Northern Ireland - Social Security and Child Support Commissioners' Decisions

PM-v-Department for Social Development (ESA) [2011] NICom 245

 

                                                  Decision No: C10/11-12(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 25 October 2010

 

                   DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

The decision of the Enniskillen appeal tribunal of 25 October 2010 is erroneous in law.  It is set aside. 

 

The case is remitted to a freshly constituted appeal tribunal for redetermination in accordance with the directions in paragraph 9 of the reasons.

 

 

REASONS

 

1.       This is an appeal by the claimant, brought with my leave, against the decision of the Enniskillen appeal tribunal of 25 October 2010. 

 

2.       The claimant is a 48 year old man.  His identified medical conditions are depression and diabetes.  He also reports the following additional medical conditions:

 

alcoholism, obesity, possible asthma and possible ischaemic heart disease

 

3.       The claimant was awarded employment and support allowance (ESA) from 23 August 2009 by a decision-maker’s decision dated 14 October 2009.  He returned a completed ESA questionnaire to the Department on 20 October 2009.  He was then examined by a healthcare professional (described by the tribunal as an examining medical practitioner (EMP)) for the purpose of the limited capability for work assessment on 29 January 2010.  On 24 February 2010, a decision-maker, on receipt of the report of the above examination awarded the claimant six points for descriptor 1(e) (walking) of the above assessment and accordingly superseded his entitlement to ESA from that date as he had not passed that assessment.

 

4.       The claimant appealed.  The decision-maker’s decision of 24 February 2010 was reconsidered but left unaltered.  The claimant’s appeal proceeded to a hearing on 25 October 2010. The claimant lodged written evidence in connection with his appeal as follows: a report from a cognitive behaviour therapist at B ... H ..., a note from his general practitioner (GP), a letter from a consultant plastic surgeon, a list of his medication and a GP’s factual report apparently prepared for the purposes of adjudication on a claim for disability living allowance.  The tribunal carefully recorded all of the above evidence both in its record of proceedings and in its statement of reasons.  However, after an oral hearing, they dismissed the appeal and upheld the decision-maker’s decision of 24 February 2010 in its entirety.

 

5.       For the purposes of this appeal to the Commissioner, the key passage in the tribunal’s statement of reasons reads as follows – the underlining is mine;

 

“We note that the report from B ... H ... was prepared in 2002 and we placed very little weight on its relevance to how things are in 2010.  Similarly the General Practitioner’s Factual Report was prepared in 2005 and we considered that much had changed since then.  For instance, we noted that the Appellant had been imprisoned from April 2009 to August 2009.  The Appellant was not forthcoming regarding the reason for his imprisonment.  He suggested that it was related to money laundering and at hearing he actually indicated that he had been sentenced to 20 months.  This is a change of circumstances which may well have had an effect on the Appellant’s physical and mental health.  We therefore believe that the report from the Examining Medical Practitioner is the most up to date and relevant report in relation to the Appellant’s restrictions.  We accept the findings of the Examining Medical Practitioner as he reached his conclusions after a full clinical examination of the Appellant and his observations of the Appellant at the examination.  The only other up to date medical evidence is the short note from the General Practitioner which simply gives an indication of the Appellant’s complaints and indicates that the Appellant attends psychiatry and counselling and is awaiting surgery for obesity.  The Examining Medical Practitioner was aware of the complaints referred to in the General Practitioner’s note when he reached his conclusions.”

 

6.       The claimant’s ground of appeal as stated by his representative on his behalf is essentially that the part of the above passage which I have underlined indicates that the tribunal placed undue weight on the claimant’s imprisonment which was an immaterial and indeed an irrelevant issue in his appeal.  Indeed, according to the claimant’s representative, the reliance by the tribunal on his imprisonment in their statement of reasons has led the claimant “to feel that the tribunal was prejudiced against him and that he did not receive a fair hearing as a result.”  In these respects it is submitted by the claimant’s representative that the tribunal erred in law.

