Northern Ireland - Social Security and Child Support Commissioners' Decisions

JW -v- Department for Communities (ESA) [2018] NICom 38

 

Decision No: C4/18-19(ESA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

EMPLOYMENT AND SUPPORT ALLOWANCE

 

 

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 7 November 2016

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. This is a claimant's application for leave to appeal from the decision of an appeal tribunal sitting at Belfast.

 

2. For the reasons I give below, I grant leave to appeal. I allow the appeal and I set aside the decision of the appeal tribunal.

 

3. However, I consider that in all the circumstances of this case it is appropriate for me to exercise the power under Article 15(8)(a) of the Social Security (NI) Order 1998 to make the decision the tribunal should have given. My decision is that the applicant does not have limited capability for work related activity from and including 18 May 2015.

 

REASONS

 

Background

 

4. The applicant claimed employment and support allowance (ESA) from the Department for Social Development (the Department) from an unspecified date by reason of arthritis and stress. It would appear that he was most recently found to have limited capability for work by a tribunal from and including 18 May 2015. On 1 October 2015 the Department implemented the tribunal's decision, but also found on that date that the applicant did not have limited capability for work related activity. In other words, it found that he was not entitled to the support component of ESA. The applicant appealed.

 

5. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 7 November 2016. The tribunal disallowed the appeal. The applicant then requested a statement of reasons for the tribunal's decision and this was issued on 25 April 2017. The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal. Leave to appeal was refused by a determination issued on 18 August 2017. On 30 August 2017 the applicant applied for leave to appeal from a Social Security Commissioner.

 

Grounds

 

6. An applicant for leave to appeal is asked on the standard form to indicate a basis for arguing that the tribunal has erred in law. However, the applicant in the present case states that this application is not made on the basis that the tribunal has erred, but that it is about the Department's "ability to determine which group I should be placed [in]".

 

7. The Department was invited to make observations on the appellant's grounds. Mr Kirk of Decision Making Services (DMS) responded on behalf of the Department. He submitted that the tribunal had not erred in law and indicated that the Department did not support the application. The applicant in turn responded to the Department's submissions.

 

The tribunal's decision

 

8. The LQM has prepared a statement of reasons for the tribunal's decision. From this I can see that the tribunal had documentary material before it in the form of the Department's submission. This included a number of documents such as an ESA85 report from a healthcare professional (HCP) and the decision of an earlier appeal tribunal dated 22 September 2015. That earlier tribunal had allowed an appeal by the applicant and found that he had limited capability for work from and including 18 May 2015. An ESA50 questionnaire dated around May 2015, which, I understand, had been completed and returned by the applicant, could not be found by the Department. The applicant attended the tribunal hearing and gave oral evidence.

 

9. The tribunal asked the applicant about his medical conditions and treatment. He indicated that he could not use a walking aid due to wrist problems. He indicated that he would have to stop and rest after walking 10 minutes, walking at a slow pace. He stated that he could not walk the length of one side of Belfast City Hall without a break. He stated that he could not sit for longer than 20 minutes. He stated that he drove for 10/15 minutes before he got pain. He described using the stairs with difficulty. He indicated no problems with the activities of Reaching and Picking up.

 

10. In the statement of reasons, the tribunal noted that the applicant had previously been accepted as having limited capability for work. It indicated that it had applied regulation 34 and Schedule 3 of the ESA Regulations, paying particular attention to the activities of mobilising and transferring from one seated position to another. The panel found that the applicant was able to mobilise more than 50 metres, on his own evidence, and repeatedly mobilise. The panel found that the applicant could move from one seated position to another, based on its own ocular observation of the applicant standing and moving away from his chair at the hearing. It found that the applicant did not satisfy any of the descriptors in Schedule 3, nor regulation 35.

 

11. The statement of reasons then indicates "therefore" that it went on to consider the Schedule 2 activities. It accepted that the applicant should be awarded 15 points under Activity 1 and Activity 2, but no points were awarded under other activities. The LQM recorded "appeal allowed" on the summary decision notice, but was subsequently asked to amend this by the Department, and apologised for any difficulty this might have caused to the applicant in understanding the decision.

 

Relevant legislation

 

12. ESA was established under the provisions of the Welfare Reform Act (NI) 2007 (the 2007 Act). The core rules of entitlement were set out at sections 1 and 8 of the 2007 Act. These provide for an allowance to be payable if the claimant satisfies the condition that he or she has limited capability for work. The Employment and Support Allowance Regulations (NI) 2008 (the ESA Regulations) provide for a specific test of limited capability for work.

