Northern Ireland - Social Security and Child Support Commissioners' Decisions

FL-v-Department for Social Development (ESA) [2014] NICom 84

Decision No: C20/14-15(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 30 September 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 Magherafelt.

 

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. Under Article 15(8)(b) of the Social Security (NI) Order 1998 I refer the appeal to a newly constituted tribunal for determination.

 

REASONS

 

Background

 

3. The applicant claimed incapacity benefit (IB) from the Department for Social Development (the Department) from 4 March 1994 by reason of nervous debility. On 7 December 2012 the applicant was notified by the Department that her 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 applicant was issued with and completed a Departmental questionnaire, form ESA50. She was examined by a healthcare professional (HCP) on 13 February 2013, who prepared a report for the Department. On the basis of all the evidence, on 19 February 2013, the Department decided that the applicant did not satisfy the limited capability for work assessment (LCWA) and that her award of IB did not qualify for conversion into an award of ESA from 16 March 2013, resulting in an end to her entitlement. The applicant appealed. A factual report was then received from the applicant’s general practitioner (GP) on 6 March 2013.

 

4. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 30 September 2013. The tribunal awarded 12 points on the LCWA and disallowed the appeal. The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 10 January 2014. The applicant applied for the tribunal decision to be set aside on the grounds that the GP factual report before it was incomplete. Setting aside was refused by the LQM on 26 February 2014. On 14 March 2014 the applicant 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 1 April 2014. On 29 April 2014, the applicant requested a Social Security Commissioner to grant leave to appeal.

 

Grounds

 

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

 

(i)        its reasons for determining the applicable descriptor under activity 9 are inadequate;

 

(ii)       it had misconstrued the term “collecting device” within the meaning of activity 9.

 

6. The Department was invited to make observations on the appellant’s grounds. Mr McKendry of Decision Making Services (DMS) 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

 

7. The tribunal has given a comprehensive and exemplary statement of reasons covering all the issues in dispute before it. The sole issue which is raised before me is that of continence. Under that heading the tribunal explained its decision as follows:

 

“(i) In the ESA50 she said, “I am not completely incontinent but on at least a weekly basis I have incidents of both bowel and bladder control”.

 

(ii) At the oral hearing she said, “Incontinence – bleeding per rectum … I’d bleeding per rectum – diverticular disease, last time for three days and admitted. Bleeding still comes and goes. Cramps and pains. Once a month. I had a lot of investigations and was diagnosed last year. I was putting it down to Irritable Bowel Syndrome. I wear pads all the time bladder and bowel, 2 or 3 years. Put on medication which didn’t work (2012) and increased dose and attended consultant. Bladder – if I can’t get to the toilet immediately, sometimes I have to change clothes, maybe two times a week. I’m not out of the house much. I, at times, get no warning. Still on medication for it.”

 

(iii) We do not think this Activity is about rectal bleeding, such as arises from diverticular disease, but is about bowel (ie faecal) or bladder (ie urinary) incontinence (but not enuresis). We do not think that on a monthly basis or more she experiences extensive evacuation of the bowel or extensive voiding of the bladder, but we accept that for the majority of the time she is at risk of this and 6 points is appropriate.”

 

8. Documentary evidence before the tribunal included a statement by the applicant in the ESA50 questionnaire, dated 20 January 2013, stating “I am not completely incontinent but on at least a weekly basis I have incidents of both bowel and bladder control”. In the ESA85 HCP report, the applicant was recorded as stating on 13 February 2013:

 

“Abdominal problem

She has had diverticular disease for several years.

She was admitted last year for bleeding.

She reports it flares up with abdominal. [sic]

Her last camera test was last year.

Unsure how often she is called.

She reports episode of diarrhoea.

She reports flare-ups of diarrhoea and constipation.

She can control her bowels when she is in the house.

Occasionally wears pads if she was bleeding.

 

Bladder problem

She reports weak bladder.

She reports she wears pads all the time.

She buys pads in chemist.

Never had investigations to her bladder. She occasionally would lose control where she would have to change her clothes – last episode three weeks ago.

Worse coughing and sneezing.

