DD-v-Department for Communities (PIP) [2018] NICom 51

Decision No:  C10/18-19(PIP)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

PERSONAL INDEPENDENCE PAYMENT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 5 May 2017

DECISION OF THE SOCIAL SECURITY COMMISSIONER

	The Appellant is granted leave to appeal against the decision of an appeal tribunal taken on 5 May 2017, and his appeal is allowed. The tribunal’s decision is set aside and referred to the tribunal for re-determination.

	REASONS FOR DECISION

	Background

1. 	The Appellant’s main health problem was described by his GP as “recurrent subacute adhesions and small bowel obstruction secondary to a previous perforated appendix”.  The evidence also describes reactive low mood and anxiety and sciatica.

2. 	On 31 August 2016, the Social Security Agency of the Department for Social Development (now Department for Communities) decided that the Appellant was not entitled to Personal Independence Payment (PIP).  He appealed to an appeal tribunal.  The Appellant’s arguments included that the Healthcare Professional (HCP), upon whose report the Agency relied, did not take into account the GP report that he supplied.

3. 	The evidence before the appeal tribunal included the GP report just referred to, written on a standard Departmental form.  The report’s statements included that:

the Appellant had abdominal adhesions whose associated symptoms were severe when he was in exacerbation;

-	the Appellant had abdominal pain daily, which woke him at night.  This was written in a section of the form for providing details about variation of symptoms “including frequency and duration of exacerbations”;

-	eating aggravated the Appellant’s symptoms;

-	the Appellant’s symptoms of bloating, nausea and pain could last for hours.  To get relief, he needed to lie down and rest;

-	the Appellant felt fatigued due to his abdominal complaint and associated poor sleep;

-	until an episode of pain passed, the Appellant could neither eat nor drink (apart from sips) and “otherwise has to attend A & E”.  There were “monthly” A & E attendances.

4. 	The Appellant wrote in his PIP disability questionnaire that “my bowel condition causes me a lot of distress on a daily basis”.

5. 	The GP report also described the effect of the Appellant’s health condition on his day to day life:

-	the Appellant was encouraged by his wife to eat and look after himself. Due to his stomach problem, he was anxious about eating;

-	during an exacerbation of pain, the Appellant had difficulty rising and required assistance;

-	the Appellant’s exercise tolerance was limited by fatigue.
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6. 	While the GP report was dated September 2014, the appeal tribunal made no finding that, on account of the report’s age or for any other reason, it was unreliable or should be accorded little weight. 

7. 	As the appeal tribunal stated in the reasons for its decision, the Appellant informed the tribunal that he could not attend a hearing of his appeal but was content for the tribunal to proceed in his absence if it so wished. According to the tribunal’s statement of reasons, “in all the circumstances, the Panel decided to proceed”. 

8. 	The appeal tribunal, sitting on 5 May 2017, dismissed the Appellant’s appeal against the Social Security Agency’s / Department for Communities’ decision. Relevant features of its reasoning are dealt with below in these reasons.

	The arguments

9. 	A legally-qualified panel member refused the Appellant leave to appeal to a Social Security Commissioner against the appeal tribunal’s decision. The Appellant now makes an in-time application to a Commissioner for leave to appeal.

10. 	The Appellant’s application argues that his medical condition acted as a barrier to his attendance at a hearing.  As a result, the tribunal acted on inaccurate information about his health.  The Appellant considers that he should be given the opportunity to attend a hearing so that an appeal tribunal may have a better understanding of the impact of his condition. The Appellant also supplies a detailed written statement about his health problems.  I have read this heart-rending description of a distressing day-to-day life but should point out that it does not show that the tribunal made an error on a question of law.  The statement deals with matters of fact, rather than of law.

