RJ-v-Department for Social Development (ESA) [2011] NICom 220

 				Decision No: C8/11-12(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 12 November 2010

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal. The decision of the appeal tribunal dated 12 November 2010 is not in error of law. Accordingly, the decision of the appeal tribunal that the decision-maker, on 8 January 2010, had grounds to supersede the decision dated 7 September 2009 awarding employment and support allowance (ESA) from and including 22 August 2009; that the appellant does not have limited capability for work in accordance with the work capability assessment; that none of the exceptional circumstances set out in regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, apply to the appellant; and that the appellant is not entitled to ESA from and including 8 January 2010, is confirmed.

2.	This decision will come as a disappointment to the appellant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case. 

Background

3.	The decision under appeal to the appeal tribunal was a decision of the decision- maker of the Department, dated 8 January 2010, which decided that: 

(i)	grounds existed to supersede an earlier decision of the Department, dated 7 September 2009, and which had awarded an entitlement to ESA, from and including 22 August 2009; and
(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 8 January 2010. 

4.	The appeal was received in the Department on 13 January 2010 and further correspondence was received on 28 January 2010. On 4 March 2010 the decision dated 8 January 2010 was looked at again but was not changed.

5.	The substantive appeal tribunal hearing took place on 12 November 2010. The appellant was present and was accompanied by his daughter. The Department was not represented. The appeal was disallowed and the appeal tribunal confirmed the decision dated 8 January 2010.

6.	On 4 March 2011 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service. On 25 February 2011, the application for leave to appeal was refused by the legally qualified panel member (LQPM). 

Proceedings before the Social Security Commissioner

7.	On 21 March 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners. On 19 May 2011 the Chief Social Security Commissioner directed that no oral hearing of the application would be required. On 6 June 2011 further information was received from the appellant. On 14 June 2011 observations were sought from Decision Making Services (DMS) and these were received on 6 July 2011. In these written observations, Mr Toner, for DMS, opposed the application on the grounds submitted by the appellant. Observations were shared with the appellant on 25 July 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?

10.	As was noted above, the decision under appeal to the appeal tribunal was a decision of the decision-maker of the Department, dated 8 January 2010, which decided that: 

(i)	grounds existed to supersede an earlier decision of the Department, dated 7 September 2009, and which had awarded an entitlement to ESA, from and including 22 August 2009; and

(ii)	the appellant did not have limited capability for work and was, therefore, not entitled to ESA from and including 8 January 2010. 

11.	Accordingly, the first task for the appeal tribunal was to decide whether the decision-maker, on 8 January 2010 had grounds to supersede the decision of the appeal tribunal dated 7 September 2009. The ground for supersession on which the decision- maker relied is to be found in regulation 6(2)(q) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, namely that since the decision the Department has received medical evidence from a healthcare professional approved by the Department, or made a determination that the claimant is to be treated as having limited capability for work in accordance with regulation 20, 25, 26 or 33(2) of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended.

12.	If the appeal tribunal was to decide that the decision-maker, on 8 January 2010 had grounds to supersede the decision of the appeal tribunal dated 7 September 2009, it could then go on to decide whether the appellant had limited capability for work in accordance with the work capability assessment and, accordingly, should have an entitlement to ESA.

13.	Section 1(4) of the Welfare Reform Act (Northern Ireland) 2007 provides that:

‘1	(4)	 For the purposes of this Part, a person has limited capability for work if—

(a)	capability for work is limited by his physical or mental condition, and
(b)	the limitation is such that it is not reasonable to require him to work.’

14.	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.’

15.	Regulation 19(1)-(6) 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.

(4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.

(5) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises from—

(a)	a specific bodily disease or disablement;

(b)	a specific mental illness or disablement; or

(c)	as a direct result of treatment provided by a registered medical practitioner for such a disease, illness or disablement.

(6) Where more than one descriptor specified for an activity apply to a claimant, only the descriptor with the highest score in respect of each activity which applies is to be counted.’

16.	Finally if the appeal tribunal determined that the appellant did not have limited capability for work in accordance with the work capability assessment then it must have decided whether any of the exceptional circumstances set out in regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, apply to the appellant.

17.	While regulation 6(2)(q) has been, since its introduction, the principal basis on which decisions relating to ESA have been superseded, it is important to note that this does not mean that there cannot be a supersession on any other ground contained in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. It is possible to supersede, for example, on the basis that there had been a relevant change of circumstances, under regulation 6(2)(a)(i). To do so, however, would require the decision-making authority to identify the relevant change of circumstances, and the date from which the supersession took effect.