Never been referred to a specialist.”

 

9. In an ESA113 report, dated 2 March 2013, the applicant’s general practitioner (GP) indicates “recent complaint of urge incontinence” with prescription of vesicare. The tribunal had before it an extract from the applicant’s medical records which showed that, arising from a consultation on 26 February 2013, the applicant had been prescribed Solifenacin, 5mg and had been referred to Antrim Area Hospital for investigation of her urinary symptoms. I understand that Solifenacin is a proprietary name for the drug vesicare and is used to treat the symptom of urinary frequency.

 

10. There was also a document before the tribunal which had been prepared by a friend of the applicant. It states that the applicant “has diverticular disease and a weak bladder, she wears pads daily and can control her bowels by staying close to and having regular visits to the toilet, but has on several occasions had full evacuations of the bowels and bladder when immediate access to a toilet was not available”.

 

Relevant legislation

 

11. The applicant was issued with an ESA50 questionnaire on 23 December 2012 and returned it on 18 January 2013. By regulation 5(2) of the Employment and Support Allowance (Amendment) Regulations (NI) 2013 (SR 2103, No.2):

 

(2) Where a person has been issued with a questionnaire which relates to the provisions of Schedule 2 of the Employment and Support Allowance Regulations as they had effect immediately before the commencement date, regulation 5 does not apply for the purposes of making a determination on or after that date as to that person’s limited capability for work under Part 5 of the Employment and Support Allowance Regulations and, for those purposes, the provisions of Schedule 2 of the Employment and Support Allowance Regulations are to continue to apply in respect of that person as they had effect immediately before the commencement date.

 

12. The effect of this is that, although the Department’s decision was made on 19 February 2013, the form of the relevant Activity applying in this case is that prior to the amendments of 28 January 2013, which was prescribed for the purposes of the LCWA by paragraph 9 of Schedule 2 to the Employment and Support Allowance (NI) Regulations 2008 (the ESA Regulations) as follows:

 

“(1) Activity	(2) Descriptors			(3) Points
9. Absence or loss of control whilst conscious leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting) despite the wearing or use of any aids or adaptations which are normally or could reasonably be worn or used.	9	(a)	At least once a month experiences: (i) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder; or (ii) substantial leakage of the contents of a collecting device, sufficient to require cleaning and a change in clothing.	15
		(b)	For the majority of the time is at risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly.	6
		(c)	None of the above apply.	0”

 

Hearing

 

13. I held an oral hearing of the application. The applicant was not present but was represented by Ms Loughrey of Law Centre (NI). The Department was represented by Mr McKendry of DMS. I am grateful to the representatives for their submissions.

 

14. Ms Loughrey relied on two points. First, she submitted that the tribunal had not given adequate reasons for its decision on Activity 9, descriptor 9(a)(i). She accepted that the evidence before the tribunal was inconsistent as to the exact nature of the applicant’s problems. However, she submitted that the tribunal had not explored the nature of those problems sufficiently before reaching its decision. She accepted that the nature of questioning required was very sensitive. However, she submitted that the tribunal had placed undue weight on documentary evidence rather than adduce oral evidence. She submitted that the findings were inadequate, and that the tribunal’s reasons as a result could not stand. In particular, she submitted that the tribunal had not made adequate investigation of the frequency of the applicant’s bowel problems. She submitted that the tribunal had not established whether or not the applicant experienced extensive evacuation of the bowel.

 

15. Ms Loughrey further relied on the decision of Deputy Upper Tribunal Judge Mark in EM v SSWP [2014] UKUT 34 (AAC), at paragraph 20. She submitted that a pad could amount to a collecting device for the purposes of the legislation. She submitted that the tribunal should have considered whether the conditions of descriptor 9(a)(ii) were satisfied.

 

16. Mr McKendry responded that the tribunal had given a careful decision. He submitted that the tribunal had considered all the evidence, concluding reasonably that descriptor 9(b) applied. He submitted that the test was a functional test and that the applicant had to be considered in going about her normal life, not simply in her home environment where she could control the risk of loss of control. He submitted that the tribunal did not necessarily need to consider the applicant in a work environment. He accepted that, having found that the applicant wore pads, the tribunal should have determined whether the pads avoided all need to clean and to change clothing. He submitted that a pad was an aid, rather than a collecting device.

