alcohol consumption and also to the stated effects of this consumption.  It is in this context that the tribunal concluded no points were applicable and I would submit that this was a conclusion which the tribunal was entitled to make.  

2. Why do I consider that the relationship between Activity 12 and the consumption of alcohol is restricted to the potential applicability of descriptors (b) and (c) only?

As indicated at point 1 above it is my contention that the relevance or otherwise of the consumption of alcohol to a particular activity/descriptor would in the first instance be dependent on an assessment of the overall pattern of a claimant’s drinking, the effects of the alcohol consumption and its potential effect on the ability to carry out the disputed Activities.  With specific reference to activity 12 it is not my contention that the relationship is restricted to the potential applicability of descriptors (b) and (c) only.

Having given further consideration to the observations issued by Decision Making Services on 20 December 2016 I have reached the following conclusion.

In its reasons the tribunal on 16 June 2016 stated:-

“As regards the examination on 09.02.2016, the Tribunal noted the contents thereof and noted the medical history of anxiety and depression with alcohol misuse.”

It went on to conclude:-

“The Tribunal did not believe that he had reduced awareness of every day hazards leading to a significant risk of injury to himself or others or damage to property or possessions such that he required supervision for the majority of time or that he frequently required supervision or that he occasionally required supervision to maintain safety.  The Tribunal did not believe at all that he had reduced awareness of every day hazards.  He was able to generally maintain all activities of daily living himself….”  (My underlining.)

From the above I would submit that the tribunal reached its conclusions having considered (the appellant’s) ability to perform the activities in the knowledge that frequent alcohol consumption had played a substantial role in his daily routine.  Therefore I would not agree that it failed to consider the effects of alcohol consumption as advanced in (the appellant’s) initial two grounds of appeal.  Furthermore in the paragraph to which I have referred above the tribunal clearly stated that in its view frequent or occasional supervision was not required to maintain safety.  Having clearly stated this, the tribunal went on to explain its reasoning, in the section of the paragraph beginning “He was able to generally maintain…..”

On the above basis I have therefore reached a different conclusion from that advanced in our original observations and would therefore not agree that the tribunal erred in law.  Consequently I would not support (the appellant’s) application for leave to appeal.’

	Analysis

17.	The question for the tribunal to decide was whether the appellant had limited capability for work in accordance with section 8(2) of the Welfare Reform Act (Northern Ireland) 2007 (‘the 2007 Act’) and regulation 19 of the Employment and Support Regulations (Northern Ireland) 2008 (‘the 2008 Regulations’), both as amended.  The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 to the 2008 Regulations.  Schedule 2 is in two Parts. Part 1 of Schedule 2 is linked to incapacity arising from a specific bodily disease or disablement or as a direct result of treatment provided by a registered medical practitioner for such a disease or disablement. Similarly, Part 2 of Schedule 2 is linked to incapacity arising from a specific mental illness or disablement or as a direct result of treatment provided by a registered medical practitioner for such an illness or disablement.  To have limited capability for work the appellant had to score 15 points whether for physical disabilities, mental, cognitive and intellectual function assessment or a combination of both.  

18.	In JG v Secretary of State for Work and Pensions (ESA) ([2013] UKUT 37 (AAC) (‘JG’)) a Three-Judge Panel of the Administrative Appeals Chamber of the Upper Tribunal decided, amongst other things, that:

(i)	A claimant’s practical ability to work must have arisen from something wrong, untoward or atypical in their physical or mental condition – a specific disease or bodily or mental disablement. Therefore, in the particular statutory language governing ESA the word “disablement” was being used to refer to the underlying cause of the functional limitation not the functional limitation (as in disability living allowance).

(ii)	Parliament clearly intended that alcohol dependency should fall within the phrase “specific disease or bodily or mental disablement”.

(iii)	In the absence of contrary evidence, the summary of the expert evidence in paragraphs 16 to 19 of the decision of a Tribunal of Social Security Commissioners in great Britain in R(DLA) 6/06 could, and should be, adopted by decision-makers and tribunals in ESA cases as representing the mainstream medical view in respect of alcohol dependence

19.	The Three-Judge Panel was considering primary and secondary legislative provisions which are identical to those applying in Northern Ireland.  The decision is reported in the reported decisions of the Administrative Appeals Chamber of the Upper Tribunal and I adopt the reasoning of the Three-Judge Panel and accept that it represents the law in Northern Ireland.   

