Northern Ireland - Social Security and Child Support Commissioners' Decisions

DC-v-Department for Social Development (ESA) [2014] NICom 49

 

Decision No: C13/14-15(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 1 October 2013

 

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 Ballymena.

 

2. For the reasons I give below, I grant leave to appeal. However, I disallow the appeal.

 

REASONS

 

Background

 

3. The appellant claimed incapacity benefit (IB) from the Department for Social Development (the Department) from 13 August 2004 by reason of chronic fatigue syndrome. On 3 May 2012 the appellant was notified by the Department that his existing 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. The appellant was issued with and completed a Departmental questionnaire, form ESA50, on 16 July 2012. A report was obtained from the appellant’s general practitioner (GP) on 3 July 2012. He was examined by a healthcare professional (HCP) on 24 July 2012, who prepared a report for the Department. On the basis of all the evidence, on 16 August 2012, the Department awarded nine points for the activity of “Mobilising”. The Department decided that the appellant did not satisfy the limited capability for work assessment (LCWA) and that his award of IB did not qualify for conversion into an award of ESA from 11 September 2012, resulting in an end to his entitlement. The appellant appealed.

 

4. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 1 October 2013. The tribunal decided that the appellant should be awarded nine points under the LCWA for the activity of “Mobilising”. As this was insufficient to satisfy the test, the tribunal disallowed the appeal. The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 15 January 2014. The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 6 March 2014.

 

5. On 18 March 2014, the appellant requested a Social Security Commissioner to grant leave to appeal.

 

Grounds

 

6. The appellant, represented by Ms Loughrey of Law Centre (NI), submits that the tribunal has erred in law on the basis that:

 

(i)            the tribunal in deciding whether the appellant had difficulties in the activity of “Initiating and completing tasks” by having regard to his work as a car mechanic under the permitted work scheme – contrary to Article 13(8)(b) of the Social Security (NI) Order 1998;

 

(ii)          the tribunal failed to address and resolve conflicts of evidence in the case.

 

7. The Department was invited to make observations on the appellant’s grounds. Mr Toner responded on behalf of the Department. He submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.

 

The tribunal’s decision

 

8. The tribunal accepted that the appellant had physical limitations arising from chronic fatigue syndrome and fibromyalgia. It awarded nine points under the Mobilising activity on the basis of the evidence of the GP and the HCP. It found that no further points could be awarded for physical activities.

 

9. The tribunal considered that, although the appellant was not being treated for any mental disablement, the nature of chronic fatigue syndrome and fibromyalgia was such as to put both the physical and mental health descriptors in issue. It accepted that the appellant had some reduction in motivation. However, on the basis of the level of his daily activity found that no score was warranted under activity 13 – contrary to the appellant’s submissions - taking into account his work as a self-employed mechanic in particular. It further found that no points could be awarded under activities 14-17, holding that the appellant’s account of functional limitations was not borne out by his record of medication or his pattern of weekly activity.

 

Relevant legislation

 

10. The appellant submitted in particular that he should have been awarded points under activity 13 within Schedule 2 to the Employment and Support Allowance Regulations (NI) 2008 (2008, No.280) (the ESA Regulations). At the material time this read as follows:

 

13. Initiating and completing personal (a) Cannot, due to impaired mental function, 15 action (which means planning, reliably initiate or complete at least 2 sequential

organisation, problem solving, personal actions.

prioritising or switching tasks).

(b) Cannot, due to impaired mental function, 9 reliably initiate or complete at least 2

personal actions for the majority of the

time.

 

(c) Frequently cannot, due to impaired 6

mental function, reliably initiate or

complete at least 2 personal actions.

 

(d) None of the above apply. 0

 

11. Ms Loughrey’s submissions were to the effect that the appellant satisfied the conditions of descriptor 13(c), leading to an award of six points which, when aggregated with nine points for Mobilising, was sufficient to satisfy the 15 point threshold for the LCWA.

 

Hearing

 

12. I held an oral hearing of the application. Ms Loughrey of Law Centre (NI) appeared for the appellant. Mr Toner of DMS appeared for the respondent. I am grateful to the representatives for their helpful submissions.