11. The Department for Communities were invited to make observations on the Appellant’s application.  They argue:

		(1) the appeal tribunal was entitled to proceed in the Appellant’s absence.  He had declined an opportunity to attend a hearing and the tribunal had before it extensive documentary evidence;

		(2) there were no inaccuracies in the evidence placed before the tribunal nor did the tribunal fail to understand the nature of the Appellant’s condition.  The Department concede that the tribunal made an error of fact concerning the date on which the Appellant’s appendix burst but this was not a material error.  It could not have affected the tribunal’s reasoning concerning the Appellant’s entitlement to PIP.  Whether the appendix burst in 2010 or 1992, it happened some time before the relevant date for judging entitlement.

12. 	The Appellant’s reply to the Department’s observations continues to maintain that the appeal tribunal failed to understand the nature of his health conditions.  The reply includes another detailed description of those conditions but, for the most part, does not criticise the appeal tribunal’s reasons.  The exceptions concern the tribunal’s finding that the Appellant did not suffer “nasty symptoms” most of the time and that the tribunal ignored his criticisms of the HCP’s report, which inaccurately reported what he told the HCP.  The Appellant states that he has ‘nasty’ symptoms on a daily basis.  The tribunal wrongly found otherwise.

13. 	The Appellant’s reply was supplied to the Department for Communities. In response, they argue that the appeal tribunal did not overlook the Appellant’s concerns about the HCP report.  It did not agree with them but did not overlook them.

	Conclusions

	The ground on which leave to appeal is granted

14. 	I decide that the Appellant has a realistic prospect of establishing that the appeal tribunal made an error on a question of law in the form of inadequate reasons for its decision, in particular its finding that he did not suffer with disabling symptoms most of the time.  I grant the Appellant leave to appeal to the Social Security Commissioner on that ground.

15. 	I appreciate that the Appellant criticised the tribunal’s findings about the variation of his symptoms in correspondence, after submitting his application for leave to appeal, but the Department have not taken issue with this.  In exercise of the power conferred by regulation 5(2) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999 (1999 Regulations), I extend time for the Appellant to include grounds within his application for leave to appeal so that his application includes the ground that the appeal tribunal erred in law by giving inadequate reasons for its findings about the variation of his symptoms. 

16. 	I do not grant the Appellant leave to appeal on the ground that the appeal tribunal erred in law by proceeding to determine his appeal in his absence.  He declined a hearing and the tribunal was entitled to conclude that it had before it sufficient documentary evidence to decide the appeal. I have considered whether to grant leave to appeal on the ground that the tribunal failed to deal with the Appellant’s criticisms of the HCP’s report.  Ultimately, I decide not to.  The significant criticism concerned variation in symptoms but this topic is effectively dealt with by the ground on which leave to appeal is granted.

	Determination of appeal

17. 	The Department consent to their observations on the Appellant’s application for leave to appeal being treated as observations on any appeal.  Being satisfied that the conditions in regulation 11(3) of the 1999 Regulations apply, I treat and determine the Appellant’s application for leave to appeal as an appeal. 

18. 	In my judgment, the key issue before the appeal tribunal was variation in the Appellant’s symptoms, in particular his abdominal pain.  

19. 	The tribunal found that, when the Appellant had a flare-up in his symptoms, he needed to be “checked over either as an outpatient at A & E or, on occasions, as an in-patient”.  In other words, the tribunal found that the Appellant’s flare-ups, or “nasty symptoms” could be identified from his attendances at A & E.  His attendances at A & E were relatively infrequent and not consistent with him suffering flare-ups most of the time.  The tribunal also found that, “when [the Appellant] he was having a bout of problems with his bowels he might not be inclined to prepare food and drink” but “these instances would be well within the minority in terms of how often they occurred”. 

20. 	The Appellant’s GP wrote that his symptoms were severe when in exacerbation.  The form completed by the GP also included a section to describe “day to day variation in the condition(s) (if any) including frequency and duration of exacerbations”.  The GP wrote that the Appellant had abdominal pain daily and that his symptoms were aggravated by eating.  I would observe that the Appellant must, like all of us, need to eat most days.  The GP also stated that the Appellant could not eat or drink until abdominal pain passed and “otherwise has to attend A & E”.

