PJR-v-Department for Social Development (ESA) [2013] NICom 16

 			Decision No: C14/12-13(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 17 February 2012

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal from the decision of an appeal tribunal sitting at Newtownards on 17 February 2012.

2.	An oral hearing of the application has not been requested.

3.	For the reasons given below I set aside the decision of the appeal tribunal under Article 15(7) of the Social Security (NI) Order 1998 and I remit the appeal to a newly constituted appeal tribunal for determination.

REASONS

Background

4.	The applicant claimed and was awarded incapacity credits and income support by the Department for Social Development (the Department) from and including 10 September 2004. The certified causes of incapacity for work were depression/anxiety, alcohol abuse and a fractured upper limb.

5.	On 30 June 2011 the applicant was notified by the Department that her existing incapacity claim was to be converted into a claim for employment and support allowance (ESA) under the regulations implementing the Welfare Reform Act (Northern Ireland) 2007.

6.	The applicant was issued with and completed the Departmental questionnaire, form ESA50. She returned it on 22 July 2011. She was examined by a healthcare professional on 8 September 2011. The Department decided that the applicant scored 0 points on the work capability assessment and did not have limited capability for work. Accordingly her award of incapacity credits did not qualify for conversion into an award of ESA with effect from 12 October 2011. This decision was notified to the applicant on 23 September 2011 and she appealed.

7.	The applicant had requested an oral hearing of her appeal. However, she did not attend the appeal tribunal hearing. The tribunal considered the evidence in the absence of the applicant and disallowed the appeal. The applicant requested a statement of reasons for the tribunal’s decision, which was issued to her on 28 March 2012. On 20 April 2012 the applicant applied to the legally qualified member (LQM) of the tribunal for leave to appeal. He refused leave on 3 May 2012. On 25 May 2012 the applicant made an application to a Social Security Commissioner for leave to appeal.

Grounds

8.	The grounds submitted by the applicant are that:

(i)	the tribunal made an irrational finding;

(ii)	the tribunal gave inadequate reasons for its decision;

(iii)	the tribunal proceedings were unfair.

9.	On 3 September 2012 the Department was invited to make observations on the grounds of application. Mr Toner replied on behalf of the Department. He did not support the appeal for the reasons advanced by the applicant. However, he submitted that by failing to address the question of regulation 29 of the Social Security (Employment and Support Allowance) Regulations (NI) 2008, the tribunal has erred in law. In light of the observations of the Department I grant leave to appeal.

Assessment

10.	In her ESA50 questionnaire the applicant had described a relationship between her present health and her past employment where she says “I am a chronic alcoholic and have been for many years – I have tried rehab, psychotherapy, hypnotherapy. This has all been due to a severe stress from my job in London – very high powered. This led to severe depression, lack of self-esteem, panic, anxiety and a suicide attempt”.  She said “I have tried to go back to work often and broke down each time” and “I have tried to go back to work here on numerous occasions, however it has proved too much for me and I’ve ended up on the edge again. Going back to work would be the end of me”. She reports a “serious suicide attempt” in July 2003.

11.	Against that background, Mr Toner for the Department submits that the tribunal has failed in its inquisitorial duty in that regulation 29 issues have been raised by the applicant but not dealt with. Regulation 29 reads:

‘Exceptional circumstances

29.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

(2) This paragraph applies if—

(a)	the claimant is suffering from a life threatening disease in relation to which—

(i) 	there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and

(ii)	 in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or

(b)	 the claimant suffers from some specific disease or bodily ormental 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.’

12.	The application of regulation 29 has sufficient similarity to the test in the previous legislation governing incapacity benefit (IB) that the decision of the Court of Appeal in England and Wales in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 has relevance. There, Moses LJ said in relation to the equivalent IB test:

‘46. Sufficient information may be elicited by reference to the claimant's completion of the initial questionnaire, questioning during his medical examination, or by any evidence he may choose to give on an appeal to the Tribunal. The process to be adopted by the decision-maker or Tribunal is to be regarded as inquisitorial and not adversarial. It is a process described by Diplock J in R v Medical Appeal Tribunal (North Midland Region ex-parte Hubble) 1958 2 QB 228 at 240 as a fact-gathering exercise in which there is no formal burden of proof on either side. There should be no difficulty provided the decision-maker or Tribunal recall that the essential question is whether there is an adequate range of work which the claimant could undertake without creating a substantial risk to himself or to others.’

13.	I have considerable sympathy with the position of the tribunal who had to deal with the appeal on the papers alone, without the applicant present to substantiate the written claims she had made. However, I accept that Mr Toner is correct to say that the tribunal failed to address regulation 29, which was clearly before it. It was incumbent on the tribunal to determine whether there was an adequate range of work which the applicant could do without creating a substantial risk to herself or to others. Although I grant leave to appeal, I do not consider that it is appropriate to proceed to determine the appeal.

14.	As each of the parties submits that the decision of the appeal tribunal is erroneous in point of law, I consider that it is appropriate to set aside the decision of the appeal tribunal under Article 15(7) of the Social Security (NI) Order 1998 and to remit the appeal to a newly constituted tribunal with directions. This should not be interpreted by the applicant as suggesting that the tribunal will arrive at any particular outcome after considering the appeal afresh.

15.	I direct that the new tribunal shall have regard to the limited capability for work assessment and shall also have regard to regulation 29 of the ESA Regulations when determining the appeal.

16.	I cannot direct the applicant to attend a future hearing. However, I would observe that it would be in her interests to attend or to provide medical evidence in support of the claim that there would be a substantial risk to her health if she were found not to have limited capability for work.

	(Signed):  O Stockman

	COMMISSIONER

	19 February 2013