DC-v-Department for Communities (ESA) [2018] NICom 43

Decision No:  C1/18-19(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 6 March 2017

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 6 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. 

3.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

4.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to Employment and Support Allowance (ESA) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.  

	Background

5.	The decision under appeal to the appeal tribunal was a decision of the Decision Maker of the Department, dated 11 August 2016, which decided that: 

		(i) grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 18 December 2013; and

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

6.	Following a request to that effect, the receipt of additional information and the making of an ‘outbound reconsideration’ telephone call to the appellant, the decision dated 11 August 2016 was reconsidered on 26 September 2016 but was not changed.  An appeal against the decision dated 11 August 2016 was received in the Department on 22 November 2016. 

7.	The appeal tribunal hearing took place on 6 March 2017. The appellant was present.  There was no Departmental Presenting Officer present. The appeal was disallowed and the appeal tribunal confirmed the decision dated 11 August 2016. 

8.	On 24 June 2017 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS). The appellant was represented in the application by Ms Banks of the Citizens Advice organisation.  On 26 July 2017 the Legally Qualified Panel Member (LQPM) determined that the application for leave to appeal had been received outside of the prescribed time limits for making such an application and that the time limits could not be extended.  The LQPM also determined that the application for leave to appeal should be rejected.

	Proceedings before the Social Security Commissioner

9.	On 30 October 2017 a further application for leave to appeal was received in Office of the Social Security Commissioners. The appellant was represented in this application by Mrs Carty of the Law Centre (Northern Ireland).  On 28 November 2017 observations on the application for leave to appeal were sought from Decision Making Services (DMS).  In written observations dated 8 December 2017, Mr Kirk, for DMS, supported the application on one of the grounds cited by the appellant.  The written observations were shared with the appellant and Mrs Carty on 12 December 2017.

10.	On 20 February 2018 I accepted the late application for special reasons. On 20 June 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 approach to the potential application of regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 (‘the 2008 Regulations’), as amended, was in error.  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 Mrs Carty made the following submissions:

‘The tribunal has erred in its interpretation and application of regulation 29 of the Employment and Support Allowance (NI) Regulations 2008.

In addition or in the alternative it is submitted that the tribunal has failed to set out an adequate statement of reasons for its decisions under regulations 29 of the Employment and Support Allowance (NI) Regulations 2008.

The tribunal simply recorded that,

The panel considered whether the evidence gave rise to an application of Regulations 20, 25, 26 or 29 ESA (NI) Regulations 2008 as amended and decided the evidence does not give rise to a finding on these regulations.

There was evidence before the tribunal that (the appellant) was an alcoholic who did not abstain from alcohol and drank 4 litres of cider per day.  He last worked as a barman.  He had been admitted to hospital for 12 days due to losing sensation in his feet due to alcohol use.  He had treatment to try to detox him but it was not successful.

The tribunal has erred in failing to address or explain the specific type of work that (the appellant) could undertake without a substantial risk of harm to his mental or physical health or that of others in light of his addiction. 

It is submitted that the tribunal has erred in failing to adopt the correct approach as set out by Commissioner Stockman in AH v DFC (ESA) [2017] NI Comm 12. Commissioner Stockman stated that while a tribunal does not have to specify particular occupations safely open to the applicant,

“It is required to identify the range of work which he could do.”

It is submitted that in failing to identify the range of work that (the appellant) could do, the tribunal erred and its decision should be set aside and the appeal remitted for a rehearing’

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

‘At paragraph 32 of AH V DFC (ESA) [2017] NI Com 13 (also known as C13/16-17 
(ESA)) Commissioner Stockman stated:

“The tribunal does not have to specify particular occupations which are safely open to the applicant. However, it is required to identify the range of work which he could do.  The applicant had limitations in terms of literacy, lack of qualifications and lack of experience which suggested that his options in terms of non-manual occupations were limited.  He had brittle bone syndrome which would have created risk in physical work in certain working environments or types of occupation.  He had a missing middle finger, had a missing tip of his index finger and thumb, and had a contracture of the fourth finger on the left hand.  All of this would have restricted him in manual work, have further limited his options, and potentially have given rise to dangers.  He had a fractured right elbow for the time being at the date of decision, albeit that this would be expected to heal.” 