 

13. Each of the parties had consented, in the event that I decided to grant leave to appeal, to me treating the application as an appeal under regulation 11(3) of the Social Security Commissioners (Procedure) (NI) Regulations 1999.

 

14. In arguing that the tribunal had erred in law in its approach to activity 13, Ms Loughrey sought to submit material which was not before the tribunal below. This consisted of records from the IB permitted work scheme for the period from March 2012 to December 2013. This raises the question of whether I should exercise my discretion under regulation 24(7) of the Commissioners Procedure Regulations to grant leave to the appellant to give evidence.

 

15. The hearing of the appeal occurred in October 2013, whereas the date of the decision under appeal was in September 2012. Ms Loughrey pointed to the tribunal’s statement of reasons for rejecting the application of activity 13 where it said “His work as a self-employed mechanic requires self organisation and motivation inconsistent with any score …” The permitted work scheme records which she sought to introduce showed that the appellant had not worked in the period of six months before the date of the decision appealed against, whereas he had been engaging in work activity in the later part of 2013 for a few months prior to the tribunal hearing.

 

16. The significance of this arises from the fact that Article 13(8)(b) of the Social Security (NI) Order 1998 precludes a tribunal from taking into account any circumstances not obtaining at the time when the decision appealed against was made. Ms Loughrey submitted that the tribunal was influenced unduly by the impression it formed that the appellant was undertaking work as a mechanic under the permitted work scheme at the time the decision appealed against was made.

 

17. Mr Toner submitted that the tribunal’s statement of reasons made particular reference to the date of the decision under appeal, and therefore that the tribunal had addressed the correct issue. He observed that the appellant was not undertaking paid employment in the months leading to the appeal hearing, but indicated that he nevertheless told the tribunal that he was in his workshop for periods lasting from 10 minutes to 3 hours per day.

 

18. Ms Loughrey further submitted that the tribunal failed to resolve conflict between the evidence of the appellant and his GP and that of the HCP.

 

Assessment

 

19. Ms Loughrey’s first argument is essentially that the tribunal has made a mistake of fact. The role of the Social Security Commissioner is to determine whether or not a tribunal has made errors in law and not simply to rehear appeals on the basis of new evidence. However, it is well established that mistakes of fact by tribunals can amount to errors of law. The circumstances where mistakes of fact can amount to errors of law were set out in the judgement of Brooke LJ in R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at paragraphs 28-33, as follows:

28. The next matter we must address relates to the circumstances in which an appellate body like the IAT, whose primary role during the relevant period was restricted to identifying and correcting errors of law, could entertain an argument to the effect that the outcome in the lower court was unfair as a result of a mistake of fact, and that this constituted an error of law which entitled it to interfere.

 

29. In E and R v Home Secretary [2004] EWCA Civ 49; [2004] QB 1044 this court was concerned to provide a principled explanation of the reasons why a court whose jurisdiction is limited to the correction of errors of law is occasionally able to intervene, when fairness demands it, when a minister or an inferior body or tribunal has taken a decision on the basis of a foundation of fact which was demonstrably wrong. Carnwath LJ gave at least eight examples in his review of the case law. Contrary to the basis on which the original decision was reached:

(i) There was in fact contemporary documentary evidence of the injuries sustained by a claimant for compensation from the Criminal Injuries Compensation Board (para 45);

(ii) There was in fact, contrary to a minister's belief, adequate school accommodation in a local education authority's area for the pupils to be educated (para 54);

(iii) The land in question had in fact once been part of the Green Belt (para 58);

(iv) The proposed building extension would in fact obstruct a particular aspect (para 58);

(v) The restructuring of a building was in fact viable (para 58);

(vi) A study by a local council did not in fact relate to the inclusion of a particular site within the Green Belt (para 59);

(vii) A critical witness was in fact a member of a totally different political party in Ethiopia to that which he was believed to support (paras 60, 78-79);

(viii) The appellant had in fact been tried and convicted in his absence in his home country and sentenced to ten years' imprisonment, a matter which cast an entirely new light on the risks he faced if he were returned there (paras 60, 87).