21. 	The appeal tribunal neither rejected the GP report nor found it should be given little weight.  In those circumstances, the tribunal’s finding that exacerbations in the Appellant’s levels of pain were mirrored by his pattern of A & E attendances was inadequately reasoned.
 
22. 	The GP’s statement “has to avoid eating and drinking…until the pain passes – otherwise has to attend A & E” has a clear natural meaning.  A & E attendance was considered necessary if pain did not subside rather than if pain levels were somehow out of the ordinary.  Why else would the GP have used ‘otherwise’ as a linking word in the phrase?  Given the central importance of variation in pain levels for the Appellant’s prospects of success, in my view the tribunal needed to deal with this statement of the GP head-on.  Did it bear some meaning other than the apparent natural meaning?  If not, the finding that disabling symptoms were neatly correlated with A & E attendances was inconsistent with the GP report - the report did not say the Appellant had to attend A & E when his pain reached disabling levels, it said this was required if pain did not subside. Such inconsistency needed to be explained in order for A & E attendance to be rationally used as a proxy for periods disabling pain levels.  As it was, the section of the GP report about variation in symptoms was not referred to in the tribunal’s reasons.

23. 	To my mind, the GP report may also reasonably be read as giving the opinion that the Appellant had a persistent need for encouragement from his wife to eat and look after himself, as well as persistent eating-related anxiety.  These difficulties were not linked by the GP to exacerbations. By contrast, in the same section of the report the GP does link difficulties getting around with exacerbations.  That is why I say the GP report seems to suggest persistent encouragement needs and eating-related anxiety.

24. 	Given the part of the report just referred to, the tribunal’s finding that the Appellant only experienced relevant disabling conditions during a flare-up or exacerbation was inadequately reasoned.  The tribunal’s reasons do not explain why, despite the GP’s opinion, it found that the Appellant only had needs that are relevant for PIP entitlement purposes when he was in exacerbation.  For example, if the Appellant was unable, for PIP purposes, to prepare food at all, daily living descriptor 1(f) would have applied.  That descriptor scores 8 points so that, even if no other points are scored, a person is entitled to the lower rate of the care component of PIP.

25. 	While I allow this appeal, I do not direct a hearing before the appeal tribunal re-determines the Appellant’s appeal.  If the Appellant now wants a hearing, he can request one (see direction (3) below).  However, I think it would be in his interests to request a hearing.  It would also be in his interests to seek professional advice about his appeal, for example from a Law Centre or welfare rights service.

26. 	Finally, I thank the Appellant for his patience while awaiting this decision. It has taken longer than I would have liked to deal with his case.  This is mainly because, before I had finished these reasons, I suffered a fracture and away from duty for a period. 

27. 	I set aside the appeal tribunal’s decision because it was erroneous in point of law.  The Appellant’s case is referred to the appeal tribunal and I direct as follows:

		(1) the Appellant’s appeal against the Social Security Agency’s/Department for Communities’ decision of 31 August 2016 is to be re-determined by the appeal tribunal.  This is to be an entirely fresh determination of all issues arising on the appeal and, by law, must not take into account any circumstances not existing at the date of the Agency’s decision (31 August 2016);

		(2) the appeal is to be determined by a differently constituted tribunal;

		(3) if either party wishes to rely on any further written evidence or argument such must be received by the appeal tribunal within one month of the date on which this decision is issued;

		(4) if the Appellant wants the appeal tribunal to hold a hearing before re-determining his appeal, he must make a written request to be received by the Tribunal Appeals Service within one month of the date on which this decision is issued. 

	(directions (3) & (4) may be varied by direction of a legally-qualified member of the tribunal).

	(signed) E Mitchell

	Deputy Commissioner (NI)

	17 September 2018