 

13. Firstly, regulation 19(2) provides for a limited capability for work assessment. This 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 of the ESA Regulations, or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

 

14. The ESA Regulations further provide at regulation 34 and Schedule 3 for a test of capability for work related activity. This involves an assessment of whether any of the activities prescribed in Schedule 3 of the ESA Regulations, applies to the claimant. A claimant who satisfied the relevant conditions will, additionally, qualify for the support component of ESA.

 

Hearing

 

15. I held an oral hearing of the application for leave to appeal. The applicant attended in person. The Department was represented by Mr Kirk of DMS. I am grateful to both for their contribution to the hearing.

 

16. It appeared to me that the summary decision of the tribunal was issued in a form which addressed entitlement to ESA under regulation 19 and Schedule 2 of the ESA Regulations. This was issued to the applicant on the day of hearing and included the words "Appeal Upheld". It indicated that the applicant had been found to have limited capability for work, as points were awarded under descriptors 1(d)(ii) and 2(b)(i). It did not indicate any date from which its decision was effective. It had attached to it a standard Appeals Service pro forma scoresheet, headed Schedule 2, Part 1, Physical Health Descriptors, on which it had recorded findings on ten Schedule 2 activity groups. There was no similar Schedule 3 pro forma attached.

 

17. Subsequently the Department applied under regulation 56 of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 to have the LQM correct an accidental error in the decision. It asked for the words "Appeal Upheld" to be removed from the tribunal's decision. The LQM complied with the application. The decision which was left did not include any statement of an outcome of the appeal, but simply stated that the applicant had limited capability for work.

 

18. The applicant was understandably confused and suspicious as to what had occurred. In his application he had queried how the tribunal had apparently reversed its decision post-hearing at the Department's bidding. He referred to the previous tribunal proceedings in which his appeal had been allowed, meaning his appeal on capability for work under regulation 19 and Schedule 2.

 

19. I was concerned about the absence of any reference to regulation 34 and Schedule 3 in the tribunal's summary decision. Its decision did not appear on its face to deal with the question of capability for work related activity. I was also concerned as to whether the tribunal, which was dealing with an appeal pertaining to limited capability for work related activity, had any business revisiting and addressing the Schedule 2 descriptors.

 

20. I questioned Mr Kirk at hearing on the issues arising. In the course of the hearing, I granted leave to appeal. I directed Mr Kirk to respond by way of further written submissions to the following questions:

 

"The Departmental submission to the tribunal identifies the decision under appeal in the present case as the decision of 1 October 2015, which found that the applicant was not entitled to the support component of ESA. Another way of describing this may be as the decision that the applicant does not have limited capability for work related activity.

 

The applicant had previously been found to have limited capability for work by a tribunal, whose decision was implemented by the Department on 1 October 2015. The applicant was not seeking to disturb the latter finding, which was in his favour.

(i) Is the Commissioner correct to understand that the only decision under appeal was a decision under regulation 34 and Schedule 3 of the Employment and Support Allowance (NI) Regulations 2008?

 

(ii) In respect of what period was the decision under appeal made? Specifically, was it for a period contemporaneous with the decision of the previous tribunal of 29 September 2015, which decided that the applicant had limited capability for work from and including 18 May 2015 under regulation 19 and Schedule 2 of the ESA Regulations?

 

(iii) When the appeal against the decision of 1 October 2015 came before the tribunal on 7 November 2016, did that tribunal have jurisdiction to reconsider the issue of limited capability for work under regulation 19 and Schedule 2 of the ESA Regulations? If so, for what period did it have jurisdiction?

 

(iv) Alternatively, did the principle of finality under Article 17 of the Social Security (NI) Order 1998 and/or the common law principle of res judicata mean that the tribunal of 17 November 2016 had no jurisdiction to reconsider the issue of limited capability for work from and including 18 May 2015 since there was a degree of finality attaching to that decision?

 

(v) Is a decision which encompasses an element under regulation 19 and Schedule 2 and an element under regulation 34 and Schedule 3 of the ESA Regulations one decision or two decisions? In either case, does Article 13(8)(a) of the Social Security (NI) Order 1998 have relevance to such an appeal?

 

(vi) Is there, to the Department's knowledge, a pro forma decision summary score sheet which is used by the Appeals Service in Schedule 3 appeals? If so, please furnish a copy."

