Northern Ireland - Social Security and Child Support Commissioners' Decisions

MAMcC-v-Department for Social Development (ESA) [2015] NICom 35

Decision No: C25/14-15(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 1 May 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. The decision of the appeal tribunal dated 1 May 2014 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. 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.

 

3. 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 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

 

4. The decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 18 November 2013, which decided that as the Department had decided that the appellant did not have limited capability for work her entitlement to incapacity benefit did not qualify for conversion into an award of ESA from and including 3 December 2013. The appeal was received in the Department on 10 December 2013. On 7 January 2014 the decision dated 18 November 2013 was looked at again but was not changed.

 

5. Following an earlier postponement, the substantive oral hearing of the appeal took place on 1 May 2014. The appellant was present and was represented by Mr O’Farrell of the Citizens Advice Bureau. There was no Departmental Presenting Officer present. The appeal tribunal disallowed the appeal and confirmed the Departmental decision dated 18 November 2013.

 

6. On 15 August 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS) from the appellant. On 15 September 2014 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

Proceedings before the Social Security Commissioner

 

7. On 6 October 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 28 October 2014 observations on the application for leave to appeal were sought from Decision Making Services (DMS) and written observations were received on 12 November 2014. In these written observations, Mr Collins, for DMS, supported the application on two of the grounds submitted by the appellant. In addition, Mr Collins identified a further ground on which he submitted that the decision of the appeal tribunal was in error of law Written observations were shared with the appellant and her representative on 14 November 2014. On 28 November 2014 written observations in reply were received from Mr O’Farrell which were shared with Mr Collins on 3 December 2014.

 

8. On 29 January 2015 I granted leave to appeal. In granting leave to appeal, I gave as a reason that certain of the issues raised on behalf of the applicant were arguable.

 

Errors of law

 

9. 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?

 

10. 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.”

 

Analysis

 

11. In his written observations on the application for leave to appeal, Mr Collins has submitted:

 

‘ Regulation 29 – “Exceptional Circumstances” - of the ESA Regulations (NI) 28 provides for circumstances in which certain claimants that do have LCW as determined in the WCA can be treated as having LCW. Regulation 2(b) states that this applies if:-

“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.”

 

A tribunal’s responsibility in considering the possible applicability of regulation 29 has been considered in unreported Northern Ireland decision C6/11-12(ESA). This decision, at paragraph 21 endorses the approach recommended in previous decisions C5/08-09(IB), C4/09-10(IB) and C24/10-11(IB) all of which considered the possible applicability of regulation 27 in relation to incapacity benefit (IB) which had preceded ESA. At paragraph 20 of C6/11-12(ESA) Chief Commissioner Mullan referred to paragraphs 39 to 40 of C24/10-11(IB) which endorsed the approach that it will be safest and best practice for a tribunal, in its statement of reasons, to make reference that the application of regulation 27 was considered but was discounted.

 

At paragraph 25 of C6/11-12(ESA) the Chief Commissioner went on to state that in most cases (in the context of ESA) when a tribunal is considering whether the claimant has LCW the further issue of whether regulation 29 is satisfied will not be relevant but it will be safest and best practice for the tribunal to note it had been considered.

 

In the circumstances of the present case the tribunal had, as referred to earlier, evidence from (the claimant) regarding her problems going out socially and sometimes finding it hard to deal with people in addition to feeling tearful and weepy. In addition the tribunal had evidence from her GP, in the form of the letter dated 17 April 2014, that she has suffered from anxiety and depression aggravated by abnormal grief reaction. Her GP also states it is unlikely that (the claimant) would be able to restart work.

 

I can find nothing in the record of proceedings/statement of reasons from the hearing on 01 May 2014 to indicate that the tribunal considered the possible applicability of regulation 29. As stated earlier in these observations it is my view that the tribunal erred in how it dealt with conflicts in evidence – perhaps it was of the view that regulation 29 was not applicable. However as its reasons are completely silent on the subject I would submit that this constitutes a further error in law on the tribunal’s part.’

 

12. I agree with the submissions made by Mr Collins and for the reasons which have been set out by him agree that the decision of the appeal tribunal is in error of law. The appellant submitted a letter from her general practitioner (GP) dated 17 April 2014 in support of her appeal. The letter makes it specific in setting out the GP’s opinion that the appellant ‘… would be unlikely to be able to restart paid employment or training.’ The basis for that opinion was the GP’s assessment of the effects of her medical conditions which were set out in the earlier part of the correspondence dated 17 April 2014.

 

13. There was sufficient in the evidence available to the appeal tribunal to consider the potential application of regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended. As was noted by Mr Collins, in paragraph 29 of my decision in HA-v-Department for Social Development (ESA) ([2011] NICom 213, C6/11-12(ESA)), I stated:

 

‘In the majority of cases in which an appeal tribunal is considering whether the appellant has limited capability for work in accordance with the work capability assessment, the further issues of whether he also satisfies the exceptional circumstances in regulation 29, will not be relevant.’

 

14. In paragraph 25, however, I addressed the duties of the appeal tribunal where the potential applicability of regulation 29 is clearly evident:

 

‘… To repeat what was said above, where the potential applicability of regulation 29 is clearly evident in the appeal, either because there has been a specific submission to that fact or, in the absence of a specific submission, the evidence which is before the appeal compels the appeal tribunal to consider the issues as part of its inquisitorial role, then an appeal tribunal will err in law in failing to deal with regulation 29 and/or demonstrating through the statement of reasons for its decision that it has dealt with it.’