I note that the application for leave to appeal to the LQM reference is made to the GB Commissioner’s decision CE/281/2017.  At paragraph 9 of that decision Judge Bano stated:

“9. It is clear from the judgment of the Court of Appeal in Charlton that the question of whether regulation 29 applies to a claimant is fact-specific and that a tribunal’s findings in relation to the Regulation must therefore be based specifically on a claimant’s individual circumstances.  That is not to say that the reasons for a tribunal’s decision on whether regulation 29 applies to a claimant need necessarily be long or elaborate, and in many cases the tribunal’s findings in relation to matters such as the nature and extent of a claimant’s disablement will also provide a basis for their conclusions in relation to regulation 29.  However, in carrying out the risk assessment required by the Regulation, it is in my view necessary that it should be reasonably apparent from the reasons, read as a whole, that the individual circumstances of the particular claimant have been fully and properly taken into account when deciding whether the Regulation applies.”

The appeal hearing of the 6 March 2017 was an oral hearing.  The record of proceedings for that hearing notes that (the appellant) attended the hearing and it records his oral evidence to the tribunal.  I note that (the appellant) made the following comments at paragraphs 5 to 8 of page 1, paragraphs 9 -12 and 14 of page 2 and 3,6, and 9 of page 3 of the record of proceedings:

“The applicant had an endoscopy on 11/11/16 which showed ulcers in the tube to his stomach. He was prescribed antibiotics.  His stomach is inflamed.  He threw up.  He said he went “cold turkey to give up drink” and it “did not work out”.

He was sent to the cancer clinic for an M.R. I.  It was not because he had cancer.  They said he had fat on his liver due to drink.
		
		Reason he started to drink:

He was at Q.U.B aged 19 when his friend was run over by a police land rover.  He saw a counsellor after it happened.  He was prescribed Prozac but did not want to take the tablets (very tearful telling the story).

He lost sensation in his lower limbs for 12 days.  He was admitted to the Mater, Ward D.  He had an M.R.I. and a spinal puncture.  He was given fluids.  The admission was 3 years ago in July.  He remembers the band parades for the 12th July going up and down. 

When he goes to the supermarket with his father he uses a trolley.  He says he puts alcohol before food.

He drinks 4 litres of white cider per day.
His father buys the white cider for him.  His dad goes to the off-licence for him.  His dad goes to the charity shop to buy books.
He says he sometimes buys vodka at Tesco’s.  
He said he can lift a (sic) pour a three litre bottle of white cider.  He can lift it at table level.

He said he was off drink for 3 months in 2012/2013.

He was a barman in (M’s) for a year.  He moved to the U.S.A to get a job.  He needs counselling.  He said he asked his GP for a referral to a psychiatrist.  He said he needs to stop drinking before he sees a psychiatrist.  

		His GP is (Dr L).”

The tribunal made the following comments at paragraph 2, paragraph 6 part 1 and sections a-d and m), also at part v) of paragraph 1 and at paragraph 4 of page 2 of the reasons for decision:

“The appellant suffers from alcoholism and knee pain.

The HCP assessed the appellant on 23/6/16 and she notes the following:

a)	His alcohol misuse began 10 years ago.  He drinks 4 litres of white cider per day.  He sees his GP twice a month. 
b)	Has requested referral to addictions team.
c)	Spent 12 days in hospital due to losing sensation in his feet.
d)	No thoughts of self harm or suicidal ideation.
e)	…..
f)	…..
g)	….
h)	…..
i)	…..
j)	…..
k)	……
l)	…….
m)	Gets up and has a drink and plays play station
n)	….

o)	…..
p)	…..
q)	……
r)	……
s)	……
t)	……
u)	……
v)	Spends days drinking an playing play station.
w)	……
x)	……

The panel considered whether the evidence gave rise to an application of Regulations 20, 25, 26 or 29 ESA (NI) Regulations 2008 as amended and decided that the evidence does not give rise to a finding on these regulations.”

It is clear from the above that the tribunal did give some consideration as to whether (the appellant) would satisfy the provisions of Regulation 29 of the Employment and Support Allowance (NI) Regulations 2008.

…

Before I move on to address the tribunal’s consideration of (the appellant’s) evidence I would like to note that both the HCPs who conducted examinations of (the appellant) on 21 March 2014 and 23 June 2016 advised that the condition history did not suggest that there would be a significant substantial risk if he was found capable of work or work related activity (page no’s 18 and 19 of Tab no 6 as both reports are numbered 6 in the tabbed documents).  Therefore there is evidence that would support the conclusion that (the appellant) was not at substantial risk if he was found to be capable of work.  