7.       I have carefully read and considered the full paragraph from the tribunal’s statement of reasons which I have reproduced in paragraph 5 above.  That paragraph provides the necessary context of the words which I have underlined.  Having done so, I am not satisfied that the reference to the claimant’s imprisonment establishes bias on the part of the tribunal against the claimant with the consequence that he was denied a fair hearing at common law or under Article 6 of the European Convention on Human Rights incorporated into United Kingdom law by the Human Rights Act 1998.  However that is not the end of the matter.  Clearly in the underlined passage the tribunal were expressing their preference for the EMP’s report over other medical evidence on the ground that it was much more recent than for example the information contained in the GP’s factual report.  Indeed they state in terms that the EMP’s report was “the most up to date” medical report available to them.  As part of that reasoning they were saying that the gap for example between 2002 (the date of the cognitive behaviour therapist’s report) and 2005 (the date of the GP’s factual report) and 2010 (the date of the EMP’s report) was not one of mere time alone but in that time gap significant events had happened to the claimant, especially his term of imprisonment.  Indeed that term of imprisonment was the only example of such an event which the tribunal gave.  They then go on to state that the “change of circumstances” constituted by the claimant’s term of imprisonment “may well have had an effect on the Appellant’s physical and mental health.”   In my opinion, there is an obvious fallacy in the tribunal’s reasoning at this point.  In general, imprisonment can reasonably be presumed to have had a deleterious effect on the health of those who experience it.  However, here the tribunal were using the claimant’s imprisonment to justify a preference between reports of 2002 and 2005, on the one hand, and another report in 2010, on the other hand, which indicated an improvement in the claimant’s overall physical and mental capabilities rather than a deterioration in them.  For example, the GP’s factual report indicated a walking restriction on the part of the claimant of 50-100 metres.  Indeed it was relied upon for that purpose by the claimant’s representative at the hearing before the tribunal according to their record of proceedings.  In contrast, the EMP’s estimate of the claimant’s walking ability was 200 metres and that was endorsed in terms by the tribunal.  Therefore, summarising, without a statement (which could have been terse) explaining that in the claimant’s case his imprisonment had led to an improvement in his physical or mental health the tribunal’s reasoning is, in my opinion, inadequate to justify their stated conclusions.  In that way, one which is more limited than the suggestions made in the submissions of the claimant’s representative, the tribunal erred in law.

 

8.       I set the tribunal decision aside on the ground of the error of law identified in paragraph 7 above.  I remit the case for reconsideration by a freshly constituted tribunal in accordance with the directions in paragraph 9 below.

 

9.       The new tribunal should proceed as follows:

 

(a)      they should recall that the decision-maker bears the legal onus of proof as the decision under appeal is a supersession;

 

(b)      they must restrict themselves to a consideration of the circumstances pertaining on 24 February 2010, the date of the decision-maker’s decision under appeal, ignoring any subsequent improvement or deterioration in the claimant's condition.  Evidence postdating that date should be considered if it relates to the circumstances prevailing then;

 

(c)      they are entitled to focus their consideration on those activities and descriptors under the limited capability for work assessment put at issue before them by the claimant’s representative.  However if other activities or descriptors from that assessment appear to them to be relevant from the whole state of the evidence then they should consider those also;

 

(d)      they should decide the case by making focused findings of fact based upon such of the evidence before them as they accept on balance of probabilities.  On the basis of those findings they should score the claimant under the limited capability for work assessment;

 

(e)      in the event that they consider that the claimant does not satisfy the above assessment then they should go on to consider again on the basis of focused findings of fact whether he is covered by regulation 29(2)(b) of the Employment and Support Allowance Regulations (Northern Ireland) 2008.

 

10.     The claimant’s appeal succeeds.  That success is no necessary indication of the eventual decision on the merits.  Those are for determination by the new tribunal rehearing the case and applying the directions in paragraph 9 above.

 

 

          (Signed):  A J Gamble

 

          DEPUTY COMMISSIONER

 

 

 

          20 December 2011