 

15. I am of the view that this was an instance where the potential application of regulation 29 was clearly evident in the appeal. In such circumstances the appeal tribunal was under a duty to consider that potential applicability and to demonstrate that it has dealt with it. Its failure so to do renders its decision as being in error of law.

 

The appellant’s other grounds for appealing to the Social Security Commissioners

 

16. Having found, for the reasons which are set out above, that the decision of the appeal tribunal is not in error of law, I do not have to consider the appellant’s other grounds for appealing to the Social Security Commissioner. In summary, these were:

 

(i)         The appeal tribunal was misguided in concluding that the absence of specialist medical intervention and investigation meant that the appellant’s back problems were not as debilitating as she claimed them to be. Further, the appeal tribunal had no substantive grounds on which to question the appellant’s credibility on this issue.

 

(ii)        In relation to the potential application of the mental health descriptors the appeal tribunal had relied on the contents of a report of an examination conducted by a healthcare professional (HCP) conducted on behalf of the Department despite the appellant having raised concerns about the content of that report. The appeal tribunal had dismissed the appellant’s contentions without explaining why.

 

(iii)       The appeal tribunal was asked to consider a combination of physical and mental health descriptors but did not make specific findings/conclusions in relation to each of them. Accordingly it was difficult for the appellant to understand the appeal tribunal’s reasons for disallowing the appeal.

 

17. As was noted above, Mr Collins, for DMS, has supported two of those grounds – (ii) and (iii). In connection with ground (ii), Mr Collins made the following submissions:

 

‘ In support of this contention (the claimant) refers to specific concerns she raised regarding the HCP:-

“Continually cutting short the conversation”

“Not allowing me to expand on my answers”

“Only interested in my better days”

“HCP talking about his own family history”

“Examination took 20 minutes and not 35 minutes”

 

(The claimant) states that these concerns cast a doubt on the tribunal’s view that the medical report could be described as thorough and objective. She also states that the tribunal is silent on its view of the concerns that were raised and it should have explained why her concerns were, by implication, dismissed.

 

The concerns identified by (the claimant) above can be found at page 3 of the record of proceedings and were raised by her representative. With particular reference to these concerns the tribunal drew the following conclusions:-

 

“Nothing in the evidence received by us causes the Tribunal to challenge or question the findings and conclusions of the Health Care Professional. Whilst some concerns were expressed during the hearing in relation to the Health Care Professional’s report, the Tribunal is satisfied that it was particularly thorough and objective. Nothing in the letter dated 17 April 2014 from Dr Carroll materially challenges the findings and conclusions of the Health Care Professional.”

 

The responsibility of a tribunal in dealing with criticisms of a HCP’s report has been considered in case law relating to incapacity benefit (IB) - the precursor of ESA. In R2/04(IB)(T) a tribunal of Commissioners stated at paragraph 11 that the tribunal should have dealt with specific criticisms of the report and explained why it did not accept them, that such an explanation need not have been extensive and the failure to deal with them left the claimant with a sense of grievance and of not being listened to. The Commissioners went on to refer to paragraph 20 of R3/01(IB)(T) where it was stated:-

 

“...it appears that issues raised expressly by the claimant were ignored. It may be that in this case the Tribunal did not place any reliance whatsoever on the Examining Doctor’s report. It may be that it rejected the claimant’s contentions. We have no means of knowing. We consider that in this case, when such very specific issues in relation to the report have been raised, the Tribunal should have commented on them in some manner.”

 

In the circumstances of the present case the tribunal’s record of proceedings indicates that specific issues regarding the HCP’s report were raised by (the claimant’s) representative and the tribunal’s reasons state concerns had been raised but it was happy that the HCP’s report was thorough and objective. To that extent, the tribunal has complied with R3/01(IB)(T) by commenting on the issues “in some manner.” However I would submit that in the context of R2/04(IB)(T) the tribunal has not gone far enough. It has not dealt with the specific criticisms and explained why it didn’t accept them – rather it seems to have made a leap from “Concerns were expressed” to the conclusion that it is “satisfied” with the HCP’s report. It would appear from the record of proceedings that the complaints are in respect of the manners and conduct of the HCP rather than anything substantive in relation to, for example, the clinical findings. However it is also the case, as page 2 of the record of proceedings indicates, that (the claimant) took issue with her description of what she did in a typical day as opposed to what was recorded by the HCP. Taking all of these factors into account it is my view that the tribunal should have gone further by giving an explicit explanation – however brief - as to why it did not accept the criticisms or why it did not feel them to be relevant.’

 

18. I agree that there is something to this submitted ground. The appellant has raised specific concerns with respect to the manner in which the examination was conducted by the HCP on behalf of the Department and whether the report of the medical examination was thorough and objective. The jurisprudence from the Social Security Commissioners, referred to by Mr Collins in the extract set out above, sets out the proper approach for appeal tribunals to follow when an appellant has raised specific concerns or set out criticisms of a report conducted on behalf of the Department and which is relied on by the Department as part of its decision-making process. In the instant case, the appeal tribunal has alluded to the concerns raised and the criticism made. The specificity of those concerns was such that the appeal tribunal had to go further in addressing them and give a specific explanation as to why they were rejected.

 

Disposal

 

19. The decision of the appeal tribunal dated 1 May 2014 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.

 

20. 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 18 November 2013, in which a decision-maker decided that the appellant did not have limited capability for work and, accordingly, her award of IB did not qualify for conversion to ESA from and including 3 December 2013;

 

(ii)        the Department is directed to provide details of any subsequent decision-making activity in connection with ESA and the outcome of any such decision-making to the appeal tribunal to which the appeal is being referred. The appeal tribunal is directed to take any evidence of subsequent decision-making 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

 

 

 

20 July 2015