 

Assessment

 

17. I do not consider that there is any merit in the second point advanced by Ms Loughrey, nor that it has any direct relevance to the present case. In EM v SSWP [2014] UKUT 34 (AAC), Deputy Judge Mark distinguished aids and appliances from sanitary pads, in the sense that the purpose of aids and appliances was to control evacuation, whereas the purpose of sanitary pads was to deal with the consequences of evacuation. I consider that he was right on that. The case made by the applicant was that she needed to clean herself and change clothing despite the wearing of pads. Ms Loughrey submitted that her case fell under descriptor 9(a)(ii). It seems to me that there is no basis for considering a sanitary pad as a collecting device, however. Collecting device is a term that most naturally lends itself to, for example, a colostomy bag or a catheter kit with a urine containment pouch. I do not accept that the applicant in the present case uses a collecting device. Her case fell to be considered under descriptor 9(a)(i) and not 9(a)(ii).

 

18. The tribunal considered the appeal under 9(a)(i). Under this descriptor the relevant issues on which the tribunal needs to make findings can be summarised as:

 

(i)        Whether, despite the presence of any aids or appliances the claimant normally uses,

 

(a)          the claimant experiences loss of control leading to extensive evacuation of the bowel; or

 

(b)          the claimant experiences loss of control leading to voiding of the bladder; and

 

(ii)       Whether the extensive evacuation or voiding results in a need to clean oneself and change clothing; and

 

(iii)      Whether that circumstance occurs at least once a month.

 

19. Ms Loughrey has not sought to argue that this is a case where there would be voiding of the bladder. I consider that she was correct in this approach, as the evidence points to leakage but not voiding. I should add that in this context it appears to me that “voiding” requires full emptying of the bladder. Whereas the term “extensive” qualifies the evacuation of the bowel, “voiding” as it applies to the bladder is not similarly qualified. However, I have heard no argument on that point and I do not need to decide it for the purpose of the present application.

 

20. Ms Loughrey does submit that the tribunal incorrectly addressed the issue of faecal incontinence. She submits that the tribunal accepted that the applicant would experience blood loss per rectum. She accepts that this does not fall within the descriptor. However, she submits that there was oral evidence from the applicant that she also experiences faecal incontinence, which the tribunal failed to evaluate properly. She submits that the statement by the tribunal to the effect that it did not think that the applicant on a monthly basis or more experiences extensive evacuation of the bowel or extensive voiding of the bladder was based on no evidence or was otherwise unexplained.

 

21. I have to accept that there is force in Ms Loughrey’s submission. There was no evidence before the tribunal to gainsay the applicant’s account of bowel incontinence, albeit that there may have been some inconsistency in her evidence to the HCP and to the tribunal. It is not clear whether the tribunal decided that the condition of diverticular disease would not result in extensive evacuation of the bowel at all, whether it would lead to some loss of control but not enough to amount to extensive evacuation, or whether there would be extensive evacuation but that it would not occur as frequently as once a month. In other words, while it is clear what the tribunal decided, it is not entirely clear why it decided as it did.

 

22. Eliciting evidence on incontinence is always a sensitive matter for a tribunal as it can prove highly embarrassing to appellants to have to give details of their experiences. Some appellants may find having to talk about the experience almost as degrading as the experience itself. However, without making specific findings on the extent of any evacuation of the bowel resulting from a loss of control, the consequences for the appellant in terms of cleaning and changing clothes and the frequency of such occurrences, the evidence before the tribunal will be inadequate to decide the appeal.

 

23. I consider that I must accept Ms Loughrey’s submission. I grant leave to appeal. I further allow the appeal and hold that the tribunal decision is in error of law. I set aside the tribunal’s decision.

 

24. I do not have adequate evidence before me to determine the appeal myself. Therefore I must remit the appeal to a newly constituted tribunal for determination.

 

 

(signed) O Stockman

 

Commissioner

 

 

 

18 December 2014