LG-v-Department for Social Development (ESA) [2015] NICom 63
Decision No:  C14/15-16(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 28 August 2014

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 Belfast.

2.	For the reasons I give below, I grant leave to appeal.  I allow the appeal under Article 15(8)(b) of the Social Security (NI) Order 1998 and I direct that the appeal shall be determined by a newly constituted tribunal.

	REASONS

	Background

3.	The applicant claimed incapacity benefit (IB) from the Department for Social Development (the Department) from 5 October 2006.  On 31 January 2013 the applicant 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 applicant was issued with and completed a Departmental questionnaire, form ESA50, in which he stated that the conditions affecting him were arthritis, fibrositis, chronic fatigue syndrome, acute pancreatitis, incontinence and depression.  He was examined by a healthcare professional (HCP) on 16 April 2013, who prepared a report for the Department.  On the basis of all the evidence, on 15 May 2013, the Department decided that the applicant 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 8 June 2013, resulting in an end to his entitlement.  The applicant appealed.

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member on 28 August 2014.  The tribunal disallowed the appeal.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 21 January 2015.  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 10 March 2015.  On 13 April 2015, the applicant requested a Social Security Commissioner to grant leave to appeal.

5.	The application was late.  However, on 17 August 2015 the Chief Social Security Commissioner admitted the late appeal for special reasons.  From 15 July 2015 the applicant has been receiving ESA on foot of a new claim.

	Grounds

6.	The applicant submits that the tribunal has erred in law on the basis that:

(i)	the tribunal failed to address the issue of variable conditions correctly;

(ii)	the tribunal failed to address the Mobilising descriptors relating to repeated mobilising at 1(a)(ii), 1(c)(ii) and 1 (d)(ii);

(iii)	alternatively, the tribunal failed to state adequate reasons for its decision in respect of repeated mobilising;

(iv)	the tribunal decision contained an erroneous finding of fact regarding the question of whether the applicant had been driving recently;

(v)	he has a new previously undiagnosed condition of Diabetes;

(vi)	in addressing the activity of Continence the tribunal has not had proper regard to Commissioner’s decision C14/14-15(ESA).

7.	The Department was invited to make observations on the appellant’s grounds.  Mr Collins 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 had been given a copy of a reported decision of Chief Commissioner Martin by the applicant, SAG v Department for Social Development [2012] AACR 6.  This concerned the approach a tribunal should take to variable conditions.  The tribunal noted the content of the ESA50 questionnaire completed by the applicant, the content of a report from his general practitioner (GP) and the report of the HCP.

9.	The tribunal accepted that variability of a claimant’s condition should be taken into account.  It accepted that pain and discomfort should be factored in.  The tribunal accepted that the applicant would have pain and stiffness, particularly in the mornings, but found that the evidence suggested that after he had loosened up, he could attend to basic functions.  The tribunal observed that there had been little medical intervention.  It accepted that at times he might experience some soiling.  It further addressed the issue of claimed dizziness by stating that this had not been referred to by the GP and that the applicant was driving “until fairly recently”.

10.	Taking into account the HCP report, the tribunal found that most of the time the applicant would enjoy adequate function to perform the activities in the test.

	Hearing

11.	I held an oral hearing of the application.  The applicant attended in person and the Department was represented by Mr Collins of DMS.  I am grateful to both for their helpful submissions in writing and orally at hearing.  The applicant’s written submissions were well-directed to relevant matters of law and demonstrated a level of understanding and focus which was untypical of an unrepresented applicant.

12.	The applicant first submitted that the tribunal had failed to address the variability in his condition correctly, despite referencing SAG v DSD.  While noting that the tribunal indicated that the applicant was “slowing down and experiences discomfort” he submitted that the tribunal had ignored his own evidence that he had days where he could walk 300 yards and days when he could not walk 20 yards.

13.	He submitted that the tribunal had failed to address descriptors 1(a)(ii), 1(c)(ii) or 1(d)(ii) in the activity of Mobilising.  He submitted that the reasons for a tribunal’s decision should be obvious, but that it was not clear if it had considered the relevant statutory criteria.