Whilst both of the HCP’s who conducted the above examinations concluded that (the appellant) was not at substantial risk I note that they also accepted that he misused alcohol.  In his own evidence to the tribunal as noted above (the appellant) was clearly indicating that he would consume 4 litres of white cider per day.  The tribunal noted that [the claimant] would get up and have a drink before spending a day playing the play station (part m) paragraph 6, page 1 of the reasons for decision).  That evidence should in my opinion lead to the consideration as to whether (the appellant) was in control of his faculties during the consumption of the alcohol or after it is consumed.  As reproduced above Regulation 29 2(b) focusses upon the issue of substantial risk.  Whilst the HCPs both noted that (the appellant) was not at substantial risk I would submit that there was an onus upon the tribunal to consider if the alcohol consumption would lead to a substantial risk to either (the appellant) or to someone else if he was found to be capable of work or indeed as to whether he was still in control of his faculties during and after the consumption of the alcohol.  The tribunal do not make any direct findings upon either of those issues.  For that reason I would submit that the reasons for decision are inadequate, that the tribunal has erred as contended and that there is merit in this ground of appeal.’

	Analysis

16.	In AL-v-Department for Communities (ESA) ([2017] NICom 31, C17/16-17(ESA) (‘AL’)) I said the following at paragraphs 14 to 16:

	‘In AH-v-Department for Communities (ESA) ([2017] NICom 13, C13/16-17(ESA)) (‘AH’), Mr Commissioner Stockman reviewed the jurisprudence relevant to regulation 29 of the Employment and Support Allowance Regulations 2008 in Great Britain and addressed the applicability of that jurisprudence in Northern Ireland.  He gave authoritative guidance to decision-makers and appeal tribunals on the proper approach to regulation 29.  He said the following, at paragraphs 21 to 33 of his decision:

‘Substantive issue

21.	The tribunal in this case, in applying the LCWA, has conducted a careful exercise of fact-finding, has based its decision on the correct law and has given clear reasons for its decision.  However, the issue which gives rise to the application before me is not the tribunal’s approach to the application of the LCWA, but rather its approach to the exceptional circumstances criteria which can lead to a claimant being treated as satisfying the LCWA under regulation 29(2)(b) of the ESA Regulations.

22.	The tribunal deals with this aspect of the appeal in the three paragraphs of its decision set out above.  Essentially the case made out on his behalf at the tribunal hearing was that the applicant’s left hand deformity and his brittle bone syndrome placed him at risk in the workplace.  A further relevant matter, which had arisen between the date of the decision under appeal and the appeal hearing, was that the applicant had fractured his elbow in a fall.

23.	The issue of regulation 29 was placed before the tribunal by the applicant.  He relied on a pro forma document completed by his GP at the request of Citizens Advice.  This included the words “Due to his left hand deformity and his brittle bones he won’t be fit for some occupations.  He will have to wait for a suitable job”.  After setting out the GP’s evidence, the tribunal concluded that “this suggests that his GP is of the opinion that every type of employment would not cause a risk to the health of the appellant or another person and that there were some occupations which would have caused no such risk”.  This appears to conclude the tribunal’s treatment of this point.

24.	In the following two paragraphs the tribunal addresses a different question – namely whether the exceptional circumstances provisions applied to the injury to the applicant’s right elbow.  The right elbow injury was a circumstance obtaining at the date the decision under appeal was made.  Therefore, limitations arising from that injury could and should be considered by the tribunal.  The injury was material to the tribunal’s decision both in terms of whether work would make that injury worse, but also to the extent that it may have demonstrated the applicant’s liability to injury arising from his brittle bone syndrome.  I take no exception to the tribunal’s approach in paragraph 46 and 47 of its statement of reasons.

25.	However, the main challenge to the decision was based around paragraph 45.  Reliance was placed by Mr McGlade on paragraph 39 of Charlton.  That paragraph contains largely a statement of approval of, and quotation from, the decision of Deputy Commissioner Paines QC in CIB/360/2007.  In paragraph 17 of that decision he said,

“A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant’s background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him capable of performing.  They will then need to consider whether, within that range, there is work he could do without the degree of risk to health envisaged by regulation 27(b)”.