 

21. Mr Kirk responded to the questions respectively as follows:

 

(i)     In this case the issue under consideration was whether [the applicant] would satisfy either the provisions of Regulation 34 or if any of the descriptors listed at schedule 3 of the Employment and Support Allowance (NI) Regulations 2008 would apply therefore the Commissioner is correct to state that this was the only issue under appeal. I would state that a determination as to whether someone has limited capability for work or limited capability for work related activity is a determination which is used to reach the actual decision upon entitlement to employment and support allowance

 

(ii)   Whilst the tribunal of 7 November 2016 do not specifically refer to any dates on the decision notification AT3D'ESA form I would point out that at paragraph 2 of the reasons for decision it did note that the date of the original decision in [the applicant's] case was 1 October 2015. That is the date that the Department implemented the decision of the previous appeal tribunal dated 22 September 2015. That tribunal had decided that [the applicant] scored 15 points and that he had limited capability for work from and including 18 May 2015. On 1 October 2015 the Department implemented that decision. It was the Department's implementation of that decision which was the decision under appeal to the appeal tribunal dated 7 November 2016. However as the appeal in this case was whether [the applicant] had limited capability for work related activity I would state that it was for a period contemporaneous with the previous tribunal decision.

 

(iii) As noted above the tribunal of 7 November 2016 was considering the Department's implementation of the previous tribunal decision of 22 September 2015. Having stated that I would state that as the issue of limited capability for work had already been decided that the only issue for the tribunal of 7 November 2016 was whether [the applicant] had limited capability for work related activity. Therefore I would state that the tribunal of 7 November 2016 did not have the jurisdiction to consider an issue that had already been decided by another tribunal.

 

(iv) The principle of finality under Article 17 of the Social Security (NI) Order would apply and therefore the tribunal of 7 November 2016 had no jurisdiction to consider the issue of limited capability for work.

 

(v)   After applying the work capability assessment a decision will be reached. That decision has two aspects the first aspect is a determination as to whether a claimant has limited capability for work (Regulation 19 and Schedule 2) and the second aspect is a determination as to whether a claimant has limited capability for work related activity (Regulation 34 and Schedule 3). Those determinations will be factored into the overall decision that the claimant is entitled to employment and support allowance. It is the Department's argument that Article 13(8)(a) does not have relevant to such an appeal unless a tribunal take into account something that obtains after the date of the decision under appeal i.e. 1 October 2015.

 

(vi) As I am not aware of what documentation the appeal tribunal is provided with by the Appeal Service, I contacted same. The response from the Appeals Service was that the following was the documentation used in Employment and Support Allowance appeals.

 

22. He attached a copy of the Schedule 2 pro forma, but indicated that it did not appear that there was a pro forma in use for Schedule 3 appeals. I was surprised by this, as it would appear logical to have a Schedule 3 pro forma in use in such appeals in order to avoid the confusion which has occurred in this case.

 

23. The applicant responded in turn to Mr Kirk's submission. It appears to me that the applicant was concerned that the errors in the case should be highlighted by me, but did not welcome matters being "dragged out" any further.

 

Assessment

 

24. It appears to me, and the Department does not dispute, that the tribunal had erroneously addressed the question of whether the applicant satisfied any of the descriptors in Schedule 2 of the ESA Regulations. That matter had been decided in the applicant's favour by a tribunal on 22 September 2015, and the decision of that tribunal was final.

 

25. On the basis of the summary decision issued to the applicant on the day of his hearing, it is evident that the tribunal made findings under Schedule 2 and framed its decision in terms of Schedule 2. However, the question before the tribunal was not whether the applicant satisfied Schedule 2 conditions. That had been answered by the other tribunal from and including 18 May 2015. What was before the tribunal, as addressed in the Department's submission, was the separate appeal from the Department's decision under Schedule 3, which was made on 1 October 2015.

 

26. I consider that the question of whether the applicant had limited capability for work from 18 May 2015 was res judicata. The tribunal which decided the appeal on 7 November 2016 was precluded from revisiting this issue, unless it had been superseded or revised by some other decision giving rise to fresh appeal rights. As observed above, the tribunal did not state any effective date for its decision. However, it can only have been concerned with an appeal from the Department's decision of 1 October 2015. That decision implemented the decision of the previous tribunal. It did not supersede or revise it. Whereas the applicant's notice of appeal did not make specific reference to the grounds of his appeal, it can only have been an appeal from the refusal to put him in the support group under Schedule 3, relating to the same period as considered in the Department's decision, namely from and including 18 May 2015.

