MJW-v-Department for Social Development (ESA) [2011] NICom 174

 				Decision No: C4/10-11(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 17 May 2010

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

2.	The decision of the appeal tribunal dated 17 May 2010 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the appellant is not entitled to employment and support allowance (ESA), from and including 22 January 2010, is confirmed

Background

3.	The decision under appeal to the appeal tribunal was a decision of the decision- maker of the Department, dated 22 January 2010, which decided that: 

(i)	grounds existed to supersede an earlier decision of the Department, dated 22 July 2009, and which had awarded an entitlement to incapacity benefit (IB), from and including 4 June 2009; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 22 January 2010. 

4.	The appeal was received in the Department on 1 February 2010. On 10 March 2010 the decision dated 22 January 2010 was looked at again but was not changed.

5.	The substantive appeal tribunal hearing took place on 17 May 2010. The appellant was not present, the appellant having indicated that he wished the appeal tribunal to proceed in his absence. The record of proceedings for the appeal tribunal hearing records that, despite the appellant’s notification that he would not be attending the appeal tribunal hearing, the appeal tribunal gave careful consideration to proceeding by way of paper determination. The appeal was disallowed and the appeal tribunal confirmed the decision dated 22 January 2010.

6.	On 7 October 2010 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service. On 11 October 2010, the application for leave to appeal was allowed by the legally qualified panel member (LQPM). In allowing the application, the LQPM identified the following point of law:

‘Whether the Statement of Reasons is adequate, given that it does not explicitly refer to supersession.’ 

Proceedings before the Social Security Commissioner

7.	On 9 November 2010 the appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners. On 3 March 2011 observations were sought from Decision Making Services (DMS) and these were received on 25 March 2011. In these observations, Mr Toner, for DMS opposed the appeal on the grounds cited by the appellant. The written observations were shared with the appellant on 5 April 2011.

Errors of law

8.	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.

9.	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.” 

Was the decision of the appeal tribunal in the instant case in error of law?

The supersession issue

10.	As was noted above, in allowing the application for leave to appeal to the Social Security Commissioner, the LQPM recorded that he was satisfied that grounds had been established that the decision of the appeal tribunal might be in error of law on the basis that the reasons for the decision of the appeal tribunal might be inadequate in failing explicitly to deal with the supersession issue. 

11.	As was noted above, the decision under appeal to the appeal tribunal was a decision of the Department which decided that: 

(i)	grounds existed to supersede an earlier decision of the Department, dated 22 July 2009, and which had awarded an entitlement to IB, from and including 4 June 2009; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 22 January 2010. 

12.	Paragraph 15 of section 5 of the submission prepared for the appeal tribunal hearing reads as follows:

‘The law says that the Department may supersede a decision awarding Employment and Support Allowance on receipt of medical evidence following an examination by a healthcare professional of the Department. In this case a report was received following an examination on 05/01/2010 and the Department, on consideration of all evidence, determined that (the claimant) does not have Limited Capability for Work in accordance with the Work Capability Assessment.² As such the decision dated 22/07/2009 awarding Employment and Support Allowance was superseded on 22/01/2010 disallowing Employment and Support Allowance from and including 22/01/2010.’

13.	There is a footnote to paragraph 15 which reads as follows:

‘Article 11(1), (5) of the Social Security (Northern Ireland) Order 1998, The Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, regulation 6(1), 6(2)(a)(i) and 6(2)(q).’

14.	Article 11 of the Social Security (Northern Ireland) Order 1998, as amended, makes general provision for the supersession of decisions. Regulation 6(2)(q) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, allows for supersession where the decision:

‘… is an employment and support allowance decision where, since the decision was made, the Department has received medical evidence from a health care professional approved by the Department for the purposes of regulation 23 or 38 of the Employment and Support Allowance Regulations’

15.	Regulation 6(2)(q) is worded similarly to regulation 6(2)(g) of the same Regulations which allows for supersession where the decision:

‘… is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision) and where, since the decision was made, the Department has received medical evidence following an examination in accordance with regulation 8 of the Incapacity for Work Regulations from a health care professional referred to in paragraph (1) of that regulation’
 
16.	In C3/09-10(IB), I stated the following, at paragraphs 31 to 36, about the duty of an appeal tribunal when considering the supersession issue in an appeal involving IB:

31.	In C12/08-09(DLA), at paragraphs 33 to 36, I set out the duties of the 	appeal tribunal with respect to the decision-making process:

33.	Accordingly, the first task of the appeal tribunal was to determine whether the decision-maker, on 24 March 2007, had grounds to supersede the earlier decision of the Department, dated 29 November 1996.

34.	If the appeal tribunal determined that the decision-maker, on 24 March 2007, did not have grounds to supersede the decision dated 29 November 1996, then that latter decision would continue to have effect.
35.	If the appeal tribunal determined that the decision-maker, on 24 March 2007, did have grounds to supersede the decision dated 29 November 1996, then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

36.	Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect.’
          32.	The approach taken by the appeal tribunal in C12/08-09(DLA) was in error in the following way. Neither the decision notice prepared by the LQPM of the appeal tribunal, nor the statement of reasons for the appeal tribunal’s decision, dealt with the issue of supersession to any degree of sufficient detail. As I noted at paragraphs 44 to 45:

                                 44.	What the decision notice and statement of reasons  does tell the appellant is that the appeal tribunal has determined and agrees that the appellant should not have an entitlement to either component of DLA from a specific date, and then something of the evidential basis for its conclusions on that issue.