26.	The decision in Charlton is a decision of the Court of Appeal in England and Wales and therefore not strictly binding on tribunals in Northern Ireland.  Nevertheless, it is of highly persuasive authority and I consider that it should be followed unless good reason is shown for doing otherwise.  Each of the parties relied on Charlton and submitted that it should be followed, albeit taking slightly different approaches to it.

27.	Charlton had considered the position under the rules governing incapacity benefit (IB).  However, the same principles apply to cases involving ESA.  In JW v Secretary of State for Work and Pensions (ESA) [2011] UKUT 416 (AAC), at paragraph 19, Deputy Judge Poynter stated in the context of ESA, that the jurisprudence under the IB regime should be still be followed, including CIB/360/2007 (as approved in Charlton).  Regulation 29 in the ESA Regulations is a direct equivalent of the former regulation 27 in the IB Regulations and I agree with him that the jurisprudence should be followed.

28.	Mr Kirk placed reliance on Charlton at paragraph 49, where the essential conclusion was that the finding that the claimant could do some work was reasonable.  He submitted that the tribunal in the present case had clearly considered the range and type of work the claimant could perform.  He submitted that it noted that there were certain types of work which the claimant could not do due to his injury and that this was sufficient.  While the tribunal did not identify any particular occupations, it found that he could do some work without substantial risk to himself or others.

29.	I cannot accept Mr Kirk’s submission as to how the tribunal dealt with the particular case before me.  The decision in Charlton concerned the context of the work or workplaces in which the claimant might find himself.  The controversy between the claimant and the Secretary of State in Charlton related to the extent to which the decision-maker must identify the type of work which the claimant would perform on the hypothesis that he had been found capable of work.  The Court of Appeal in Charlton leaned towards an approach which was less specific in identifying work which the claimant could do.  The fact that the claimant in Charlton had no physical limitations was a significant factor.  Nevertheless, Charlton also placed certain requirement on tribunals in the findings which it should make.

30.	In deciding the regulation 29 issue, it appears to me that the tribunal in the present case has entirely relied on its interpretation of the evidence of the GP.  It reasons that the GP’s opinion is to the effect that every type of employment would not cause a risk to the health of the appellant or another person, due to the GP’s statement “He will have to wait for a suitable job”.  It appears to me that the tribunal has placed undue weight on the statement of the GP, who cannot be expected to understand the precise nature of the test under regulation 29.

31.	In deferring to the GP’s evidence to this extent, it seems to me that the tribunal has not conducted the exercise required by Charlton in reaching its conclusions.  Specifically, it has not formed a view on the range or types of work for which the applicant was suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing.  It has not then considered whether, within that range, there is work he could do without a substantial degree of risk to health.

32.	The tribunal does not have to specify particular occupations which are safely open to the applicant.  However, it is required to identify the range of work which he could do.  The applicant had limitations in terms of literacy, lack of qualifications and lack of experience which suggested that his options in terms of non-manual occupations were limited.  He had brittle bone syndrome which would have created risk in physical work in certain working environments or types of occupation.  He had a missing middle finger, had a missing tip of his index finger and thumb, and had a contracture of the fourth finger on the left hand.  All of this would have restricted him in manual work, have further limited his options, and potentially have given rise to dangers.  He had a fractured right elbow for the time being at the date of decision, albeit that this would be expected to heal.

33.	In the light of the various factors set out above, it seems to me that the tribunal has not done enough to meet the obligations on it which arise from Charlton and related case law to identify the range of workplaces the applicant might find himself in and to assess the risks in that context.’

15.	I endorse the principles set out by Mr Commissioner and commend them to decision makers and appeal tribunals.  I also recommend that consideration be given by appeal tribunals to the further definitive analysis by the authors of Volume 1 of Social Security Legislation 2016/2017.

16.	I am also in agreement with the parties to the proceedings in the appeal before me that the approach of the appeal tribunal was not in keeping with that recommended in Charlton and sanctioned by Mr Commissioner Stockman in AH.’

17.	In the instant case, while I accept that the appeal tribunal had in mind the potential application of regulation 29 of the 2008 Regulations, I am of the view that as in AL, the approach of the appeal tribunal was not in keeping with that recommended in Charlton and sanctioned by Mr Commissioner Stockman in AH.

	Disposal

18.	The decision of the appeal tribunal dated 6 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. 

19.	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 August 2016, which decided that (a) grounds existed to supersede an earlier decision of the Department which had awarded an entitlement to ESA, from and including 18 December 2013 and (b) the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 11 August 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;

		(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

	28 August 2018