20.	Mr Kirk has prepared his submissions with his usual care and attention and there is strength in the arguments which he has made.  He is correct to state that the decision in JM is authority for the principle that a decision-making authority, including an appeal tribunal, is obliged to consider the potential application of activity 12 in cases where there is the possibility that the claimant satisfies one of the descriptors set out in the activity because of the incapability to perform that activity arises from a specific mental illness or disablement including alcohol dependency. He is also right to maintain that all of the descriptors in activity 12 have the potential to apply to such a claimant.

21.	Where I respectfully depart from Mr Kirk’s reasoning is in respect of his assertion that ‘… the circumstances of the present case can be distinguished from those in (‘JM’) in that the tribunal has clearly given consideration to the frequency and pattern of (the appellant’s) alcohol consumption and also to the stated effects of this consumption.’ As Mr Kirk has noted, in JM, I accepted a concession that there was evidence before the appeal tribunal that the appellant had symptomology of alcohol dependence which could have had an effect on the claimant’s ability to carry out activity 12 and that the appeal tribunal had failed in its inquisitorial role to consider whether the effects of alcohol dependence brought activity 12 into play. 

22.	The symptomology in JC was described, somewhat loosely, as ‘vagueness’.  I do not consider that Mr Kirk’s submission is that the precedential weight of the decision in JM is confined to effects such as ‘vagueness’.  I am certain that he would agree that the ambit of the effects of alcohol dependence is very wide.  Where Mr Kirk is wholly correct is that the duty of a decision-making authority, including an appeal tribunal, is to consider that ‘…the relevance or otherwise of the consumption of alcohol to a particular activity/descriptor would in the first instance be dependent on an assessment of the overall pattern of a claimant’s drinking, the effects of the alcohol consumption and its potential effect on the ability to carry out the disputed activities.’ 

23.	It is Mr Kirk’s contention that the appeal tribunal has undertaken the required assessment.  I am not so sure.  The evidence given to the healthcare professional, during the course of the examination undertaken as part of the initial decision-making at Departmental level, and from which the healthcare professional did not demur, was of considerable alcohol consumption on a daily basis.  The evidence from the appellant’s General Practitioner (GP), contained in correspondence dated 9 June 2016, which was submitted to the appeal tribunal, was that it had been reported to the GP that the appellant would binge drink frequently and on three to four days per week ‘… would drink significant amounts of alcohol’.  The appellant’s own evidence to the appeal tribunal was that the appellant ‘… would drink a bottle of vodka and a few cans of beer each day and this may go on for a few days and then be abstinent from alcohol for a few days afterwards.’  Once again, the appeal tribunal has not cast any doubt on the credibility of this evidence.

24.	From all of the evidence of alcohol misuse and dependence which was before it, the appeal tribunal has arrived at the very general finding of fact that the appellant ‘… would binge drink frequently.  He tended to drink 3 to 4 days per week and by implication did not drink the other remaining days during the week…’  There has been no assessment at all of the effects of that alcohol consumption.  Even from the non-medical perspective, it would seem to me that the consumption of a bottle of vodka and cans of beer on each of three of four days per week is representative of alcohol misuse and dependence and is going to have some sort of physical or mental effect on the well-being of the appellant.    

25.	Going forward, and most significantly, there has been, in my view, no comprehensive analysis of the effect of such significant alcohol consumption on the potential application of activities 12 and 13 in Schedule 2 to the 2008 Regulations, two specific activities raised as issues in the appeal by the appellant’s representative. The discrete reasoning set out by the appeal tribunal in connection with these activities, and as set out by Mr Kirk above, is in the most general of terms and makes no reference whatsoever to alcohol misuse and dependence and the potential, and no more, for such dependence to trigger application of the relevant activities.  There has, in addition, been no specific analysis of the effect of the pattern of alcohol misuse on the potential application of activities 12 and 13 in line with the relevant principles on ‘reasonable regularity’ – see AF v Secretary of State for Work and Pensions (ESA) [2011] UKUT 61 at paragraph 11, approved and followed in SAG v Department for Social Development (ESA) [2012] AACR 6).  

26.	For these reasons, therefore, I have concluded that the decision of the appeal tribunal is in error of law.  The error is a material one as each of the point-scoring descriptors in each of activities 12 and 13 had potential application.

	Disposal                

27.	The decision of the appeal tribunal dated 16 June 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. I refer the case to a differently constituted appeal tribunal for re-determination.

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 11 February 2016 a decision maker of the Department decided that (a) grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 22 September 2014; and (b) the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 11 February 2016;

		(ii) 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 Disability Living Allowance 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

	17 July 2018