30. At para 64 Carnwath LJ said that there was a common feature of all these cases, even where the procedure was adversarial, in that the Secretary of State or the particular statutory authority had a shared interest with both the particular appellant and with any tribunal or other decision-maker that might be involved in the case in ensuring that decisions were taken on the best information and on the correct factual basis. At para 66 he identified asylum law as representing a statutory context in which the parties shared an interest in co-operating to achieve a correct result. He went on to suggest that the ordinary requirements for a finding of unfairness which amounted to an error of law were that:

(i) there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter;

(ii) it must be possible to categorise the relevant fact or evidence as "established" in the sense that it was uncontentious and objectively verifiable;

(iii) the appellant (or his advisers) must not have been responsible for the mistake;

(iv) the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.

He made it clear that he was not seeking to lay down a precise code.

31. Needless to say, such a mistake could not be identified by the supervising or appellate court unless it was willing to admit new evidence in order to identify it. Paragraphs 68 to 89 of the judgment in E and R contain an analysis of relevant case law on the power to admit new evidence. It concluded with the observation that the case of Khan v SSHD [2003] EWCA Civ 530 that gave rise to the problem summarised in (viii) above was a good example of the need for a residual ground of review for unfairness arising from a simple mistake of fact and that it illustrated the intrinsic difficulty in many asylum cases of obtaining reliable evidence of the facts that gave rise to the fear of persecution and the need for some flexibility in the application of Ladd v Marshall principles.

32. The reference to the Ladd v Marshall principles is a reference to that part of the judgment of Denning LJ in Ladd v Marshall [1954] 1 WLR 1489 when he said at p 1491 that where there had been a trial or hearing on the merits, the decision of the judge could only be overturned by the use of further evidence if it could be shown that:

(1) the new evidence could not with reasonable diligence have been obtained for use at the trial (or hearing);

(2) the new evidence must be such that, if given, it would probably have had an important influence on the result of the case (though it need not be decisive);

(3) the new evidence was apparently credible although it need not be incontrovertible.

33. By way of a final summary of the position, Carnwath LJ said in E and R at para 91 that an appeal on a question of law might now be made on the basis of unfairness resulting from "misunderstanding or ignorance of an established and relevant fact" and that the admission of new evidence on such an appeal was subject to Ladd v Marshall principles, which might be departed from in exceptional circumstances where the interests of justice required.

20. A mistake of fact on the part of a tribunal may well be demonstrated by referring to a misreading or misunderstanding of the evidence which was before it. It is more likely that mistake of fact will instead be demonstrated by evidence which was not before the tribunal. A party seeking to establish mistake of fact will therefore have to request the Commissioner to accede to an application to adduce new evidence under regulation 24(7)(b) of the Procedure Regulations.

 

21. Where it is submitted that the tribunal has made a mistake of fact amounting of law, the Ladd v Marshall principles will apply unless the case is exceptional in some way.

 

22. The question for me is whether the evidence could not have been obtained prior to the tribunal hearing with reasonable diligence. The appellant himself had possession of the documents recording the work he undertook under the permitted work scheme, signed and dated them and submitted them to the Department. However, I accept that the [then] unrepresented appellant could not have known that the documents would become significant. I further observe that the documents were in the possession of the other party to the appeal – the Department. I accept that an unrepresented claimant could not have obtained the documents prior to the tribunal hearing with reasonable diligence.

 

23. Having admitted the material, I consider that there is merit in the submissions of Ms Loughrey that the tribunal had regard to circumstances not obtaining at the date the decision under appeal was made. She establishes an arguable case on that ground and I grant leave to appeal.

 

24. Having accepted Ms Loughrey’s submissions to this point, the next question is whether the mistake of fact has made any material difference to the outcome of the appeal. The tribunal misunderstood the position as regards the appellant’s engagement in self-employment around the date of the decision under appeal. His case was that due to fatigue and pain he was unable to engage in such work contrary to the tribunal’s finding. Ms Loughrey submits that the physical nature of these problems does not preclude an award of points to the appellant for an activity under the mental, cognitive and intellectual function assessment heading.