18.	Accordingly, depending on the ground relied on by the decision-maker, and the desired effect in respect of social security entitlement, the analysis of the supersession issue, including grounds, entitlement and effective date which may be required may vary. It is arguable that in ESA cases, 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 will be sufficient to confirm that the decision-maker had grounds, under regulation 6(2)(q), to supersede the earlier entitlement decision. All will depend on the circumstances of each individual case, however.  

19.	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. As was noted above, if the appeal tribunal determined that the decision-maker did not have grounds to supersede the earlier decision then that decision would continue to have effect. If the appeal tribunal determined that the decision-maker did have grounds to supersede the earlier decision then the appeal tribunal could have gone on to consider entitlement to benefit, in light of the substantive rules for entitlement to ESA. Finally, the appeal tribunal was under a duty to determine the effective date from which any supersession decision should take effect. 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.

20.	The consideration of the issues raised by the appeal is expressly a part of the appeal tribunal’s inquisitorial role (on which issue see the further comments of the Tribunal of Commissioners in Great Britain in R(IB) 2/04 at paragraph 32).  That would mean that the supersession issue ought to have been addressed, in any event.

21.	In the instant case, in the statement of reasons for the appeal tribunal’s decision, the LQPM has identified that the decision under appeal was the decision dated 8 January 2010 and that the effect of that decision was that the decision-maker, on 8 January 2010, had grounds to supersede the decision of the appeal tribunal dated 7 September 2009. 

22.	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.

23.	In any event, and absent any other error with respect to the evidential assessment, 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

24.	In both the original application for leave to appeal to the LQPM, in the renewed application before the Social Security Commissioner, and in further correspondence, the grounds on which the decision of the appeal tribunal is submitted to be in error of law relate to: 

(i)	he descriptors for certain activities on which he was given merit and points score on did not reflect the findings of his general practitioner (GP) or his personal inabilities;

(ii)	correspondence from another government agency, the Service Personnel and Veterans Agency (SPVA) confirms his depressive disorder. 	
25.	It is important to note that 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. An application to the Social Security Commissioner for leave to appeal requires the appellant to identify the grounds or basis on which it is submitted the decision of the appeal tribunal is in error of law. Having considered the application made by the applicant, and the grounds set out in the application, I am satisfied that no error of law can be identified. 

26.	More particularly, 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. I am satisfied that the appeal tribunal weighed and assessed all of the evidence which was before it including the evidence from the appellant’s GP. 

27.	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.

28.	The appeal tribunal applied the correct standard of proof, ie on the balance of probabilities, having no power to apply any other standard. 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. 

29.	The appeal tribunal’s application of the applicable legal rules and principles was wholly accurate. 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. 

30.	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.  

31.	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.

32.	Finally I have noted the appellant’s submission that correspondence from another government agency, the SPVA confirms his depressive disorder. In connection with that submission the appellant has provided a copy of a letter from the SPVA, dated 13 April 2011. That correspondence is in connection with the appellant’s separate claim to a war pension. There is no statutory link between entitlement to a war pension and entitlement to ESA. Separate legislative tests and conditions of entitlement exist for a war pension and ESA. Accordingly, the acceptance by the SPVA that the appellant has an entitlement to a war pension does not necessarily mean that he should have a parallel entitlement to ESA. Further, the appeal tribunal accepted that the appellant suffered from mild depression, and accordingly, did not satisfy any of the descriptors in Part 2 of Schedule 2 to the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended. The appeal tribunal has given a detailed and comprehensive statement of reasons for its decision in that regard. 	

Disposal

33.	The decision of the appeal tribunal dated 12 November 2010 is not in error of law. Accordingly, the decision of the appeal tribunal that the decision-maker, on 8 January 2010, had grounds to supersede the decision dated 7 September 2009 awarding ESA from and including 22 August 2009; that the appellant does not have limited capability for work in accordance with the work capability assessment; that none of the exceptional circumstances set out in regulation 29 of the Employment and Support Allowance Regulations (Northern Ireland) 2008, as amended, apply to the appellant; and that the appellant is not entitled to ESA from and including 8 January 2010, is confirmed.

	(Signed):	K Mullan

	CHIEF COMMISSIONER

	4 November 2011