14.	He submitted that the tribunal had made an error of fact in finding that he had been driving until recently, submitting that he had not driven for some 18 years.  Indeed, the HCP had reported the applicant as saying “Can drive but says that he hasn’t done this in years”.  This was a relevant factor in the tribunal’s approach to his claim of dizzy spells and blackouts.  He submitted that the tribunal had also erred in this matter by simply stating that it had not been referred to by his GP.  He had been referred for investigation of anaemia and had been diagnosed with Type 2 diabetes in the course of investigations.

15.	He referred to the tribunal’s treatment of the issue of incontinence, referring to my own decision of C14/14-15(ESA).  He submitted that the evidence of past soiling pointed to a risk of future soiling consistent with descriptor 9(b).

16.	Mr Collins for the Department submitted that the tribunal should apply a broad brush approach to variable conditions.  He referred to the record of proceedings and submitted that there had been consideration given to variability.  He submitted that the tribunal had relied upon the HCP report and that it had been reasonable for it to do so.  The report indicated little evidence of significant functional limitation.

17.	Mr Collins accepted the applicant’s submission that the tribunal had not evidently made findings as to particular descriptors within activities such as Mobilising.  However, he submitted that where the overall evidence suggested no significant functional limitation that the tribunal was not obliged to look at the individual activities.

18.	He accepted that the tribunal had made a factual error contrary to the evidence, regarding the applicant’s driving, which had been a factor in not accepting that the activity of Consciousness applied.  He noted that the tribunal was not aware of the diagnosis of Diabetes in the applicant’s case, even though this might have been relevant to the assessment of credibility as to this descriptor.

19.	Mr Collins further submitted that the issue of continence had been explored by the tribunal and the findings made that the applicant did not experience an extensive evacuation of the bowel such as to require cleaning and a change of clothing were consistent with the evidence.  However, the applicant submitted that the issue had not been investigated by the tribunal.  More generally, he submitted that the HCP report had not considered his overall condition thoroughly enough.

	Assessment

20.	The applicant has a number of health conditions, some of which were not diagnosed at the time of the decision under appeal but which were resulting in symptoms reported in the ESA50 completed prior to the date of decision.

21.	A tribunal does not err in law by failing to take into account circumstances which were not obtaining at the date of the decision under appeal.  A tribunal does not err in law by failing to take into account evidence which was not before it at the hearing of an appeal.

22.	Mr Collins for the Department submits that normally a tribunal would be expected to make findings in relation to individual activities claimed by an appellant.  However, he submits that where an appellant’s overall functional limitations are insignificant, a tribunal need not address them in the degree of detail normally expected.  I think that there is some force in that submission.

23.	In the present case the applicant has raised the issues of Mobilising, Standing and sitting, Manual dexterity, Continence and Consciousness.  He has further raised some mental health activities on the basis of depression.  The tribunal has dealt with the issues in a practical and common sense way.

24.	In relation to Continence and Consciousness, the HCP did not examine the applicant.  His GP did not refer to these conditions.  The only evidence was that of the applicant.

25.	In relation to Continence, the tribunal accepted that the applicant experienced soiling on occasion.  However, as he submits, it did not then consider the question of risk of soiling in terms of descriptor 9(b).  In relation to Consciousness, it rejected the applicant’s account in part because it misunderstood the factual position regarding his current ability to drive.  There was no evidence that the applicant was currently driving and the only evidence was to the effect that he had stopped several years previously.  Therefore it made an error in relation to an uncontested fact.

26.	The treatment of the evidence gives rise to an arguable case of error of law.  However, the treatment of the evidence might not necessarily amount to a material error of law, in the sense that it would have led to a different outcome.  Nevertheless, I have the benefit of hindsight and the results of investigations into the applicant’s health subsequent to the tribunal hearing.  In the particular case, I am satisfied that the tribunal’s consideration of the issues of Continence and Consciousness involved material errors of law in the light of the post-hearing investigations and the diagnosis of conditions which were likely to have been obtaining at the date of the decision under appeal.

27.	Consequently, I consider that I should allow the appeal and that I should set aside the decision of the appeal tribunal.

28.	This is not however a case in which I can decide the appeal on the evidence.  I direct that the appeal shall be determined by a newly constituted tribunal, who shall explore the applicant’s functional limitations at the date of the decision under appeal, taking into account the evidence of subsequent medical investigations, in order to determine whether he satisfied the LCWA at the relevant date.

(signed)  Odhrán Stockman

Commissioner

18 November 2015