 

25. In principle, I accept that for a decision made prior to 28 January 2013, and the amendment of regulation 19 of the ESA Regulations from that date, this submission is correct. In particular, Chief Commissioner Mullan in YK v Department for Social Development [2012] NI Com 350 expressly approved and followed jurisprudence of the Upper Tribunal in KN v Secretary of State for Work and Pension s [2011] UKUT 229 and KP -v- Secretary of State for Work and Pensions [2012] AACR 5 to this effect. In KN v SSWP, Upper Tribunal Judge Wikeley said:

 

“There is, therefore, no artificial partitioning in the legislation requiring mental health descriptors to be scored only in relation to mental health conditions and physical descriptors only being applicable to physical conditions.  It may be, of course, that as a matter of evidential weight a tribunal is not satisfied that a physical condition gives rise to a score for a mental health descriptor, or vice versa, but the linkage is possible in appropriate cases”.

 

26. In applying this approach, it is of course important to have regard to the wording of the specific activity and descriptors. Ms Loughrey relies on activity 13(c) which reads:

 

“frequently cannot, due to impaired mental function, reliably initiate or complete at least 2 personal actions”.

 

27. The relevant question is whether a claimant who complains of inability to complete personal actions due to fatigue and pain can reasonably be said to meet a descriptor which requires the inability to initiate or complete personal actions due to impaired mental function.

 

28. In JC v SSWP [2014] UKUT 352, a three-judge panel of the Upper Tribunal gave consideration as to how words in common usage appearing within the ESA activities and descriptors should be interpreted. I consider that the passages from paragraph 5 to paragraph 16 in particular are helpful in understanding the task of decision-makers in applying the descriptors.

 

29. Referring to the expressions used in activities and descriptors, the three judge panel said at paragraph 5 that:

 

“These definitions contain ordinary words in common usage that do not have precise meanings. Their meaning and application is determined as a matter of ordinary usage by reference to the context in which they are used and this includes the phrase, sentence, section or part of the legislation in which they are used as well as the underlying purposes of the legislation in which they are used”.

 

30. “Impaired mental function” is not defined within the ESA Regulations. It must therefore be given an interpretation which is consistent with how it might reasonably and ordinarily be understood as a matter of ordinary usage in the context of the part of the legislation in which it appears and the underlying purposes of the legislation.

 

31. The purpose of the legislation is to assess whether a person has limited capability for work (section 1, Welfare Reform Act (NI) 2007). Assessment is conducted in accordance with regulations made for that purpose (section 8, Welfare Reform Act (NI) 2007) – which are the ESA Regulations. Regulation 19 of the ESA Regulations together with Schedule 2 to the Regulations provided the mechanism for the assessment. Under regulations 19(5) of the ESA Regulations, as it was at the relevant time, the claimant’s incapability to perform an activity in Schedule 2 must arise from a specific bodily disease or disablement, or from a specific mental disease or disablement, or as a direct result of medical treatment for such a condition.

 

32. Activity 13 – the activity in dispute in the present appeal - falls within Part II of Schedule 2. The heading to Part II of Schedule 2 is “Mental, cognitive and intellectual function assessment”. Bearing in mind the position of the disputed activity in Part II of Schedule 2 to the ESA Regulations, under the heading “Mental, cognitive and intellectual function assessment”, I accept that the phrase “impaired mental function” must reasonably embrace functional limitations arising from mental illness, neurological impairment or learning disability. There are possibly other categories of impaired mental function which can be added to that list – I do not seek to give authoritative guidance on this matter.

 

33. The appellant in the present case has no diagnosis or treatment which would suggest that he suffers from impaired mental function. His evidence to the tribunal was to the effect that “Fatigue is problem and pain”. I do not consider that limitations on functioning due to pain or fatigue alone can reasonably be found to be limitations due to impaired mental function.

 

34. The tribunal in the present case found that there was evidence before it of self-organisation and motivation inconsistent with any score under activity 13. I accept that some of the evidence considered by the tribunal was of activity within the post-decision period which should not have been considered. In these circumstances, Ms Loughrey submits that I should remit the appeal to a new tribunal for reconsideration.

 

35. I conclude, however, that the tribunal’s error is not material to the outcome of the appeal. Had the tribunal accepted that there was evidence of failure to initiate or complete personal action due to pain or fatigue, I consider that it could not have reasonably concluded that this was due to impaired mental function.

 

36. For these reasons, I consider that I should disallow the appeal.

 

(Signed): O Stockman

 

COMMISSIONER

 

 

 

21 Oct0ber 2014