 

27. In its statement of reasons, issued in April 2017, the tribunal makes reference to regulation 34 and Schedule 3. It indicates that it paid particular attention to activity 1, "Mobilising unaided...", and activity 2, "Transferring from one seated position to another". It indicates that it made findings based on the applicant's own evidence that he was not unable to mobilise more than 50 metres on level ground without stopping in order to avoid, or unable to repeatedly mobilise 50 metres within a reasonable timescale because of, significant discomfort or exhaustion. It indicates that it based its findings on activity 2 on its own observations of the applicant successfully standing and moving away from his chair at the appeal hearing. On the basis of what was recorded in the record of proceedings, the tribunal had not asked direct questions to the applicant about his ability to move from one seated position to another for the purposes of Schedule 3, activity 2.

 

28. When he appeared at the hearing before me, it appeared to me that the applicant was completely and understandably confused about what had occurred. When it was explained to him that the only issue before the tribunal was whether he met the relatively high level of disability in the activities in Schedule 3 to be admitted to the support group, he candidly accepted that he did not approach that threshold of disability. He had other concerns about the duration of his ESA award that Mr Kirk undertook to investigate.

 

29. I consider that the tribunal has erred in law. It unnecessarily addressed and made findings on Schedule 2 descriptors, but did not address Schedule 3 descriptors in its summary decision. Its focus on Schedule 2 led to it stating "Appeal Upheld" in its decision notice, but it did not state any conclusion on the Schedule 3 appeal.

 

30. The Department made an application for a correction of an "accidental error" under regulation 56 of the Decisions and Appeals Regulations. This did not help matters and has led to further error. Firstly, I do not consider that this was a case where a correction could properly be requested on the basis of accidental error. The problem was the more fundamental one of the tribunal answering the wrong question and not articulating a decision on the question that was actually before it. The applicant then saw the tribunal apparently reverse its decision at the Department's request, and this gave rise to a great feeling of injustice on his part. Secondly, the consequence of the LQM acceding to the Department's application was that the summary decision did not actually contain a decision on any issue, let alone the issue before the tribunal. This is a flaw which rendered the tribunal's decision inchoate.

 

31. Whereas the tribunal sought to remedy the absence of any reference to regulation 35 and Schedule 3 in the summary decision by way of the statement of reasons, another problem is evident. The tribunal had asked the applicant questions addressed to Schedule 2 descriptors and had adduced his evidence. Whereas these were helpful in deciding the issue of activity 1 of Schedule 3, there was no indication of any questioning addressed to activity 2. The tribunal based its findings on this activity on occular observations alone. Well known case law, such as R1/01(IB)(T), suggests that ocular observations should be put to an appellant for comment as a matter of procedural fairness. I pause to make the observation that asking the appellant questions addressed to the matters relevant in the appeal would also have the side benefit of enabling him to understand what the factual issues were in his case.

 

32. Overall, the effect of the tribunal addressing matters which were not before it, not expressly addressing the matters which were before it, issuing a summary decision which did not address the issues before it and then amending the summary decision to remove the outcome decision, has resulted in error and confusion. In these circumstances, I consider that I must allow the appeal and set aside the decision of the appeal tribunal.

 

Disposal

 

34. As matters of procedural fairness arose in this appeal, I gave consideration to directing that the appeal should be reheard by a differently constituted tribunal.

 

35. However, it was also evident to me that the applicant, once it was explained to him that the sole question in the appeal was whether he met any of the criteria for membership of the support group, which are set out in Schedule 3 of the ESA Regulations, candidly accepted that he did not reach the relevant threshold of disability. He further indicates in his written submission that he does not want matters to be dragged out further.

 

36. The decision of the earlier appeal tribunal, allowing the applicant's appeal on the Schedule 2 issues from and including 18 May 2015, stands. He has limited capability of work and entitlement to ESA from that date. However, I am satisfied that there would be no realistic prospect of the applicant succeeding before a differently constituted tribunal on the Schedule 3 issue. I can see no useful purpose in sending the appeal back to a newly constituted tribunal.

 

37. The decision of the tribunal was principally erroneous on the basis of legal technicalities. I consider that the appropriate course of action is to correct the technical errors and to give the decision which the tribunal should have given.

 

38. Under Article 15(8)(a) of the Social Security (NI) Order 1998, I decide that the applicant did not satisfy any of the descriptors in Schedule 3 of the ESA Regulations, and did not have limited capability for work related activity, from and including 18 May 2015.

 

 

(signed): O Stockman

 

Commissioner

 

 

 

6 August 2018