                                 45.	What the decision notice and statement of reasons does not inform the appellant is:

	                          (i)     that the appeal tribunal has addressed the issue of 	whether the Department had a legal and evidential basis for reconsidering and changing its earlier decision; and

	                          (ii)   the effective date from which any new decision should take effect.’
 
          33.	In their written observations on the appeal in C12/08-09(DLA), DMS had submitted that while the appeal tribunal did not specifically refer to the grounds for supersession in the conclusion to its statement of reasons, and while it may have been preferable for it to have done so, in concluding that no award of DLA was appropriate it was implicit that the appeal tribunal considered that grounds for supersession existed to remove the award, namely a relevant change of circumstances.

     34.	I rejected that submission from DMS, and concluded, at    paragraph 48:

	‘The appeal tribunal was under a specific duty to determine whether the decision under appeal was correct.  As that decision was a supersession decision the duty was to determine whether there were grounds to supersede under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.’

	35.	Finally I stated, at paragraph 52 that:

	‘The appeal tribunal’s duty is not only to consider the supersession issue, including grounds, entitlement and effective date, but to make clear that it has done so.  It is not sufficient for it to be, as DMS suggests, implicit from the appeal tribunal’s documentation that the supersession issue was addressed.  That consideration must be explicit from the decision notice, the statement of reasons or a combination of both.  In the present case, I am of the view that it is not even implicit that consideration was given to the supersession issue.

	    	      36.  	It was in the context of the submission made by DMS, and my  rejection of the argument that it could be implied from the appeal tribunal’s reasoning, that my comments at paragraph 52 were derived.’

17.	That reasoning was in the context of regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, but I am of the view that it applied equally to the duties of an appeal tribunal with respect to regulation 6(2)(q) in the context of an appeal involving ESA. What also applied to regulation 6(2)(q), however, are my further comments on regulation 6(2)(g), made at paragraph 41 of C3/09-10(IB):

‘It is arguable that in IB cases, the regulation 6(2)(g) ground is intrinsic to the benefit decision itself and that, subject to the necessary and sufficient fact-finding, a confirmation of the benefit decision by the appeal tribunal will be sufficient to confirm that the decision-maker had grounds, under regulation 6(2)(g), to supersede the earlier entitlement decision. All will depend on the circumstances of each individual case, however.’          

18.	In the instant case, I am satisfied that although the issue is marginal, the appeal tribunal did address, in an adequate manner, the supersession issue. It recognised and confirmed the outcome decision under appeal. While it would have been beneficial for the appeal tribunal to identify that the grounds to supersede were those found in regulation 6(2)(q) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, this is one of those cases where the regulation 6(2)(q) ground is intrinsic to the benefit decision itself and that, subject to the necessary and sufficient fact-finding, a confirmation of the benefit decision by the appeal tribunal is sufficient to confirm that the decision-maker had grounds, under regulation 6(2)(q), to supersede the earlier entitlement decision.

19.	In any event, if I had been wrong in respect of my conclusions with respect to the supersession issue, I would have been content to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given.

The appellant’s grounds for appealing

20.	In the application for leave to appeal to the Social Security Commissioner, the appellant has submitted that the decision of the appeal tribunal was in error of law on the basis that:

‘I think the tribunal was wrong, as I’ve stated before my mental and physical health were not looked at correctly. I’ve been on tablets daily for a long time to cope with high anxiety and depression, which have also over time had a huge effect to my physical health and wellbeing. At present I could not work in a strange or crowded workplace but have been looking at other ways to get back to work. I would like if possible to meet to talk about this.’

21.	I do not agree that the decision of the appeal tribunal was in error of law on the basis of the grounds cited by the appellant.

22.	It is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it. The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did. Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.   

23.	The appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence. None of the appeal tribunal’s findings are irrational, perverse or immaterial. All issues raised by the appeal, either expressly or apparent from the evidence were fully examined by the appeal tribunal in conformity with its inquisitorial role. The proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to, such principles. 

24.	Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.  

25.	The appellant’s application for leave to appeal to the Social Security Commissioner amounts to a further submission on factual issues rather than questions of law. It is clear that an appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence, when that assessment has already been fully and thoroughly undertaken. 

26.	Section 8(1) of the Welfare Reform Act (Northern Ireland) 2007 provides that:

‘8(1) For the purposes of this Part, whether a person's capability for work is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to work shall be determined in accordance with regulations.’

27.	Regulation 19(1)-(3) of the Employment and Support Allowance Regulations (Northern Ireland) 2008 provides that:

‘19(1) For the purposes of Part 1 of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.

(2) The limited capability for work assessment 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 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

(3) Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against any descriptor listed in that Schedule, the claimant obtains a total score of at least—

(a)15 points whether singly or by a combination of descriptors specified in Part 1 of that Schedule;

(b)15 points whether singly or by a combination of descriptors specified in Part 2 of that Schedule; or

(c)15 points by a combination of descriptors specified in Parts 1 and 2 of that Schedule.’

28.	These were the tests which the appeal tribunal was obliged to apply, not a test, as submitted by the appellant, as to whether he could return to work again. In this regard, the appeal tribunal’s application of the applicable legal rules and principles was wholly accurate. 

Disposal

29.	The decision of the appeal tribunal dated 17 May 2010 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal to the effect that the appellant is not entitled to ESA, from and including 22 January 2010, is confirmed.

	(Signed):  K Mullan 

	Commissioner

	23 May 2011